Response to Correspondence Received from the Unocal Corporation

After the release of the Department of Labor's 1998 Report, Roger C. Beach, Chairman and CEO of Unocal Corporation, wrote to Secretary of Labor Alexis Herman on September 30, 1998, expressing the following concerns about the sections of the Department's 1998 Report dealing with the Yadana pipeline:

(1) the Report repeats "unsubstantiated and outrageous allegations about labor practices in the Yadana project." The repetition in the Report of "these allegations, unsupported by credible evidence of independent proof, does not provide a basis for the Labor Department findings";

(2) the Report "seriously misrepresents the Department's efforts to verify independently ... [the] scurrilous allegations through a visit to Burma. In fact, the lead investigator and a State Department employee were granted visas. Unocal made arrangements for this investigator to meet with appropriate officials of Total, the project operator and to have access to the pipeline area. Despite these arrangements, the trip was vetoed by Labor Department management"; and

(3) to prepare the Report, "the Department of Labor hired, without competitive bid, a 'research consultant.'" This individual "has been a prominent activist on this issue and a source of these false allegations for years." This individual "is not qualified to serve as paid consultant to a supposedly objective report to the Congress of the United States.⁽¹⁾

Mr. Beach's letter requested that the Inspector General of the Department of Labor investigate: (1) charges and allegations in the Report that are unsupported by credible evidence or independent proof; and (2) whether Department officials knew about a conflict of interest involving the "research consultant" and whether this "consultant misrepresented himself as a Labor Department employee to people he sought to interview in Asia."⁽²⁾

In another letter to Secretary of Labor Alexis M. Herman dated October 23, 1998, Mr. Beach stated: "I can assure you that Unocal does not, and will not use - or countenance the use of - forced labor in any of its projects or investments, as ... [the Department's 1998 Report] so falsely and irresponsibly implies. We have repeatedly offered US Embassy officials the opportunity to visit the Yadana project pipeline route, including stops at all 13 nearby villages. Several have done so. None has ever called our actions into question or presented even a scintilla of evidence to us that forced labor has been used on the project. Had they done so, we would have investigated any such claims immediately, and have taken corrective action." Mr. Beach further stated that the Department "did not avail itself of the opportunity to visit the project as it prepared the report" and called again for an investigation by the Secretary and the Inspector General of the Department of Labor regarding "the method and apparent bias with which... [the 1998 Report] was prepared."⁽³⁾

Secretary of Labor Alexis M. Herman responded to both of Mr. Beach's letters on November 23, 1998. Secretary Herman acknowledged receipt of correspondence expressing "concerns about the objectivity of the report in relation to labor practices on the Yadana Project and our contracting process." Secretary Herman stated that Mr. Beach's letters "have been referred to the Inspector General for his review and direct response to you."⁽⁴⁾

Also on November 23, 1998, Department of Labor Inspector General Charles C. Masten wrote to Mr. Beach with regard to his investigation of concerns expressed regarding the 1998 Report, specifically: (1) the objectivity of the report in relation to labor practices on the Yadana project; (2) the cancellation of a planned trip to Burma; and (3) the Department's contracting process.

The Inspector General responded as follows:

(1) "[The Department of] Labor's Bureau of International Labor Affairs (ILAB), in consultation with the State Department, was given the task of researching the issue and assembling the necessary information in order to issue the required report. This particular report is the result of a compilation of information from various reliable existing sources and primary data gathered by individuals knowledgeable of the issues, peoples and culture of the surrounding area";

(2) "... the decision not to proceed with the trip [to the pipeline area] appears to have been made on the fact that visas were unavailable for everyone on the research team. Moreover, we have also learned that repeated requests at a later date were ignored by the Government of Burma"; and

(3) "... the consultants hired to conduct the research and draft the report appear to have extensive experience in both labor law and reporting human rights practices in Burma and surrounding areas. Their expertise in this area as well as their availability to work on a temporary basis on short notice were the sole factors on which they were selected. ... As you know, identifying individuals with specific expertise on issues such as this one is a challenge. However, ILAB appears to have involved individuals who were capable of doing an objective job. Our review determined that ILAB was aware of the background of the individual researchers contracted to carry out the project and the Deputy Under Secretary of ILAB is confident that objectivity in assembling the information has not been compromised in any way. ... Finally, our review disclosed that ILAB adhered to the contracting procedures for small purchase orders as required, and we did not find any irregularities."⁽⁵⁾

The Department's 1998 Report also detailed the circumstances surrounding the issuance of visas for the Department of Labor research team to visit Burma. In that report, the Department stated that on February 5, 1998, it had submitted a request to the Burmese Embassy in Washington for a three-person team (two Department of Labor officials and a State Department official from the Bureau of Democracy, Human Rights, and Labor) to visit Burma from February 23 - March 6, 1998. The State Department's East Asia and Pacific Affairs Bureau (EAP) desk also requested a visa from the Burmese Embassy in Washington, DC in order to accompany the team and pursue separate consultations after the team's visit. Plans were made for the team to travel during that period, and a potential list of interviews was prepared in collaboration with the Department of State. However, on February 23, the day the team was scheduled to arrive in Rangoon, the Department was informed by the Burmese Embassy in Washington that permission for visa issuance had been granted by authorities in Rangoon for only one of the three team members and for the State EAP desk officer. On February 25, the Department sent a second request to the Burmese Embassy for visas for the other two team members but received no response. Because of the delay and the refusal of the GOB to grant access to the full research team, the Department chose not to proceed with its visit to Burma.

Unocal has also communicated with the Department with regard to the preparation of the 1999 update report. In response to the notice published in the Federal Register on July 21, 1999 intended to gather information from the public to assist the Department of Labor in preparation of the 2000 update report, J. William Ichord, Vice President, Washington Office, Unocal Corporation, wrote on August 20, 1999, to the Bureau of International Labor Affairs stating:

[W]e observe that the Department's solicitation appears to encourage unsubstantiated submissions including the type of misinformation that has characterized so much of the discussion on labor practices in Burma in the past. Specifically, the House Conference Report (No. 105-825) "requests that DOL provide comprehensive details on ... [various labor issues]." In contrast, the Department's solicitation reads: The Department is seeking facts or opinions in response to this Notice and is not requiring commenters to supply specific information about themselves. (Emphasis added)

Congress is requesting comprehensive factual information and confirmed details. The Department, however, is soliciting anonymous and unsubstantiated opinion without limitation as to time, location or other specifics. We believe anything less than a careful, factual report is inconsistent with Congress' directive. We hope that information provided to the department - especially anonymous information - will be subject to careful analysis and verification.⁽⁶⁾

On November 22, 1999, the Department of Labor replied to Mr. Ichord, clarifying that the statement in question was included in the Federal Register notice to signify that the Department was operating in accordance with the requirements of the Paperwork Reduction Act, as amended, 44 U.S.C. 3501 et. Seq.⁽⁷⁾ The Paperwork Reduction Act requires all Federal agencies to seek and obtain approval from the Office of Management and Budget (OMB) before undertaking a "collection of information" directed to 10 or more persons, in order to ensure that paperwork burdens on the public are evaluated and minimized. "Information" is broadly defined in the Act and the implementing OMB regulations (5 C.F.R. 1320.3(h)) and includes "any statement or estimate of fact or opinion, regardless of form or format." Those same regulations, however, also state that:

"Information" does not generally include....

(4) Facts or opinions submitted in response to general solicitations of

comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration of the comment.

Therefore, the language, "This Notice is a general solicitation of comments from the public. The Department is seeking facts or opinions in response to this Notice and is not requiring commenters to supply specific information about themselves...,"⁽⁸⁾ tracks the language in the OMB regulations, and it is the same as language which has been used by the Department in other Federal Register notices. The language used in the Federal Register notice in no way should be construed to suggest that the Department of Labor is not committed to providing a responsible and carefully considered report to the United States Congress.

BIBLIOGRAPHY

Albright, Madeleine K. Intervention at the 6^th ASEAN Regional Forum. Singapore, 26 July 1999.

All Burma Students' Democratic Front. "Rangoon forces 'hundreds' to work on Burma-Thai highway." 19 October 1998.

Amnesty International. Annual Report 1999. N.p.: Amnesty International, 1999.

---. "Arrest of 54 people increases deep divisions in Myanmar's society." News Service 194/98 AI INDEX: ASA 16/27/98, 7 October 1998.

--- . "ASEAN Labour Ministers meet where forced labour is commonplace." Press Release, AI INDEX ASA 16/10/99, 13 May 1999.

1. Roger C. Beach, letter to Secretary of Labor Alexis M. Herman, 30 September 1998. See Attachment 1.

2. Roger C. Beach, 30 September 1998. See Attachment 1.

3. Roger C. Beach, letter to Secretary of Labor Alexis M. Herman, 23 October 1998. See Attachment 2.

4. Secretary of Labor Alexis M. Herman, letter to Roger C. Beach, 23 November 1998. See Attachment 3.

5. Inspector General Charles C. Masten, letter to Roger C. Beach, 23 November 1998. See Attachment 4.

6. J. William Ichord, letter to Bureau of International Labor Affairs, 20 August 1999. See Attachment 5.

7. Associate Solicitor of Labor Robert A. Shapiro, letter to J. William Ichord, 22 November 1999. See Attachment 6.

8. United States, Department of Labor, Office of the Secretary, Bureau of International Labor Affairs "Notice for Public Submission of Information on Labor Practices in Burma," Federal Register vol. 64, no. 139 (Washington: Government Printing Office, 21 July 1999) 39173. See Appendix I.