ABA Section of International Law: “Recent Initiatives by the U.S. Government to Combat Forced Labor Practices: Workability of Measure and Implications for Supply Chains”

On Thursday, November 3, the American Bar Association (“ABA”) Section of International Law hosted an event titled “Recent Initiatives by the U.S. Government to Combat Forced Labor Practices: Workability of Measures and Implications for Supply Chains” following enactment of the Trade Facilitation and Trade Enforcement Act of 2015 (“TFTEA”) earlier this year. TFTEA eliminated a long-standing exception to the general prohibition on the importation of goods made with forced or indentured labor, including forced child labor, to meet the “consumptive demand” of the United States. The panelists discussed enforcement of the amended law and its implications for global supply chains.

History

Section 307 of the Tariff Act of 1930 prohibits the importation of “[a]ll goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor.”  However, the original law included an exception for any imports not made “in such quantities in the United States to meet the consumptive demands of the United States.”  TFTEA repealed this “consumptive demand” exception, striking it from Section 307.  In a statement after the President signed TFTEA into law, Customs and Border Protection (“CBP”) Commissioner R. Gil Kerlikowske noted that “imperative to human rights protections around the world, the Act eliminates obstacles to preventing imports made with forced or child labor into the United States.” Commissioner Kerlikowske has pledged that his agency will take an active role in preventing goods derived from forced or indentured labor from entering the U.S.

ABA Panel Discussion

The panelists raised a variety of topics in their discussion of TFTEA’s changes to Section 307.  Nora Todd, Senior Policy Advisor, Office of Senator Sherrod Brown (D-OH), stated that Senator Brown believes the U.S. must be a leader on international labor rights issues. Ms. Todd explained that since passage of TFTEA, Senator Brown and staff have continued to communicate with various U.S. Government officials on implementation of the bill,

Alice Kipel, Executive Director, Rulings and Regulations, CBP, explained the burden of proof necessary for CBP to act, noting that the agency must have specific evidence which “reasonably, but not conclusively indicates” that a product was derived from a prohibited class of labor to issue a withhold release order (“WRO”) and prevent release of the good into the United States. According to Ms. Kipel, CBP has issued four WROs since the consumptive demand exception was eliminated with plans for more.  Ms. Kipel acknowledged that the current regulations may be updated to ensure that companies receive enough notification to guarantee due process.  She also emphasized that the prohibition applies to the importation of goods derived “wholly or in part” from forced and/or indentured labor, cautioning that “wholly or in part” should be interpreted broadly to cover a wide range of components incorporated in merchandise but acknowledging the challenges of tracing components down to the “grain of salt.”  Ms. Kipel cautioned that, should a company’s goods be denied entry subject to a WRO, the company should be ready to provide documents that demonstrate efforts to monitor the character of labor involved in the broader supply chain, but the exact documents will depend on the nature of the allegations.

Mr. Eric Gottwald, Legal and Policy Director, International Labor Rights Forum (“ILRF”), expressed concern with CBP’s efforts to communicate once a petition is filed and the time it can take to respond to a petition. Mr. Gottwald also called on CBP to ensure its investigations reflect forced labor in the broader economy.

CBP Plans to Update the Existing Regulations

CBP plans to update Section 307’s implementing regulations, likely beginning early in 2017.  CBP’s Commercial Customs Operations Advisory Committee (“COAC”) recently established a Forced Labor Working Group made up of representatives from a variety of sectors, trade associations, and relevant agencies to provide its recommendations on CBP’s continued enforcement of TFTEA’s changes to Section 307.  The Working Group released a number of recommendations at COAC’s November 17 meeting from teams focused on communications, legal challenges, and strategic leadership.