Background

U.S. Customs and Border Protection has increased its efforts to enforce the prohibition on imports of goods made with forced labor but has yet to sufficiently determine the resources it needs for those efforts, according to a recent report from the Government Accountability Office.

For more information on forced labor issues, please contact Nicole Bivens Collinson or Elise Shibles.

Prior to the enactment of the Trade Facilitation and Trade Enforcement Act in 2016, the report states, CBP did not allocate resources specifically to enforcing the forced labor import prohibition. In April 2016 CBP established a Trade Enforcement Task Force to develop enforcement procedures, and in January 2018 CBP stood up a new Forced Labor Division within its Trade Remedy Law Enforcement Directorate to lead efforts in this area.

According to the report, the FLD uses the following process to investigate forced labor allegations.

 - perform an initial review to assess credibility and determine whether there is sufficient evidence to initiate a case

- if so, collect import data and other evidence, draft a report with the results of the review if there is sufficient evidence to issue a withhold release order or finding, and inform other federal agencies of the case

- (1) present the allegation report to CBP’s Office of Chief Counsel for a legal opinion on whether the evidence reasonably indicates that goods were produced with forced labor and, if so, prepare a recommendation package for the executive assistant commissioner of the Office of Trade, and (2) contact the relevant National Threat Analysis Center, which conducts an impact analysis for the potential WRO

- if the recommendation package is approved, issue a WRO

However, the GAO states that the FLD does not have enough personnel on board to investigate all allegations of forced labor and that CBP has not assessed the number, type, locations, or specialized skills of the FLD positions it needs to achieve results. While the number of current staff is not provided, the report notes that a number of employees have left since January 2018 and that as of May 2020 more than a third of the division’s positions were vacant, including the director.

This shortage of staff is having negative impacts on the division’s work. For example, a CBP spreadsheet indicated that lack of personnel was the reason for two-thirds of the suspensions of ongoing forced labor investigations. Officials also said they do not have enough staff to reassess existing WROs for possible revocation or modification and instead only conduct such reviews in response to importer requests.

The GAO also highlights issues with CBP’s conduct of forced labor investigations and civil enforcement actions. More than 100 investigations have been initiated since 2018, but as of March 2020 about 75 percent were still in the initiation phase, about 14 percent were in the investigative phase, and fewer than 10 percent were in the legal review phase. Most active cases focus on goods made in China but there are also cases involving Taiwan, Malaysia, Fiji, and Ivory Coast. The majority of these cases cover apparel, footwear, and textiles, while the rest cover goods such as agriculture, consumer goods, pharmaceuticals, and chemicals.

According to the GAO, however, the FLD uses incomplete and inconsistent summary data to monitor these efforts, which is used to track the progress of individual cases and assign staff. For example, as of March 2020 data were missing on the sources of evidence collected for almost all active cases. This makes it more difficult to advise stakeholders on the elements of a good forced labor allegation, which is one of the division’s FY 2020 initiatives.

Copyright © 2020 Sandler, Travis & Rosenberg, P.A.; WorldTrade Interactive, Inc. All rights reserved.

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