All importers should be aware that U.S. Customs and Border Protection (CBP) is embracing a renewed approach to trade facilitation and enforcement, focusing on the following areas:
- Trade Enforcement
- Automated Commercial Environment (ACE)
- Anti-dumping and Countervailing Duties (AD/CVD)
- Centers of Excellence and Expertise (CEEs)
- De Minimis Value Exemption
- Forced Labor
- Intellectual Property Rights
According to CBP Publication#2127-0216, CBP is ensuring economic security to:
- Detect high risk activity
- Deter non-compliance
- Disrupt fraudulent behavior
Their goal is to have Fair and Competitive Trade!
Forced Labor and North Korean Sanctions are currently two of the hottest topics in TFTEA . Why? Commercial Enforcement Division is enforcing Supply Chain Due Diligence and Detention of Shipments due to forced labor. To prevent goods manufactured by prohibited forms of labor from being imported into the U.S.; CBP is currently conducting investigations by enforcing withhold release orders pursuant to 19 USC 1307.
Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307) prohibits the importation of merchandise mined, produced or manufactured, wholly or in part, in any foreign country by forced or indentured child labor – including forced child labor. Such merchandise is subject to exclusion and/or seizure, and may lead to criminal investigation of the importer(s).
Importers must submit a certificate of origin and a detailed statement showing that the merchandise was not produced by forced labor. In most cases, CBP may issue a detention notice during the investigation requesting additional proof/evidence that merchandise was not manufactured or produced by forced labor. CBP is also recommending that the importer should have a transparent social compliance system in place. The link below shows a list of countries and products that may be produced by Forced or Indentured Child Labor (this is not a definitive list) :
Supply Chain Audit is also recommended to evaluate risk in your supply chain. They should be conducted by independent or third party auditors.
If you are under investigation, we recommend that you contact a customs/international trade attorney or customs consultant to seek advice.
Please call us and we can email you a referral.
On November 14, 2017, we attended the Customs Enforcement Event for an open discussion with Assistant Center Director of the Electronics CEE, Jorge Garcia and Heather Litman of GDLSK regarding the impact of TFTEA to the trade community.
GDLSK prepared a presentation regarding TFTEA including Forced Labor Preparation and New Reasonable Care Guidelines as part of importers due diligence obligations:
Forced Labor Preparation
- Visit the facility before and create a factory profile
- Subcontractors Count! Consider Upstream Vendors
- Conduct inline inspections and create a record
- Misiion Statement in company manuals
- Contract or purchase order language
- Record of purchase and receipt of raw materials
- Factory list of operations, payment of labor and proof of production
- Records of movement of product at every stage of production
- Compare CBP website and Dept. of Labor Websites
- Identify Industries where forced labor maybe prevalent
Forced Labor New Reasonable Care Guidelines
Basic Question: Have you taken reliable measures to ensure imported goods are not produced wholly or in part with convict labor, forced labor, and/or indentured labor (including forced or indentured child labor)?
- Have you established reliable procedures to ensure you are not importing goods in violation of 19 U.S.C. 1307 and 19 CFR 12.42-12.44?
- Do you know how your goods are made, from raw materials to finished goods, by whom, where and under what labor conditions?
- Have you reviewed CBP’s “Forced Labor” webpage, which includes a list of active withold release orders and findings, as well as forced labor fact sheets?
- Have you reviewed the “Dept. of Labor’s List of Goods Produced by Child Labor or Forced Labor” to familiarize yourself with at-risk country and commodity combinations?
- Have you obtained a “ruling” from CBP regarding the admissibility of your goods under 19USC 1307 (19 CFR Part 177), and if so, have you established reliable procedures to ensure that you have followed the ruling and brought it to CBP attention?
- Have you established a reliable procedure of conducting periodic internal audits to check for forced labor in your supply chain?
- Have you established a reliable procedure of having a third-party auditor familiar with evaluating forced labor risks conduct periodic, unannounced audits of your supply chain for forced labor?
- Have you reviewed the International Labour Organization’s “Indicators of Forced Labour” booklet?
- Do you vet new suppliers/vendors for forced labor risks through questionnaires or some other means?
- Do you have your contacts with suppliers including terms that prohibit the use of forced labor, a time frame by which to take corrective action is not taken, such as the termination of the contractual relationship?
- Do you have a comprehensive and transparent social compliance system in place? Have you reviewed the Dept. of Labor’s “Reducing Child Labor & Forced Labor Toolkit” webpage?
- Have you developed a reliable program or procedure to maintain and produce any required customs entry documentation and supporting documentation?
List of Products Produced by Forced or Indentured Child Labor