Senate's Customs Reauthorization Bill Would Amend Forced/Child Labor Law to Include Coerced Labor, Add Civil Penalties, Debarment, Etc.

According to Senator Baucus, S. 1631 would direct Customs and Border Protection and Immigration and Customs Enforcement to make customs facilitation and trade enforcement a priority again. Among other things, the bill would emphasize CBP's commercial responsibilities, provide for additional Customs-Trade Partnership Against Terrorism benefits, establish a new entry facilitation trade partnership, create an interagency import safety working group, and strengthen IPR enforcement.

S. 1631 would strengthen 19 USC 1307, the statute that currently prohibits the importation of goods made by convict labor or/and forced/indentured (including child) labor under penal sanctions, as follows:

Import Prohibition Against Convict/Forced/Indentured Labor Would be Strengthened

S. 1631 would expand the scope of 19 USC 1307 (by the addition of (ii) and (iii)) to prohibit the importation of goods produced, manufactured or mined in whole or in part:

(i) with convict labor, forced labor, or indentured labor under penal sanctions;

(ii) by means of coercion (as defined in 22 USC 7102), including by means of an employer withholding the passport or other travel documents of a foreign worker in order to compel the production of that good; or

(22 USC 7102 defines coercion as (a) threats of serious harm to or physical restraint against any person; (b) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (c) the abuse or threatened abuse of the legal process.)

(iii)by one or more individuals who, at the time of production were being subjected to a severe form of trafficking in persons (as defined in 22 USC 7102).

(22 USC 7102 defines severe form of trafficking in persons as the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery; or sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.)

No consumptive demand exception. S. 1631 would eliminate the exception to the import prohibition regarding forced or/and indentured labor if the goods are needed to meet the consumptive demands of the U.S.

Civil penalties. S. 1631 would add a new civil penalties section stating that any person who violates any provision of 19 USC 1307 or any regulation issued under this section may, in addition to any other civil or criminal penalty that may be imposed under this Act or 18 USC, or any other provision of law, be assessed a civil penalty by the Secretary of Homeland Security of not more than:

• first violation, an amount equal to 3 times the value of the goods imported or attempted to be imported in violation of 19 USC 1307; and
• second and subsequent violations, an amount equal to 6 times the value of the goods imported or attempted to be imported in violation of 19 USC 1307.

Import/export debarment. A new section would also be added that would allow the DHS Secretary to prohibit a person from importing any good into the U.S., or exporting any good from the U.S., if the Secretary finds that the person has engaged in a pattern or practice of actions that has resulted in a final determination with respect to the assessment of civil or criminal penalties for knowing and intentional or grossly negligent violations of any provision of 19 USC 1307 or any regulation issued under 19 USC 1307. Such debarment could be retracted, with import and export privileges reinstated, due to changed circumstances.

Notice and hearing required. No penalty could be assessed against a person for violating 19 USC 1307 or any regulation issued under that section unless that person was given notice and opportunity for hearing.

Definitions. Also included in bill is a list of definitions for child labor, convict labor, forced labor, goods, indentured labor under penal sanctions, and produced.

New Office to Coordinate Enforcement of Prohibitions Would be Established

S. 1631 would also require the establishment of an Office for Labor Enforcement within ICE to coordinate enforcement of the import prohibition provisions in 19 USC 1307.

Among other things, this office would be responsible for (partial list):

• Producer list - compiling and updating a list of the name and country of each producer of goods whose importation is prohibited under 19 USC 1307. This list and updates would be published in the Federal Register (with a provision for removal from the list if warranted by changed circumstances).
• Report to Congress - within 180 days of enactment, and annually thereafter, the office would be required to report to Congress on, among other things, the volume and value of goods made with child labor, convict labor, forced labor, indentured labor under penal sanctions, or any other coercion that are seized upon arrival in the U.S., the progress made in identifying and interdicting such goods destined for the U.S., etc.
• Fraud, negligence investigations - investigations relating to fraud, gross negligence, and negligence under 19 USC 1592 with respect to violations of 19 USC 1307.

(See ITT's Online Archives or 08/07/09, 08/13/09, 08/14/09, 08/19/09, and 08/20/09 news, 09080715, 09081305, 09081405, 09081920, and 09082015, for previous BP summaries on S. 1631.)

Senate Finance Committee press release (dated 08/06/09) available at http://finance.senate.gov/press/Bpress/2009press/prb080609.pdf.

Senate Finance Committees section-by-section summary available at http://finance.senate.gov/sitepages/leg/LEG%202009/080609%20Customs%20Section%20by%20Section.pdf.

S. 1631 available at http://finance.senate.gov/sitepages/leg/LEG%202009/080609%20Customs%20Reauthorization%20Bill.pdf.

Senator Baucus' floor statement on S. 1631 (dated 08/07/09) available at http://finance.senate.gov/press/Bpress/2009press/prb080709.pdf.