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, 20051-20054 [2012-7961]

Agencies

• DEPARTMENT OF LABOR
• Office of the Secretary

[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 https://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:

------------------------------------------------------------------------
               Product                              Country
------------------------------------------------------------------------
Bricks...............................  Afghanistan.
Cassiterite..........................  Democratic Republic
                                       of the Congo.
Coltan...............................  Democratic Republic
                                       of the Congo.
------------------------------------------------------------------------

    The bibliographies providing the basis for the three agencies' 
decisions on each product are available on the Internet at https://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

[[Page 20053]]

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 https://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,

[[Page 20054]]

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]
BILLING CODE 4510-28-P