[Federal Register Volume 66, Number 12 (Thursday, January 18, 2001)]
[Notices]
[Pages 5353-5356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-953]
[[Page 5353]]
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DEPARTMENT OF LABOR
Office of the Secretary
Bureau of International Labor Affairs; Notice of Final List of
Products Requiring Federal Contractor Certification as to Forced or
Indentured Child Labor Under Executive Order No. 13126
SUMMARY: As required by Executive Order No. 13126 (``Prohibition of
Acquisition of Products Produced by Forced or Indentured Child
Labor''), this notice sets forth a final list of products, by country
of origin, which the Department of Labor, the Department of State, and
the Department of the Treasury believe may have been mined, produced,
or manufactured by forced or indentured child labor. Under a final rule
by the Federal Acquisition Regulatory Council, published in today's
issue of the Federal Register, which also implements Executive Order
No. 13126, federal contractors who supply products on the list are
required to certify, among other things, that they have made a good
faith effort to determine whether forced or indentured child labor was
used to produce the item. The Department of Labor is also publishing,
in today's issue of the Federal Register, procedural guidelines that
describe how the list of products will be updated in the future,
through a public notice-and-comment process.
FOR FURTHER INFORMATION CONTACT: Ami Thakkar, International Child Labor
Program, Bureau of International Labor Affairs, Room S-5303, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone: (202) 208-4843; fax: (202) 219-4923.
SUPPLEMENTARY INFORMATION:
I. Background
Executive Order No. 13126, which was published in the Federal
Register on June 19, 1999 (64 FR 32383-32385), required the Federal
Acquisition Regulatory Council (the Civilian Agency Acquisition Council
and the Defense Acquisition Regulations Council) to issue proposed
rules to amend the Federal Acquisition Regulation (FAR), with respect
to the procurement by federal agencies of products that may have been
mined, produced, or manufactured with forced or indentured child labor.
A proposed rule was published in the Federal Register on September 6,
2000 (65 FR 54104-54107), and public comment was invited. A final rule
is being published in today's Federal Register.
Under that final rule, certain procurement related requirements
will apply to products that appear on a list published by the
Department of Labor, pursuant to Section 2 of Executive Order No.
13126, which required the Department of Labor, in consultation and
cooperation with the Department of the Treasury and the Department of
State, to ``publish in the Federal Register a list of products,
identified by their country of origin, that those Departments have a
reasonable basis to believe might have been mined, produced, or
manufactured by forced or indentured child labor.''
As authorized by the Executive Order, the Department of Labor held
a public hearing on August 10, 1999, at which several witnesses
presented oral and written testimony concerning the development of a
list of products. On September 6, 2000, in consultation and cooperation
with the Department of State and the Department of the Treasury, the
Department of Labor published a preliminary list of products in the
Federal Register (65 FR 54108-54112), explained how the preliminary
list was developed, and invited public comment. The public comment
period closed on November 6, 2000.
II. Summary and Discussion of Significant Comments
Twenty-four comments were received. In developing the final list of
products, the three Departments have carefully reviewed and considered
the public comments received. The following is a summary of the
significant comments and the three Departments' response.
A. Comments on the definition of ``forced or indentured child labor''
Several comments raise issues related to the definition of ``forced
or indentured child labor'' used in determining the proposed list of
products that may be produced by forced or indentured child labor.
Executive Order No. 13126 defines
``forced or indentured child labor'' as: all work or service (1)
exacted from any person under the age of 18 under the menace of any
penalty for its nonperformance and for the worker does not offer
himself voluntarily; or (2) performed by any person under the age of
18 pursuant to a contract the enforcement of which can be
accomplished by process or penalties.
As explained in the Department of Labor's September 6, 2000 Federal
Register notice, the ``two aspects of the definition represent
alternatives which are not mutually exclusive.'' 65 FR 54109.
The definition of ``forced or indentured child labor'' in Executive
Order No. 13126 is derived from, and generally consistent with, the
Tariff Act of 1930, 19 U.S.C. 1307. That statute, enforced by the
Customs Service of the Treasury Department, prohibits the importation
into the United States of ``all goods, wares, articles, and merchandise
mined, produced, or manufactured wholly or in part in any foreign
country by convict labor or/and forced labor or/and indentured labor
under penal sanctions.''
The Tariff Act specifically defines ``forced labor'' as ``all work
or service which is exacted from any person under the menace of any
penalty for its nonperformance and for which the worker does not offer
himself voluntarily.'' The first part of the Executive Order's
definition of ``forced or indentured child labor'' incorporates this
statutory language.
The Tariff Act does not specifically define ``indentured labor
under penal sanctions'' (the term used in that statute). The second
part of the Executive Order's definition of ``forced or indentured
child labor'' is intended to incorporate the Tariff Act's concept of
indentured labor, as it involves children. This part of the Executive
Order definition is derived directly from the legislative history of
the Tariff Act. See 71 Cong. Rec. 4488-4499 (daily ed. Oct. 14, 1929).
In comments on behalf of the organizations in the Child Labor
Coalition, the International Labor Rights Fund questions the definition
of ``forced or indentured child labor'' in the Executive Order and
urges the development of a different, significantly broader definition.
The Fund's comments identify various abusive working conditions that
the Fund suggests ``should be encompassed explicitly in the definition
of `forced or indentured child labor.' '' The Fund's comments do not
refer to any specific basis in U.S. or international law for such an
expanded definition.
The Department of Labor's September 6, 2000 Federal Register notice
explained how the Labor, State, and Treasury Departments have applied
the definition in the Executive Order and have evaluated a wide range
of working conditions for the possibility of coercion, the essential
element of the first part of the definition. 65 FR 54109. The
Department of Labor, in consultation and cooperation with the
Departments of State and Treasury, is charged with implementing the
Executive Order and its definition of ``forced or indentured child
labor.'' That definition is appropriately derived from the Tariff Act,
as explained above, since the Executive Order embodies a procurement
policy intended to be consistent with the Tariff Act. As has
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been previously noted, some child labor abuses may not meet the
established definition of ``forced or indentured child labor.''
The United States Council for International Business, in a comment
noting its strong support for international efforts to end forced and
indentured child labor, asks for clarification concerning the second
part of the definition of ``forced or indentured child labor'' in the
Executive Order with respect to situations in which persons under age
18: (1) Work under a legally enforceable ``collective bargaining
agreement freely negotiated by the employer and the union representing
workers in the bargaining unit;'' or (2) work under individual
employment contracts that contain a ``penalty clause that is triggered
by early termination,'' but where ``excessive process or penalties''
(as opposed to ``customary cancellation penalties'') are not involved.
The information provided by the U.S. Council is not detailed,
especially with respect to individual employment contracts and the so-
called ``penalty clause.'' On the basis of the description provided by
the U.S. Council, however, it appears possible, depending on the facts,
that neither situation would come within the second part of the
Executive Order's definition of ``forced or indentured child labor,''
as interpreted consistently with the Tariff Act of 1930. As a general
matter, there is no indication that Congress was concerned about
legitimate collective bargaining agreements or legitimate employment
contracts, providing for ordinary legal remedies, when it enacted the
Tariff Act. In any case, neither situation described by the U.S.
Council clearly implicates the concept of indentured labor under penal
sanctions. For example, a child apparently would not be subject to
criminal penalties, to a judicial order requiring the child to continue
working, or to a state-sanctioned monetary penalty, as a means of
enforcing the agreement or contract. With respect to employment
contracts, the U.S. Council does not appear to be describing truly
punitive provisions, designed to deter young workers from quitting
employment in circumstances of exploitation or duress. Because there is
no suggestion that children are being coerced to enter into a contract
or to work under it, the first part of the Executive Order definition
also may not apply to the situations described by the U.S. Council. The
application of the Executive Order, of course, will depend on the
specific factual circumstances of particular cases. Circumstances that
suggest coercion, including coercion related to making or enforcing
employment contracts, will be carefully examined.
In his comment, Senator Tom Harkin raises concerns about the
application of the definition of ``forced or indentured child labor''
in the development of the list of products. The Departments have
attempted to apply the definition in a way that is both consistent with
the Tariff Act and takes into account the actual circumstances in which
children work. We will continue to do so, based on available
information, as the list of products is updated.
B. Comment on Statutory Authority
One comment questions the statutory authority for action by the
three Departments to implement Executive Order 13126, since matters of
federal acquisition policy are involved. The list of products called
for in the Executive Order serves to trigger requirements for federal
contractors under revisions to the Federal Acquisition Regulation, to
be adopted by the Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council. The authority for the Executive Order,
and for the regulations that implement it, derives in part from the
Federal Property and Administrative Services Act of 1949 (also known as
the Procurement Act), 40 U.S.C. 471 et seq., which among other things
authorizes the President to prescribe federal acquisition policy and
directives.
C. Comment on the Burden of Proof Once a Product Is Listed
Senator Harkin expresses concern that products might be removed
from the list, if new information demonstrating the continued use of
forced or indentured child labor were not regularly supplied by non-
governmental sources. He suggests instead that products should remain
on the list, unless new information showed that the prior use of forced
or indentured child labor had been effectively addressed. In fact, the
list will be updated in line with the principle supported by Senator
Harkin. Once a product is placed on the list, it will remain there,
unless and until the three Departments have adequate information to
justify removing the product from the list. The public notice-and-
comment process by which the list will be updated is described in a
separate notice in today's Federal Register.
D. Comment on the ``Reasonable Basis to Believe'' Standard
The International Labor Rights Fund, on behalf of the other
organizations in the Child Labor Coalition, requests clarification of
the Executive Order's standard for placing a product on the list: That
the three Departments have a ``reasonable basis to believe'' that
forced or indentured child labor was used. The Fund is correct in
pointing out that this threshold is relatively low. The standard is
appropriate, given the nature of the list. The list does not reflect a
determination that forced or indentured child labor actually was used
to produce a particular product. Rather, it establishes the need for
further inquiry by a federal contractor who wishes to supply the
product, in order to make sure that forced or indentured child labor
was not, in fact, used.
As the September 6, 2000 Federal Register notice explained, the
three Departments have applied the ``reasonable basis to believe''
standard to develop the list. There, we identified several factors that
were considered and weighed: ``the nature of the information describing
the use of forced or indentured child labor; the source of the
information; the date of the information; the extent of corroboration
of the information by appropriate sources; and whether the information
involved more than an isolated incident.'' 65 FR 54109. The three
Departments have also taken into account ``whether recent, credible
efforts are being made to address forced or indentured child labor in a
particular country.'' 65 FR 54109.
E. Comments on Effect of Prior Executive Branch Reports Addressing
Child Labor
The International Labor Rights Fund, on behalf of the Child Labor
Coalition, questions whether the three Departments gave sufficient
weight to prior reports addressing the use of child labor, published by
the Department of Labor and the Department of State. In particular, the
Fund states that the Department of Labor's series By the Sweat and Toil
of Children ``should constitute prima facie evidence for purposes of
identifying countries and products that should be identified pursuant
to E.O. 13126.'' In fact, the three Departments did consider previously
published reports and carefully reviewed information that was cited in
those reports. The reports themselves, however, cannot serve as a
substitute for the determination required by Executive Order. Moreover,
in some instances, the reports completed in 1994 and 1995 relied upon
information that may no longer be considered current, in a few cases
the reports reflected information on isolated occurrences, and in
others, there is information on more recent and credible
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efforts to eliminate child labor in the product identified.
F. Comments on the Inclusion of Products From Burma
Several comments were received supporting the inclusion of products
from Burma on the preliminary list. These comments include a letter
from a number of members of Congress, specifically Representatives
Kucinich, Kaptur, McHugh, Evans, Slaughter, Nadler, Sanders, Waxman,
George Miller, Payne, Ackerman, DeFazio, Abercrombie, Delahunt,
McDermott, Tierney, McKinney, McGovern, Lee, Moakley, Carson, Doggett,
Stark, Sandlin, Baldwin, and Sherrod Brown.
G. Comments on the Exclusion of Certain Products and Countries
Various comments express a concern that the list included an
insufficient number of products and countries. For example, many of the
comments, including those from Representatives Tom Campbell and Tom
Tancredo, object to the exclusion of several countries, on the basis
that these countries have well known ``forced and indentured labor
systems''. Some comments refer to Congressional testimony where
specific products were named by region as examples of products
``flowing into America.'' One comment, discussed below, mentions a
specific product and country.
As explained, in considering which products and countries would be
placed on the preliminary list, the three Departments considered and
weighed a number of factors including: The nature of the information
describing the use of forced or indentured child labor; the source of
the information; the date of the information; the extent of
corroboration of information by appropriate sources; whether the
information involved more than an isolated incident; and whether recent
and credible efforts are being made to address forced or indentured
child labor in a particular country or industry.
None of the comments described above provides additional
information sufficient to support the inclusion of additional products
and countries on the list. First, the Executive Order required the
development of a list of products, by country of origin. Many of the
comments named countries, but failed to identify specific products. In
other cases, products were mentioned without reference to specific
countries. Second, to satisfy the Executive Order standard, the
Departments must have information on an individual product, in a
particular country, which may be made with forced or indentured child
labor. Such information was not provided in the comments received, with
one exception. Third, the scope of the Executive Order is limited to
forced and indentured child labor, that is labor by persons under the
age of 18. The comments received refer to forced labor in a country and
in some cases, sector. However, this alone does not provide sufficient
information of forced or indentured child labor.
The Department of Labor welcomes future submissions providing
information on specific products produced by forced or indentured child
labor in specific countries. Submissions should follow the procedures
outlined elsewhere in today's Federal Register.
As indicated, one comment did provide current and specific
information: Professor Kevin Bales of Free the Slaves submitted new
information concerning the use of forced or indentured child labor in
the cocoa industry in the Ivory Coast. Since this product was not
considered when creating the preliminary list, the International Child
Labor Program of the Bureau of International Labor Affairs will
consider the information as a submission for review pursuant to the
newly-announced procedures for updating the current list.
H. Comments on Recent and Credible Efforts
Several comments question the factors which the three Departments
took into consideration when determining which products and countries
would be on the list. Senator Tom Harkin states that the presence of
programs or the commitment to initiate programs aimed at eliminating
child labor is not a justification to leave any product or country off
the list.
The International Labor Rights Fund, on behalf of the Child Labor
Coalition, makes a similar comment regarding carpets in South Asia,
stating that efforts being undertaken in the industry to eliminate
child labor did not justify their exclusion.
Again, in considering which products and countries would be placed
on the preliminary list, the three Departments took into consideration
a number of factors including the extent of recent and credible efforts
undertaken in a particular country and industry aimed at addressing
forced or indentured child labor. The Department of Labor will continue
to assess the progress of these efforts and welcomes further
information from the public on them.
I. Comments on Products From India
Senator Harkin and several other submitters specifically object to
the failure to include any products from India on the list. The three
Departments based their decision on the fact that the Government of
India is now making extensive efforts, in collaboration with the
International Labor Organization's International Program on the
Elimination of Child Labor to prevent and eliminate child labor in the
following sectors: hand-rolled beedi cigarettes, brassware, hand-made
bricks, fireworks, footwear, hand-blown glass bangles, hand-made locks,
hand-dipped matches, hand-broken quarried stones and hand-spun/hand-
loomed silk. The Department of Labor will monitor the effectiveness of
these efforts, and will welcome public comments on the credibility and
progress of such efforts.
J. Other Comments
One comment states that the description of the products listed on
the preliminary list were ``vague'' and that products should be
identified by the standard category codes that are used by the Customs
Service and Census Bureau. The three Departments believe that the
descriptions are sufficiently specific. The Executive Order does not
require the use of standard category codes in the products list. At
this time, the Departments do not have reason to believe that the
addition of standard category codes to the list would result in more
efficient implementation of the Executive Order.
Another comment suggests that the inputs of the Department of State
and Treasury into the Executive Order consultation process be described
and that the joint determination process for compiling the list be
disclosed. The Departments of Labor, State and Treasury consulted
extensively before compiling the list, as mandated by the Executive
Order. As a result, the preliminary list underwent a thorough
interagency process.
Another similar comment suggests that the responsibility of
implementing the Executive Order should rest with an acquisition policy
agency, with advisory and support roles by the Departments of Labor,
State and Treasury. In fact, as already described, the appropriate
acquisition organizations are responsible for implementing the
Executive Order, through revisions to the Federal Acquisition
Regulation. Furthermore, the Executive Order mandates the Department of
Labor, in coordination with the Departments of State and Treasury to
publish a list of products.
Several comments suggest a broader scope for the Executive Order,
rather than its current mandate to prohibit the acquisition of goods
made with forced
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or indentured child labor by the federal government. These comments are
beyond the scope of the present initiative, which is intended to
implement the Executive Order, not to modify it. Development of a
products list, and accompanying procurement regulations, based on
standards broader than those in the Executive Order would require
additional public notice-and-comment procedures, as well as significant
additional research and investigation by the three Departments. These
steps would unnecessarily delay the implementation of the Executive
Order. Without ruling out the possibility of future steps, should they
be determined to be appropriate, the three Departments have chosen to
proceed to finalize the product list contemplated by the Executive
Order.
K. Request for Information on Carpets
In the preliminary notice, the three Departments invited comment on
the measures taken in South Asia to eliminate forced and indentured
labor in the carpet sector, including labeling and monitoring
initiatives that are currently in place. Specifically, the Department
sought public comment on the sufficiency of these initiatives and
whether or not a certification or label from a credible monitoring
program could adequately serve the purposes of the Executive Order. The
Departments received a comment from the International Labor Rights
Fund, on behalf of the Child Labor Coalition, stating that there are
impressive programs dealing with child labor in the carpet sector,
particularly Rugmark. The submitter also said in order to avoid giving
``a free pass'' to producers who are not participating in the
innovative programs, carpets should be included on the list. Although
carpets are not being included in this final list, the Departments are
considering how best to address the issue raised by the International
Labor Rights Fund, while continuing to encourage innovative labeling
and monitoring initiatives in the carpet sector. The Department of
Labor requests additional public comment on the issue raised by the
International Labor Rights Fund.
L. Request for Information on Cotton and Sugarcane
The Departments requested information on whether there was forced
or indentured child labor in the production of cotton and sugarcane in
Pakistan. No comments were received and existing information is
insufficient; therefore, the Departments have not included these
products on the final list.
III. Final List of Products
The three Departments have determined that it would be appropriate
to publish a final list of products that comprises the products on the
preliminary list. No comments objected to the inclusion of these
products. The basis for including those products on the list is set
forth in detail in the Department of Labor's September 6, 2000 notice
in the Federal Register (65 FR 54108-54112). The final list of products
appears below. In addition, in today's issue of the Federal Register,
the Department of Labor is publishing procedural guidelines for
updating the final list in the future.
Based on recent, credible, and appropriately corroborated
information from various sources, the Department of Labor, the
Department of State, and the Department of the Treasury have concluded
that there is a reasonable basis to believe that the following
products, identified by their country of origin, might have been mined,
produced, or manufactured by forced or indentured child labor:
Bamboo(Burma)
Beans (including yellow, soya, and green beans) (Burma)
Bricks (hand-made) (Burma, Pakistan)
Chilies (Burma)
Corn (Burma)
Pineapples (Burma)
Rice (Burma)
Rubber (Burma)
Shrimp (aquaculture)(Burma)
Sugarcane (Burma)
Teak (Burma)
Signed at Washington, D.C., this 5th day of January, 2001.
Andrew J. Samet,
Deputy Under Secretary for International Affairs.
[FR Doc. 01-953 Filed 1-17-01; 8:45 am]
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