On September 30, 2019, U.S. Customs and Border Protection (CBP) issued five Withhold Release Orders (WROs). CBP issued a statement that the WROs were based on information obtained and reviewed by CBP that indicated that the products are produced, in whole or in part, using forced labor.

The following WROs are effective immediately:

  • Garments produced by Hetian Taida Apparel Co., Ltd. in Xinjiang, China; produced with prison or forced labor.
  • Disposable rubber gloves produced in Malaysia by WRP Asia Pacific Sdn. Bhd.; produced with forced labor.
  • Gold mined in artisanal small mines (ASM) in eastern Democratic Republic of the Congo (DRC); mined from forced labor.
  • Rough diamonds from the Marange Diamond Fields in Zimbabwe; mined from forced labor.
  • Bone black manufactured in Brazil by Bonechar Carvão Ativado Do Brasil Ltda; produced with forced labor.

The Trade Facilitation and Trade Enforcement Act of 2015 (“TFTEA”) changed forced labor enforcement by CBP. Specifically, TFTEA law repealed the “consumptive demand” exception in 19 U.S.C. § 1307. The exception had allowed importation of certain forced labor-produced goods if the goods were not produced “in such quantities in the United States as to meet the “consumptive demands” of the United States.” Section 307 of the Tariff Act of 1930 now prohibits the importation of merchandise mined, produced or manufactured, wholly or in part, in any foreign country by forced or indentured child labor – including forced child labor and provides no exceptions. Such merchandise is subject to exclusion and/or seizure, and may lead to criminal investigation of the importer. This means if any part of a good is fabricated, mined, produced, manufactured, farmed, etc. using forced labor it is prohibited from entering the commerce of the United States.

Importing into the United States is a privilege and not a right. Buttfield v. Stranahan, 192 U.S. 470, 493 (1904).  Accordingly, when information reasonably but not conclusively indicates that merchandise within the purview of this provision is being imported, the Commissioner of CBP may issue withhold release orders and detain merchandise pursuant to 19 C.F.R. § 12.42(e). If the Commissioner is provided with information sufficient to make a determination that the goods in question are subject to the provisions of 19 U.S.C. § 1307, the Commissioner will publish a formal finding to that effect in the Customs Bulletin and in the Federal Register pursuant to 19 C.F.R. §12.42(f). Importers have the opportunity to either re-export the detained shipments at any time or to submit information to CBP demonstrating that the goods are not in violation.

International standards on child labor and forced labor were developed by the International Labor Organization (“ILO”), a specialized United Nation’s agency that brings together governments, employers’, and workers’ representatives of 187 member states to set international labor standards, develop policies, and devise programs to promote rights at work and decent work for all persons. The internationally recognized definition of forced or compulsory labor is found in ILO Convention 29. According to this Convention, forced or compulsory labor is “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” There are four key elements to this definition, and indicators related to each element. The combination of indicators for each situation must be analyzed in order to determine whether the situation is one of forced labor or not.

  • All work or service: This includes all types of work, service and employment, regardless of the industry, sector or occupation within which it is found, and encompasses legal and formal employment as well as illegal and informal work.
  • Any person: This refers to adults and children.
  • Menace of any penalty: This refers to a worker believing he or she will face a penalty if they refuse to work. “Menace” means the penalty need not be exacted, but rather, that threats of penalty may be sufficient, if the employee believes the employer will exact the penalty. A wide variety of penalties, such as confinement to the workplace, violence against workers or family members, retention of identity documents, dismissal from employment, and non-payment of wages, denunciation to authorities, or other loss of rights or privileges, may be sufficient to fulfill this element of the test for forced labor.
  • Voluntary: This refers to workers’ consent to enter into employment and their freedom to leave the employment at any time, with reasonable notice in accordance with national law or collective agreements. In essence, persons are in a forced labor situation if they enter work or service against their free choice, and cannot leave it without penalty or the threat of penalty. Involuntariness does not have to result from physical punishment or constraint; it can also stem from other forms of retaliation, such as the loss of rights or privileges or non-payment of wages owed. Note that a worker can be considered to be in forced labor even if his or her consent was given, if that consent was obtained through the use of force, abduction, fraud, deception or the abuse of power or a position of vulnerability, or if the consent has been revoked.

ILO Convention 105, another convention on forced labor, specifies that forced labor should never be used for the purpose of economic development or as a means of political coercion, discrimination, labor discipline or punishment for having participated in labor strikes.

CBP receives allegations of forced labor from a variety of sources, including from the general public. CBP uses the ILO definitions when determining whether imported goods were manufactured using Forced Labor.