Background

U.S. Customs and Border Protection needs to provide more and better information for importers on its enforcement of the Uyghur Forced Labor Prevention Act, a CBP advisory committee says.

The UFLPA establishes a rebuttable presumption that goods made wholly or in part in China’s Xinjiang Uyghur Autonomous Region are made with forced labor and excluded from entry into the U.S. All businesses with products whose supply chains include Chinese materials should understand both CBP’s importer guidance and the related enforcement strategy and ensure that they are being implemented into their business operations.

In a white paper submitted to a recent meeting of CBP’s Commercial Customs Operations Advisory Committee, the COAC’s Forced Labor Working Group raised more than a dozen concerns about the way CBP plans to, and has already begun to, enforce the UFLPA. The paper noted that CBP’s importer guidance “disappointingly does not reflect incorporation of the many practical recommendations” the trade community has submitted on forced labor issues over the years and called on the agency to provide “greater engagement, visibility, transparency, and specificity” on this guidance.

Elise Shibles, head of ST&R’s Forced Labor Practice, said that among the most significant concerns laid out in the white paper are the following.

- CBP should provide early notice of risky entities to trusted traders, including by (1) communicating suspected forced labor concerns and/or risks to CTPAT members before goods depart origin, (2) providing CTPAT members with information on suspected bad actors as soon as that information becomes available, and (3) providing advance advisory opinions and rulings related to CTPAT member supply chains.

- The use of 19 USC 1499 (rather than 19 USC 1307) as an applicable detention process should be reconsidered because it (1) effectively reduces from three months to 30 days the time an importer has to present rebuttal evidence demonstrating the absence of forced labor in its supply chain and (2) introduces a parallel but distinct detention process that applies different enforcement standards and timeframes on top of the existing and documented challenges characterizing the 19 USC 1307 process.

- Details are needed about how detentions under the UFLPA will be administered so that further supply chain delays and port congestion can be avoided; e.g., CBP should detail the entity in the supply chain that is subject to the detention and the circumstances that triggered it.

- More specificity is needed about how CBP will treat future shipments identical to ones detained under the UFLPA.

- The importer guidance does not address standard foreign-trade zone activity such as admissions and withdrawals with respect to the UFLPA, the lack of advance data elements on a CBP form 214 that would help CBP make informed detention decisions, and whether importers have the ability to use an FTZ if a detention order is issued.

- It appears that the technology and tools CBP is planning to implement in this area are related to handling large volumes of detention submissions rather than quickly identifying and facilitating legitimate trade. 

For more information on how these concerns may impact your operations, please contact ST&R at supplychainvisibility@strtrade.com. We also offer a comprehensive suite of services to help companies address forced labor concerns in China and elsewhere, including supply chain reviews, due diligence strategies, and proactive remediation. In addition, we maintain a frequently updated web page offering a broad range of information on forced labor-related efforts in the U.S. and around the world.

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