Forced Labor Enforcement
Staff | M.E. Dey & Co.
The Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), signed in February of 2016 was the first comprehensive authorization of CBP since the Department of Homeland Security was created in 2003. The TFTEA strengthened enforcement of Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307) which prohibits all products made by forced labor, including child labor, from being imported into the United States. Merchandise found to be produced with forced or child labor are subject to exclusion and/or seizure, and may lead to criminal investigation of the importer.
The TFTEA repealed the “consumptive demand” clause of the Tariff Act of 1930, which allowed importation of forced-labor goods, “if the goods were not produced in such quantities in the U.S. as to meet the consumptive demands of the U.S.” Repealing this clause enhanced CBP’s ability to prevent products made from forced labor from entering the U.S. Additionally, human rights and labor standards were improved in the global supply chain.
The enhanced enforcement provided by the TFTEA also provides CBP with greater ability to target shipments and issue Withhold Release Orders (WRO) and detain shipments. CBP acts on information and data concerning specific manufacturers/exporters and specific merchandise; however, the agency does not typically target entire product lines or industries in high risk countries. CBP will issue WROs when information is reasonable but not conclusive.
Once the WRO is issued, the Importer has three (3) months to submit a certificate of origin and a detailed statement substantiating that the merchandise was not produced with forced labor. If CBP is not able to establish admissibility of the merchandise, the detained shipment will be subject to seizure and excluded from entry per 19 U.S.C. § 1307.
In order to remove the risk of forced or child labor in the global supply chain, Importers should use due diligence by regularly examining and monitoring manufactures and suppliers. Implementing a comprehensive and transparent social compliance process or system will ensure goods imported into the U.S. are not mined, produced or manufactured, wholly or in part, with prohibited forms of labor, i.e., slave, convict, indentured, forced or indentured child labor. Additionally, having a process in place will provide the ability to quickly respond to WRO’s and afford greater ability to obtain release of the detained merchandise.
Due diligence includes visiting manufactures and suppliers, surveying suppliers and conducting social compliance audits by third-party auditors, and including language in purchase contracts. Importers must know their supply chain partners and ensure that no product is produced with forced or child labor.
To assist importers in ensuring compliance, CBP provides information, guidance and resources on their website (https://www.cbp.gov/trade/programs-administration/forced-labor). Additionally, the U.S. Department of Labor, Bureau of International Labor Affairs (ILAB) provides additional information and reports on forced and child labor (https://www.dol.gov/agencies/ilab).