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November 14, 2019
Section 307 and Imports Produced by Forced Labor
Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307)
Investigations and Withhold Release Orders
prohibits the importation of any product that was mined,
Upon receipt of such a report, the Commissioner of CBP is
produced, or manufactured wholly or in part by forced
required to initiate an investigation “as appears warranted.”
labor, including forced or indentured child labor. U.S.
Because the amount and reliability of information
Customs and Border Protection (CBP) is charged with
submitted to CBP can vary, the scale and scope of the
enforcing the prohibition.
investigation are left to the Commissioner’s discretion.
Defining Forced Labor in Section 307
If the Commissioner of CBP finds the information
Forced Labor: “Al work or service which is exacted from any
“reasonably but not conclusively indicates” that imports
person under the menace of any penalty for its
may be the product of forced labor, then she or he is to
nonperformance and for which the worker does not offer
issue an order to withhold release of such goods (WRO)
himself voluntarily.” – 19 U.S.C. § 1307; language modeled on
pending further instructions. WROs have usually been
the ILO Forced Labor Convention, 1930.
issued against specific goods from specific producers.
Figure 1. Application of Section 307
U.S. customs law has contained prohibitions against
importing goods produced by certain categories of labor
since the end of the nineteenth century. Beginning in 1890,
the United States prohibited imports of goods manufactured
with convict labor. In 1930, Congress expanded this
prohibition in Section 307 of the Tariff Act to include any
(not just manufactured) products of forced labor. Although
a few Members of Congress brought up humanitarian
concerns during debate, the central legislative concern was
with protecting domestic producers from competing with
products made with forced labor. As such, Section 307
allowed the admission of products of forced labor if it could
be shown that no comparable product was made in the
United States or the level of domestic production did not
meet domestic demand (“consumptive demand” provision).
Over the decades, lawmakers and civil society became
Source: CBP.
increasingly aware of and concerned about forced labor in
An importer has three months to contest a WRO. An
the context of human trafficking. The Victims of
importer contesting a WRO must demonstrate that he or she
Trafficking and Violence Prevention Act of 2000 (P.L. 106-
has made “every reasonable effort” to determine both the
386), for example, included forced labor in its definition of
source of and the type of labor used to produce the
human trafficking. In 2015, Congress decided to remove the
merchandise and its components. If the importer does not
“consumptive demand” clause as part of the Trade
successfully contest the WRO and does not remove the
Facilitation and Trade Enforcement Act (TFTEA P.L. 114-
merchandise at issue from the United States, CBP is to
125), reflecting this increased interest in addressing human
seize and destroy it. Beyond publishing the date,
rights abuses in the context of forced labor.
merchandise type, manufacturer, and status of a WRO, CBP
Application of Section 307
does not generally publish information about specific
detentions, re-exportations, exclusions, or seizures.
Reporting
Any individual who has “reason to believe that any class of
Relation to Other Labor and Anti-Trafficking
merchandise that is being, or is likely to be, imported into
Measures
the United States” is being produced by forced labor may
WROs are one of several congressionally mandated anti-
communicate that belief to CBP (see Figure 1). As required
human trafficking measures that focus on forced labor in
by 19 CFR § 12.42, port directors and other principal
supply chains. Others include the U.S. Department of
customs officers must report such instances to the
Labor’s Findings on the Worst Forms of Child Labor
Commissioner of CBP. Persons outside of CBP may choose
(prepared in accordance with the Trade and Development
to report to the Commissioner, to any port director, or
Act of 2000, P.L. 106-200) and List of Goods Produced by
online (https://eallegations.cbp.gov/).
Child Labor or Forced Labor (required by the Trafficking
Victims Protection Reauthorization Act of 2005, P.L. 109-
164 ). These reports contain country profiles and lists of
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Section 307 and Imports Produced by Forced Labor
goods (and source countries) suspected to have been
labor and prohibition of its worst forms. For the first time in
produced by child or forced labor, but have traditionally
a U.S. FTA, the proposed U.S.-Mexico-Canada Agreement
been used to increase awareness rather than to inform CBP
(USMCA) would also commit the parties to prohibit
actions.
imports of goods produced by forced labor through
“measures it considers appropriate,” and to establish
Trends
cooperation for the identification of such goods. The 116th
Following its enactment in 1930, Section 307 was rarely
Congress may consider implementing legislation for the
used to block imports. The International Trade Commission
proposed USMCA, which includes new provisions related
reported that between 1930 and the mid-1980s there were
to forced labor.
approximately 60 to 75 instances when either interested
parties requested or Customs considered the application of
In addition, eligibility criteria for U.S. trade preference
Section 307. Of those instances, merchandise was denied
programs, such as the Generalized System of Preferences
entry into the United States at least ten times (six times
(GSP), includes taking steps to maintain internationally
from Mexico, and once each from Japan, the Dominican
recognized worker rights. Some eligibility reviews by the
Republic, Canada, and the Soviet Union). Use of Section
U.S. Trade Representative have involved concerns over
307 increased substantially in the early 1990s with an
labor practices and resulted in countries losing benefits.
increase in Chinese exports to the United States. Between
Most recently, the Administration withdrew GSP benefits
1991 and 1995, the CBP issued about 27 WROs against
for Thailand over various labor concerns, including forced
manufacturers in China. WROs against Japan, Nepal, India,
labor, especially in the fishing sector.
and Mongolia were issued in the late 1990s. Between 2000
and 2016, no WROs were issued (see Figure 2).
Trade agreements and programs have expanded coverage of
trade and labor issues in part because the World Trade
Observers generally linked the difficulties in enforcing
Organization (WTO) does not cover such rules. However,
Section 307 to the “consumptive demand” clause. As more
one relevant provision, Article XX(e) under the General
goods were manufactured exclusively abroad, it became
Agreement on Tariffs and Trade (GATT), provides for
easier for importers to make use of the exception. CBP also
exceptions to a country’s obligations for measures related to
attributed difficulties to a lack of sufficient evidence,
imports of products of prison labor.
caused in part by the infeasibility of spot inspections that
China and Forced Labor
would provide evidence of forced labor.
The majority of WROs have been against China. Of the 49
WROs issued under Section 307 since 1990, 39 (80%) have
As noted, Congress removed the clause in 2015. CBP stated
“[t]he repeal of the consumptive demand exception
been against merchandise produced in China. Many of
enhances CBP’s ability to prevent products made with
those orders were issued between 1991 and 1993. The
number of WROs began to decline after the U.S. and China
forced labor from being imported into the United States.”
negotiated several agreements relating to goods made with
Since the repeal, and amongst ongoing interest in worker
prison labor, notably a 1992 Memorandum of
rights in trade policy and anti-trafficking efforts, CBP has
Understanding (MOU) and 1994 Statement of Cooperation.
issued 13 WROs, five of which were issued on September
These agreements provided for the exchange of information
30, 2019, against manufacturers and producers in Brazil,
and request for inspections. However, China’s compliance
China, the Democratic Republic of the Congo, Malaysia,
with the MOU has been inconsistent and U.S. concerns
and Zimbabwe.
over forced labor, including outside of prison labor, remain.
Figure 2. WROs Issued Per Year
China has again become a focus of Section 307
investigations: since 2016, six of thirteen WROs have
involved Chinese products. Media sources have reported
that some WROs have centered on concerns of forced labor
in Xinjiang, particularly that of Uyghurs and other Turkic
Muslim minorities.
There has been some legislative activity on this issue in the
116th Congress. The Uyghur Human Rights Policy Act
Source: CBP.
(H.R. 649 and S. 178), for example, urges U.S. companies
Issues for Congress
and individuals operating in Xinjiang to, “take steps…to
publicly assert…that their supply chains are not
Trade Policy and Forced Labor Provisions
compromised by forced labor.” The act would also require
The treatment of forced labor in U.S. trade policy and U.S.
the Secretary of State to submit a report containing an
free trade agreements (FTAs) has been of longstanding
assessment of forced labor in reeducation camps, among
congressional interest and has evolved in recent years.
other elements.
Consistent with negotiating objectives set by Congress in
Trade Promotion Authority (TPA), recent U.S. FTAs
Christopher A. Casey, Analyst in International Trade and
commit countries to adopt and maintain laws on core labor
Finance
rights and principles of the International Labor
Cathleen D. Cimino-Isaacs, Analyst in International Trade
Organization (ILO). This includes the elimination of forced
and Finance
or compulsory labor, and the effective abolition of child
Katarina C. O'Regan, Analyst in Foreign Policy
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Section 307 and Imports Produced by Forced Labor
IF11360
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