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More Import Detention Orders for Forced Labor Concerns Possible, CBP Chief Says

Friday, October 27, 2017
Sandler, Travis & Rosenberg Trade Report

U.S. Customs and Border Protection has 14 open investigations into the alleged use of forced labor in the production of specific products from specific countries and will halt imports of such goods if and when the statutory standard for doing so is met, according to Acting CBP Commissioner Kevin McAleenan.

19 USC 1307 prohibits the importation of goods mined, produced, or manufactured, wholly or in part, in any foreign country by forced or indentured child labor, including forced child labor. Such goods are subject to exclusion and/or seizure and may lead to criminal investigation of the importer. When information reasonably but not conclusively indicates that imported goods were made with forced labor, CBP may issue withhold release (detention) orders. If CBP is provided with information sufficient to make a determination that the goods were made with forced labor it will issue a formal finding to that effect.

In a Senate Finance Committee hearing on his nomination to serve as CBP commissioner, McAleenan said that forced labor is a high priority for CBP but that the agency is working to ensure enforcement tools are applied in the most precise and appropriate manner possible. As an example, he highlighted CBP’s ongoing investigation into whether North Korean workers (who, under a new U.S. law, are presumed to be forced laborers) are being used in the production of goods imported into the U.S. from third countries. McAleenan said after CBP officials read an Oct. 4 press article on the use of North Korean labor in the Chinese seafood industry “we jumped all over that” and put one shipment of Chinese seafood on hold the next day, a number that has subsequently grown to six. CBP also tasked its Centers of Excellence and Expertise with examining all commodities sourced in that region to see which others might be incorporating the use of North Korean labor.

Notwithstanding this recent action, Sen. Sherrod Brown, D-Ohio, pointed out that CBP has not issued any withhold release orders in forced labor cases in the past ten months. McAleenan noted that under the law CBP cannot issue a WRO until it has information that reasonably indicates a violation, suggesting that this standard has not yet been met in any of the 14 cases currently under investigation, which cover products such as tobacco, seafood, palm oil, gold, vegetables, toys, and sugar cane. He said CBP is supplementing its own intelligence with third-party audits and other information provided by civil society groups and others as it seeks to meet the WRO standard. In the meantime, he added, CBP has other authorities, such as the detention authority under which it halted the six shipments of Chinese seafood, that it will continue to use to prevent the entry of goods made with forced labor.

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