2010-31213. Notice of Initial Determination Revising the List of Products Requiring Federal Contractor Certification as to Forced/Indentured Child Labor Pursuant to Executive Order 13126

AGENCY:

Bureau of International Labor Affairs (ILAB), Labor.

ACTION:

Request for comments.

SUMMARY:

This initial determination proposes to revise the list required by Executive Order No. 13126 (“Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor”), in accordance with the Department of Labor's “Procedural Guidelines for the Maintenance of the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor.” This notice proposes to add a product, (along with its country of origin) to the list that the Department of Labor preliminarily believes might have been mined, produced, or manufactured by forced or indentured child labor. This notice also proposes to remove a product (along with its country of origin) from the list where, preliminarily, the Department of Labor has reason to believe that the use of forced or indentured child labor has been significantly reduced if not eliminated. The Department of Labor invites public comment on this initial determination. The Department will consider all public comments prior to publishing a final determination updating the list of products, made in consultation and cooperation with the Department of State, and the Department of Homeland Security.

DATES:

Information should be submitted to the Office of Child Labor, Forced Labor and Human Trafficking (OCFT) via one of the methods described below by 5 p.m., February 15, 2011.

To Submit Information, or for Further Information, Contact: Information submitted to the Department should be submitted directly to OCFT, Bureau of International Labor Affairs, U.S. Department of Labor at [phone] (this is not a toll free number). Comments, identified as “Docket No. DOL-2010-0005,” 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): OCFT at 202-693-4830.
• Mail, Express Delivery, Hand Delivery, and Messenger Service (2 copies): Brandie Sasser at U.S. Department of Labor, OCFT, Bureau of International Labor Affairs, 200 Constitution Avenue, NW., Room S-5317, Washington, DC 20210.
• E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On June 12, 1999, President Clinton signed Executive Order No. 13126 (EO 13126), which was published in the Federal Register on June 16, 1999 (64 FR 32383). EO 13126 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, the Department of Labor published in the January 18, 2001, Federal Register, a list of products (the “List”) (along with their respective countries 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). 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 guidelines on the maintenance, review, and as appropriate, revision of the List (66 FR 5351).

The Procedural Guidelines provide that the List may be updated through considerations of submissions by individuals and on the Department's own initiative. In either event, when proposing to update the List, the Department of Labor must publish in the Federal Register a notice of initial determination, which includes any proposed alteration to the List. The Department will consider all public comments prior to the publication of a final determination of an updated list, which is made in consultation and cooperation with the Departments of State and Homeland Security.

On January 18, 2001, pursuant to Section 3 of the EO 13126, the Federal Acquisition Regulatory Councils published a final rule to implement specific provisions of EO 13126 that requires, among other things, that federal contractors who supply products that appear on the List issued by the Department 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.

On September 11, 2009, the Department of Labor published an initial determination in the Federal Register proposing to update the List to include 29 products from 21 countries. 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).

The current List and the 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: [phone]; fax [phone].

II. Definition of Forced/Indentured Child Labor

Under Section 6(c) of EO 13126:

“Forced or indentured child labor” means 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 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.

Information Sought

The Department is requesting public comment on the revisions to the List proposed below, as well as any other issue related to the fair and effective implementation of EO 13126. This notice is a general solicitation of comments from the public. All submitted comments will be made a part of the public record and will be available for inspection and on www.regulations.gov.

In conducting research for this initial determination, the Department considered a wide variety of materials originating from its own research, other U.S. Government agencies, foreign governments, international organizations, non-governmental organizations (NGOs), U.S. Government-funded technical assistance and field research projects, academic research, independent research, media, and other sources. The Department of State and U.S. embassies and consulates abroad also provide important information by gathering data from contacts, conducting site visits, and reviewing local media sources. Further, for this initial determination, the Department sought additional information from the public through a call for information published in the Federal Register on February 24, 2010.

In developing the revised List, the Department's review focused on available information concerning the use of forced or indentured child labor. The lack of available information does not, by itself, establish that, in any particular country, or for any particular product, forced or indentured child labor is not being used. Government resources for acquiring information are limited. In addition, information about actual working conditions in some countries is difficult or impossible to obtain, for a variety of reasons. For example, governments are unable or unwilling to cooperate with international efforts, or with the efforts of NGOs, to uncover and address abuses. Institutions or organizations that might uncover such information, such as free and independent news media, trade unions, and NGOs also may not exist.

As outlined in the Procedural Guidelines, several factors were weighed in determining whether or not a product should be placed on the revised List: 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; 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 and industry.

This notice constitutes the initial determination updating the EO 13126 list issued July 20, 2010. Based on recent, credible, and appropriately corroborated information from various sources, the Departments of Labor, State, and Homeland Security have preliminarily concluded that there is a reasonable basis to believe that the following product, identified by its country of origin, might have been mined, produced, or manufactured by forced or indentured child labor:

Product: Hand-Woven Textiles

Country: Ethiopia

In addition, the Departments of Labor, State, and Homeland Security have preliminarily concluded that there is no longer a reasonable basis to believe that the use of forced or indentured child labor in the production of the following product, identified by its country of origin:

Product: Charcoal

Country: Brazil

After the July 2010 update to the List, the Department of Labor received recent, credible, and appropriately corroborated information from various sources on the use of forced or indentured child labor in charcoal production in Brazil. This information indicates that while children previously worked under forced labor conditions in charcoal production, there is no longer a reasonable basis the problem has been significantly reduced if not eliminated. Therefore, the Departments of Labor, State, and Homeland Security have preliminarily concluded that there is no longer a reasonable basis to believe that charcoal from Brazil is produced by forced or indentured child labor and therefore it should not continue to be on the List.

The Government of Brazil has developed a comprehensive approach to combat forced labor, including forced child labor, that includes robust policies and legislation, strong enforcement efforts, allocation of financial resources, and programs to assist victims of forced labor. For example, legislation requires fines and imprisonment of four to twelve years for the use of forced child labor, and the Government provides financial and employment assistance to victims of forced labor. The Government is currently implementing its Second National Plan to Combat Forced Labor and also has established a National Agreement to Eradicate Forced Labor, which involves more than 130 parties whose efforts are monitored and tracked online. Brazil also publishes a “Dirty List” (Lista Suja) of forced labor cases, including the names of companies and property owners who employ workers under forced labor conditions. The Government has created a Special Mobile Inspection Unit (GEFM) at the Ministry of Labor and Employment (MTE), which performs on-site investigations of forced labor cases. GEFM is composed of teams of labor inspectors, Labor Public Ministry attorneys, and members of the National Police. Currently, more than 100 labor inspectors are part of this inspection unit. To resolve such cases, GEFM has the right to initiate formal charges, to settle the complaint at the scene of the crime, and to levy fines. Such fines are used to enhance enforcement efforts, undertake preventative efforts, and to provide services to forced labor victims, including children.

In response to being placed on the List, the Government of Brazil provided additional information to the Department of Labor on the status of forced or indentured child labor in charcoal production. The information included disaggregated data that indicates that, from January 2007 to September 2010, the MTE conducted 1,924 labor inspections in 23 states and found no child under 18 working under forced labor conditions in charcoal production. The MTE's public Web site shows that from January 2007 to August 2010, the GEFM conducted 499 investigations of forced labor cases, inspected 1,025 businesses, and rescued more than 16,000 workers from forced labor conditions. While the Government collects data in a disaggregated manner, information made publicly available on the Web site is not disaggregated by age or sector.

To corroborate the Brazilian Government's data that indicated no evidence of forced child labor in charcoal production, the Department accessed information publicly available since the end of the previous research period (2008-2010) and spoke with a number of stakeholders actively engaged in forced labor issues in the charcoal sector. These sources, which included the International Labor OrganizaILO, Reporter Brasil, the Citizens' Charcoal Institute (ICC), and the Pastoral Land Commission (CPT), indicate that forced child labor in the production of charcoal has been significantly reduced if not eliminated. Both the CPT and ICC provided monitoring data to support these claims, although the CPT data differs slightly from the Government's data. The CPT, which receives complaints of forced labor cases, carries out independent forced labor monitoring and also refers cases to the GEFM, reported that from June 2008 to August 2010, it submitted five complaints of forced labor in charcoal to MTE that involved 76 victims, including 10 children. Thus, while it appears that there continue to be isolated cases of forced child labor, the Government has established mechanisms to address and respond to such cases. The ICC, which independently monitors labor conditions in charcoal enterprises in the states of Pará, Maranhão, Tocantins, and Piauí, has carried out 2,793 inspections in 158 municipalities, registered 145,917 charcoal kilns, and reached out to more than 52,000 charcoal workers. It found no evidence of forced child labor in these businesses.

According to information obtained, factors driving the reduction in forced child labor in the charcoal industry have included increased government enforcement, government collaboration with civil society, awareness-raising among workers, and monitoring systems put in place by companies in the pig iron/charcoal supply chain.

It is important to note that information obtained by the Department indicates that adult forced labor and child labor that is not forced is still occurring in the production of charcoal. Therefore, while the Department is proposing to remove charcoal from Brazil from the EO 13126 List, it will continue to be included on The Department of Labor's List of Goods Produced by Child Labor or Forced Labor.

The Department invites public comment on whether these products (and/or other products, regardless of whether they are mentioned in this Notice) should be included on or removed from the revised List of products requiring federal contractor certification as to the use of forced or indentured child labor. To the extent possible, comments provided should address the criteria for inclusion of a product on the List contained in the Procedural Guidelines discussed above. The Department is also interested in public comments relating to whether products initially determined to be on the List are designated with appropriate specificity and whether alternative designations would better serve the purposes of EO 13126.

The bibliography providing the preliminary basis for adding hand-woven textiles from Ethiopia on the List and additional documentation on the removal of charcoal from Brazil are available on the Internet at http://www.dol.gov/​ILAB/​regs/​eo13126/​main.htm.

As explained, following receipt and consideration of comments on the revised List set out above, the Department of Labor, in consultation and cooperation with the Departments of State Homeland Security, will issue a final determination in the Federal Register. The Department of Labor intends to continue to revise the List periodically, to add and/or delete products, as justified by new information.

Signed at Washington, DC, this 8th day of December, 2010.

Sandra Polaski,

Deputy Undersecretary, Bureau of International Labor Affairs.