[Federal Register Volume 89, Number 138 (Thursday, July 18, 2024)]
[Proposed Rules]
[Pages 58323-58326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15565]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 22 and 52

[FAR Case 2024-004, Docket No. FAR-2024-0004, Sequence No. 1]
RIN 9000-AO72


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

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: 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.

DATES: 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.

ADDRESSES: Submit comments in response to FAR Case 2024-004 to the 
Federal eRulemaking portal at https://www.regulations.gov 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 https://www.regulations.gov, call or email the point of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: 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 https://www.regulations.gov, 
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 https://www.regulations.gov/faq). To confirm receipt of your comment(s), 
please check https://www.regulations.gov, approximately two to three 
days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Jennifer Hawes, Procurement Analyst, at 202-969-7386 or by email at 
[email protected]. For information pertaining to status, 
publication schedules, or alternate instructions for submitting 
comments if https://www.regulations.gov cannot be used, contact the 
Regulatory Secretariat Division at 202-501-4755 or [email protected]. 
Please cite FAR Case 2024-004.

SUPPLEMENTARY INFORMATION:

I. Background

    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.

II. Discussion and Analysis

A. Definition

    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.

B. Agency Responsibilities

    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

[[Page 58324]]

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.

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

    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.

IV. Expected Impact of the Rule

A. Definition

    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 
``patronizing'' and ``soliciting'' are not expected to have a 
substantial impact on the interpretation of what constitutes ``sex 
trafficking'' since the definition already includes ``recruitment. . 
.of a person for the purpose of a commercial sex act.''

B. Agency Responsibilities

    FAR 22.1704(c)(2)(i) requires the agency head to delegate to an 
authorized official, such as the agency suspending and debarring 
official, the responsibility to conduct an administrative proceeding 
and make a final determination regarding whether the allegations of a 
violation of trafficking in persons in the agency Inspector General 
report are substantiated. This proposed rule, if finalized, will not 
have a significant impact on agencies that already delegate the 
responsibility to conduct administrative proceedings to their agency 
suspending and debarring official, as currently suggested at FAR 
22.1704(c)(2)(i). Those agencies that do not currently delegate to 
their suspending and debarring official will need to adjust their 
internal procedures to also refer the matter to the agency suspending 
and debarring official. This change will ensure that the agency 
suspending and debarring official is made aware of the Inspector 
General report while the agency is conducting the administrative 
proceeding. Paragraph (e) of FAR clause 52.222-50 already puts the 
contractor on notice that suspension or debarment is a potential remedy 
for violations under the contract, so this change to Government 
procedures is not anticipated to have a significant impact on 
contractors; however, it is expected that contractors will take note of 
the direct referral to the suspending and debarring official and may 
choose to validate procedures they already have in place to combat 
trafficking in persons.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563 
direct agencies to assess costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). E.O. 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This is not a significant regulatory action and, 
therefore, was not subject to review under Section 6(b) of E.O. 12866, 
Regulatory Planning and Review, dated September 30, 1993.

VI. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this proposed rule, if finalized, 
to have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 
601-612, because the updates to the statutory definitions and 
clarification of agency procedures are not substantive. However, an 
Initial Regulatory Flexibility Analysis (IRFA) has been performed and 
is summarized as follows:

    DoD, GSA, and NASA are proposing to revise the FAR to implement 
the following statutory amendments to a definition and agency 
responsibilities associated with combating trafficking in persons in 
Federal contracts:

[[Page 58325]]

     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.
    Requirements for combating trafficking in persons on Government 
contracts are implemented in FAR subpart 22.17, Combating 
Trafficking in Persons, and the clause at FAR 52.222-50, Combating 
Trafficking in Persons. This proposed rule, if finalized, would 
amend FAR 22.1702 and paragraph (a) of FAR clause 52.222-50 to 
revise the definition of ``sex trafficking.'' This proposed rule, if 
finalized, would also revise FAR 22.1704(c)(2) to require that, upon 
receipt of an agency Inspector General report that provides support 
for allegations of violations of trafficking in persons 
prohibitions, the agency head refer the matter to the agency 
suspending or debarring official. Promulgation of the FAR is 
authorized by 40 U.S.C. 121(c); 10 U.S.C. chapter 137 legacy 
provisions (see 10 U.S.C. 3016); and 51 U.S.C. 20113.
    The clause at FAR 52.222-50 continues to be prescribed for use 
in all solicitations and contracts. Therefore, this rule will apply 
to any small business competing on Government contracts. As of 
November 2023, there were approximately 362,000 entities registered 
in the System for Award Management who reported that they are a 
small business for at least one North American Industry 
Classification System code.
    Paragraph (b) of the clause at FAR 52.222-50 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 form 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.'' Contractors and their 
subcontractors are required to notify their employees and agents of 
the prohibition in paragraph (b) of the FAR clause and to take 
appropriate actions against employees or agents who violate the 
prohibition (see FAR 52.222-50(c) and (i)(1)). They are also 
required 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 (see FAR 52.222-50(d) and (i)(1)).
    This proposed rule does not propose any changes to these 
existing notification or compliance requirements for small 
businesses, 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 ``patronizing'' and ``soliciting'' are not 
expected to have a substantial impact on the interpretation of what 
constitutes ``sex trafficking'' since the definition already 
includes ``recruitment . . . of a person for the purpose of a 
commercial sex act.''
    The proposed amendments to require referral to the agency 
suspending and debarring official do not create any additional 
reporting or compliance requirements for small businesses. Paragraph 
(e)(7) of the clause at FAR 52.222-50 already puts contractors and 
subcontractors on notice that suspension and debarment are potential 
remedies for substantiated violations.
    The proposed rule, if finalized, would not duplicate, overlap, 
or conflict with other Federal rules.
    There are no significant alternatives to the rule. This rule 
will not have a significant economic impact on small entities.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this proposed rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2024-004), 
in correspondence.

VII. Paperwork Reduction Act

    This rule affects the information collection requirements in the 
clause at FAR 52.222-50, currently approved under Office of Management 
and Budget (OMB) Control Number 9000-0188, Combating Trafficking in 
Persons, in accordance with the Paperwork Reduction Act (44 U.S.C. 
3501-3521). The impact, however, is negligible, because the changes to 
the definition are not expected to impact the number of respondents, 
responses, or burden per response.

List of Subjects in 48 CFR Parts 22 and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 22 and 
52 as set forth below:

0
1. The authority citation for 48 CFR parts 22 and 52 continues to read 
as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS


22.1702  [Amended]

0
2. Amend section 22.1702 in the definition of ``Sex trafficking'' by 
removing ``or obtaining'' and adding ``obtaining, patronizing, or 
soliciting'' in its place.
0
3. Amend section 22.1704 by--
0
a. Revising paragraph (c)(2);
0
b. Removing from paragraph (d) introductory text ``(c)(2)(ii)'' and 
adding ``(c)(2)(i)(B)'' in its place;
0
c. Removing from paragraph (d)(2) introductory text ``paragraph (e)'' 
and adding ``paragraphs (e)(1) through (6)'' in its place.
    The revision reads as follows:


22.1704  Violations and remedies.

* * * * *
    (c) * * *
    (2) (i) Upon receipt of a report from the agency Inspector General 
that provides support for the allegations, the head of the executive 
agency shall--
    (A) Refer the matter to the agency suspending and debarring 
official; and
    (B) In accordance with agency procedures, delegate to an authorized 
agency official, who may also be the agency suspending or debarring 
official, the responsibility to--
    (1) Expeditiously conduct an administrative proceeding, allowing 
the contractor the opportunity to respond to the report;
    (2) Make a final determination as to whether the allegations are 
substantiated; and
    (3) Notify the contracting officer of the determination.
    (ii) Whether or not the official authorized to conduct the 
administrative proceeding described in paragraph (c)(2)(i)(B) of this 
section is the suspending and debarring official, the suspending and 
debarring official

[[Page 58326]]

has the authority, at any time before or after the final determination 
as to whether the allegations are substantiated, to use the suspension 
and debarment procedures in subpart 9.4 to suspend, propose for 
debarment, or debar the contractor, if appropriate, also considering 
the factors in paragraph (d)(2) of this section.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(39)(i) ``(NOV 2021)'' and adding 
``(DATE)'' in its place;
0
c. Removing from paragraph (e)(1)(xvi)(A) ``(NOV 2021)'' and adding 
``(DATE)'' in its place;
0
d. In Alternate II:
0
i. Revising the date of the Alternate;
0
ii. Removing from paragraph (e)(1) introductory text ``(c),'' and 
adding ``(c)'' in its place;
0
iii. Removing from paragraph (e)(1)(ii)(O)(1) ``(NOV 2021)'' and adding 
``(DATE)'' in its place; and
0
iv. Removing from paragraph (e)(1)(ii)(O)(2) ``(Mar 2015)'' and adding 
``(MAR 2015)'' in its place.
    The revisions read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Products and Commercial Services (DATE)

* * * * *
    Alternate II (DATE). * * *
* * * * *
0
5. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a)(2)(vii) ``(FEB 2024)'' and adding 
``(DATE)'' in its place; and
0
c. Removing from paragraph (b)(1)(ix)(A) ``(NOV 2021)'' and adding 
``(DATE)'' in its place.
    The revision reads as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Products and Commercial Services) (DATE)

* * * * *
0
6. Amend section 52.222-50 by--
0
a. Revising the date of the clause; and
0
b. In paragraph (a) in the definition of ``Sex trafficking'' by 
removing ``or obtaining'' and adding ``obtaining, patronizing, or 
soliciting'' in its place.
    The revision reads as follows:


52.222-50  Combating Trafficking in Persons.

* * * * *

Combating Trafficking in Persons (DATE)

* * * * *
0
7. Amend section 52.244-6 by--
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (c)(1)(xvii)(A) ``(NOV 2021)'' and adding 
``(DATE)'' in its place.
    The revision reads as follows:


52.244-6  Subcontracts for Commercial Products and Commercial Services.

* * * * *

Subcontracts for Commercial Products and Commercial Services (DATE)

* * * * *
[FR Doc. 2024-15565 Filed 7-17-24; 8:45 am]
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