Information and Resources on Withhold Release Orders (WROs)
Withhold Release Orders (WROs), issued by U.S. Customs and Border Protection (CBP), direct CBP’s Port Directors at ports of entry—places where one may lawfully enter a country and/or import goods—to detain a shipment of goods. CBP can detain any shipment when it has reason to believe that the goods (or their inputs) were made with forced labor, forced child labor, or prison labor under Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307), which specifically prohibits the importation of all goods made with forced labor, forced child labor, or prison labor.
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CBP has issued WROs for goods from unique entities, regions, and countries. After detention, the goods are held at the port of entry, where the importer can either prove to CBP that the goods were not made with forced labor, forced child labor, or prison labor, or they can have the goods re-exported. After a period with no resolution to the issue, the goods may be destroyed. In issuing WROs to detain shipments of goods, CBP can make the decision to issue a WRO at any time that “information available reasonably but not conclusively” indicates that merchandise violates Section 307’s prohibitions. CBP’s issuances of WROs are publicly listed on their website: https://www.cbp.gov/trade/forced-labor/withhold-release-orders-and-findings.
The Department of Labor’s Bureau of International Labor Affairs (ILAB)’s List of Goods Produced by Child Labor or Forced Labor and the List of Products Produced by Forced or Indentured Child Labor serve as resources for CBP and other interagency partners. While inclusion of a good on either of ILAB’s two lists is not a ban on importation of those goods into the United States, the inclusion of that good flags that CBP should pay particular attention to the listed goods in their WRO investigations. CBP also relies on ILAB’s reporting to make determinations in issuing, revoking, or modifying WROs. CBP may revoke WROs or modify them, making exceptions as firms provide documentation to CBP on the origin of their shipments and supply chain sourcing practices, which must demonstrate a consistent absence of forced labor as determined by CBP.
Informed compliance is the shared responsibility between CBP and the import community, wherein CBP communicates its requirements to the importer, and the importer, in turn, uses reasonable care to assure that CBP is provided accurate and timely data pertaining to their importation. A key component of this shared responsibility is that the importer is expected to exercise “reasonable care” on their importing operations.
Good Faith Efforts
Reasonable care is understood as a good faith effort to provide the most accurate information possible. For assistance in exercising reasonable care related to identifying possible labor exploitation in a supply chain, consider the following guidance questions:
Have you established reliable procedures to ensure you are not importing goods in violation of 19 C.F.R. §§ 12.42-12.44 and 19 U.S.C. § 1307?
Do you know how goods are made, from raw materials to finished product, by whom, where, and under what labor conditions?
Have you reviewed CBP’s "Forced Labor" webpage, which includes a list of active withhold release orders and findings, as well as forced labor fact sheets?
Have you obtained a "ruling" from CBP regarding the admissibility of goods under 19 U.S.C. § 1307 (see 19 C.F.R. Part 177), and if so, have you established reliable procedures to ensure that you followed the ruling and brought it to CBP’s attention?
Have you established a reliable procedure for conducting periodic internal audits to check for forced labor in a supply chain?
Have you established a reliable procedure for having a third-party auditor familiar with evaluating forced labor risks conduct periodic, unannounced audits of a supply chain for forced labor?
Do you vet new suppliers/vendors for forced labor risks through questionnaires or some other means?
Do contracts with suppliers include terms that prohibit the use of forced labor, a time frame by which to take corrective action if forced labor is identified, and the consequences if corrective action is not taken, such as termination of the contractual relationship?
Do you have a comprehensive, transparent, and worker-driven social compliance system in place? Have you reviewed the Department of Labor’s “Comply Chain” webpage?
Have you developed a reliable program or procedure to maintain and produce any required customs entry documentation and supporting information?
Uyghur Forced Labor Prevention Act
WROs made headlines as they were invoked as part of the Uyghur Forced Labor Prevention Act (UFLPA). The UFLPA created a rebuttable presumption that all goods manufactured even partially in the XUAR and goods from entities on the UFLPA Entity List are products of forced labor and, therefore, not entitled to entry at U.S. ports. The UFLPA Entity List is comprised of 1) entities in the XUAR that mine, produce, or manufacture goods with forced labor; 2) entities that work with the XUAR government to recruit, transport, or receive forced labor from XUAR; 3) entities that exported products made by such listed entities; and 4) facilities and entities that source material from the XUAR or from persons that work with the XUAR government to participate in “poverty alleviation” and “pairing-assistance” programs. The UFLPA also builds on the 2020 Uyghur Human Rights Policy Act by expanding that act’s authorization of sanctions to cover foreign individuals responsible for human rights abuses related to forced labor.
The UFLPA requires a strategy that includes guidance for importers on due diligence, supply chain tracing, and supply chain management measures. In order to overcome the rebuttable presumption, CBP must find that the importer has fully complied with this guidance and, by clear and convincing evidence, that the good was not made with forced labor.
The demand for personal protective equipment (PPE) saw a large uptick in 2020 due to the COVID-19 pandemic. As governments and health care providers scrambled for PPE, rubber glove manufacturers gained international attention as they sought to meet unprecedented demand for disposable rubber gloves. In turn, the labor practices of companies like Malaysia-based Top Glove, the world’s largest rubber glove manufacturer, came under new scrutiny.
Forced labor practices at Top Glove had occurred prior to the pandemic. An investigation into the UK’s National Health Service supply chains by The Guardian in 2018 found that migrant workers at Top Glove had experienced exploitative conditions, including excessive overtime, passport confiscation, withholding of wages, and other indicators of forced labor. During the pandemic, rising demand for PPE, restriction of movement to contain the spread of the virus, and the cessation of in-person audits exacerbated the long-standing labor abuses.
Soon after the release of the WRO, Top Glove retained Impactt Limited*, a UK-based independent consultancy firm specializing in human rights and ethical trade practices, including the remediation of forced labor. Top Glove hired Impactt to assess the presence of the ILO’s forced labor indicators within their operations, propose Corrective Action Plans (CAPs), and monitor Top Glove’s implementation of the CAPs on a quarterly basis from August 2020 to August 2021. The CAPs included making remediation payments to migrant workers who had paid recruitment fees to third-party agents to work at Top Glove.
In March 2021, Impactt released its first statement on Top Glove’s status as of January 2021, which found that forced labor indicators were no longer present among Top Glove’s direct employees.
In April 2021, Impactt released an updated statement that outlined findings at the third quarterly verification. These reports indicated that Top Glove had made progress in eliminating indicators of systemic forced labor in its direct operations and confirmed the repayment of recruitment fees totaling over $36.3 million to 12,676 current and eligible former workers. In addition, from September 2020 to July 2021, Impactt implemented a helpline for workers to verify remediation actions and raise any other concerns in a confidential manner.
On September 9, 2021, CBP issued a modification of its forced labor findings on Top Glove, allowing imports to resume. In the press release, CBP affirmed that Top Glove had issued “more than $30 million in remediation payments to workers and [is] improving labor and living conditions at the company’s facilities,” which is consistent with Impactt’s final statement released in October 2021. The transparency of Top Glove’s remediation process—swift implementation of Impactt’s recommendations, including payments to migrant workers directly employed by Top Glove, an independent grievance mechanism, and continuous and effective public reporting of corrective actions—was instrumental in remediating an identified forced labor issue.
...more than $30 million in remediation payments to workers and [is] improving labor and living conditions at the company’s facilities."