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Civil Society Commenters Disagree With Industry Requests for Informed Compliance for UFLPA

April 8, 2022 by Mara Lee|Top News

Academics and human rights organization employees are concerned about trade groups' requests at a public hearing on the implementation of the Uyghur Forced Labor Prevention Act.

Those requests included:

A few trade groups, including the National Foreign Trade Council, argued that the rebuttable presumption in the UFLPA should apply only to companies identified by the U.S. government as involved in coercive labor transfers of Muslim minority workers.

Scott Nova, executive director of the Workers Rights Consortium, said that corporate submissions ahead of the April 8 public hearing suggest that "many companies hope to skate by." He said some of their requests would challenge the law's central components. He pointed to companies that said it is too difficult to go deeper in supply chains than the second tier of suppliers, and that CBP should not prioritize stopping goods whose raw materials are suspected to be made by Chinese forced labor. He said that to say that the early stages of the supply chain are "some unfathomable mystery is to admit they have no idea if they have been breaking U.S. law" by importing goods made in part with forced labor.

He advised the interagency task force members listening to about 60 speakers that the only way the UFLPA will work is if it is more expensive to be caught by CBP than it is to obey it.

Laura Murphy, a researcher at Sheffield Hallam University in the U.K. on forced labor, characterized industry requests for delays, advance notice of investigations, and narrow entity lists or limiting the law's reach as more than ignorance of compliance. "They’re asking for permission to continue importing goods made with forced labor," she said. "Permission to continue to break the law."

That's not how the industry groups see it, with each one prefacing their remarks on feasibility with declarations that they want to work hand-in-glove with the government to fight the scourge of forced labor. Matt Priest, CEO of the Footwear Distributors and Retailers Association, noted that CBP originally talked about a de minimis approach on silica, and that there should be such a threshold of 10%, just as there is for free trade agreements' rules of origin. He said the bill of materials for one shoe has 40 entries from multiple countries and sources.

He also asked that as the task force assembles a list of companies outside China's Xinjiang region that employ Muslim workers who were transferred there through government coercion that there be notice and comment before any designation, and an open opportunity to get off the list. Others also requested there should be a way to get off the list.

Adrian Zenz, a German anthropologist who studies Uyghurs, warned the task force that it is going to get harder to identify those factories. While in the past, there was a lot of Chinese propaganda posted about these transfers, the evidence is getting thinner, both because he expects new long-distance transfers are less frequent and because "they are realizing they are implicating themselves with those kinds of reports."

Advocates for importers complained about the lack of information sharing in the current WRO process.

American Apparel and Footwear Association CEO Steve Lamar said: "Sadly, existing Customs enforcement is governed by a guessing, gotcha [game], and causes chaos and confusion. Compliant shipments are routinely detained in a bureaucratic black box for months on end."

Sandler Travis attorney Nicole Bivens-Collinson, speaking for unnamed clients, said: "WRO methodology is inefficient and ineffective and should be improved as a part of the UFLPA strategy. Current CBP shipment-by-shipment reviews are a waste of government and industry resources and have captured a significant volume of lawful trade in the net cast far too wide. ... Timelines for reviewing and releasing products must improve significantly."

Vanessa Sciarra, from the American Clean Power Association, expressed concern that CBP may be taking civil society research at face value without doing its own investigations. "Detention of cargo for weeks or months at a time is a serious commercial matter, and CBP should only take such actions based on carefully vetted information," she said.

Martina Vandenberg, founder of the Human Trafficking Legal Center, said that changing the current WRO process to give importers more evidence would have a chilling effect on civil society. "U.S. companies have been on notice for years ... but these companies have failed to extricate themselves from Xinjiang," she said. She asked the government to "ignore corporate calls to weaken 'clear and convincing evidence.'"

However, Irina Bukharin, program director for human rights at the think tank C4ADS, said that CBP needs to invest in analysts who can read Chinese and in analysts skilled at digging into large data sets, so that it can do its own research.

Both Sciarra and a representative from the Solar Energies Industry Association said that the approach on polysilicon under the UFLPA should take into account that solar importers have been able to prove to CBP's satisfaction that some shipments, originally detained under a WRO connected to the Chinese firm Hoshine, were not linked to the firm.

But Eric Gottwald, a trade and globalization specialist for the AFL-CIO, expressed concern at that line of reasoning. He said that CBP has to clarify that the bar has been raised with the UFLPA, and that the level of evidence that was enough to get out from under the Hoshine WRO is not enough to overcome this presumption.

Gottwald also said the task force should not focus too much on the high-risk industries enumerated in the law, such as cotton and polysilicon, as a report about forced labor in aluminum production that was released April 8 showed that we're still learning which industries are affected by forced labor.

Many researchers and rights activists noted that audits are useless in China, because of government pressure not to cooperate with them. As if to underscore their point, Xiao Sun, a representative from China's International Chamber of Commerce, testified, saying: "We strongly oppose the act because forced labor does not exist in Xinjiang."

Several firms that sell either tracing technologies or artificial intelligence-powered supply chain mapping tools argued for their tools' utility. Some corporate testimony asked CBP to either endorse some of these tools as sufficient to prove that cotton is not from Xinjiang, or to launch pilots or studies about how scalable they are.

Both Vandenberg and Chloe Cranston, from the British nonprofit Anti-Slavery International, said that the U.S. government needs to work on convincing the U.K. and the EU to ban the import of goods made with slave labor. They dislike the fact that goods detained under a WRO may be exported elsewhere.

"There should be no safe harbor for forced labor anywhere in the world," Vandenberg said.

Thea Lee, a former AFL-CIO globalization expert who is now deputy undersecretary at the Department of Labor with the responsibility of overseeing its reports on forced labor, said at the opening of the hearing, "This law will not be business as usual, and it shouldn’t be."

A number of Kazakh former internment camp prisoners and Uyghur activists testified to remind the government what is at stake.

Campaign for Uyghurs Executive Director Rushan Abbas noted that her sister, a retired doctor, has had to work in textile factories. She said that forced labor transfers outside of Xinjiang are "making genocide profitable." Her voice full of emotion, she said, "There is no neutrality in modern slavery. There are only the perpetrators and the enablers."