Op-ed: Tips for dealing with US CBP and FDA seafood law enforcement: forced labor

A U.S. Customs and Border Protection officer.

From shrimp etouffee to lobster thermidor and Thai fish cakes to Singapore chili crab and your everyday tuna, salmon, and squid, most of the seafood being eaten in the U.S. is imported.

Unfortunately, there is a health risk associated with imported seafood compared to other imported food products. Hence, seafood is much more highly regulated by the federal government, especially by U.S. Customs and Border Protection (CBP), the U.S. Food and Drug Administration (FDA), and NOAA Fisheries. Legally, all imported seafood is monitored under the Food Safety and Modernization Act (FSMA), the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Bioterrorism Act), the Lacey Act, and the FDA’s Hazard Analysis and Critical Control Points (HACCP) requirements.

In recent years, there has been greater emphasis by CBP and FDA to ensure the seafood brought into the United States complies with all applicable U.S. laws. In 2022, there was a record amount of imported seafood inspected by the FDA, there were a record number of FDA Import Alerts on imported seafood, CBP issued the first-ever withhold-release orders on shipments of seafood that arrived in the United States, and we had a record number of investigations, monetary penalties, and seizures of seafood products related to illegal, unreported, and unregulated (IUU) fishing. And even more enforcement actions are expected in 2023.

Foreign seafood suppliers, international transportation companies, and U.S. importers of seafood can protect themselves by learning about how to prevent issues with Federal law enforcement authorities, and how to respond to any detention of imported seafood, refusal from entry, or seizure, penalty, or investigation by those same Federal law enforcement agencies.

All imported food must be declared to both CBP and FDA prior to arrival in the United States. The data in those required advanced declarations are screened electronically and then, depending upon such factors as description of product, country of origin, name of supplier, tariff classification number, etc. the shipment is selected for a physical examination. There are three primary reasons for CBP and FDA to select, detain, and refuse imported seafood. The first of this three-part series investigated what happens if a foreign supplier is listed on an FDA import alert. The second of this three-part series will investigate what happens when federal law enforcement agencies target and detain imported seafood because it is suspected of being produced by forced labor.

U.S. law prohibits the importation of merchandise produced, wholly or in part, by convict labor, forced labor, or indentured labor, including forced or indentured child labor. CBP detains shipments of goods suspected of being imported in violation of this statute. Importers of detained shipments have the opportunity to export their shipments or demonstrate that the merchandise was not produced with forced labor. CBP would issue a withhold-release order (WRO) against the U.S. importer based on information that reasonably indicates the use of forced labor in the production or processing of any seafood, including a vessel’s fishing operations. There are 11 forced labor indicators used by CBP. The most common are withholding of wages, debt bondage, and retention of identity documents. Numerous fishing vessels of various foreign companies have been added to the list. For example, any tuna or other seafood from Fiji-flagged and -owned longliner fishing vessel, Hangton No. 112, will be detained by CBP under a withhold-release order issued in August 2021.

“The International Labour Organization estimates that 25 million workers suffer under conditions of forced labor worldwide,” CBP said in a press release issued at the time. “The distant-water fishing industry is at high risk of forced labor as foreign companies often coerce vulnerable migrant workers to perform hazardous labor for little or no pay aboard fishing vessels that may spend months at sea without making port calls.”

CBP has even established a means for the public to report allegations of forced labor via a hotline, 1-800-BE-ALERT, or through its e-Allegations Program online trade violations reporting system.

All shipments destined to arrive in the United States are electronically reported to CBP far in advance of the physical shipment arriving at the border or destination airport.  CBP computers select shipments for examination.  CBP policy is that there only needs to be “reasonable evidence of the use of forced labor in the manufacturing or product of any merchandise entering the United States.” Unfortunately, CBP does not have to describe with any clarify what “reasonable evidence” it relied upon to make its decision to issue a WRO. Right now, there are 53 active withhold-release orders.

When a U.S. importer or its customs broker received formal notification that its shipment is on hold or being detained by CBP, the customs lawyer who has been retained should gather all purchase, production, international transportation, and import documentation relevant to the case. A serious analysis of the origin and production of each component of a seafood product must be completed to be sure that all companies connected to that seafood product are identified.  Of course, the challenge for the customs attorney representing the U.S. importer which has been issued a WRO is that you have to prove a negative. What that means is the U.S. importer must collect documentation sufficient to persuade a CBP import specialist the imported product was in no way made or processed with any forced labor. Production and transportation documentation, foreign government certifications, private third-party audits, internal company guidelines, declarations from managers, Google Earth photos, and other material may all become important to share and communicate with CBP.  Then, usually after some further clarification, CBP will issue a written decision concluding either that sufficient information was provided to establish there was no forced labor involved, or that insufficient information was provided to establish there was not forced labor involved. Unfortunately, once again, CBP does not state what was allegedly “insufficient.” The process is considered by many customs lawyers to be arbitrary.

Once the WRO has been confirmed after being challenged, the detained shipment must either be destroyed or exported. Of course, there is a possibility that CBP may refer the case to the U.S. Department of Homeland Security’s investigations department for criminal prosecution if there is a U.S. connection for a violation of U.S. laws prohibiting the use of forced labor.

Using an experienced and knowledgeable customs lawyer can help convince U.S. customs authorities to revoke or modify a WRO, and ensure affected merchandise that arrived in the United States, and has been at a cold storage facility for weeks or months, can finally enter the U.S. market.

Peter Quinter is the head of the U.S. customs and international trade team at West Palm Beach, Florida, U.S.A.-based law firm Gunster.


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