Retail, Fashion Industries Urge Public Database of Forced Labor Bad Actors

The Forced Labor Working Group (FLWG) of the retail and fashion industries “proposes a holistic and collaborative multi-faceted framework” for enforcing the Uyghur Forced Labor Prevention Act (UFLPA) “that will meet U.S. jurisprudence and due process requirements,” including keeping a public database of bad actors and the tainted import goods they’re associated with, commented the American Apparel & Footwear Association, the National Retail Federation, the Retail Industry Leaders Association and the U.S. Fashion Industry Association on the FLWG’s behalf, as posted Wednesday in docket DHS-2022-0001.

Comments were due March 10 in response to a Department of Homeland Security notice in January on how best to comply with the UFLPA by preventing goods produced with forced labor in China from being imported into the U.S. President Joe Biden signed the UFLPA Dec. 23, using his Tariff Act Section 307 authority to ban imports originating in Xinjiang unless the importer of record shows Customs and Border Protection “clear and convincing evidence” that the goods weren't produced with forced labor (see 2112250001).

The FLWG's members "condemn the use of forced labor and understand that traceable supply chains are an important goal in achieving ethical and compliant sourcing," said the groups. The U.S. approach to curbing forced labor historically has been to impose restrictions on the importation of merchandise allegedly produced with forced labor, “rather than rooting out forced labor at the source,” they said. “This indirect approach and the current inconsistent enforcement scheme is not effective at achieving the ultimate goal of eliminating forced labor.”

The FLWG’s proposed enforcement framework “embraces transparency and communication, which will encourage companies across all industries to vet their supply chains to ensure that suppliers do not have a nexus” to China’s Xinjiang Uygur Autonomous Region (XUAR), said the groups. The framework also emphasizes “uniform documentation” that Customs and Border Protection can “efficiently review,” they said. The “safeguards and processes” in the proposed framework are aimed at avoiding most CBP “detentions” of incoming goods, “because importers will have the information necessary to structure supply chains to avoid a nexus to XUAR,” said the groups. T

DHS’ Forced Labor Enforcement Task Force should publish a “prohibited list,” and store it in a public database, of entities that are “active or complicit in the use of forced labor in or from XUAR and the corresponding products they produce,” said the groups. “Public comment should be solicited in formulating this list,” they said. CBP should be directed not to detain merchandise unless an importer’s supply chain “definitively” involves an entity or product listed in the database, they said.

The task force shouldn't include an entity on the prohibited list “unless clear and convincing evidence demonstrates that the entity manufactures merchandise using forced labor,” said the groups. “This evidentiary standard is necessary because the rebuttable presumption standard in the UFLPA is essentially a ‘guilty until proven innocent’ standard.”

After the prohibited list is published, importers would be given enough time “to conduct due diligence to determine whether any prohibited suppliers/products are in the supply chain before enforcement begins,” said the groups.

The task force needs to develop a “clear procedure” for challenging the inclusion of any entity or goods on the prohibited list “at any time after the list is published,” said the groups. The government should also publish CBP “forced labor data and specific trends” to help companies with their due diligence efforts “by providing a better understanding of CBP’s concerns,” they said.

Importers conventionally “are forced to divine information from press releases or by attempting to aggregate trends through industry surveys,” said the groups. “The current process keeps CBP’s most effective allies in the dark. We understand CBP cannot disclose information that is law enforcement-sensitive or involves trade secrets, but increased information sharing would benefit all stakeholders.”

The task force will hold a public hearing April 8 to consider "measures that can be taken to trace the origin of goods, offer greater supply chain transparency, and identify third country supply chain routes for goods mined, produced, or manufactured wholly or in part with forced labor," says a notice for Friday's Federal Register. The hearing is required under the Uyghur Forced Labor Prevention Act, which also required consideration of public comments on how to implement the law.