[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]
BILLING CODE 4510-28-P