DHS Report to Congress Lays Out Established Timelines for Forced Labor Actions

CBP released details on the timelines used for responding to allegations of forced labor in a supply chain, in a July 30 report to Congress posted to the Department of Homeland Security website Sept. 22. The timelines “generally reflect the lifecycle of CBP responding to a petition; however, responding to a petition is a law enforcement investigation and not a linear administrative process,” DHS said. As a result, “extraordinarily complicated investigations, case prioritization, available resources, and other significant factors may affect the actual timeline of certain case,” DHS said.

The DHS report describes a two-stage CBP process for responding to forced labor petitions. “First, CBP preliminarily reviews submissions to accept or reject the petition for CBP investigation or refer for possible action under other U.S. Department and Agency authorities,” it said. “If CBP rejects a petition for investigation, the petitioner may update the petition with additional evidence and resubmit it to CBP for possible acceptance and investigation. Then, if CBP accepts a petition for investigation, CBP will investigate its allegations for possible action under CBP authorities.”

The CBP timeline starts once the agency receives a petition from “any person outside of CBP” that alleges some goods made with forced labor are likely to be imported to the U.S. While some goods made with child labor may be banned, the statute “prohibits the importation of goods produced with forced child labor or indentured child labor, but not child labor that is not forced or indentured," DHS said.

Within 30 days of receiving a petition, CBP will either accept or reject the petition and can refer the information to other agencies for possible action in both cases. If a petition is rejected CBP will notify the petitioner, if possible, of the rejection and advise as to why the petition wasn't accepted.

Once CBP accepts the petition, “in approximately 90 to 180 calendar days from the initiation of an investigation, CBP determines whether reasonable suspicion of violation(s) of 19 U.S.C. § 1307 exists and, if so, issues WROs and a corresponding press release,” DHS said. After that, “in approximately 180 to 365 days from the initiation of an investigation,” if “CBP finds probable cause” the agency “will proceed to issue a Finding.” However, “CBP may not necessarily find probable cause to issue a Finding in all cases where a WRO is issued.”

During monthly DHS Interagency Forced Labor Working Group meetings, “CBP provides a forecast of cases in the investigative queue as they are maturing” and “also strives to provide a two-week advance notification of an impending WRO” unless the “investigation would be seriously jeopardized by sharing” the information, it said. “CBP meets with specific agencies to clarify any information related to an[y] impending WROs following receipt of interagency notifications.” As for findings, “there are a number of factors that affect publication timing,” it said.

Asked about the new information, a CBP spokesman said that “under the USMCA, the Forced Labor Enforcement Task Force provided timelines/benchmarks to guide CBPs investigative review process.” The agency “anticipates updating its website at the end of this month, with this information in an increased effort to bring awareness and transparency to its stakeholders,” the spokesman said. CBP posted a “slick sheet” on the subject.

Upon learning of a petition, “companies should take prompt action after any public or internal report of forced labor allegations affecting goods that they manufacture or import,” law firm Covington & Burling said in a recent alert. “Although petitions are not released to the public, companies should attempt to determine the source of forced labor risk in their supply chain. CBP may take many months to conclude its preliminary review and determine whether to issue a WRO. Moreover, given that the timelines above are aspirational rather than legally binding, silence or inaction on the part of CBP for a period extending beyond the timelines should not be taken as a rejection of the forced labor petition.”