[Federal Register Volume 77, Number 64 (Tuesday, April 3, 2012)]
[Notices]
[Pages 20051-20054]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7961]
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DEPARTMENT OF LABOR
Office of the Secretary
Notice of Final Determination Revising the List of Products
Requiring Federal Contractor Certification as to Forced or Indentured
Child Labor Pursuant to Executive Order 13126
AGENCY: Bureau of International Labor Affairs, Labor.
ACTION: Notice of final determination.
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SUMMARY: This final determination revises the list required by
Executive Order 13126 (``Prohibition of Acquisition of Products
Produced by Forced or Indentured Child Labor''), in accordance with the
``Procedural Guidelines for the Maintenance of the List of Products
Requiring Federal Contractor Certification as to Forced or Indentured
Child Labor Under 48 CFR Subpart 22.15 and E.O. 13126.'' This notice
revises the list by adding three products, Bricks from Afghanistan and
Cassiterite and Coltan from the Democratic Republic of the Congo, that
the Departments of Labor, State and Homeland Security believe might
have been mined, produced, or manufactured by forced or indentured
child labor. Under a final rule of the Federal Acquisition Regulatory
Councils, published January 18, 2001 (at 48 CFR Subpart 22.15), which
also implements Executive Order 13126, federal contractors who supply
products which
[[Page 20052]]
appear on this 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 mine, produce, or manufacture the
item.
DATES: This document is effective immediately upon publication of this
notice.
SUPPLEMENTARY INFORMATION:
I. Revised List of Products
On October 4, 2011, the Department of Labor (DOL), in consultation
and cooperation with the Department of State (DOS) and the Department
of Homeland Security (DHS), published a Notice of Initial Determination
in the Federal Register proposing to revise the List of Products
Requiring Federal Contractor Certification as to Forced or Indentured
Child Labor (``the EO List'') (76 FR 61384). The notice invited public
comment through December 3, 2011. The initial determination can be
accessed on the Internet at http://www.dol.gov/ILAB/regs/eo13126/main.htm or can be obtained from: Office of Child Labor, Forced Labor,
and Human Trafficking (OCFT), Bureau of International Labor Affairs,
Room S-5317, U.S. Department of Labor, 200 Constitution Avenue NW.,
Washington, DC 20210; telephone: (202) 693-4843; fax (202) 693-4830.
Of the public comments that were received, only one discussed the
revisions to the EO List proposed in the initial determination. The
comment expressed support for all three proposed revisions to the EO
List. No new information was provided through public comments to negate
the basis for the proposed revisions in the initial determination.
Accordingly, based on recent, credible, and appropriately
corroborated information from various sources, DOL, DOS, and DHS have
concluded that there is a reasonable basis to believe that the
following products, identified by their countries of origin, might have
been mined, produced, or manufactured by forced or indentured child
labor:
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Product Country
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Bricks............................... Afghanistan.
Cassiterite.......................... Democratic Republic
of the Congo.
Coltan............................... Democratic Republic
of the Congo.
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The bibliographies providing the basis for the three agencies'
decisions on each product are available on the Internet at http://www.dol.gov/ILAB/regs/eo13126/main.htm.
II. Background
EO 13126, which was published in the Federal Register on June 16,
1999 (64 FR 32383), declared that it was ``the policy of the United
States Government * * * that the executive agencies shall take
appropriate actions to enforce the laws prohibiting the manufacture or
importation of good, wares, articles, and merchandise mined, produced
or manufactured wholly or in part by forced or indentured child
labor.'' Pursuant to EO 13126, and following public notice and comment,
DOL published in the January 18, 2001 Federal Register a list of
products, identified by their country of origin, that DOL, in
consultation and cooperation with DOS and the Department of the
Treasury [relevant responsibilities now within DHS] had a reasonable
basis to believe might have been mined, produced or manufactured by
forced or indentured child labor (66 FR 5353).
Pursuant to Section 3 of EO 13126, the Federal Acquisition
Regulatory Councils published a final rule in the Federal Register on
January 18, 2001 providing, amongst other requirements, that federal
contractors who supply products that appear on the EO List published by
DOL must certify to the contracting officer that the contractor, or, in
the case of an incorporated contractor, a responsible official of the
contractor, has made a good faith effort to determine whether forced or
indentured child labor was used to mine, produce, or manufacture any
product furnished under the contract and that, on the basis of those
efforts, the contractor is unaware of any such use of child labor. See
48 CFR Subpart 22.15.
DOL also published on January 18, 2001 ``Procedural Guidelines for
the Maintenance of the List of Products Requiring Federal Contractor
Certification as to Forced or Indentured Child Labor'' (``Procedural
Guidelines''), which provide for maintaining, reviewing, and, as
appropriate, revising the EO List (66 FR 5351). The Procedural
Guidelines provide that the List may be revised either through
consideration of submissions by individuals or on DOL's own initiative.
In either event, when proposing to revise the EO List, DOL must publish
in the Federal Register a notice of initial determination, which
includes any proposed alteration to the List. DOL will consider all
public comments prior to the publication of a final determination of a
revised list, which is made in consultation and cooperation with DOS
and DHS.
On September 11, 2009, DOL published an initial determination in
the Federal Register proposing to revise the List to include 29
products from 21 countries. (74 FR 46794). The Notice requested public
comments for a period of 90 days. Public comments were received and
reviewed by all relevant agencies, and a final determination was issued
on July 20, 2010 that included all products proposed in the initial
determination except for carpets from India. (75 FR 42164).
On December 16, 2010, DOL, in consultation and cooperation with DOS
and DHS, published an initial determination in the Federal Register
proposing to revise the EO List (75 FR 78755). The notice explained how
the initial determination was made and invited public comment through
February 15, 2011. Public comments were received and reviewed by all
relevant agencies, and a final determination was issued on May 31, 2011
that incorporated all revisions proposed in the initial determination.
(76 FR 31365).
III. Summary and Discussion of Significant Comments
The Bureau of International Labor Affairs (ILAB) received 4,151
public comments. Of these, 4,141 were identical comments from members
of the public sent as part of an email campaign. Three of the remaining
comments were from the Apparel Export Promotion Council of India
(AEPC); the Child Labor Coalition (CLC); and a group of organizations
including the American Federation of Labor-Congress of International
Organizations (AFL-CIO), the American Federation of Teachers, Cal Poly
Chocolates, the CLC, the Center for Reflection, Education and Action,
Ethix Ventures, Equal Exchange, the Fair Trade Federation, the Fair
Trade Resource Network, the Fair World Project, Global Exchange, Green
America, the International Labor Rights Forum (ILRF), the Labor-
Religion Coalition of New York State, Media Fair Trade/Untours, the
Organic Consumers Association, Presbyterian Church (USA), the Office of
Public Witness, Project Hope and Fairness, Stop the Traffik, SweatFree
Communities, Sweet Earth Organic Chocolates, the Unitarian Universalist
Service Committee, the United Methodist Board of Church and Society,
and United Students for Fair Trade. The remaining seven comments had
been mistakenly sent to ILAB and were actually intended to respond to
an unrelated DOL Notice of Proposed Rulemaking; ILAB forwarded these
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comments to the appropriate DOL agency.
All submissions, including a sample of the identical emails, are
available for public viewing at www.regulations.gov (reference Docket
ID No. DOL-2011-0006). After the closure of the public comment period,
ILAB met with the AEPC at its request, and a record of that meeting is
also available for public viewing under the same docket.
All comments have been carefully reviewed and considered, as
discussed below.
A. Comments on Forced Child Labor in the Production of Cotton in
Uzbekistan and Cocoa in Cote d'Ivoire
One commenter provided recent documentation on forced child labor
in the production of cotton in Uzbekistan and cocoa in Cote d'Ivoire,
both of which are currently included in the EO List. DOL appreciates
receiving this documentation.
B. Comments on Alleged Forced Child Labor in the Harvesting and
Processing of Cottonseed From Uzbekistan
One commenter stated that forced child labor is occurring in the
harvesting and processing of cottonseed from Uzbekistan. DOL would
appreciate receiving documentation that may provide further information
about this issue.
C. Comments on Alleged Forced Child Labor in the Production of Carpets
in India
One commenter noted that carpets from India had ``disappeared''
from the EO List, and recommended that they be added to the List. DOL
wishes to clarify that although carpets from India were included in an
Initial Determination released to the public on September 11, 2009 (74
FR 46794), this product and country of origin were not included on the
EO List in the Final Determination published on July 20, 2010 (75 FR
42164). At that time, available information about forced child labor in
carpets was determined to be insufficient to place the product on the
List. However, DOL appreciates the additional information provided by
this commenter. DOL is considering this information and conducting
additional relevant research.
D. Request That Garments and Embroidered Textiles (Zari) From India Be
Removed From the EO List
One commenter requested the deletion of Embroidered Textiles (Zari)
and Garments from India from the EO List. DOL is carefully reviewing
this request and conducting additional research. DOL has received
substantial additional information on the production of these goods and
continues to analyze all available information against the criteria
established in its Procedural Guidelines. DOL will consider all
available information for the purpose of future revisions to the list.
E. Comments Related to the Trafficking Victims Protection
Reauthorization Act List of Goods Made With Child Labor or Forced Labor
(TVPRA List)
One commenter included information that addressed goods named on
the list of products DOL maintains under the Trafficking Victims
Protection Reauthorization Act of 2005 (TVPRA), codified at 22 U.S.C.
7112(b)(2)(C). DOL would like to clarify that the EO List and the TVPRA
List are produced under separate mandates and the public comment period
identified for submissions relevant to the EO List initial
determination did not apply to the TVPRA List. EO 13126 limitations on
Federal procurement apply only to the products on the EO List, not to
those on the TVPRA List. DOL considered all information received during
the EO List public comment period addressing goods named on the TVPRA
List as an official TVPRA List submission and will consider that
information in the ongoing process of updating the TVPRA List.
Additional information on the TVPRA List can be found at http://www.dol.gov/ILAB/programs/ocft/tvpra.htm.
Because some products appear on both the TVPRA List and the EO
List, one commenter suggested that the separate standards for inclusion
on these Lists are being improperly applied. This commenter also argued
that the standard for inclusion on the EO List is impermissibly vague
and may ``lead to chaos.'' The EO List includes products that DOL, in
consultation with DOS and DHS, has ``a reasonable basis to believe
might have been mined, produced, or manufactured by forced or
indentured child labor.'' Sec. 2. DOL, DOS, and DHS (formerly the
Department of the Treasury) have administered the EO List for more than
a decade. In this time period, there has been no indication that the EO
definitions have caused confusion in discerning appropriate country and
products. Products are placed on the EO List only after careful
consideration of the factors set forth in the Procedural Guidelines,
namely ``the nature of 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; whether the information involved more than an
insolated incident; and whether recent and credible efforts are being
made to address forced or indentured child labor in a particular
industry.'' (66 FR 5351).
The TVPRA List includes goods that ILAB ``has reason to believe are
produced by forced labor or child labor in violation of international
standards.'' 22 U.S.C. 7112(b)(2)(C). As there is a reasonableness
standard for inclusion on both the EO and TVPRA Lists, and DOL
considers similar published factors in determining which goods appear
on the Lists, it is not surprising that a number of products appear on
both Lists. (66 FR 5351; 72 FR 73374).
F. Comment Questioning Whether the List Is in Accord With International
Law
One commenter expressed concerns about whether the EO is consistent
with international law, including the General Agreement on Tariffs and
Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194
(``GATT'').
This comment raised concerns that (1) the EO List improperly acts
as a ``non-tariff barrier'' to trade and (2) the EO should not exclude
from its provisions the products of a party to the North American Free
Trade Agreement or the Agreement on Government Procurement without
excluding all parties to the GATT. This comment appears to
misunderstand the EO List, which does not act to restrict the
importation of goods. The listing of products, and their respective
countries of origin, and the requirement for procurement purposes of a
good faith certification that products appearing on the EO List were
not mined, produced or manufactured with forced or indentured child
labor, does not constitute a barrier to trade. The commenter's argument
that the exclusions referenced are inconsistent with the non-
discrimination obligations in the GATT is directed at the EO itself,
rather than its implementation, and thus may not be responsive to the
Department's request for comments. However, the exclusions referenced
by the commenter are not inconsistent with these obligations.
This commenter also suggested that it is improper to define
``child'' under the EO as any person under the age of 18. See EO 13126,
Sec. 6(c). This definition is in accordance with international law, and
particularly International Labour Organization Convention 182, Worst
Forms of Child Labour. Convention 182 defines ``child'' as ``all
persons under the age of 18.'' Art. 2. The Convention goes on to define
the worst forms of child labor to include ``all forms of slavery or
practices similar to slavery,
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such as the sale and trafficking of children, debt bondage and serfdom
and forced or compulsory labour, including forced or compulsory
recruitment of children for use in armed conflict.'' Art. 3(a).
Accordingly, the worst forms of child labor under Convention 182
necessarily encompass the EO definition of forced or indentured child
labor, which includes ``all work or service: (1) Extracted from any
person under the age of 18 under the menace of any penalty for its non-
performance and for which 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.'' EO 13126, Sec. 6(c). Therefore, the commenter's
suggestion is based on an incorrect understanding of the definition
under international law.
G. Comments Related to the Stage of Production at Which Forced or
Indentured Child Labor Might Have Been Used
Comments were received suggesting that the EO List be expanded to
include ``end products'' if there is a reasonable basis to believe the
component parts of those products might have been mined, produced, or
manufactured by forced or indentured child labor, regardless of the
stage in the supply chain at which there is reason to believe such
child labor might have been used. DOL is considering these comments and
will consult and coordinate as appropriate with DOS, DHS and other
Federal agencies.
H. Comments Related to the Procurement of Products Named on the List
Comments were received requesting that federal contracting officers
use the U.S. Department of Agriculture (USDA) Guidelines for
Eliminating Child and Forced Labor in Agricultural Supply Chains
(``USDA Guidelines''), set forth at 76 FR 20305, to evaluate whether a
contractor has made a good faith effort to verify that forced or
indentured child labor was not used to mine, produce, or manufacture
any item on the EO List. The USDA Guidelines were published on April
12, 2011 under the Food, Conservation, and Energy Act of 2008, Public
Law 110-246, 122 Stat. 1651 (2008), and Section 105 of the TVPRA as a
``voluntary initiative to enable entities to reduce the likelihood that
agricultural products or commodities imported into the United States
are produced by forced labor or child labor.'' (76 FR 20305). These
guidelines, however, are not intended to be used by the government for
enforcement purposes. Further, the current General Services
Administration (GSA) regulations applicable to procurements affected by
the EO do not permit good faith to be evaluated in the manner
suggested. The GSA regulations state that ``[a]bsent any actual
knowledge that the [good faith] certification is false, the contracting
officer must rely on the offerors' certifications in making award
decisions.'' 48 CFR 22.1503(d).
Signed at Washington, DC, this 29th day of March 2012.
Sandra Polaski,
Deputy Undersecretary, Bureau of International Labor Affairs.
[FR Doc. 2012-7961 Filed 4-2-12; 8:45 am]
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