Follow up # 2 on US CBP forced labor seizures

Just a quick entry here, to give an update on some new developments on this subject, since my first two posts:

First post on forced labor

Second post on forced labor

Since those posts, a couple key developments tell me this is a story that has yet to be fully told.

First, on July 27, CBP Commissioner Kerlikowske raised the matter in his opening remarks to the Commercial Customs Operations Advisory Committee (COAC)[i]:

“And as you know, enforcement of the nation’s trade laws is a core mission for CBP, and I want to announce the new Forced Labor Working Group focusing on this key enforcement priority.

Following the Custom’s Bill’s repeal of the “consumptive demand” loophole, we have been working with industry, civil society organizations, and others to rigorously enforce the law and prevent the import of goods made with forced, convict, or child labor into the United States.”

He further went on to say:

“The role of industry in this issue is clear, and we must work closely with importers, brokers, and companies who want to do the right thing to clarify standards for their supply chains.”

I find this second statement very interesting. Is this hinting at a trusted trader type strategy? Perhaps a CTPAT type model, but targeting forced labor in supply chains? How about CTPAFL? No, to many letters…. Regardless of my conspiracy theories, this is just further evidence that CBP has no intention of dropping the matter, whatever their future plans are exactly.

Another development comes from the private business side. Recently Descartes’ SPL division “Descartes MK Denied Party Screening” added a new list type to their offering, called “Customs and Border Protection Forced Labor”.  They explain the list as: “The manufacturers listed have Withhold Release Orders (WRO) issued by the Commissioner”.

Descartes MK is a leader in the generation of SPL content[ii] for automation, such as in SAP GTS, and their inclusion of this content is a good indication that we can expect to see the list grow.

I’ll keep checking in on this subject, and I encourage anyone reading this to start the process of a supply chain review for forced labor. As I mentioned in my last post on the subject, there are other good reasons to do so.

P.S.: I’m a little surprised that Descartes called the list “… Forced Labor”. I was really hoping to see “… Forced LaboUr” from a Canadian company, eh! Ok. If you’re not Canadian, you probably didn’t get that one….

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[i] https://www.cbp.gov/newsroom/speeches-and-statements/2016-07-27-000000/commissioner-kerlikowske%E2%80%99s-opening-remarks

[ii] https://www.descartes.com/documents/descartes-mk-denied-party-screening-list-offerings

TPP vs. NAFTA

I was going to name this entry “TPP vs. NAFTA for TCPs[i]”, but honestly we trade compliance folk have to deal with enough acronyms already….

Unless you have been living under a rock the last year or so, you have no doubt heard of the Trans-Pacific Partnership (TPP). Most of the press has revolved around the political implications of TPP, such as impact on jobs and sovereignty. As a trade compliance professional you need to start thinking about the “how” of TPP. In other words, how are you going to implement TPP at your company, and is your automation prepared for it?

TPP is a free trade agreement, like many others, but there’s some aspects to it that may seem new or unusual to many. I’m writing this primarily to a North American audience, so I’ll use NAFTA as my model to contrast against the TPP model. This is just a blog entry, so it will not be comprehensive, but my goal is to alert the reader to significant differences between NAFTA and TPP, that they should investigate further. I apologize in advance to anyone unfamiliar with some of the terms used here: this write up is intended for an audience that already has an appreciation for how NAFTA works.

Most companies in North America have had a stable, preferably automated solution in place for NAFTA compliance for some time. Personally, I use SAP GTS, but there are a number of options on the market for automated rule of origin checks. NAFTA rules of origin[ii] (ROO) are fairly consistent, across the range of goods. The rules are driven by the tariff classification (HTS), and there are hundreds of them, but the structure of those rules tends to follow a common theme.

The majority of NAFTA ROO use the following basic tools:

·         % of regional (NAFTA) content

·         Shift in HTS between component and finished good

·         Some combination of both

I’d like to address the issue of % content, and contrast how NAFTA and TPP determine this. There are a couple significant differences. First, NAFTA overwhelmingly measures content by value, i.e. “50% regional value content”. A search of Annex 401 reveals that only 3 product specific ROO require a check of % by weight (as well as a general rule that applies to all of chapter 62).

In contrast, TPP ROO[iii] contains over 3 dozen product specific ROO referencing weight. Furthermore, some of these appear in chapters where NAFTA did not reference weight, such as the rule for HTS 3901. Anyone performing ROO checks on one of these products will have to verify that their systems can handle this. Furthermore, even TPP’s use of regional value content differs from NAFTA. NAFTA had a standard rule where value is checked for 50% if Net Cost is used, and 60% if Transaction Value is used. TPP uses % by value, but the %’s range wildly: I have seen, 30, 35, 40, 45, 50, 55%.... This will present a challenge to any system built around the 50/60 split. TPP also uses different categories of value: instead of Net or Transaction, it uses Net, Build Up, Build Down and Focussed Values. The variety of rule types is significantly more than found in NAFTA.

Apart from the product specific rules, another area of difference is found in the large amount of country specific exceptions. Unlike NAFTA, TPP seems to be much more open to unique exceptions by country. Likely this is due to the significantly larger amount of countries involved, as opposed to just 3 in NAFTA.

I don’t want to make this sound entirely negative or scary: there is good news for us Trade Compliance folk. I live in the chemical sections of the tariff – primarily chapters 27 through 40. In these sections, it is clear from an early analysis that there will be less text based conditions in TPP. What do I mean by this? Here is an example:

In NAFTA, the rule of origin for 3206.49 is very long and depends on a number of non-tariff based criteria (what I call text based conditions). For example, the rule differs depending on whether or not your product is based on Hexacyanoferrates or not. In contrast, with TPP the rule is very simple:

“A change to a good of subheading 3206.11 through 3206.50 from any other subheading.”

It doesn’t matter if you are based on Hexacyanoferrates, Cadmium Compounds or anything you can imagine. This is great news for me, as these conditions pose a problem for automation. For example, in SAP GTS they are called Additional Conditions, and need to be manually set. The system is smart, but not that smart; you need to tell it if any of the conditions apply. Dealing with less of these conditions will be good news for me and many others in my position.

By the way; to end this on a lighter note. Does anyone else find it ironic that the USTR uses this logo on their TPP information page?

Considering TPP encourages US company use of foreign content, I think “Made In America[iv]” is an odd choice. Especially when you realize that the use of the words “Made in America” requires “all or virtually all” of the contents to be US origin[v]! I wonder: could you claim that the USTR misled you if you found yourself in hot water with the FTC over a claim of USA on a good that meets the TPP ROO, through a shift in HTS? Sorry, I did say I was going to try and avoid acronyms, didn’t I…?

Kevin Riddell

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[i] Trade Compliance Practitioners

[ii] http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/ann-401-09.aspx?lang=eng

[iii] https://www.mfat.govt.nz/assets/_securedfiles/Trans-Pacific-Partnership/Annexes/Annex-3-D.-Product-Specific-Rules-of-Origin.pdf

[iv] https://ustr.gov/tpp/#text

[v] https://www.ftc.gov/tips-advice/business-center/guidance/complying-made-usa-standard

Import controls on products produced with forced labor: a developing story

Most professionals involved in international trade compliance in the USA have heard of the recent Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), signed by President Obama on February 24, 2016. There was significant coverage of this both within our industry and outside of it, no doubt helped by the incredible coverage of the Republican and Democratic primaries. Some of the clauses in this act have been covered well, such as:

• The increase from $200 to $800 for Section 321 clearances
• Changes to the US Goods Returned program
• Minimum standards for Customs Brokers
• Changes to Duty Drawback procedures
• Etc.….

One aspect of this bill that has not been discussed as much, is the repeal of an old law called the “Consumptive Demand” clause. This clause was found in 19 U.S.C. § 1307[i] until the TFTEA repealed it.

What does this mean exactly?

Duty Drawback – benefits and challenges

Most US importers are familiar with duty. They pay duty (and applicable MPF/HMF) on many of their imported goods – particularly those that are not granted 0 duty by virtue of a free trade deal.

Unfortunately, too many companies consider this cost a “necessary cost of business” and simply plan for it in their budgets. These duties can represent anywhere from 1 or 2, up to double digit percentages of product value. This can have a serious impact on your bottom line! These costs could be reduced or eliminated, through a duty drawback program, if a significant amount of the imported product was subsequently exported or destroyed.

Why is it that so many companies fail to take advantage of this program? The reason is largely due to a perceived difficulty in the process, and an inability to comply with the requirements. The truth is, those companies are right! They are unable to comply, that is without an automation solution. Allow me to explain, using the drawback process.

The hidden lesson in OFAC guidance on “false hit lists”

http://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20151021.aspx

A recent OFAC press release, and guidance document, offers some good advice, but also risks misleading readers. A careful read of the case and guidance will reveal a hidden lesson to be learned. At first glance, the guidance simply reminds companies to ensure their SPL lists are updated and reviewed, and most readers will come away satisfied that they are compliant.  A primary message in the guidance refers to what they call “false hit lists”, and reminds readers to ensure entities on that list are reviewed as regulations change. Upon a deeper look, however, this Finding of Violation contains another lesson, one that may surprise readers and give them reason to review their compliance program. Before we explain that statement, let’s take a good look at the finding, and the guidance.