DCSIMG

Notice of Final Determination Updating the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor Pursuant to Executive Order 13126



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DEPARTMENT OF LABOR

Office of the Secretary of Labor

Notice of Final Determination Updating 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.

———————————————————————–

SUMMARY: This final determination updates the list required by
Executive Order No. 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.” This notice sets forth an updated list of products, by
country of origin, which the Departments of Labor, State and Homeland
Security, have a reasonable basis to believe might have been mined,
produced, or manufactured by forced or indentured child labor. Under a
final rule by the Federal Acquisition Regulatory Council, published
January 18, 2001, which also implements Executive Order No. 13126,
Federal contractors who supply products 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 produce
the item.

DATES: This document is effective immediately upon publication of this
notice.

SUPPLEMENTARY INFORMATION:

I. Background

    Executive Order No. 13126 (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 EO13126, and following public
notice and comment, the Department of Labor published in the January
18, 2001, Federal Register, a final list of products (the “EO List”),
identified by their country of origin, that the Department, in
consultation and cooperation with the Departments of State and Treasury
[relevant responsibilities now within the Department of Homeland
Security], had a reasonable basis to believe might have been mined,
produced or manufactured with forced or indentured child labor (66 FR
5353). In addition to the List, the Department also published on
January 18, 2001, “Procedural Guidelines for 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). On September 11, 2009, in consultation and cooperation with
the Department of State and the Department of Homeland Security, the
Department of Labor published an initial determination proposing to
update the EO List in the Federal Register (74 FR 46794), explained how
the initial determination was made, and invited public comment through
December 10, 2009. The initial determination and Procedural Guidelines
can be accessed on the Internet at http://www.dol.gov/ILAB/regs/
eo13126/main.htm
or can be obtained from: 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.
    Pursuant to section 3 of E. O. 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 issued by
the Department of Labor 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.

II. Summary and Discussion of Significant Comments

    Forty three public comments were received either through written
submissions or through meetings held with the Department of Labor. All
comments are available for public viewing at http://www.regulations.gov

[[Page 42165]]

(reference Docket ID No. DOL-2009-0002). In developing the final list
of products, the public comments have been carefully reviewed and
considered. The following is a summary of the significant or common
comments and the responses.

A. Comments Asserting That Forced Child Labor Is Not Used in the
Production of Products Named on the List

    Multiple comments were received asserting that child labor and
forced or indentured child labor did not exist or were not pervasive in
the production of a variety of products. However, these assertions were
not substantiated through the provision of data or information to
demonstrate that the assertions were true. When analyzing comments, the
information provided was reviewed to determine if it negated the
original conclusion published in the initial determination or if it
demonstrated that forced or indentured child labor has been
significantly reduced or eliminated. In all cases, except carpets from
India (see below), such information was not provided.

B. Comments on Efforts To Combat Forced or Indentured Child Labor

    Multiple comments from governments and industry groups were
submitted that provided detailed descriptions of legislation, policies
and efforts to combat child labor and forced or indentured child labor
generally, and in some cases, in particular sectors. This information
was considered carefully and, while the important role of setting a
solid legislative and policy framework and implementing initiatives by
governments, industry and third party groups is clear, information on
such efforts alone, without evidence that indicates that the efforts
had significantly reduced or eliminated forced or indentured child
labor, was not sufficient to remove an item from the EO List. Inclusion
on the EO List indicates that the three Departments have a reasonable
basis to believe forced or indentured child labor “might have” been
used in the production of the named products and evidence of efforts
alone would not be enough to require removal of a product from the EO
List. The Department of Labor will continue to assess the progress of
these efforts and welcomes further information from the public on the
results of these efforts, in particular, evidence of actions and
initiatives that have significantly reduced if not eliminated forced or
indentured child labor in the production of a specific product named on
the list.

C. Comments on Monitoring and Auditing Systems

    Multiple comments were received describing efforts by government,
industry and third parties to monitor and audit the establishments that
produce many of the products named on the preliminary list. While such
information is important and valuable in determining compliance with a
variety of labor and other standards, in most cases, the information
received did not provide sufficient description, data or evidence to
demonstrate that forced child labor is not being used in the production
process. Examples of specific limitations of the information received
included, submission of general and broad statements describing
monitoring and auditing programs without including details; submissions
only related to products that are inspected for export rather than
industry as a whole; examples of individual monitoring and auditing
forms without presentation of and analysis of overall data collected;
presentation of information only at the primary factory level and not
down the supply chain; and lack of evidence of explicit monitoring for
forced or indentured child labor. It is important to clarify that the
EO List does not make distinctions between products that are exported
or those that are produced for domestic consumption, nor does it
distinguish between products produced in a main/final establishment
versus products produced by suppliers and contractors further down the
supply chain.
    One submission did provide information that addressed many of the
limitations described above. This submission described the nation-wide,
third party monitoring of registered carpet looms in India, gave
details of the monitoring program of registered looms and provided
detailed analysis of data results related to child labor. Such detailed
information on the monitoring of registered looms provided an analysis
suggesting that child labor, including forced child labor, has been
significantly reduced in the production of carpets in India. While the
submission only addressed registered looms, it provided enough
information to warrant further consideration of the matter especially
given that a Department of Labor contractor is undertaking extensive
research on child and forced labor in carpet production in South Asia,
including India. The Department expects to receive information on the
use of forced child labor on both registered and unregistered looms
through this research and intends to wait until that time before a
final decision is made on adding carpets from India to the EO List.

D. Comments on Procedures Related to Publication of the List

    A variety of comments were received related to the methodology and
process used to place products on the EO List, in particular on the
date and reliability of sources, on the “reasonable basis to believe”
criteria, and on the lack of perceived consultation prior to
publication of the initial determination proposing to update EO List.
Concerning the date and reliability of the sources, the Department of
Labor considered information up to seven years old at the time of
receipt. More current information has been generally given priority,
and information older than seven years generally has not been
considered, with the exception of child labor survey data, which the
Department of Labor has found to be reliable over a longer period of
time. The Department of Labor’s experience is that the use of forced or
indentured child labor in a country or in the production of a
particular product typically persists for many years, particularly when
no meaningful action is taken to combat it. Information about such
exploitive activities is often actively concealed and therefore
information that is several years old can still provide useful context
for more current information. When determining whether a source should
be included, the following factors were considered either from primary
or secondary sources: the methodology, prior publications, degree of
familiarity and experience with international labor standards, and/or
reputation for accuracy and objectivity.
    Some submissions raised concern that the “reasonable basis to
believe” standard is relatively low. This standard was established in
EO13126 and the Department believes that the standard is appropriate
given the nature of the EO List and the challenge in finding data. The
EO 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. The factors consider in
determining whether a “reasonable basis to believe” exists for the
inclusion of a product on the EO List are set forth in the Department
of Labor’s January 18, 2001, Procedural Guidelines (66 FR 5351), as
well as the Department’s September 11, 2009,

[[Page 42166]]

Notice of Initial Determination (74 FR 46794).
    Several submissions from both governments and industry groups
described their frustration at not being consulted prior to publication
of the initial determination on September 11, 2009. EO13126 does not
require the Department to engage in such consultations, although the
Department did undertake a series of activities to gather information
from the public on child labor and forced labor more broadly prior to
publication of the initial determination, including a public request
for information published in the Federal Register and a public hearing
on May 28, 2008. Additionally, the primary purpose of the initial
determination proposing to update the EO List and the accompanying 90-
day public comment period was to gather additional information from the
public and a wide variety of stakeholders prior to publication of the
final determination.

E. Comments Related to Impact of the List on Industries and Exports

    Some comments raised concerns that being named on the EO List would
negatively affect their trade and export income. It is important to
note that while the scope of the EO List is global, the application of
EO13126′s requirements is narrow. The EO only affects products being
procured by the U.S. Government. It is designed to make sure that U.S.
Federal agencies do not buy products made with forced or indentured
child labor. The EO reinforces the current law (the Tariff Act of 1930,
19 U.S.C. 1307, enforced by the Department of Homeland Security)
prohibition on the import of products made with forced or indentured
child labor. There is nothing in the EO that provides for trade
sanctions or penalties against countries. Rather, EO13126 requires U.S.
Federal contractors who furnish a product on the EO List to certify
that forced or indentured child labor was not used to make the product.

F. Comments on Discrepancies Between the 2001 List and the Current List

    Several comments noted that products are included in the proposed
update to the EO List that were not included in the existing EO List,
most specifically carpets from India, Nepal and Pakistan. The research
for the current proposed update to the EO List covers information
published from 2001 onward, which includes information not available at
the time of the publication of the 2001 EO List. Therefore, the product
lists will not necessarily be the same as the period of review and
available data sources are different.

G. Comments Related to the Trafficking Victims Protection
Reauthorization Act List of Goods Made With Child Labor or Forced Labor

    Multiple submissions included information that addressed goods
named on the List of Goods Made with Child Labor or Forced Labor
pursuant to the 2005 Trafficking Victims Protection Reauthorization Act
(TVPRA List), which was published on the same date as the proposed
update to the EO List. The Department would like to clarify that these
two lists 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. EO13126 is intended to
ensure that Federal agencies enforce laws relating to forced or
indentured child labor in the procurement process. Thus, the EO List
differs from the TVPRA List, which is intended to promote efforts to
monitor and combat forced labor and child labor in the production of
goods in foreign countries. The EO on Federal procurement applies only
to the goods on the EO List, not to those on the TVPRA List. In
addition, the EO List covers forced or indentured child labor, while
the TVPRA List focuses on a broader population, including adults in
forced labor and children in exploitive labor that is not necessarily
forced or indentured.
    While the process for updating the EO List does not apply to the
TVPRA List, the ongoing maintenance of the TVPRA list is governed by
procedural guidelines that are available at http://www.dol.gov/
federalregister/PdfDisplay.aspx?DocId=20376
. The Department of Labor
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 provided that information to the appropriate
Department staff for their review. Additional information on the TVPRA
List can be found at http://www.dol.gov/ILAB/programs/ocft/tvpra.htm.

H. Comments Related to Procurement of Products Named on the List

    Two comments were received urging additional measures related to
enforcement of EO 13126 and clarifications related to the EO List. The
Department of Labor’s only mandate pursuant to the EO is to produce the
EO List in collaboration with the Departments of State and Homeland
Security. The enforcement of the procurement regulation (48 CFR subpart
22.15) issued by the General Services Administration pursuant to the EO
falls to the various procurement offices in each of the Executive
Branch agencies. It is up to each agency to determine what guidance, if
any, is provided to contractors on the EO regulation, as well as to
determine how they monitor compliance with the EO regulation. Any
changes to the content of regulation fall under the authority of the
General Services Administration.
    Specific areas where clarifications were requested related to the
type and state of the products listed. It was stated that product
descriptions were often too broad and it was suggested that products be
named using the harmonized tariff schedule. We believe that the
descriptions are sufficiently specific based on the nature of the list
and the types of information that are available. The EO does not
require the use of the harmonized tariff schedule in the products list.
At this time, the Departments do not have reason to believe that the
use of such terminology in the EO List would result in more efficient
implementation of EO 13126. Additionally, it was requested that the
Department of Labor clarify that 48 CFR subpart 22.15 only applies to
the end product named on the EO List. It is not the Department’s role
to interpret the applicability of the regulation on behalf of the
General Services Administration. However, the Department of Labor can
clarify that the placement of a good on the EO List depends on the
stage of production at which forced or indentured child labor was
involved. For example, if forced child labor was used in the
extraction, harvesting, assembly, or production of raw materials or
component articles, and these materials or articles are subsequently
used under non-violative conditions in the manufacture or processing of
a final good, only the raw materials or component articles are on the
EO List and only for those countries where they were extracted,
harvested, assembled, or produced. If forced or indentured child labor
was used in both the production or extraction of raw materials or
component articles and the manufacture or processing of a final good,
then both the raw materials or component articles and the final good
are included on the EO List.

III. Final List of Products

    We have determined that it would be appropriate to publish a final
list of products that comprises the products included in the initial
determination, with the exception of carpets from

[[Page 42167]]

India. Other than with regard to the one exception described above, no
new information was provided through public comments to negate the
original conclusion or to indicate that forced or indentured child
labor has been significantly reduced or eliminated in the production of
the listed products. The basis for including those products on the list
is set forth in the Department of Labor’s September 11, 2009, notice in
the Federal Register (74 FR 46794). As noted in the September 11
notice, information provided in a public submission by Free the Slaves,
alleging forced or indentured child labor in the cocoa industry in Cote
d’Ivoire, and a public submission by State Department Watch, alleging
forced or indentured child labor in the production of eight products in
China, both filed pursuant to section D of the Procedural Guidelines
(66 FR 5351), was considered in finalizing the update to the EO List.
This final determination completes consideration of the two
submissions. The final list of products appears below.
    Based on recent, credible, and appropriately corroborated
information from various sources, the Department of Labor, the
Department of State, and the Department of Homeland Security 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:

————————————————————————
                  Product                             Countries
————————————————————————
Bamboo………………………………  Burma.
Beans (green, soy, yellow)…………….  Burma.
Brazil Nuts/Chestnuts…………………  Bolivia.
Bricks………………………………  Burma, China, India, Nepal,
                                             Pakistan.
Carpets……………………………..  Nepal, Pakistan.
Charcoal…………………………….  Brazil.
Coal………………………………..  Pakistan.
Coca (stimulant plant)………………..  Colombia.
Cocoa……………………………….  Cote d’Ivoire, Nigeria.
Coffee………………………………  Cote d’Ivoire.
Cotton………………………………  Benin, Burkina Faso, China,
                                             Tajikistan, Uzbekistan.
Cottonseed (hybrid)…………………..  India.
Diamonds…………………………….  Sierra Leone.
Electronics………………………….  China.
Embroidered Textiles (zari)……………  India, Nepal.
Garments…………………………….  Argentina, India, Thailand.
Gold………………………………..  Burkina Faso.
Granite……………………………..  Nigeria.
Gravel (crushed stones)……………….  Nigeria.
Pornography………………………….  Russia.
Rice………………………………..  Burma, India, Mali.
Rubber………………………………  Burma.
Shrimp………………………………  Thailand.
Stones………………………………  India, Nepal.
Sugarcane……………………………  Bolivia, Burma.
Teak………………………………..  Burma.
Tilapia (fish)……………………….  Ghana.
Tobacco……………………………..  Malawi.
Toys………………………………..  China.
————————————————————————

The bibliographies providing the basis for including each product
on the list are available on the Internet at http://www.dol.gov/ILAB/
regs/eo13126/main.htm
.

[Federal Register: July 20, 2010 (Volume 75, Number 138)]
[Notices]              
[Page 42164-42167]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jy10-98]

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