Lawyers: Forced Labor Detentions Are Happening After Goods Are Cleared

A Husch Blackwell partner said that although most importers have not been surprised when CBP tells them they are intending to do an intensive exam on their goods when they arrive in port over forced labor issues, his firm has had several clients whose goods were cleared, and then, in the first month after that date, CBP issues a redelivery notice.

Robert Stang, who was speaking during a July 13 webinar about compliance with the Uyghur Forced Labor Prevention Act, said that in those cases, the goods could already be for sale online or on shelves. "There can be some pretty hefty fines if you fail to redeliver timely," he said. CBP can demand liquidated damages equal to the value of the goods, the webinar's presentation slides said. But, in that case, CBP will give you a reason why it's asking for redelivery, which can help importers decide how to proceed.

Jasmine Martel, another international trade attorney at the firm, advised that if your good has a link to Xinjiang, it's better to reexport and not try to rebut the presumption that forced labor was involved somewhere in the good's supply chain.

But William Jansen, branch manager, customs brokerage at Noatum Logistics, cautioned that you have to make sure that reexports' paperwork is proper. He said CBP has been looking for a booking on a carrier and an immediate export bond. He said sometimes CBP has erroneously released the goods instead of canceling the entry, which triggers duty payment.

Jansen agreed with Stang that just because a shipment clears doesn't mean an importer is in the clear when it comes to UFLPA. He said he's seen requests for redelivery "almost at the final hour."

Stang said there are proactive steps importers can take, as they do their best to map their complete supply chain back to raw materials. He said companies can give written guidance to vendors on what's not permissible in their labor practices and write into purchase orders agreements that the firms will maintain production records and provide them if requested. He said purchase orders should also designate "who will be responsible for cost, including transportation and logistics, in responding to UFLPA enforcement action or reexport of the goods."

He said these sorts of agreements are ones that Chinese firms have agreed to if they have a relationship with the American buyers, for instance, when those buyers have traveled to their factories over the years.

He said that in those cases, the firm sees that the two companies work out language that all feel comfortable with. "And if you can’t, you have to ask yourself why," he said.

He said CBP will issue binding rulings that goods are not subject to UFLPA if you request the ruling before the goods arrive. But, he cautioned, you would have to ask for a fresh ruling any time a vendor changes, and maybe even if you change a consolidation center. There have been no UFLPA rulings yet.