Welcome to Weise Wednesday! Twice a month we will share a brief Q&A with the former U.S. Commissioner of Customs, Mr. George Weise. If you have questions, we encourage you to send them to This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Q: In an earlier Weise Wednesday, you addressed CBP’s intention to increase its enforcement of restrictions on imports made with forced labor. Are there indications that they are following through on this?

A: There are many signs that CBP now considers the enforcement of the prohibition on the importation of goods made with forced labor to be a high priority. Before the enactment of the Trade Facilitation and Enforcement Act of 2015 (TFTEA), only 39 “withhold release orders (WROs)” or findings of cause were issued by Customs (currently CBP) between 1930 and 2016. Not a single forced labor enforcement order was issued by CBP between November 2000 and March 2016. However, in the year after TFTEA became effective, CBP issued four WROs (all relating to China). Importers have also seen a dramatic increase in CF 28s specifically addressing this issue.

Congressional pressure had been building for some time for CBP to enhance its enforcement efforts in this area. Section 910 of TFTEA struck the “consumptive demand” clause of the 1930 Act, which allowed goods made with forced labor to be imported if consumer demand for the product in the U.S. exceeded the ability to produce the product in the U.S.

TFTEA also authorized CBP to issue WROs based on reasonable belief “that goods are being, or are likely to be, imported in violation of the forced labor statute.” In 2017, Congress enacted the Countering America’s Adversaries Through Sanctions Act. which reverses the burden of proof for imported merchandise believed to be the product of labor by North Korean citizens or nationals, wherever located.

When a WRO is issued by CBP alleging that goods have been produced with forced labor, or by a North Korean citizen or national, the goods are detained. The burden is then on the importer to provide documents and records to rebut the allegation. The importer may be required to submit records and documents such as—

  • Certificate of origin
  • Supplier certification that forced labor was not used
  • Supplier daily production records
  • Employee timecards and wage records
  • Factory visit reports and photographs
  • Employee lists
  • Bills of material

Among other steps taken to demonstrate that this is now a priority issue, CBP created a Trade Enforcement Task Force within the Office of Trade to focus on this issue and updated its Reasonable Care publication to include Forced Labor Guidelines. CBP also received funding and State Department approval to add nine additional customs attaches in U.S. embassies abroad, presumably to assist in this effort.

 

Takeaway

Now that CBP has made this a top priority, importers must do the same. Importers cannot wait to receive a CF 28 to take action. To avoid future problems, I urge all importers to launch internal reviews of your global supply chain to ensure that products you import into the U.S. have not been produced with forced labor, or with citizens or nationals of North Korea.