Redelivery Demands Possible Under Forced Labor Withhold Release Orders, CBP Says

CBP may demand redelivery of goods subject to a withhold release order (WRO) related to the suspected use of forced labor, said Lisa Burley, chief, Cargo Security, Carriers and Restricted Merchandise Branch at CBP, during the Georgetown Law Center International Trade Update on March 10. Asked whether CBP would require redelivery in cases in which a withheld shipment is among a series of shipments from the same exporter to the same importer, Burley said the agency has demanded redelivery in such situations previously. CBP makes that decision "import by import" and is also dependent on the specifics of the WRO, she said. "If we are aware of a time frame of when things are exported to the United States, then that may dictate whether we demand redelivery on all of them."

CBP continues to work on regulatory changes related to the end of the "consumptive demand" exemption to the ban on imported products made by forced labor (see 1603010043), Burley said. CBP is reviewing input from the Commercial Customs Operations Advisory Committee (see 1611150030) and other industry stakeholders, she said. Burley declined to predict when a proposal would come, but highlighted a COAC recommendation that CBP include some time limits on certain actions as among some of the more substantive issues being considered.

CBP auditors may be involved in the process too, Burley said. For example, if an importer is going through a regular CBP audit and the auditor notes a "flag," that auditor may reach out to the Trade Remedy Law Enforcement Directorate or others at CBP, she said. "We do try to educate our auditors on the issues so if they do come across something, they do let us know," she said. "That would be information that we would develop or it may not be anything at all. And we also use our auditors when importers are trying to prove admissibility."

Proof that there's no forced labor in an importer's supply chain should show up somewhere in the paperwork, regardless of the product, Burley said. "At some point there's got to be paper, there's got to be a contract," she said. While it may not be necessary to show details on hourly wages, for instance, "there may be some ancillary information that can be provided to show the individuals working there are not being forced to work," she said. Importers that are buying from a third party and might not have ready access to such documents may need to ask for them, she said. There's been at least one company to successfully remove itself from a WRO since the changes took effect (see 1701300029).

The statutory change didn't really affect ICE's authority for forced labor issues, said Kenneth Kennedy, ICE senior policy adviser, Forced Labor Programs, Homeland Security Investigations. That agency has always been tasked with investigating and prosecuting criminal elements, whereas CBP oversees the civil penalties, he said. What is new for ICE, though, is the use of a more "collaborative approach" to enforcement, he said. The agency is now more amenable to having "off-the-record" conversations before taking a criminal enforcement action.