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Updated April 19, 2022
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: “Al 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 brought up
humanitarian concerns during debate, the central legislative
Source: CBP.
concern was protecting domestic producers from competing
An importer has three months to contest a WRO and must
with products made with forced labor. As such, Section 307
demonstrate “every reasonable effort” has been made to
allowed the admission of products of forced labor if it could
determine both the source and type of labor used to produce
be shown that no comparable product was made in the
the merchandise and its components. If the importer does
United States or the level of domestic production did not
not successfully contest the WRO and does not remove the
meet domestic demand (“consumptive demand” clause).
merchandise at issue from the United States, CBP is to
Over the decades, lawmakers and civil society became
seize and destroy it. Beyond publishing the date, type of
increasingly concerned about forced labor in the context of
merchandise, manufacturer, and status of a WRO, CBP
human trafficking. The Victims of Trafficking and Violence
does not generally publish information about specific
Prevention Act of 2000 (P.L. 106-386), for example,
detentions, reexportations, exclusions, or seizures.
included forced labor in its definition of human trafficking.
Immigration and Customs Enforcement can pursue criminal
Similarly, Congress removed the “consumptive demand”
investigations of Section 307 violations.
clause, as part of the Trade Facilitation and Trade
Other Labor and Anti-Trafficking Measures
Enforcement Act (P.L. 114-125) in 2015. Since then, and
WROs are one of several congressionally mandated forced
amid ongoing interest in worker rights in trade policy and
labor and anti-human trafficking measures. Others include
anti-trafficking, CBP’s use of Section 307 has increased.
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)
address forced labor, and have informed U.S. approaches.
Investigations and Withhold Release Orders
Trends
Upon receipt of such a report, the Commissioner of CBP is
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
after the United States and China negotiated agreements
entry into the United States at least 10 times (6 times from
relating to goods made with prison labor, notably a 1992
Mexico, and once each from Japan, the Dominican
Memorandum of Understanding (MOU) and 1994
Republic, Canada, and the former Soviet Union). Use of
Statement of Cooperation. These agreements provided for
Section 307 increased substantially in the early 1990s with
the exchange of information and request for inspections.
an increase in Chinese exports to the United States.
However, China’s compliance has been inconsistent, and
Between 1991 and 1995, CBP issued 27 WROs against
U.S. concerns over prison and forced labor broadly, remain.
manufacturers in China. CBP issued WROs against Japan,
Since 2016, China has again become a focus of Section 307
Nepal, India, and Mongolia in the late 1990s. Between 2000
actions. Several WROs center on concerns over systemic
and 2016, CBP did not issue any WROs (Figure 2).
forced labor of ethnic Uyghurs and other Turkic Muslims in
Observers generally linked the difficulties in enforcing
Xinjiang. Xinjiang raw materials and products are used in
Section 307 to the “consumptive demand” clause; as more
finished goods in China and neighboring countries, putting
goods were manufactured exclusively abroad, it became
regional supply chains at risk of exposure to forced labor.
easier for importers to make use of the exception. CBP also
In January 2021, CBP issued a region-wide WRO on
emphasized limited resources and a lack of sufficient
imports of all cotton and tomato products from Xinjiang.
evidence, caused in part by the infeasibility of spot
The 117th Congress passed, and the President signed, P.L.
inspections that would provide evidence of forced labor. As
117-78 in 2021. The law creates a rebuttable presumption
noted, Congress removed the consumptive demand clause
that goods produced or manufactured in Xinjiang (or by
in 2015, which CBP stated, would “[enhance] CBP’s ability
certain entities with ties to the region) are made with forced
to prevent products made with forced labor from being
imported.”
labor, unless CBP determines otherwise. It also creates new
Since then CBP has issued 37 WROs to date.
reporting requirements and declares that it is the policy of
Figure 2. WROs Issued Per Year
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.
Trade Policy and Forced Labor Provisions
The treatment of forced labor in U.S. trade policy and free
trade agreements (FTAs) has been of long-standing
Source: CBP, as of April 18, 2022.
congressional interest and has evolved in recent years. In
Issues for Congress
January 2022, the U.S. Trade Representative (USTR)
announced it would develop its “first-ever focused trade
Section 307 Implementation and Enforcement
strategy to combat forced labor,” which is to involve an
While congressional action to close the Section 307
interagency review of existing trade policies and tools.
loophole was widely welcomed, some observers question
whether CBP is effectively making use of the change. Some
Consistent with negotiating objectives set by Congress in
labor groups cite lack of clear evidentiary standards
Trade Promotion Authority, recent U.S. FTAs commit
required in petitions and transparency by CBP on
countries to maintain laws on core ILO rights/principles,
explanations of enforcement actions as concerns. Observers
e.g., the elimination of forced or compulsory labor. For the
attribute the small number of actions to the customary
first time in a U.S. FTA, the U.S.-Mexico-Canada
practice of targeting individual producers and the difficulty
Agreement (USMCA) also commits parties to prohibit
of tracing products back to the factory or farm using forced
imports produced by forced labor and to cooperate over
labor, given complex global supply chains. Recent industry
identifying such goods. USMCA implementing legislation
and countrywide enforcement actions have been welcome
(P.L. 116-113) created a Forced Labor Enforcement Task
developments to some, including Members of Congress
Force, chaired by the Secretary of Homeland Security to
who have advocated this approach to Xinjiang. Industry
monitor and report on broader enforcement of Section 307.
groups caution that broader WROs may disrupt supply
Eligibility criteria for U.S. trade preference programs also
chains, deter legitimate business with other suppliers, and
includes taking steps to maintain worker rights. Some
worsen the economic security of vulnerable workers.
eligibility reviews and revocation of developing country
Industry groups have also expressed uncertainty as to what
benefits by USTR have involved labor practice concerns.
kinds of evidence will demonstrate compliance. Other
stakeholders view greater supply chain due diligence and
Trade agreements have expanded coverage of trade and
accountability by companies as critical components.
labor issues in part because the World Trade Organization
(WTO) does not cover such rules, deferring to the ILO—
Enhancing Section 307 enforcement would likely hinge on
though it provides exceptions to a country’s obligations for
greater resources. CBP has cited staff shortages as causing
measures related to imports of products of prison labor.
the agency to drop investigations and limiting its ability to
Congress might consider assessing the ILO’s role and how
monitor existing cases. Congress could appropriate funds if
to enhance U.S. support, and encourage elevating forced
lack of capacity hinders WRO issuance and enforcement.
labor as part of trade discussions in other international fora.
China and Forced Labor
The majority of WROs have been against China: Of the 68
Christopher A. Casey, Analyst in International Trade and
issued since 1990, 44 (65%) were against Chinese goods.
Finance
Many orders were issued between 1991 and 1993, declining
https://crsreports.congress.gov
Section 307 and Imports Produced by Forced Labor
IF11360
Cathleen D. Cimino-Isaacs, Analyst in International Trade
and Finance
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https://crsreports.congress.gov | IF11360 · VERSION 10 · UPDATED