CBP Says Application of WRO de Minimis Standard Dependent on Specific Cases
CBP's use of a new “de minimis” standard for allowing imports of goods in which forced labor played a minimal role will depend on the specifics of individual cases, a CBP spokesperson said by email. The standard was first mentioned as part of a set of frequently asked questions about a withhold release order aimed at silica-based products produced by Hoshine Silicon Industry, a company located in China's Xinjiang province, and its subsidiaries (see 2106240062). CBP said in the FAQs that it may consider a product outside the scope of the statute that prohibits forced labor goods if the forced labor contribution is “insignificant” (see 2108050019).
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The forced labor “statute prohibits the importation of goods produced in whole, or in part, with the use of forced labor,” the spokesperson said. “However, CBP recognizes there may be some very fact-specific instances where the question of the contribution of prohibited labor to the whole of a product (from a quantitative and a qualitative perspective) is something that a court might consider with respect to the statutory intent of Section 1307 of Title 19, United States Code.”
As an example within the FAQs of how the standard might apply, CBP mentioned the use of forced labor to make a single car engine part and that CBP might consider it “de minimis” to the completed car upon import. “Hypotheticals are used for illustrative purposes only; CBP does not take positions based on hypothetical scenarios,” the spokesperson said. “Rather, in accordance with its statutory and regulatory authorities, CBP issues rulings and makes decisions when presented with actual facts for specific importations."
Asked whether this approach extends to all WROs as well as forced labor findings, the spokesman said it does. Trade lawyers have urged importers to be wary of relying on the standard before more guidance is provided (see 2108170052).