COAC Group Says UFLPA Importer Guidance Is Lacking

CBP's operational guidance for importers about complying with the Uyghur Forced Labor Prevention Act (see 2206140037) left too many importer subjects unanswered, the Commercial Customs Operations Advisory Committee (COAC) Forced Labor Working Group said in a document released ahead of the June 29 COAC meeting. "While CBP’s Importer Guidance provides general information, it disappointingly does not reflect incorporation of the many practical recommendations that have been submitted over the years," the group said. "CBP must increase transparency, engagement, and communication, early and often, with the Trade community regarding the current process for enforcement as well as the detention or release of goods believed to be linked to forced labor."

The agency should provide a definition for what it considers to be "clear and convincing evidence," the standard required for an importer to prove forced labor isn't being used in its supply chain, the group said. While the guidance includes a list of documentary evidence that CBP may request, "none of the identified documents would reflect whether forced labor is present or not," the group said. "CBP should clearly explain in the guidance how it believes such documents would 'clearly rebut' the presumption of forced labor from UFLPA." Also unclear is whether those documents would be required at the time of detention and whether the agency expects importers to maintain those documents for all imports and the inputs of those imports, it said.

The COAC group also recommended that CBP accept social compliance audits that are maintained in the ordinary course of business as clear evidence to show a lack of forced labor. Allowing for such audits, "in addition to other documents that are in the ordinary course of business, is even more important in instances where the importer needs to rebut the presumption related to ‘inputs’ in a product that is not directly shipped or manufactured in whole at the Xinjiang region," the group said.

CBP's use of a different detention authority than what is used under withhold release orders should also be reconsidered, it said. The UFLPA detention authority reduces the time frame for addressing allegations to 30 days from three months under the WRO process. "The amount of information that may be needed to rebut an alleged violation of UFLPA is significant," it said. "Neither importers nor CBP should be hindered in their review of these matters by an unrealistically short deadline, when even the established three-month period under 19 C.F.R. § 12.43 has at times proved insufficient."

The trade also would like more clarity around UFLPA exceptions, the working group said. "It is COAC’s view that the 'exception' provision -- which requires a report to Congress and public disclosure -- does not apply if an importer demonstrates by clear and convincing evidence that the product was not made in whole or in part in Xinjiang or by an entity described in the legislation," it said. Also missing from the guidance is information on foreign-trade zones. "We believe a change to the data elements on the CBP form 214 is required to enforce UFLPA in the FTZ environment."

CBP need not put in place an importer certification requirement, it said. "Importers already certify at the time of entry that the goods are eligible for entry under the presumption of reasonable care," the working group said. "An additional certification is a burden to the Trade and to CBP and is an unnecessary duplication."