GAO Says Some in Government See WROs as 'Not Always Helpful,' Wants Details on CBP Revocation Process

The issuance of CBP withhold release orders is not always seen as helpful in other parts of the federal government, the Government Accountability Office said in a report released on March 1. The full report includes some criticism from within the government as being too heavy-handed at times. “For example, although State [Department] officials considered WROs to be helpful in raising awareness of forced labor issues, State officials also said that the issuance of WROs can be a 'sledgehammer-type' approach that may make it more difficult for other agencies, such as State and [the Department of Labor], to implement more collaborative or remediation-focused approaches to eliminate and prevent forced labor,” it said.

“According to some State officials, State’s forced labor-related efforts focus on protecting vulnerable populations and helping foreign governments address and reduce labor rights violations and trafficking in persons, and CBP’s enforcement actions are not always helpful in this regard,” the GAO said. “According to these officials, a WRO is a punitive measure for dealing with an issue that may call for more finesse.”

Officials at the Bureau of International Labor Affairs said WROs can have unintended consequences, as was the case with a 2019 WRO on disposable gloves from Malaysia (see 1910010017). Following the WRO, “many workers’ employment was terminated, which had a negative effect on workers facing exploitation,” ILAB officials told the GAO. The U.S. government should “be prepared to support workers who are placed in a position of increased vulnerability as a result of enforcement actions.”

State Department officials told the GAO that the issuance of WROs can also impede diplomatic relationships. “State officials at three embassies told us that, because they do not know the types of information CBP considers for its investigations, they are unable to explain to host governments and the private sector how CBP makes its determinations,” the GAO said. “In addition, State officials at one U.S. embassy said that because they were unable to share information about the WRO before its issuance, the host government had questioned the U.S. government’s willingness to cooperate on law enforcement actions.”

The State officials suggested that CBP could allow for embassy discretion “to engage with the host government to mitigate any potential negative diplomatic effect” before a WRO is issued. The CBP Forced Labor Division responded that it already works closely with State officials and has provided training about CBP's authorities and processes, the GAO said.

Companies also complained that the WRO process “may discourage the private sector’s remediation or reporting of forced labor,” the GAO said. Companies may be reluctant to provide CBP information out of fear of becoming subject to a WRO, it said. CBP's enforcement approach “may inadvertently discourage transparency because businesses have no 'safe harbor' to communicate about forced labor, according to the representatives.”

The Forced Labor Division responded that CBP does allow for “prior disclosures” of forced labor issues that can lead to reduced penalties, the GAO said. “In addition, the officials noted that any penalties that may result from private sector entities’ prior disclosure of forced labor are outside the purview of the division’s Section 307 enforcement, because the division is not responsible for conducting social compliance audits to determine whether businesses comply with standards protecting the rights, health, and safety of workers.”

CBP should better communicate the process it uses when deciding to revoke or modify a WRO, the GAO said in its recommendation. CBP agreed with the GAO recommendation and said its forced labor division “will develop a process map that clearly describes the WRO revocation and modification process.”

CBP “recognizes that increased communication on WRO revocation and modification will be critical for achieving mission success.” The process map will be publicly available so that “other agencies and stakeholders have full knowledge of the WRO revocation and modification process.” CBP aims to complete the map by Sept. 30, it said. The number of agency forced labor enforcement actions has grown in recent years and “so too have the agency's efforts to communicate with relevant stakeholders.”