CBP Forced Labor WRO Enforcement 'Broad and Vague,' Lacks Transparency, Customs Lawyer Says

The recent surge in forced labor enforcement by CBP has been accompanied by a lack of transparency and a “broad and vague” interpretation of the withhold release orders the agency uses to block suspect goods, customs lawyer Robert Stang of Husch Blackwell said during a recent webinar.

When it detains goods, CBP says it has “significant evidence” for the detention, Stang said. But “oftentimes,” importers faced with these detentions are “never provided with the source or the nature of the goods,” he said. “We are also aware of one instance, at least, where the information provided to [CBP] triggering the WRO, in our opinion, was based on false information provided by a competitor to the company.”

CBP’s focus on the issue of commingling also raises concerns, Stang said. Using the Xinjiang cotton WRO as an example, Stang said CBP can look past information submitted to the agency showing that prohibited cotton was not in an importer’s product, and question whether the yarn manufacturer in China may have taken prohibited cotton from Xinjiang and mixed it in with the rest of the cotton.

“It puts a burden on importers to prove a negative,” Stang said. “How do you prove that something did not happen? It’s very, very difficult.” The agency has established “a standard that many people just can’t meet,” he said.

One way Stang has tried to get around the commingling issue is with affidavits, he said. Importers that face detention due to a WRO and want to contest it administratively should “map the supply chain and provide full documentation,” and include not only the affidavit provided for in the customs regulations, but also a “further affidavit saying there’s no commingling,” Stang said. “We were told, informally, that’s one piece of evidence they’ll look at.”

CBP “has a statutory responsibility to prohibit the importation into the United States of all goods made “wholly or in part” by forced labor, an agency spokesperson said, responding to a request for comment. “We note also that under U.S. law importers are obligated to exercise reasonable care to ensure that the products that they attempt to import in the United States comply with federal laws and regulations,” the spokesperson said.

“CBP employs a wide variety of sources when conducting forced labor investigations, including government documents, reports from non-governmental organizations, investigative reporting by journalists, and firsthand accounts,” the spokesperson said. “When conducting forced labor investigations, CBP balances the need for transparency with the need to maintain the integrity of law enforcement investigations and, above all, the need to protect the safety and well-being of the sources,” he said.