CBP Seeing 'Reinvigoration' of Forced Labor Enforcement, CBP's Kipel Says

There's been a "reinvigoration" of forced labor enforcement issues at CBP following the repeal of the "consumptive demand" exemption last year (see 1603010043), said Alice Kipel, executive director of CBP's Office of Regulations and Rulings. The "consumptive demand" consideration served as a deterrent to companies bringing information to CBP, but with that now repealed, "we're seeing more being brought to our attention," she said. Kipel, who spoke on a panel at the American Bar Association International Law Conference on April 28, said she was speaking on her own behalf rather than for CBP.

There's really a "balancing act" at CBP for deciding when to "shift the burden" to an importer to prove that it does not use forced labor in a supply chain, Kipel said. While it may be tough for civil society organizations to find information about possible forced labor issues, CBP similarly often doesn't have access to that information, she said. The agency "has visibility into the importation, not to the supply chain behind the importation," she said. CBP is "devoting a lot of resources" to the forced labor issue, but it also needs "a lot of help because we do have limited resources," she said.

CBP continues to work on regulatory changes related to the end of the "consumptive demand" exemption to the ban on imported products made by forced labor (see 1703130011). While there's been good collaboration so far between CBP and industry, the private sector is looking forward to having some more clarity from CBP on how it looks at and considers allegations and supply chain information, said Megan Giblin, director of customs policy at the U.S. Council for International Business. "There is real desire" among companies to know how to provide information to CBP "to prove their shipments are clear," she said.

There's also growing attention to the issue internationally, said Kenneth Kennedy, ICE senior policy adviser, Forced Labor Programs, Homeland Security Investigations. For example, a new French law on the subject recently went into effect, while Switzerland and Australia are considering such laws, he said. The EU is also looking at putting regulations in place in addition to its current system, he said. Given the interest among younger consumers about sourcing issues, "I don't see this as going away anytime soon," he said.

Hypothetical forced labor submissions were distributed for participants at the session. The first hypothetical submission, which referenced pretend reports from 2013 on the use of forced labor, was seen as likely to raise flags with the authorities but not having enough direct evidence to support a formal investigation, said Eric Gottwald, a lawyer with the International Human Rights Forum. The second, with several more details and more recent information, would likely be better for triggering an investigation, he said.

Enforcement of the provisions related to low-value shipments is another pending issue, Kipel said. As is true in a number of other areas, such as intellectual property rights, low-value shipments create a unique challenge as CBP decides where to spend its enforcement resources, she said. The number of low-value shipments is growing as a result of the increase in e-commerce and the changes to the de minimis value threshold (see 1608250029).