Federal Acquisition Regulation: Combating Trafficking in Persons-Definition and Agency Responsibilities

DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION <CFR>48 CFR Parts 22 and 52</CFR> <DEPDOC>[FAR Case 2024-004, Docket No. FAR-2024-0004, Sequence No. 1]</DEPDOC> <RIN>RIN 9000-AO72</RIN> <SUBJECT>Federal Acquisition Regulation: Combating Trafficking in Persons—Definition and Agency Responsibilities</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement statutory updates to a definition and to agency responsibilities associated with combating trafficking in persons in Federal contracts. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Interested parties should submit written comments to the Regulatory Secretariat Division at the address shown below on or before September 16, 2024 to be considered in the formation of the final rule. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit comments in response to FAR Case 2024-004 to the Federal eRulemaking portal at <E T="03">https://www.regulations.gov</E> by searching for “FAR Case 2024-004”. Select the link “Comment Now” that corresponds with “FAR Case 2024-004”. Follow the instructions provided on the “Comment Now” screen. Please include your name, company name (if any), and “FAR Case 2024-004” on your attached document. If your comment cannot be submitted using <E T="03">https://www.regulations.gov,</E> call or email the point of contact in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section of this document for alternate instructions. <E T="03">Instructions:</E> Please submit comments only and cite “FAR Case 2024-004” in all correspondence related to this case. Comments received generally will be posted without change to <E T="03">https://www.regulations.gov,</E> including any personal and/or business confidential information provided. Public comments may be submitted as an individual, as an organization, or anonymously (see frequently asked questions at <E T="03">https://www.regulations.gov/faq</E> ). To confirm receipt of your comment(s), please check <E T="03">https://www.regulations.gov,</E> approximately two to three days after submission to verify posting. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For clarification of content, contact Ms. Jennifer Hawes, Procurement Analyst, at 202-969-7386 or by email at <E T="03">jennifer.hawes@gsa.gov.</E> For information pertaining to status, publication schedules, or alternate instructions for submitting comments if <E T="03">https://www.regulations.gov</E> cannot be used, contact the Regulatory Secretariat Division at 202-501-4755 or <E T="03">GSARegSec@gsa.gov.</E> Please cite FAR Case 2024-004. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> DoD, GSA, and NASA are proposing to revise the FAR to implement the following statutory amendments to a definition and to agency responsibilities associated with combating trafficking in persons in Federal contracts: • Section 108 of the Justice for Victims of Trafficking Act of 2015 (Pub. L. 114-22) amended the definition of “sex trafficking” at 22 U.S.C. 7102 to clarify the range of conduct considered sex trafficking. • Section 2 of the End Human Trafficking in Government Contracts Act of 2022 (Pub. L. 117-211) amended 22 U.S.C. 7104b(c)(1) to require that, upon receipt of an Inspector General's report substantiating an allegation of violations by a contractor or subcontractor, the agency head refer the matter to the agency suspending and debarring official. <HD SOURCE="HD1">II. Discussion and Analysis</HD> <HD SOURCE="HD2">A. Definition</HD> DoD, GSA, and NASA are proposing amendments to FAR subpart 22.17, Combating Trafficking in Persons, and the clause at FAR 52.222-50, Combating Trafficking in Persons, to align the definition of “sex trafficking” with the statutory definition of this term at 22 U.S.C. 7102. This proposed rule would clarify the definition of “sex trafficking” at FAR 22.1702 and paragraph (a) of the clause at FAR 52.222-50 to also include “patronizing” or “soliciting” a person for the purpose of a commercial sex act, in accordance with Federal law. The term “sex trafficking” is used in the definition of “severe forms of trafficking in persons” in the same FAR section and clause; therefore, the proposed revisions to the definition of “sex trafficking” in the section and clause will affect the definition of “severe forms of trafficking in persons.” The proposed revisions have the effect of clarifying that patronizing or soliciting a person for the purpose of a commercial sex act, where the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age, is a “severe form of trafficking in persons.” Conforming changes are also proposed to update the date of FAR clause 52.222-50 where it is referenced in the clauses at FAR 52.212-5, Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Products and Commercial Services; FAR 52.213-4, Terms and Conditions—Simplified Acquisitions (Other Than Commercial Products and Commercial Services); and FAR 52.244-6, Subcontracts for Commercial Products and Commercial Services. <HD SOURCE="HD2">B. Agency Responsibilities</HD> DoD, GSA, and NASA are also proposing to update agency responsibilities to align with the statutory requirements at 22 U.S.C. 7104b(c)(1). Currently, FAR 22.1704(c)(2)(i) requires that, upon receipt of a report from an agency Inspector General that provides support for allegations of a violation of the trafficking in persons prohibitions, the head of the Executive agency delegate to an authorized agency official, such as the agency suspending or debarring official, the responsibility to conduct an administrative proceeding and make a final determination regarding whether the allegations have been substantiated. DoD, GSA, and NASA are proposing to update FAR 22.1704(c)(2)(i) by adding to the agency head's responsibilities the requirement to refer the matter to their agency suspending and debarring official, as required by 22 U.S.C. 7104b(c)(1). Conforming amendments are proposed at FAR 22.1704(d) to clarify that the contracting officer procedures in the subordinate paragraphs apply when a final determination is made in accordance with FAR 22.1704(c)(2)(i)(B), instead of FAR 22.1704(c)(2)(ii). This proposed rule would also update FAR 22.1704(d)(2) to clarify that the remedies that may be taken by the contracting officer after such a determination are limited to those listed in paragraphs (e)(1) through (6) of the clause at FAR 52.222-50; the remedy at paragraph (e)(7) of the clause to suspend or debar a contractor is available to the suspending and debarring official. <HD SOURCE="HD1">III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Products (Including Commercially Available Off-the-Shelf (COTS) Items), or for Commercial Services</HD> This rule amends the clause at FAR 52.222-50 to update the definition of “sex trafficking.” However, this rule does not impose any new requirements on contracts or subcontracts valued at or below the SAT or for commercial products and commercial services, including COTS items. The clause continues to apply to contracts and subcontracts valued at or below the SAT and to acquisitions for commercial products and commercial services, including COTS items. <HD SOURCE="HD1">IV. Expected Impact of the Rule</HD> <HD SOURCE="HD2">A. Definition</HD> Paragraph (b) of the clause at FAR 52.222-50, Combating Trafficking in Persons, prohibits a contractor and its employees and agents from engaging in severe forms of trafficking in persons during the period of performance of the contract. “Severe forms of trafficking in persons,” as defined in 22 U.S.C. 7102 and paragraph (a) of the FAR clause, includes “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.” Paragraph (c) of the FAR clause requires the contractor to notify their employees, subcontractors, and agents of this prohibition and take appropriate actions against employees, subcontractors, and agents who violate this prohibition. Paragraph (d) of the FAR clause requires the contractor to inform the contracting officer and Inspector General immediately of any credible information they receive that alleges an employee, subcontractor, subcontractor employee, or agent has violated the prohibition. Contractors are required to flow the substance of the clause down to their subcontractors, to ensure subcontractors at all tiers are subject to the same prohibition and compliance requirements (see FAR 52.222-50(i)(1)). This proposed rule, if finalized, would not change these existing notification or compliance requirements, except to clarify (pursuant to 22 U.S.C. 7102) that “patronizing” or “soliciting” of a person for the purpose of a commercial sex act, where such act is induced by force, fraud, or coercion or the person induced to perform such act has not attained 18 years of age, is a “severe form of trafficking in persons.” When notifying their employees, subcontractors, and agents of the Government's prohibition on engaging in “severe forms of trafficking in persons” during performance of the contract, contractors and subcontractors will need to ensure their notification reflects the revised definition of “sex trafficking.” In addition, the proposed changes to the definition of “sex trafficking” to add “patronizin ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 24k characters. 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