Background

U.S. Customs and Border Protection is being urged to make available to the public more information about the issuance, revocation, and modification of withhold release orders on goods suspected of being made with forced labor. That recommendation is included in a recent report from the Government Accountability Office on how CBP communicates with others about its enforcement of the prohibition on imports of goods made with forced labor under 19 USC 1307.

ST&R offers guidance to importers on how to prevent the use of forced labor in their supply chains. For more information, please contact Elise ShiblesAmanda Levitt, or Nicole Bivens Collinson.

CBP may issue a WRO when information reasonably indicates that goods produced with forced labor are being, or are likely to be, imported into the U.S. CBP may detain shipments of goods pursuant to WROs at U.S. ports of entry unless an importer provides sufficient evidence that the goods were not made with forced labor. CBP may revoke or modify a WRO if evidence shows the goods were not made with forced labor, are no longer being produced with forced labor, or are no longer being or likely to be imported into the U.S.

According to the report, CBP issued 29 WROs between February 2016 and January 2021. More than half pertained to products from China, while the rest covered goods from Brazil, Malaysia, and other countries. Four of these WROs had been revoked and three had been modified as of Jan. 13, 2021.

The report notes that CBP takes a number of steps to communicate with others about its forced labor enforcement efforts. These include (1) monthly meetings of an interagency working group where members (including the departments of Labor and State) discuss their forced labor-related efforts and CBP reports its planned enforcement actions, (2) separate communications with other agency officials to obtain or share information relevant to CBP investigations and (3) communications with non-governmental organizations and private-sector entities.

However, the report finds that while CBP has provided some information to other federal agencies and the public about its process for issuing WROs, agency officials acknowledged that they should share additional details of the types of information CBP considers in determining whether to initiate an investigation or issue a WRO. For example, CBP’s website displays high-level details of the forced labor enforcement process but does not specify or provide examples of the types of information that entities may submit to support allegations of forced labor. The report notes that CBP’s Commercial Customs Operations Advisory Committee has recently made recommendations on this issue and that as of October 2020 CBP was reviewing those recommendations and engaging with stakeholders to determine whether and how to implement them.

In August 2020 CBP published a fact sheet with high-level information about WRO revocations and modifications that includes a list of selected documentation that could be helpful as well as examples of things to avoid. However, the report states, this fact sheet includes no descriptive information about CBP’s process for revoking and modifying WROs, such as the titles of the officials involved in reviewing and approving requests and the actions they take to do so. The report notes that lack of access to such information may limit other agencies’ ability to support CBP’s enforcement and the private sector’s ability to comply with Section 307.

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