Postal Code For Chinese Manufacturers To Be Required By U.S. CBP Beginning This Weekend

As part of a continued effort to enforce the Uyghur Forced Labor Prevention Act (UFLPA) and to provide early warning to importers and their representatives that goods may have been produced in the Xinjian Uyghur Autonomous Region (XUAR), U.S. Customs and Border Protection (CBP) will require businesses to provide a valid postal code for Chinese manufacturers from which they are importing goods when reporting via the Automated Commercial Environment (ACE) system beginning on March 8, 2023.   The following Q&A will help your business understand the steps it needs to take to comply with the requirement:

Q.   When does this requirement go into effect?

A.     CBP first announced this requirement in its Notional Development & Deployment Schedule for Automated Commercial        Environment with a target deployment date of November 2022.  (CBP Publication No. 2027-1022).  However, on November 1, 2022, CBP announced that deployment was postponed until further notice to address concerns raised by impacted users.  (CBP Bulletin No. 53838846).  On January 26, 2023, CBP announced that the requirement would go into effect on March 18, 2023.

Q.     What is the purpose of the requirement?

A.      As stated by CBP in its January 26, 2023 Uyghur Forced Labor Prevention Act Region Alert, the postal code requirement “will provide an early notification to importers and their representative of goods that may have been produced in the [XUAR] and may be excluded from importation into the United States.”

Q.     What applications in ACE are subject to the postal code requirement?

A.     A postal code is not required for all applications in ACE. Rather, ACE will require postal codes of manufacturers in (1) “Cargo Release” applications if the country of origin is reported as China, and (2) “Manufacturer Identification Code” applications if creating or updating a Manufacturer Identification Code with a city located in China.

Q.     What happens if the provided postal code is invalid?

A.     A user that provides a postal code that is not a valid Chinese postal code will receive an error message.

Q.     What happens if the provided postal code is from the XUAR?

A.     A user that provides a postal code that is from the XUAR will receive a warning message. This will alert the importer that the rebuttable presumption of forced labor established under the UFLPA likely applies to the goods, and that shipments from that manufacturer could be detained.  (For more information regarding the rebuttal presumption under the UFLPA, see our blog post here.)  CBP states that “importers may request an exception to the rebuttable presumption from CBP during a detention, after an exclusion, or during the seizure process” as described on page 9 of the UFLPA Operational Guidance for Importers, which is available here.

Q.     What should your business do to prepare?

A.     CBP will not be providing a list of valid Chinese postal codes or a list of postal codes in the XUAR because “importers have an obligation to conduct due diligence on their supply chain.”  (UFLPA Region Alert and Postal Code Requirements, Frequently Asked Questions, CBP Publication No. 3064-0323).  It is therefore incumbent upon businesses to understand their entire supply chains–including the names and addresses of each of their manufacturers.  Our team is here to assist you with that due diligence.

Aluminum Is Now A Hot Topic In Supply Chain And Trade

Last Friday, February 24, 2023, the Biden Administration issued a Proclamation on Adjusting Imports of Aluminum into the United States.  You can read the full proclamation here.

The Proclamation states that, beginning on March 10, 2023, a 200% ad valorem tariff will be imposed on all aluminum articles and derivative aluminum articles produced in Russia.  Additionally, on April 10, 2023, a 200% ad valorem tariff will be imposed on aluminum articles where any amount of primary aluminum or derivative aluminum articles used in the manufacture of the articles was smelted or cast in Russia.

The purpose of the Biden Administration’s Russian aluminum tariff is, according to the President, to respond punitively to Russia’s “unjustified, unprovoked, unyielding, and unconscionable war against Ukraine.”  Indeed, the Russian aluminum industry is a key part of Russia’s defense and has played a major role in supplying Russia with weapons and ammunition.  In addition, Russia’s conflict in Ukraine has caused global energy prices to rise, causing direct harm to the United States’ aluminum industry.

According to the Proclamation, Russia has been among the major sources of aluminum used in the United States.  While US aluminum imports from Russia have declined since 2018, Russia remains the fifth largest source of imported aluminum in the United States, and imports of aluminum from Russia increased in both 2021 and 2022.  Notably, Russia’s aluminum industry is extremely export oriented.  In fact, Russia was the largest exporter of unwrought aluminum in 2021, while Russian’s own consumption accounted for just 22% of its production in 2021 and 2022.

The Biden Administration is not only scrutinizing Russian aluminum imports; aluminum has also received increased scrutiny from U.S. Customs and Border Protection (CBP) under the Uyghur Forced Labor Prevention Act (the “UFLPA”).

As we have blogged about here, here, here, here, here, and here, President Biden signed the UFLPA into law in December 2021, which went into effect June 21, 2022.  The UFLPA creates a rebuttable presumption that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region [XUAR] of the People’s Republic of China” (or by an entity included on a list required by the Act) is prohibited from importation into the US under 19 U.S.C. §1307.  Indeed, CBP has not been sitting idle in its enforcement of the UFLPA, but rather has been actively assessing and analyzing the import of goods into the United States to ensure the goods meet the evidentiary standard to rebut the presumption.

At the outset, CBP specifically identified cotton, polysilicon, and tomatoes as high-risk commodities.  Imported aluminum, however, is now receiving greater attention by CBP.

According to A.P. Moller – Maersk (“Maersk”), a global supply chain logistics solution company, CBP has begun issuing detention notices for aluminum products pursuant to the UFLPA. Maersk reported that the CBP will most likely “focus on aluminum automotive commodities and other commodities classified in Chapter 76 (Aluminum and articles thereof)” in its forced labor assessment function.

Of course, during the review process, an importer can demonstrate that imported goods are not sourced wholly or in part from the XUAR or an entity on the UFLPA Entity List.  To do this, importers need to provide documentation produced in the ordinary course of business (and translated into English if necessary), including, but not limited to:

  • Transaction and Supply Chain Records:
    • full records of transactions and supply chain documentation that demonstrate the country of origin and its components (e.g., packing list, bill of lading, manifest)
  • Documents Demonstrating the Parties Participating in the Transaction:
    • all parties involved in the manufacture, manipulation, or export of a particular good (e.g., summarize the roles of parties involved as substantiated by other supporting documents, flow chart of supply chain)
  • Documentation Relating to the Payment and Transportation of Raw Materials:
    • the origin of the raw materials, and documentation showing that these business transactions (e.g., invoices, contracts, purchase orders) have occurred financially (e.g., proof of payments) and physically (e.g., documents to support goods were transferred from one entity to another.)

To prevent any goods from being detained, companies importing aluminum products or commodities with aluminum components should take proactive measures to ensure compliance with the UFLPA.  A few resources to aid compliance can be found here and here.



The German Supply Chain Act On Corporate Diligence Obligations in Supply Chains Is In Effect

Previously, we have posted on the German Supply Chain Act on Corporate Diligence Obligations in Supply Chains.  That legislation is now in effect, as of January 1, 2023, and requires companies that have their central administration, their principal place of business, or any branch with over 3,000 employees in Germany to implement specific risk management practices to detect and combat child labor, forced labor, poor environmental practices, and other problematic issues.  Our German supply chain team has published an update on what is required.  Please access it here.

The Automotive Recall Landscape in the US: Advancing Innovation Safely in a Time of Regulatory Uncertainty

Colleagues Patricia Doersch, Jennifer Satterfield, and Jennifer Tharp have prepared a legal insight outlining the regulatory challenges litigators face as the technology of the autonomous vehicle (AV) industry quickly evolves.  The legislative uncertainty in the US leaves the safety standards of these self-driving/self-parking vehicles up to the US Department of Transportation (DOT) and National Highway Traffic Safety Administration (NHTSA).  To learn more on how DOT and NHTSA are approaching the regulatory and recall challenges surrounding self-driving vehicles and how soon you might start seeing autonomous vehicles on the road read the full insight here.

Cross-Post from Law360: How A Michigan Case Could Upend Auto Part Contracts

This is a cross post from Law360.  Please contact Sarah Rathke or Alexis Chandler with any questions.

In the US, the UCC Statute of Frauds’ (2-201) requirement that a contract must contain a written quantity term to be a binding contract, has been the law of the land in all 49 states that have adopted the UCC.  This is now being questioned by a pending Michigan Supreme Court case, which is considering whether a “blanket purchase order” that sets forth no firm quantity can nevertheless constitute a binding agreement – a testament, no doubt, to the power of the automotive industry in Michigan.  Read more analysis in this article recently published in Law360 by Alexis Chandler and Sarah Rathke here.

Cross-Post from The Trade Practitioner: Proposed Rule Would Require Government Contractors to Disclose Climate-Related Risks

This is a Cross-Post from The Trade Practitioner.  Please contact Karen Harbaugh or Sarah Vilms with any questions.

The Biden Administration recently released the Federal Supplier Climate Risks and Resilience Proposed Rule requiring contractors of the federal government to disclose climate-related risks.  Read more on the proposed requirements here.

Common Signs of Business Stress and Distress

Our UK colleagues, John Alderton (Leeds), Russ Hill (Birmingham), Monika Lorenzo-Perez (London), Charlotte Møller (London), and Devinder Singh (Birmingham)  have prepared a legal insight outlining how the failure to recognize signs of business stress can cause a company to face a period of distress.  To help identify some of the common signs of business stress and distress read the full insight below:

Supply Chain Webinar: “Why is Everything Broken? Understanding Pandemic Supply Chains”

#TeamSPB’s Litigation Partner Sarah Rathke recently participated in an on demand CLE presentation for Quimbee on Why is Everything Broken? Understanding Pandemic Supply Chains.

This presentation discusses the causes of the current supply chain logjams, the ways forward to better deal with supply chain partners, solve problems expeditiously, and be knowledgeable about commercial rights and responsibilities.

You can watch the full presentation here:

Upcoming Webinar: 2022 Chemicals Workshop Webinar Series: PFAS, REACH and Other Chemical Regulatory Issues

Please join us on Thursday, October 13 at 12PM EDT for 2022 Chemicals Workshop Webinar Series: PFAS, REACH and Other Chemical Regulatory Issues.

Join Allen Kacenjar, Lianne Mantione and Anita Lloyd for the second webinar in our two-part 2022 Chemicals Workshop webinar series, in partnership with the Ohio Chemistry Technology Council (OCTC).

In this session, we will provide an overview of the rapidly evolving landscape related to per- and polyfluoroalkyl substances (PFAS), including proposed listing of perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), regulation under the Toxic Substances Control Act (TSCA), and the practical strategies, considerations and measures to assess legacy and current risks.

In addition, we will discuss developments related to Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and other chemical regulatory issues in the UK and the EU.

This program is pending 1.5 hours of Continuing Legal Education (CLE) in Arizona, California, New Jersey, New York, Ohio and Texas. If you need another jurisdiction, please contact Robin Hallagan.

Register here.

DHS Released a Notice on the Addition of Entities to the UFLPA Entity List

On August 4, 2022, the U.S. Department of Homeland Security (DHS), as the Chair of the Forced Labor Enforcement Task Force (FLETF), formally published the Uyghur Forced Labor Prevention Act (UFLPA) Entity List. The Entity list is a consolidated register of the four lists required to be developed and maintained pursuant to Section 2(d)(2)(B) of the UFLPA.  DHS also released details on seeking changes to the UFLPA Entity List, including requests for removal from the list.

For our previous blog entries on the UFLPA and its implementation, see posts here, here, here, here, here and here.

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