CBP Official Says Agency Has Released UFLPA Targeted Shipments Based on 'Applicability'

CBP has released shipments targeted under the Uyghur Forced Labor Prevention Act based on “applicability," where the importer successfully proves the goods aren’t subject to the UFLPA because they aren’t connected to the Xinjiang region of China, a CBP official said. However, the agency has yet to see an attempt to prove goods subject to UFLPA aren’t made with forced labor, the official said.

Speaking Oct. 25 with business groups in Asia, the official said CBP has not received an “admissibility package” that seeks to overcome UFLPA’s rebuttable presumption and prove “by clear and convincing evidence” that no forced labor was involved in the production process. On the other hand, CBP has seen applicability packages, where the importer “successfully demonstrated to us that UFLPA doesn't apply, and then the merchandise goes on its way assuming it's in compliance" with other U.S. laws, the official said.

Overall, in fiscal year 2022, CBP, which requested anonymity for the officials per agency policy, targeted 3,600 entries valued at about $816 million based on the suspicion they were made with forced labor, the agency official said. Some 1,600 of those entries, worth about $486 million, were targeted under the UFLPA, the official said. Another CBP official said in late September that the agency had yet to release a shipment “detained” under UFLPA since the law took effect in June (see 2209300050).

CBP’s forced labor efforts seem to be having concrete effects on supply chains. “This year, we have engaged with a record number of foreign entities that are remediating forced labor conditions in their production, and we believe that this will absolutely improve working and living conditions for thousands of workers worldwide,” the CBP official said. The official cited remediation efforts by Malaysian glove manufacturer Top Glove that resulted in CBP’s modification of a forced labor finding (see 2109100045), as well as CBP’s more recent modification of a withhold release order issued on an Indian apparel manufacturer (see 2209080055), as two examples of the agency’s success.

CBP’s goal in the next fiscal year “is not to seize our way out of the problem as goods arrive at the borders but really to push our enforcement efforts working with our interagency colleagues, our inter-department colleagues, [civil society organizations], [nongovernmental organizations] and all good businesses who are really trying to get this right and eliminate forced labor from their supply chains, really working collectively,” the official said.

One major risk factor companies can be looking for is production in countries where migrant labor is prevalent, said another CBP official who also spoke at the event. That can often involve third parties involved in recruitment, who may extract fees and put workers in debt bondage, the official said.

Companies may also have trouble demonstrating a lack of forced labor in countries where third-party audits can’t be independently conducted, including China, the first CBP official said. The lack of a supply chain audit report could make demonstrating admissibility difficult, the official said. China, for example, has an anti-sanctions law that makes it “very difficult to obtain cooperation and documentation from suppliers in China,” and was the impetus behind the rebuttable presumption in UFLPA, the official said. And local laws in many “Southeast Asian countries make third party auditing very challenging,” the official said.