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 is the fourth revision of 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 six products, identified by their countries of origin, Cattle from South Sudan, Dried Fish from Bangladesh, Fish from Ghana, Garments from Vietnam, and Gold and Wolframite from the Democratic Republic of the Congo, that 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 of the Federal Acquisition Regulatory Councils, published January 18, 2001, which also implements Executive Order 13126, federal contractors who supply products which 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 September 27, 2012, 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”) (77 FR 59418). The notice invited public comment through November 27, 2012. The initial determination can be accessed on the Internet at http://www.dol.gov/ilab/programs/ocft/20120927EO13126FRN.pdf 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 five public comments that were received during the comment period, three comments—two of them from the same source—disagreed with the listing of Garments from Vietnam, but did not provide sufficient information to negate the basis for this proposed revision. The remaining comments did not discuss the revisions proposed 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:

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

II. Background

The first EO List was published on January 18, 2001 (66 FR 5353). The EO List was subsequently revised on July 20, 2010 (75 FR 42164); again on May 31, 2011 (76 FR 31365); and again on April 3, 2012 (77 FR 20051). This final determination is the fourth revision to the EO List.

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 goods, 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 Council 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 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 (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 EO List may be revised either through consideration of submissions by individuals or on the initiative of DOL, DOS and DHS. 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 EO List. DOL, DOS and DHS consider all public comments prior to the publication of a final determination of a revised EO List.

III. Summary and Discussion of Significant Comments

The Bureau of International Labor Affairs (ILAB) in DOL received five comments during the public comment period. Of these, one was from a private citizen, two were from the Government of Vietnam's Ministry of Labour, Invalids, and Social Affairs, one was from the Vietnam Textile and Apparel Association, and one was from the Apparel Export Promotion Council of India. All comments are available for public viewing at www.regulations.gov (reference Docket ID No. DOL-2012-0005).

All comments have been carefully reviewed and considered, as discussed below.

A. Comments on Forced Child Labor in the Production of Garments in Vietnam

One commenter provided information on the laws in place on child labor and forced labor in Vietnam, the Government of Vietnam's enforcement of those laws, and other policies and programs in place in Vietnam to combat forced child labor, and argued that garments from Vietnam should not be added to the EO List. Enacting laws, meaningfully enforcing those laws, and establishing policies and programs are important components of any country's efforts to combat forced child labor. However, based on the evidence reviewed, there are more than isolated cases of forced child labor in garment production. These cases predominately occur in small, unregistered workplaces. In many countries, laws, policies and programs that are effective for registered factories are less effective at reaching children and other exploited workers in unregistered, more hidden work settings, and this appears to be the case in Vietnam's garment industry. Therefore, DOL, DOS and DHS continue to have a reasonable basis to believe that forced child labor is occurring based upon the sources in the bibliography.

The same commenter questioned the use of sources from 2009, stating that they contain outdated information and should not serve as the basis for a listing. Under the Procedural Guidelines, ILAB must consider the “date of the information” in evaluating sources documenting forced or indentured child labor. ILAB has chosen to use only information no more than 5 years old. More current information has been generally given priority. ILAB's experience is that the use of child labor and forced labor in a country or in the production of a particular good typically persists for many years. Information about such exploitive activities is often actively concealed. Information that is several years old therefore can still provide useful context for more current information. In the case of garments from Vietnam, ILAB research in 2008 and 2009 revealed a trend of forced child labor in the sector. Further ILAB research in 2011 and 2012 revealed additional recent and ongoing cases of forced child labor in the garment industry, confirming earlier research.

The same commenter expressed the view that the instances of forced child labor described in the bibliography for the EO List were individual cases that account for an insignificant portion of the garment industry workforce. In conducting research on forced child labor in the production of goods, DOL, DOS and DHS consider whether the available information suggests that the problem of forced child labor is significant in the industry and country in question. Among the criteria in the EO 13126 Procedural Guidelines are whether the information in the bibliography “involved more than an isolated incident” of forced or indentured child labor and the source of that information. (66 FR5351.) In placing garments from Vietnam on the EO List, 18 sources were used, including sources from the International Labor Organization (ILO), the DOS, and other organizations whose methodologies, prior publications, degree of familiarity and experience with international labor standards, and/or reputation for accuracy and objectivity were found to be relevant and probative. Referencing these 18 sources, the three agencies concluded that the incidents in recent years and in a number of different establishments were evidence of a trend of children, some trafficked to large cities from distant provinces, working under conditions of forced labor. This phenomenon appears to be occurring in more than an isolated incident.

Several commenters urged that incidents of forced child labor occurring in small, private manufacturing units should not be considered for purposes of the EO List. The EO List does not differentiate between forced child labor in smaller, unregistered work settings and forced child labor in larger, registered factories. EO 13126 covers all forced labor by children in the production of goods, including work performed in more hidden work settings and home-based workshops.

In January 2013, two DOL officials visited Vietnam to assess the current situation of forced child labor in Vietnam, with a focus on the garment sector, and gather additional information about the efforts and systems in place to combat this problem. The DOL officials held meetings and consultations with government officials, unions, and more than 15 international and non-governmental organizations (NGOs) working on child protection, trafficking in persons, and worker rights issues.

Discussions with NGOs and Government of Vietnam officials confirmed that most, but not all, child labor in the garment sector occurs in small, unregistered workshops. NGOs corroborated the original sources used for the listing of garments, confirming that child labor, including child trafficking, still occurs in this industry. Individuals and groups with whom the DOL officials spoke confirmed that systematic monitoring of forced or indentured child labor in the garment sector is limited and largely confined to the larger, registered factories. There is no evidence of systematic monitoring of child labor in smaller, unregistered workshops. These discussions are documented in the bibliography.

B. Comments on Forced Child Labor in the Production of Garments in India

One commenter requested that garments from India be removed from the EO List. A product is removed from the EO List if there is a significant reduction or elimination of forced or indentured child labor in the manufacture of the listed product in that country. This commenter provided information on laws, policies, and programs of the Government of India, as well as industry efforts and NGO initiatives to combat child labor. As many of these laws and policies were only recently enacted, there is not yet adequate available information to evaluate their effectiveness in reducing forced child labor. The three agencies will continue to monitor the implementation of these new initiatives for possible future revisions of the EO List.

The commenter also requested that Indian garments be removed from the EO List because a survey by the Government of India's National Sample Survey Organization found a significant reduction in child labor in India in recent years. While this survey appears to show an overall reduction in child labor in India, it does not address whether there has been a corresponding reduction in forced or indentured child labor, which is the subject of the EO List. Likewise, the survey does not address whether the generalized reduction has had an impact on child labor in the garment industry, or whether the reduction is primarily in other sectors.

This commenter argued that any use of forced child labor in garments produced for the Indian market, rather than for export, should not be considered for purposes of the EO List. The commenter pointed to third-party certification programs as evidence that forced child labor does not exist in export-oriented garment factories, and claimed that the sources used to place garments on the EO List are “not applicable” to the export side of the industry. EO 13126 requires that goods are placed on the EO List if there is a reasonable basis to believe that forced child labor might have been used in the industry and country in question. Whether such labor is occurring in production of goods destined for export or domestic markets is not taken into consideration. Governments and other stakeholders have a responsibility to address forced child labor wherever it occurs.

The commenter asserted that Indian garments were placed on the EO List because yarn produced in the garment supply chain may have been made with forced or indentured child labor. This comment appears to misunderstand the sources in the bibliography. Every source for Indian garments discusses the use of forced or indentured child labor in the production of garments, and inclusion of Indian garments on the EO List was not based on activity in the supply chain.

The commenter argued that the instances of forced child labor identified in the sources are not representative of the garment industry in India as a whole. In conducting research on forced child labor in the production of goods, DOL, DOS and DHS consider whether the available information suggests that the forced or indentured child labor documented is more than an isolated incident. In the case of Indian garments, the sources document the practice of forced child labor occurring in various locations. Corroborated sources point to a proliferation of home-based work and small, un-registered production units that perform outsourced work such as printing and dyeing, where child labor is prevalent. Many of these children are migrants working to repay advances given to their parents, an indicator of forced labor. Many of these children work long hours under poor conditions, are subject to verbal and physical abuse, and their freedom of movement is severely restricted—another indicator of forced labor. These sources are corroborated by other credible sources, giving the three agencies a reasonable basis to believe that the use of forced child labor in the garment industry is more than isolated.

The commenter expressed the view that some of the sources are unreliable. In placing garments from India on the EO List, DOL, DOS and DHS relied upon sources whose methodologies, prior publications, degree of familiarity and experience with international labor standards, and/or reputation for accuracy and objectivity were found to be relevant and probative. Individual sources are corroborated by other evidence in the bibliography and should not be viewed in isolation. Taken as a whole, the bibliography which includes studies conducted by Verite, Inc., the Fair Labor Association, and the University of Manchester Chronic Poverty Research Centre, is sufficient to provide the three agencies a reasonable basis to believe that forced child labor might be used in the production of Indian garments.

Finally, the commenter noted that it did not have access to two of the sources cited for Indian garments, namely interviews with certain key informants. DOL will provide copies of those interviews to the commenter following the publication of this final notice. All of DOL's sources are publicly available from DOL upon request and/or from the original author.