Industry News

CBP Issues Flurry of Forced Labor Guidance

May 24, 2023
By: Hannah B. Kreinik

The U.S. Customs and Border Protection (“CBP”) recently published a headquarters ruling on forced labor that led to a resounding development for CBP forced labor submissions. The ruling in question was in response to a protest under 19 U.S.C. Section 1307, which permits CBP to exclude goods made in whole or in part with forced or child labor from entry into the United States. If you have been living under a rock and are not aware of the increasing issue that is forced labor, please see our prior articles on the subject here.

In this case, the CBP headquarters’ ruling focused on apparel that was imported using cotton that was under suspicion of being produced using forced labor. Under 19 U.S.C. Section 1307, importers may demonstrate that their merchandise is not covered by the legislation by submitting evidence supporting a lack of forced labor used in their supply chains. The importer, in this case, did precisely that, providing CBP certificates of origin, commercial invoices, payments, supply certificates, supply chain maps, and more. CBP’s response was a deafening no. CBP found that one of the businesses in the importer’s supply chain had connections to the Xinjiang Uyghur Autonomous Region. If importers were not conscious of the difficulty of proving that their supply chain is free of forced labor from our prior article on the subject, CBP made it very clear in this ruling. All the importer’s submissions to repel the rebuttable presumption outlined in Section 1307, had failed and its protest denied by CBP.

What was unexpected post CBP headquarters’ ruling, was the release of CBP’s Recommended Guidelines for Submissions of Forced Labor Supporting Documents, coincidentally published three weeks after the headquarters ruling. The recommended guidelines seemingly broke CBP’s silence on what may possibly be considered supporting evidence in a review of goods detained under 19 U.S.C. Section 1307. The guidelines contain details for CBP submissions on forced labor including but not limited to format, reference, and translation preferences. Based on the guidelines, CBP is aiming for a standardized submission system with an index, links to references, citation requirements, and record-keeping suggestions for individual evidentiary documentation.

The guidelines place an emphasis on metadata of each document and conserving time stamps or dates of when the materials were obtained. The guidelines also laid out specifics for transcripts or videos containing interviews in other languages. The guide gives instructions that interviews should include details on interpreters used, if necessary, the questions from the interview, and translation overlays if the interview is via video or audio files. Google translate is considered an acceptable format for translations, however a review of the results with notes on cultural norms should be provided. Although this guidance does not speak specifically to the substance of submissions, the context of certain requirements strongly suggests that interviews/declarations are expected from any importer seeking to demonstrate that their articles are free of forced labor. Importers should strive to include personal and individual-level materials in their accumulation of supply chain maps and business records for evidentiary support.

Barnes, Richardson & Colburn is here to help your company navigate through CBP’s constant forced labor updates and to prepare for any potential forced labor detentions.