On Thursday, the U.S. Government Accountability Office (GAO) released a report following its year-long review of U.S. Customs and Border Protection’s (CBP) enforcement of a law – section 307 of the Tariff Act of 1930 (19 U.S.C. § 1337) – that prohibits the importation of goods produced through convict, forced, slave, or child labor. The Committee on Natural Resource of the U.S. House of Representatives requested that the GAO specifically look into CBP’s enforcement of Section 307 with respect to seafood imported into the United States.
The GAO’s report recommends that CBP take steps to better communicate to the public the types of information that would help the agency initiate and investigate instances of goods being imported that were produced by convict, forced, slave, or child labor. In doing so, the GAO acknowledged that such recommendations had also been made by groups seeking to improve CBP’s Section 307 enforcement, as well as by an Excellence in Government Leadership Team and the forced labor working group of the Commercial Customs Operations Advisory Committee (COAC).
In response to the GAO report, CBP committed to implementing, by July 31, 2020, “procedures to include, or solicit, information regarding forced labor in U.S. bound supply chains from [partner government agencies (PGA)] and other non-governmental entities. These procedures will include establishing a PGA stakeholder contact list  that CBP will regularly use to communicate and collaborate with PGA and other entities on sector specific investigations.”
But the GAO’s review and explanation of CBP’s process indicates that enforcement of Section 307 is likely to be extremely limited absent changes to the law. In particular, the GAO described a four-step process of investigation that is conducted entirely at the discretion of CBP officials.
In the first two steps of CBP’s process, the Forced Labor Division of CBP’s Office of Trade reviews, at its discretion, available information to determine whether there is, first, sufficient and credible information to warrant the initiation of an investigation and, second, whether information obtained through an investigation “reasonably but not conclusively” supports the issuance of a Withhold Release Order (WRO). These first two steps are operated entirely without public disclosure. The GAO observed that, in 2018, CBP began tracking its Section 307 cases through an internal spreadsheet, with separate categorizations for (1) open and active cases; (2) suspended cases; and (3) closed/inactive cases. CBP, however, does not publicly issue any information regarding the status of investigations, nor does it publish statistics related to the number of cases falling in each category.
Data provided by CBP to the GAO “showed a small number of open and active cases as well as suspended cases that were related to seafood.” The GAO provided no additional detail regarding these seafood-related cases, but CBP explained that, as a general matter, it had suspended cases involving seafood when it was awaiting additional information “which may take significant time to obtain” or when the agency “lacked personnel to obtain additional information to further investigate the cases.” Because CBP publishes no information regarding its investigations, it is not currently possible for non-governmental sources to provide evidence to the agency that would be relevant to its suspended investigations of seafood products as it is unknown what supply chains CBP may be investigating.
Even where the Forced Labor Division amasses sufficient information through an investigation to support a finding that “reasonably but not conclusively” demonstrates that a good produced through convict, forced, slave, or child labor is being imported into the United States, the third step of CBP’s process requires a review of this information by agency lawyers within the Office of Chief Counsel that have limited knowledge and awareness of forced labor issues in supply chains. The agency does not report how many proposed WROs are presented to the Office of Chief Counsel for review, much less the number of these proposed WROs that are rejected by agency attorneys.
In addition to describing CBP’s multistep process, the GAO notes that since the change in law removing the “consumptive demand” exemption for goods produced through forced, child, or slave labor in 2016, there have only been a small number of WROs issued – sixteen in four and a half years. The lack of significant results would appear to be directly attributable to an opaque agency process that precludes meaningful participation and assistance from the public, as well as rendering it virtually impossible to monitor and evaluate the agency’s efforts.
In stark contrast, CBP’s process affords importers with substantial opportunities to challenge findings made by the agency. Accordingly, it is not surprising that of the sixteen WROs issued since 2016, three have already been revoked and three others have been modified to narrow the scope of the orders with no public disclosure of the information presented to support these changes.
In total, the GAO’s report emphasizes the need to implement public accountability performance measures for CBP’s administration of Section 307, as well as the need to formalize an administrative process that would facilitate public participation. As the GAO report also explains, CBP has failed to issue proposed updates to its regulations governing the agency’s administration of Section 307, despite the significant changes made to the law’s scope in 2016. Although CBP’s adoption of a dedicated “Forced Labor Division” within the Office of Trade in 2018 was a welcome step forward, the limited enforcement actions taken by the agency continue to raise concerns as to whether this is, in fact, a priority issue for CBP.
Forced and child labor remains a serious problem within seafood supply chains. Because imports account for ninety percent of the seafood consumed in the United States, in the absence of meaningful enforcement of Section 307, American consumers can only be assured that they are not supporting the proliferation of slave and child labor in foreign seafood industries by limiting their purchases to seafood caught/harvested and processed in the United States.
Read the GAO’s one-page summary of its report here: https://www.gao.gov/assets/710/707684.pdf
Read the U.S. Government Accountability Office’s Better Communication Could Improve Trade Enforcement Efforts Related to Seafood, GAO-20-441 (June 18, 2020) here: https://www.gao.gov/assets/710/707686.pdf