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Federal Register / Vol. 66, No.

12 / Thursday, January 18, 2001 / Notices 5353

DEPARTMENT OF LABOR apply to products that appear on a list of 1930, 19 U.S.C. 1307. That statute,
published by the Department of Labor, enforced by the Customs Service of the
Office of the Secretary pursuant to Section 2 of Executive Treasury Department, prohibits the
Order No. 13126, which required the importation into the United States of
Bureau of International Labor Affairs; Department of Labor, in consultation ‘‘all goods, wares, articles, and
Notice of Final List of Products and cooperation with the Department of merchandise mined, produced, or
Requiring Federal Contractor the Treasury and the Department of manufactured wholly or in part in any
Certification as to Forced or State, to ‘‘publish in the Federal foreign country by convict labor or/and
Indentured Child Labor Under Register a list of products, identified by forced labor or/and indentured labor
Executive Order No. 13126 their country of origin, that those under penal sanctions.’’
SUMMARY: As required by Executive Departments have a reasonable basis to The Tariff Act specifically defines
Order No. 13126 (‘‘Prohibition of believe might have been mined, ‘‘forced labor’’ as ‘‘all work or service
Acquisition of Products Produced by produced, or manufactured by forced or which is exacted from any person under
Forced or Indentured Child Labor’’), this indentured child labor.’’ the menace of any penalty for its
notice sets forth a final list of products, As authorized by the Executive Order, nonperformance and for which the
by country of origin, which the the Department of Labor held a public worker does not offer himself
hearing on August 10, 1999, at which voluntarily.’’ The first part of the
Department of Labor, the Department of
several witnesses presented oral and Executive Order’s definition of ‘‘forced
State, and the Department of the
written testimony concerning the or indentured child labor’’ incorporates
Treasury believe may have been mined,
development of a list of products. On this statutory language.
produced, or manufactured by forced or The Tariff Act does not specifically
indentured child labor. Under a final September 6, 2000, in consultation and
cooperation with the Department of define ‘‘indentured labor under penal
rule by the Federal Acquisition sanctions’’ (the term used in that
Regulatory Council, published in State and the Department of the
Treasury, the Department of Labor statute). The second part of the
today’s issue of the Federal Register, Executive Order’s definition of ‘‘forced
which also implements Executive Order published a preliminary list of products
in the Federal Register (65 FR 54108– or indentured child labor’’ is intended
No. 13126, federal contractors who to incorporate the Tariff Act’s concept of
supply products on the list are required 54112), explained how the preliminary
list was developed, and invited public indentured labor, as it involves
to certify, among other things, that they children. This part of the Executive
have made a good faith effort to comment. The public comment period
closed on November 6, 2000. Order definition is derived directly from
determine whether forced or indentured the legislative history of the Tariff Act.
child labor was used to produce the II. Summary and Discussion of See 71 Cong. Rec. 4488–4499 (daily ed.
item. The Department of Labor is also Significant Comments Oct. 14, 1929).
publishing, in today’s issue of the In comments on behalf of the
Twenty-four comments were received.
Federal Register, procedural guidelines organizations in the Child Labor
In developing the final list of products,
that describe how the list of products Coalition, the International Labor Rights
the three Departments have carefully
will be updated in the future, through Fund questions the definition of ‘‘forced
reviewed and considered the public
a public notice-and-comment process. or indentured child labor’’ in the
comments received. The following is a
FOR FURTHER INFORMATION CONTACT: Ami Executive Order and urges the
summary of the significant comments
Thakkar, International Child Labor and the three Departments’ response. development of a different, significantly
Program, Bureau of International Labor broader definition. The Fund’s
Affairs, Room S–5303, U.S. Department A. Comments on the definition of comments identify various abusive
of Labor, 200 Constitution Avenue, ‘‘forced or indentured child labor’’ working conditions that the Fund
NW., Washington, DC 20210; telephone: Several comments raise issues related suggests ‘‘should be encompassed
(202) 208–4843; fax: (202) 219–4923. to the definition of ‘‘forced or explicitly in the definition of ‘forced or
SUPPLEMENTARY INFORMATION: indentured child labor’’ used in indentured child labor.’ ’’ The Fund’s
determining the proposed list of comments do not refer to any specific
I. Background basis in U.S. or international law for
products that may be produced by
Executive Order No. 13126, which forced or indentured child labor. such an expanded definition.
was published in the Federal Register Executive Order No. 13126 defines The Department of Labor’s September
on June 19, 1999 (64 FR 32383–32385), 6, 2000 Federal Register notice
‘‘forced or indentured child labor’’ as: all explained how the Labor, State, and
required the Federal Acquisition work or service (1) exacted from any person
Regulatory Council (the Civilian Agency under the age of 18 under the menace of any
Treasury Departments have applied the
Acquisition Council and the Defense penalty for its nonperformance and for the definition in the Executive Order and
Acquisition Regulations Council) to worker does not offer himself voluntarily; or have evaluated a wide range of working
issue proposed rules to amend the (2) performed by any person under the age conditions for the possibility of
Federal Acquisition Regulation (FAR), of 18 pursuant to a contract the enforcement coercion, the essential element of the
with respect to the procurement by of which can be accomplished by process or first part of the definition. 65 FR 54109.
federal agencies of products that may penalties. The Department of Labor, in
have been mined, produced, or As explained in the Department of consultation and cooperation with the
manufactured with forced or indentured Labor’s September 6, 2000 Federal Departments of State and Treasury, is
child labor. A proposed rule was Register notice, the ‘‘two aspects of the charged with implementing the
published in the Federal Register on definition represent alternatives which Executive Order and its definition of
September 6, 2000 (65 FR 54104– are not mutually exclusive.’’ 65 FR ‘‘forced or indentured child labor.’’ That
54107), and public comment was 54109. definition is appropriately derived from
invited. A final rule is being published The definition of ‘‘forced or the Tariff Act, as explained above, since
in today’s Federal Register. indentured child labor’’ in Executive the Executive Order embodies a
Under that final rule, certain Order No. 13126 is derived from, and procurement policy intended to be
procurement related requirements will generally consistent with, the Tariff Act consistent with the Tariff Act. As has

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5354 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

been previously noted, some child labor coercion, including coercion related to clarification of the Executive Order’s
abuses may not meet the established making or enforcing employment standard for placing a product on the
definition of ‘‘forced or indentured contracts, will be carefully examined. list: That the three Departments have a
child labor.’’ In his comment, Senator Tom Harkin ‘‘reasonable basis to believe’’ that forced
The United States Council for raises concerns about the application of or indentured child labor was used. The
International Business, in a comment the definition of ‘‘forced or indentured Fund is correct in pointing out that this
noting its strong support for child labor’’ in the development of the threshold is relatively low. The standard
international efforts to end forced and list of products. The Departments have is appropriate, given the nature of the
indentured child labor, asks for attempted to apply the definition in a list. The list does not reflect a
clarification concerning the second part way that is both consistent with the determination that forced or indentured
of the definition of ‘‘forced or Tariff Act and takes into account the child labor actually was used to produce
indentured child labor’’ in the Executive actual circumstances in which children a particular product. Rather, it
Order with respect to situations in work. We will continue to do so, based establishes the need for further inquiry
which persons under age 18: (1) Work on available information, as the list of by a federal contractor who wishes to
under a legally enforceable ‘‘collective products is updated. supply the product, in order to make
bargaining agreement freely negotiated sure that forced or indentured child
B. Comment on Statutory Authority
by the employer and the union labor was not, in fact, used.
representing workers in the bargaining One comment questions the statutory
As the September 6, 2000 Federal
unit;’’ or (2) work under individual authority for action by the three
Register notice explained, the three
employment contracts that contain a Departments to implement Executive
Departments have applied the
‘‘penalty clause that is triggered by early Order 13126, since matters of federal
‘‘reasonable basis to believe’’ standard
termination,’’ but where ‘‘excessive acquisition policy are involved. The list
to develop the list. There, we identified
process or penalties’’ (as opposed to of products called for in the Executive
several factors that were considered and
‘‘customary cancellation penalties’’) are Order serves to trigger requirements for
weighed: ‘‘the nature of the information
not involved. federal contractors under revisions to
describing the use of forced or
The information provided by the U.S. the Federal Acquisition Regulation, to
indentured child labor; the source of the
Council is not detailed, especially with be adopted by the Civilian Agency
respect to individual employment information; the date of the information;
Acquisition Council and the Defense
contracts and the so-called ‘‘penalty the extent of corroboration of the
Acquisition Regulations Council. The
clause.’’ On the basis of the description information by appropriate sources; and
authority for the Executive Order, and
provided by the U.S. Council, however, whether the information involved more
for the regulations that implement it,
it appears possible, depending on the than an isolated incident.’’ 65 FR 54109.
derives in part from the Federal
facts, that neither situation would come The three Departments have also taken
Property and Administrative Services
within the second part of the Executive into account ‘‘whether recent, credible
Act of 1949 (also known as the
Order’s definition of ‘‘forced or efforts are being made to address forced
Procurement Act), 40 U.S.C. 471 et seq.,
indentured child labor,’’ as interpreted or indentured child labor in a particular
which among other things authorizes
consistently with the Tariff Act of 1930. country.’’ 65 FR 54109.
the President to prescribe federal
As a general matter, there is no acquisition policy and directives. E. Comments on Effect of Prior
indication that Congress was concerned Executive Branch Reports Addressing
about legitimate collective bargaining C. Comment on the Burden of Proof
Once a Product Is Listed Child Labor
agreements or legitimate employment
contracts, providing for ordinary legal Senator Harkin expresses concern that The International Labor Rights Fund,
remedies, when it enacted the Tariff products might be removed from the on behalf of the Child Labor Coalition,
Act. In any case, neither situation list, if new information demonstrating questions whether the three
described by the U.S. Council clearly the continued use of forced or Departments gave sufficient weight to
implicates the concept of indentured indentured child labor were not prior reports addressing the use of child
labor under penal sanctions. For regularly supplied by non-governmental labor, published by the Department of
example, a child apparently would not sources. He suggests instead that Labor and the Department of State. In
be subject to criminal penalties, to a products should remain on the list, particular, the Fund states that the
judicial order requiring the child to unless new information showed that the Department of Labor’s series By the
continue working, or to a state- prior use of forced or indentured child Sweat and Toil of Children ‘‘should
sanctioned monetary penalty, as a labor had been effectively addressed. In constitute prima facie evidence for
means of enforcing the agreement or fact, the list will be updated in line with purposes of identifying countries and
contract. With respect to employment the principle supported by Senator products that should be identified
contracts, the U.S. Council does not Harkin. Once a product is placed on the pursuant to E.O. 13126.’’ In fact, the
appear to be describing truly punitive list, it will remain there, unless and three Departments did consider
provisions, designed to deter young until the three Departments have previously published reports and
workers from quitting employment in adequate information to justify carefully reviewed information that was
circumstances of exploitation or duress. removing the product from the list. The cited in those reports. The reports
Because there is no suggestion that public notice-and-comment process by themselves, however, cannot serve as a
children are being coerced to enter into which the list will be updated is substitute for the determination
a contract or to work under it, the first described in a separate notice in today’s required by Executive Order. Moreover,
part of the Executive Order definition Federal Register. in some instances, the reports
also may not apply to the situations completed in 1994 and 1995 relied upon
described by the U.S. Council. The D. Comment on the ‘‘Reasonable Basis information that may no longer be
application of the Executive Order, of to Believe’’ Standard considered current, in a few cases the
course, will depend on the specific The International Labor Rights Fund, reports reflected information on isolated
factual circumstances of particular on behalf of the other organizations in occurrences, and in others, there is
cases. Circumstances that suggest the Child Labor Coalition, requests information on more recent and credible

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Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices 5355

efforts to eliminate child labor in the labor. Such information was not failure to include any products from
product identified. provided in the comments received, India on the list. The three Departments
with one exception. Third, the scope of based their decision on the fact that the
F. Comments on the Inclusion of
the Executive Order is limited to forced Government of India is now making
Products From Burma
and indentured child labor, that is labor extensive efforts, in collaboration with
Several comments were received by persons under the age of 18. The the International Labor Organization’s
supporting the inclusion of products comments received refer to forced labor International Program on the
from Burma on the preliminary list. in a country and in some cases, sector. Elimination of Child Labor to prevent
These comments include a letter from a However, this alone does not provide and eliminate child labor in the
number of members of Congress, sufficient information of forced or following sectors: hand-rolled beedi
specifically Representatives Kucinich, indentured child labor. cigarettes, brassware, hand-made bricks,
Kaptur, McHugh, Evans, Slaughter, The Department of Labor welcomes fireworks, footwear, hand-blown glass
Nadler, Sanders, Waxman, George future submissions providing bangles, hand-made locks, hand-dipped
Miller, Payne, Ackerman, DeFazio, information on specific products matches, hand-broken quarried stones
Abercrombie, Delahunt, McDermott, produced by forced or indentured child and hand-spun/hand-loomed silk. The
Tierney, McKinney, McGovern, Lee, labor in specific countries. Submissions Department of Labor will monitor the
Moakley, Carson, Doggett, Stark, should follow the procedures outlined effectiveness of these efforts, and will
Sandlin, Baldwin, and Sherrod Brown. elsewhere in today’s Federal Register. welcome public comments on the
G. Comments on the Exclusion of As indicated, one comment did credibility and progress of such efforts.
Certain Products and Countries provide current and specific
J. Other Comments
information: Professor Kevin Bales of
Various comments express a concern Free the Slaves submitted new One comment states that the
that the list included an insufficient information concerning the use of description of the products listed on the
number of products and countries. For forced or indentured child labor in the preliminary list were ‘‘vague’’ and that
example, many of the comments, cocoa industry in the Ivory Coast. Since products should be identified by the
including those from Representatives this product was not considered when standard category codes that are used by
Tom Campbell and Tom Tancredo, creating the preliminary list, the the Customs Service and Census
object to the exclusion of several International Child Labor Program of the Bureau. The three Departments believe
countries, on the basis that these Bureau of International Labor Affairs that the descriptions are sufficiently
countries have well known ‘‘forced and will consider the information as a specific. The Executive Order does not
indentured labor systems’’. Some submission for review pursuant to the require the use of standard category
comments refer to Congressional newly-announced procedures for codes in the products list. At this time,
testimony where specific products were updating the current list. the Departments do not have reason to
named by region as examples of believe that the addition of standard
products ‘‘flowing into America.’’ One H. Comments on Recent and Credible category codes to the list would result
comment, discussed below, mentions a Efforts in more efficient implementation of the
specific product and country. Several comments question the factors Executive Order.
As explained, in considering which which the three Departments took into Another comment suggests that the
products and countries would be placed consideration when determining which inputs of the Department of State and
on the preliminary list, the three products and countries would be on the Treasury into the Executive Order
Departments considered and weighed a list. Senator Tom Harkin states that the consultation process be described and
number of factors including: The nature presence of programs or the that the joint determination process for
of the information describing the use of commitment to initiate programs aimed compiling the list be disclosed. The
forced or indentured child labor; the at eliminating child labor is not a Departments of Labor, State and
source of the information; the date of justification to leave any product or Treasury consulted extensively before
the information; the extent of country off the list. compiling the list, as mandated by the
corroboration of information by The International Labor Rights Fund, Executive Order. As a result, the
appropriate sources; whether the on behalf of the Child Labor Coalition, preliminary list underwent a thorough
information involved more than an makes a similar comment regarding interagency process.
isolated incident; and whether recent carpets in South Asia, stating that efforts Another similar comment suggests
and credible efforts are being made to being undertaken in the industry to that the responsibility of implementing
address forced or indentured child labor eliminate child labor did not justify the Executive Order should rest with an
in a particular country or industry. their exclusion. acquisition policy agency, with advisory
None of the comments described Again, in considering which products and support roles by the Departments of
above provides additional information and countries would be placed on the Labor, State and Treasury. In fact, as
sufficient to support the inclusion of preliminary list, the three Departments already described, the appropriate
additional products and countries on took into consideration a number of acquisition organizations are
the list. First, the Executive Order factors including the extent of recent responsible for implementing the
required the development of a list of and credible efforts undertaken in a Executive Order, through revisions to
products, by country of origin. Many of particular country and industry aimed the Federal Acquisition Regulation.
the comments named countries, but at addressing forced or indentured child Furthermore, the Executive Order
failed to identify specific products. In labor. The Department of Labor will mandates the Department of Labor, in
other cases, products were mentioned continue to assess the progress of these coordination with the Departments of
without reference to specific countries. efforts and welcomes further State and Treasury to publish a list of
Second, to satisfy the Executive Order information from the public on them. products.
standard, the Departments must have Several comments suggest a broader
information on an individual product, I. Comments on Products From India scope for the Executive Order, rather
in a particular country, which may be Senator Harkin and several other than its current mandate to prohibit the
made with forced or indentured child submitters specifically object to the acquisition of goods made with forced

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5356 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

or indentured child labor by the federal stating that there are impressive Department of Labor’s September 6,
government. These comments are programs dealing with child labor in the 2000 notice in the Federal Register (65
beyond the scope of the present carpet sector, particularly Rugmark. The FR 54108–54112). The final list of
initiative, which is intended to submitter also said in order to avoid products appears below. In addition, in
implement the Executive Order, not to giving ‘‘a free pass’’ to producers who today’s issue of the Federal Register, the
modify it. Development of a products are not participating in the innovative Department of Labor is publishing
list, and accompanying procurement programs, carpets should be included procedural guidelines for updating the
regulations, based on standards broader on the list. Although carpets are not final list in the future.
than those in the Executive Order would being included in this final list, the Based on recent, credible, and
require additional public notice-and- Departments are considering how best appropriately corroborated information
comment procedures, as well as to address the issue raised by the from various sources, the Department of
significant additional research and International Labor Rights Fund, while Labor, the Department of State, and the
investigation by the three Departments. continuing to encourage innovative Department of the Treasury have
These steps would unnecessarily delay labeling and monitoring initiatives in concluded that there is a reasonable
the implementation of the Executive the carpet sector. The Department of basis to believe that the following
Order. Without ruling out the possibility Labor requests additional public products, identified by their country of
of future steps, should they be comment on the issue raised by the origin, might have been mined,
determined to be appropriate, the three International Labor Rights Fund. produced, or manufactured by forced or
Departments have chosen to proceed to indentured child labor:
L. Request for Information on Cotton
finalize the product list contemplated Bamboo(Burma)
and Sugarcane
by the Executive Order. Beans (including yellow, soya, and
The Departments requested green beans) (Burma)
K. Request for Information on Carpets information on whether there was Bricks (hand-made) (Burma, Pakistan)
In the preliminary notice, the three forced or indentured child labor in the Chilies (Burma)
Departments invited comment on the production of cotton and sugarcane in Corn (Burma)
measures taken in South Asia to Pakistan. No comments were received Pineapples (Burma)
eliminate forced and indentured labor and existing information is insufficient; Rice (Burma)
in the carpet sector, including labeling therefore, the Departments have not Rubber (Burma)
and monitoring initiatives that are included these products on the final list. Shrimp (aquaculture)(Burma)
currently in place. Specifically, the
III. Final List of Products Sugarcane (Burma)
Department sought public comment on
Teak (Burma)
the sufficiency of these initiatives and The three Departments have
whether or not a certification or label determined that it would be appropriate Signed at Washington, D.C., this 5th day of
from a credible monitoring program to publish a final list of products that January, 2001.
could adequately serve the purposes of comprises the products on the Andrew J. Samet,
the Executive Order. The Departments preliminary list. No comments objected Deputy Under Secretary for International
received a comment from the to the inclusion of these products. The Affairs.
International Labor Rights Fund, on basis for including those products on [FR Doc. 01–953 Filed 1–17–01; 8:45 am]
behalf of the Child Labor Coalition, the list is set forth in detail in the BILLING CODE 4510–28–P

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