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Updated December 27, 2021
Section 307 and Imports Produced by Forced Labor
Section 307 of the Tariff Act of 1930 (19 U.S.C. §1307)
issue an order to withhold release of such goods (WRO)
prohibits importing any product that was mined, produced,
pending further instructions. CBP has usually issued WROs
or manufactured wholly or in part by forced labor,
that target specific goods from specific producers.
including forced or indentured child labor. U.S. Customs
Figure 1. Application of Section 307
and Border Protection (CBP) enforces the prohibition.
Defining Forced Labor in Section 307
Forced Labor: “All work or service which is exacted from any person
under the menace of any penalty for its nonperformance and for
which the worker does not offer himself voluntarily.” – 19 U.S.C.
§1307; language modeled on the ILO Forced Labor Convention, 1930.
U.S. customs law has prohibited 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
Source: CBP.
legislative concern was with protecting domestic producers
An importer has three months to contest a WRO and must
from competing with products made with forced labor. As
demonstrate that he or she has made “every reasonable
such, Section 307 allowed the admission of products of
effort” to determine both the source of and the type of labor
forced labor if it could be shown that no comparable
used to produce the merchandise and its components. If the
product was made in the United States or the level of
importer does not successfully contest the WRO and does
domestic production did not meet domestic demand
not remove the merchandise at issue from the United States,
(“consumptive demand” clause).
CBP is to seize and destroy it. Beyond publishing the date,
merchandise type, manufacturer, and status of a WRO, CBP
Over the decades, lawmakers and civil society became
does not generally publish information about specific
increasingly concerned about forced labor in the context of
detentions, reexportations, exclusions, or seizures.
human trafficking. The Victims of Trafficking and Violence
Immigration and Customs Enforcement can pursue criminal
Prevention Act of 2000 (P.L. 106-386), for example,
investigations of Section 307 violations.
included forced labor in its definition of human trafficking.
Similarly, Congress removed the “consumptive demand”
Other Labor and Anti-Trafficking Measures
clause, as part of the Trade Facilitation and Trade
WROs are one of several congressionally mandated forced
Enforcement Act (P.L. 114-125) in 2015.
labor and anti-human trafficking measures. Others include
the Department of Labor’s Findings on the Worst Forms of
Application of Section 307
Child Labor (prepared in accordance with the Trade and
Reporting
Development Act of 2000, P.L. 106-200) and List of Goods
Any individual who has “reason to believe that any class of
Produced by Child Labor or Forced Labor (required by the
merchandise that is being, or is likely to be, imported into
Trafficking Victims Protection Reauthorization Act of
the United States” is being produced by forced labor may
2005, P.L. 109-164). These reports contain country profiles
communicate that belief to CBP (Figure 1). As required by
and lists of goods suspected to have been produced by child
19 C.F.R. §12.42, port directors and other principal customs
or forced labor, but have traditionally been used to increase
officers must report such instances to the CBP
awareness rather than to inform CBP actions. More broadly,
Commissioner. Persons outside of CBP may choose to
various international conventions and guidelines of the
report to the Commissioner, to any port director, or online.
United Nations and International Labor Organization (ILO)
Investigations and Withhold Release Orders
address forced labor, and have informed U.S. approaches.
Upon receipt of such a report, the Commissioner of CBP is
Trends
required to initiate an investigation “as appears warranted”
Following its enactment in 1930, Section 307 was rarely
by the amount and reliability of the submitted information.
used to block imports. The International Trade Commission
If the Commissioner of CBP finds the information
reported that between 1930 and the mid-1980s there were
“reasonably but not conclusively indicates” that imports
approximately 60 to 75 instances when either interested
may be the product of forced labor, then she or he is to
parties requested or Customs considered the application of
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Section 307 and Imports Produced by Forced Labor
Section 307. Of those instances, merchandise was denied
China and Forced Labor
entry into the United States at least 10 times (6 times from
The majority of WROs have been against China: Of the 68
Mexico, and once each from Japan, the Dominican
issued since 1990, 44 (65%) were against Chinese goods.
Republic, Canada, and the former Soviet Union). Use of
Many orders were issued between 1991 and 1993, declining
Section 307 increased substantially in the early 1990s with
after the U.S. and China negotiated agreements relating to
an increase in Chinese exports to the United States.
goods made with prison labor, notably a 1992
Between 1991 and 1995, CBP issued 27 WROs against
Memorandum of Understanding (MOU) and 1994
manufacturers in China. CBP issued WROs against Japan,
Statement of Cooperation. These agreements provided for
Nepal, India, and Mongolia in the late 1990s. Between 2000
the exchange of information and request for inspections.
and 2016, CBP did not issue any WROs (Figure 2).
However, China’s compliance has been inconsistent, and
U.S. concerns over prison and forced labor broadly, remain.
Observers generally linked the difficulties in enforcing
Section 307 to the “consumptive demand” clause. As more
Since 2016, China has again become a focus of Section 307
goods were manufactured exclusively abroad, it became
actions. Several WROs center on concerns over systemic
easier for importers to make use of the exception. CBP also
forced labor of ethnic Uyghurs and other Turkic Muslims in
attributed difficulties to limited resources and a lack of
Xinjiang. Xinjiang raw materials and products are used in
sufficient evidence, caused in part by the infeasibility of
finished goods in China and neighboring countries, putting
spot inspections that would provide evidence of forced
regional supply chains at risk of exposure to forced labor.
labor. As noted, Congress removed the consumptive
In January 2021, CBP issued a region-wide WRO on
demand clause in 2015, which CBP stated, would
imports of all cotton and tomato products from Xinjiang.
“[enhance] CBP’s ability to prevent products made with
forced labor from being imported.”
The 117th Congress passed, and the President signed, P.L.
Since then, and amid
117-78. That law creates a rebuttable presumption that
ongoing interest in worker rights in trade policy and anti-
goods produced or manufactured in Xinjiang (or by certain
trafficking efforts, CBP has issued 36 WROs.
entities with ties to the region) are made with forced labor,
Figure 2. WROs Issued Per Year
unless CBP determines otherwise. The law also creates new
reporting requirements and declares that it is the policy of
the United States to coordinate with Canada and Mexico on
this issue. The enactment of P.L. 117-78 continues the
relatively recent trend toward using Section 307 on a
region-wide basis and for humanitarian purposes.
Source: CBP, as of December 15, 2021.
Trade Policy and Forced Labor Provisions
Issues for Congress
The treatment of forced labor in U.S. trade policy and free
trade agreements (FTAs) has been of long-standing
Section 307 Implementation and Enforcement
congressional interest and has evolved in recent years.
While congressional action to close the Section 307
Consistent with negotiating objectives set by Congress in
loophole was widely welcomed, some observers question
Trade Promotion Authority, recent U.S. FTAs commit
whether CBP is effectively making use of the change. The
countries to maintain laws on core ILO rights/principles,
International Labor Rights Forum (ILRF) cites lack of clear
e.g., the elimination of forced or compulsory labor. For the
evidentiary standards required in petitions and transparency
first time in a U.S. FTA, the U.S.-Mexico-Canada
by CBP on explanations of enforcement actions as
Agreement (USMCA) also commits parties to prohibit
concerns. Observers attribute the small number of actions to
imports produced by forced labor and to cooperate over
the customary practice of targeting individual producers
identifying such goods. USMCA implementing legislation
and the difficulty of tracing products back to the factory or
(P.L. 116-113) created a Forced Labor Enforcement Task
farm using forced labor, given complex global supply
Force, chaired by the Secretary of Homeland Security to
chains. Recent industry and countrywide enforcement
monitor and report on broader enforcement of Section 307.
actions, such as for Turkmenistan, have been welcome
developments to some, including Members of Congress
In addition, eligibility criteria for U.S. trade preference
who advocate this approach to Xinjiang. Industry groups
programs includes taking steps to maintain internationally
caution that broader WROs may disrupt supply chains,
recognized worker rights. Some eligibility reviews and
deter legitimate business with other suppliers, and worsen
revocation of developing country benefits by the U.S. Trade
the economic security of vulnerable workers. Industry
Representative have involved concerns over labor practices.
groups have also expressed uncertainty as to what kinds of
Trade agreements have expanded coverage of trade and
evidence will demonstrate compliance. Other stakeholders
labor issues in part because the World Trade Organization
view greater supply chain due diligence and accountability
(WTO) does not cover such rules, deferring to the ILO—
by companies as critical components.
though it provides exceptions to a country’s obligations for
Enhancing Section 307 enforcement would likely hinge on
measures related to imports of products of prison labor.
greater resources. CBP has cited staff shortages as causing
Congress might consider assessing the ILO’s role and how
the agency to drop investigations and limiting its ability to
to enhance U.S. support, and encourage elevating forced
monitor existing cases. Congress could appropriate funds if
labor as part of trade discussions in other international fora.
lack of capacity hinders WRO issuance and enforcement.
Christopher A. Casey, Analyst in International Trade and
Finance
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Section 307 and Imports Produced by Forced Labor
Katarina C. O'Regan, Analyst in Foreign Policy
Cathleen D. Cimino-Isaacs, Analyst in International Trade
IF11360
and Finance
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