E7-19310. Notice of Proposed Procedural Guidelines for the Development and Maintenance of the List of Goods From Countries Produced by Child Labor or Forced Labor Pursuant to the Trafficking Victims Protection Reauthorization Act of 2005

AGENCY:

Bureau of International Labor Affairs, Department of Labor.

ACTION:

Notice and request for comments regarding proposed procedural guidelines for the development and maintenance of a list of goods from countries produced by child labor or forced labor in violation of international standards.

SUMMARY:

This notice sets forth proposed procedural guidelines pertaining to the development and maintenance of a list of goods from foreign countries produced by child labor or forced labor in violation of international standards (“the List”), pursuant to the Trafficking Victims Protection Reauthorization Act of 2005. The guidelines provide information as to the submission of information, review, and reporting process used by the U.S. Department of Labor's (“DOL”) Office of Child Labor, Forced Labor, and Human Trafficking (“the Office”) in maintaining and revising the List. DOL invites all interested persons to submit written comments on the proposed guidelines.

DATES:

Comments regarding the proposed procedural guidelines must be received by the Office on or before October 31, 2007.

ADDRESSES:

Comments, identified as “Docket No. DOL-2007-0004,” may be submitted by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. The portal includes instructions for submitting comments. Parties submitting responses electronically are encouraged not to submit paper copies.
• Facsimile (fax): ILAB/Office of Child Labor, Forced Labor, and Human Trafficking at 202-693-4830.
• Mail, Express Delivery, Hand Delivery, and Messenger Service: Submit an original and three copies of written comments and attachments to Charita Castro or Rachel Rigby at U.S. Department of Labor, ILAB/Office of Child Labor, Forced Labor, and Human Trafficking, 200 Constitution Ave., NW., Room S-5317, Washington, DC 20210. If possible, submitters should provide written comments on a computer disc.

All submissions received must include the agency name and docket number. They should clearly identify the party filing the submission and should be signed and dated. Note that security-related problems may result in significant delays in receiving comments and other written materials by mail.

Docket Access: All comments received will be made available to the public on the Federal eRulemaking Portal: http://www.regulations.gov and at the U.S. Department of Labor, 200 Constitution Ave., NW., Room S-5317, Washington, DC 20210. Because comments sent to the docket are available for public inspection, the Office cautions commenters against including in their comments personal or confidential information such as social security numbers and birth dates. The Office will not respond directly to comments or return them to the submitter.

FOR FURTHER INFORMATION CONTACT:

Charita Castro or Rachel Rigby, Office of Child Labor, Forced Labor, and Human Trafficking, Bureau of International Labor Affairs, U.S. Department of Labor at [phone]; fax [phone].

SUPPLEMENTARY INFORMATION:

Section 105(b)(1) of the Trafficking Victims Protection Reauthorization Act of 2005 (“TVPRA”), Public Law 109-164 (2006), directed the Secretary of Labor, acting through the Bureau of International Labor Affairs (“ILAB”) of the U.S. Department of Labor (“DOL”), to “carry out additional activities to monitor and combat forced labor and child labor in foreign countries.” Section 105(b)(2) lists these activities specifically as those to:

(A) Monitor the use of forced labor and child labor in violation of international standards;

(B) Provide information regarding trafficking in persons for the purpose of forced labor to the Office to Monitor and Combat Trafficking of the Department of State for inclusion in trafficking in persons report required by Section 110(b) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7107(b));

(C) Develop and make available to the public a list of goods from countries that the Bureau of International Labor Affairs has reason to believe are produced by forced labor or child labor in violation of international standards;

(D) Work with persons who are involved in the production of goods on the list described in subparagraph (C) to create a standard set of practices that will reduce the likelihood that such persons will produce goods using the labor described in such subparagraph; and

(E) Consult with other departments and agencies of the United States Government to reduce forced and child labor internationally and ensure that products made by forced labor and child labor in violation of international standards are not imported into the United States.

See 22 U.S.C. 7112(b).

The Office of Child Labor, Forced Labor, and Human Trafficking within ILAB has been designated to carry out the DOL mandates in the TVPRA. As part of these efforts, and in furtherance of ILAB's broader mission of working to create a more stable, secure, and prosperous international economic system in which the basic rights of workers and children are respected and protected, the Office conducts research on child labor and forced labor worldwide, consulting such sources as DOL's Findings on the Worst Forms of Child Labor; the Department of State's annual Country Reports on Human Rights Practices and Trafficking in Persons Reports; other reports by governmental, non-governmental, and international organizations as well as academic and research institutions; and other sources. These procedural guidelines will provide a framework for ILAB's implementation of the TVPRA mandate, by establishing procedures for the submission of information, agency review, and reporting process in developing and maintaining the List.

Once these procedural guidelines are finalized, the Office will publish a request for information concerning goods produced by forced labor or child labor in violation of international standards. The Office may also conduct hearings to assist in the development of the list of goods produced by forced labor or child labor in violation of international standards (“the List”). Following the information-gathering phase, the Office will evaluate the information obtained according to the process outlined in its final procedural guidelines. Goods and countries that meet these criteria outlined in the procedural guidelines will be placed on a List which will be developed in consultation with appropriate U.S. government agencies. The List will be published in the Federal Register and on the DOL Web site.

DOL will continue to maintain and update the List over time, through its own research, interagency consultations, and through public submissions of information. Procedures for the ongoing maintenance of the List are described below, and key terms used in these Guidelines are defined below.

Proposed Procedural Guidelines

A. Sources of Information and Factors Considered for the Development of the List

The Office will make use of all relevant information, whether gathered through research, public submissions of information, a public hearing, interagency consultations or other means, in developing the List. In the interest of transparency, the Office will not rely on confidential or classified information in developing the List. The Office may request that any such information brought to its attention be declassified. In evaluating information, the Office will consider whether the situations described meet the definitions of child labor, forced labor, and related terms, as defined in these guidelines. The Office will also consider and weigh several factors, including:

1. Nature of information. Whether the information about child labor or forced labor gathered from research, public submissions, hearing testimony, or other sources is relevant and probative, and meets the definitions of child labor or forced labor.

2. Date of information. Whether the information about child labor or forced labor in the production of the good(s) is no more than 7 years old at the time of receipt. More current information will generally be given priority, and information older than 7 years will generally not be considered.

3. Source of information. Whether the information, whether from primary or secondary sources, is from a source whose methodology, prior publications, degree of familiarity and experience with international labor standards, and/or reputation for accuracy and objectivity, warrants a determination that it is relevant and probative.

4. Extent of corroboration. The extent to which the information about the use of child labor or forced labor in the production of a good(s) is corroborated by other sources.

5. Significant incidence of child labor or forced labor. Whether the information about the use of child labor or forced labor in the production of a good(s) warrants a determination that the incidence of such practices is significant and/or prevalent in the country in question. Information that relates only to a single company or facility; or that indicates an isolated incident of child or forced labor, will ordinarily not weigh in favor of a finding that a good is produced in violation of international standards. Information that demonstrates a significant incidence of forced labor or child labor in the production of a particular good(s), although not necessarily representing a pattern of practice in the industry as a whole, will ordinarily weigh in favor of a finding that a good is produced in violation of international standards.

In determining which goods are to be placed on the List, the Office will as appropriate take into consideration the stages in the chain of a good's production. Whether a good is placed on the List may depend on which stage of production used child labor or forced labor. For example, if child labor or forced labor was only used in the extraction, harvesting, assembly, or production of raw materials or component articles, and these are subsequently used under non-violative conditions in the manufacture or processing of a final good, only the raw materials/component articles and the country/ies where they were extracted, harvested, assembled, or produced, as appropriate, may be placed on the List. If child labor or forced labor was used in both the production or extraction of raw materials/component articles and the manufacture or processing of a final good, then both the raw materials/component articles and the final good, and the country/ies in which such labor was used, may be placed on the List. This is to ensure a direct correspondence between the goods and countries which appear on the List, and the use of child labor or forced labor.

Goods and countries that meet the criteria outlined in the procedural guidelines will be placed on a List, which will be developed in consultation with appropriate U.S. government agencies. Before publication of the List, DOL will inform the relevant foreign governments of their presence on the List and request their response. DOL will review these responses and make a determination as to their relevance. Government, industry, or third party efforts to combat child labor or forced labor will be taken into consideration, although they are not necessarily sufficient, in and of themselves, to prevent a good and country from being listed. The List, along with a listing of the sources used to identify the goods and countries on it, will be published in the Federal Register and on the DOL Web site. The published List will represent DOL's conclusions based on all relevant information available at the time of publication.

For each good and country (“entry”), the List will indicate whether the good is made using child labor, forced labor, or both. As the List will continue to be maintained and updated, the List will indicate the date when each entry was included. The List will not include any company or individual name. DOL's published listing of source material used in identifying goods and countries on the List will be redacted to remove any company or individual name.

B. Maintenance of the List

1. Following publication of the List, the Office will periodically review and revise the List, as appropriate. The Office conducts ongoing research and monitoring of child labor and forced labor, and if relevant information is obtained through such research, the Office may add an entry to, or remove an entry from, the List using the process described in section A above. The Office may also update the list on the basis of public information submissions, as detailed below.

2. Any party may file an information submission with the Office regarding the addition, maintenance, or removal of an entry from the List.

3. The Office will determine whether to accept a submission of information for review. The Office may communicate with the submitter during this period regarding any matter relating to the submission. In general, the Office will accept a submission of information if it provides relevant and probative information and if a review of the submission would not be inconsistent with applicable laws or regulations.

4. The Office may decline to accept a submission for review if it determines that: the submission does not identify clearly the party filing the submission or is not signed and dated; the submission contains confidential or classified information; the submission does not provide relevant or probative information; or, the information is not within the scope of the TVPRA and/or does not address child labor or forced labor as defined herein. Whether or not the Office accepts a submission for review, all submissions received will be made available to the public on the DOL Web site, consistent with applicable laws or regulations.

5. If the Office accepts a submission of information, the Office will conduct such further examination of other available information relating to the good and country as necessary and appropriate to assist the Office in making a determination concerning the addition, maintenance, or removal of the good from the List. The Office will undertake consultations with relevant U.S. government agencies and may hold a public hearing(s) for the purpose of receiving relevant information from interested persons.

6. In order for an entry to be removed from the List, any person filing information regarding the entry must provide information that demonstrates that there is no significant incidence of child labor or forced labor in the production of the particular good in the country in question. Government, industry, or third party efforts to combat child labor or forced labor will be taken into consideration, although they are not necessarily sufficient, in and of themselves, to warrant removal of a good and country from the List.

7. Where the Office has made a determination concerning the addition, maintenance, or removal of the entry from the List, and where otherwise appropriate, the Office will publish a revised List in the Federal Register and on the DOL Web site.

C. Key Terms Used in the Guidelines

“Child Labor”—“Child labor” means all work performed by a person below the age of 15. It also includes all work performed by a person below the age of 18 in the following practices: (A) All forms of slavery or practices similar to slavery, such as the sale or trafficking of children, debt bondage and serfdom, or forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict; (B) the use, procuring, or offering of a child for prostitution, for the production of pornography or for pornographic purposes; (C) the use, procuring, or offering of a child for illicit activities in particular for the production and trafficking of drugs; and (D) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety, or morals of children. The work referred to in subparagraph (D) shall be determined by the laws, regulations, or competent authority of the country involved. This definition shall not apply to work specifically authorized by national laws, including work done by children and young persons in schools for general, vocational or technical education or in other training institutions, where such work is carried out in accordance with conditions prescribed by the competent authority and does not prejudice children's attendance in school or their capacity to benefit from the instruction received.

“Countries”—“Countries” means any foreign country or territory, including any overseas dependent territory or possession of a foreign country, or the Trust Territory of the Pacific Islands.

“Forced Labor”—“Forced labor” means 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, and includes indentured labor. “Forced labor” includes work provided or obtained by force, fraud, or coercion, including (1) By threats of serious harm to, or physical restraint against any person; (2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or (3) by means of the abuse or threatened abuse of law or the legal process. For purposes of this definition, forced labor does not include work specifically authorized by national laws where such work is carried out in accordance with conditions prescribed by the competent authority, including (a) any work or service required by compulsory military service laws for work of a purely military character; (b) work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority; and (d) work or service required in cases of emergency, such as in the event of war or of a calamity or threatened calamity, fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population.

“Goods”—“Goods” means goods, wares, articles, materials, items, supplies, and merchandise.

“Indentured Labor”—“Indentured labor” means all labor undertaken pursuant to a contract entered into by an employee the enforcement of which can be accompanied by process or penalties.

“International Standards”—“International standards” means generally accepted international standards relating to forced labor and child labor, such as international conventions and treaties. These Guidelines employ definitions of “child labor” and “forced labor” derived from international standards.

“Produced”—“Produced” means mined, extracted, harvested, farmed, produced, created, and manufactured.

Signed at Washington, DC, this 25th day of September 2007.

Charlotte M. Ponticelli,

Deputy Undersecretary for International Affairs.