CBP Proud UFLPA Is Driving Business Decisions; Congress May Add to Scope

The moderator asked Eric Choy, the executive director of the Trade Remedy Law Enforcement Directorate that includes forced labor enforcement, to give advice to businesses implementing due diligence on forced labor. Choy, who was speaking at the CBP Trade Facilitation and Cargo Security Summit in Boston on April 17, instead talked about how the pressure of CBP enforcement has been the "impetus for significant change," and how "relatively small enforcement actions" have had rippling effects at businesses.

He also talked about how the ramp-up in forced labor enforcement -- which began in 2016 -- "really brought the agency closer to some more non-traditional partners," such as civil society groups, investigative reporters and academia, calling them "the foot soldiers on the front line of forced labor."

He asked rhetorically: "How do we sustain the momentum behind the enforcement that has been occurring?"

In the Q&A portion of the panel, a man asked "How do you prove a negative," and said he had a client that sells apparel, and that company knows the factory that makes the clothes and maybe can trace it back to the fabric mill, but getting back to the cotton may never be possible. He said the client is afraid to bring apparel into the U.S. because of UFLPA.

Choy directed the questioner to the UFLPA operational and technology breakout sessions, but added "if the origin of that cotton is from a country of risk, then I think not being able to provide that documentation back to the fiber is something that should drive business decisions."

Panelist Allie Brudney, an attorney at the Corporate Accountability Lab, told the audience that civil society groups like hers are able to do on-the-ground investigations that would be difficult for governments to do, because workers are more willing to be honest with an outside group, and because CAL partners with local unions or advocacy groups that the workers trust. "I know, in some cases, companies are going to be surprised" by what CAL finds, she said.

Kimberly Stanton, the Democrats' staff director for the Tom Lantos Human Rights Commission on the House Foreign Affairs Committee, said in the early days of the UFLPA, "CBP has been one of our greatest and most enthusiastic allies in implementing this law."

She noted that her boss, Rep. Jim McGovern, D-Mass., participated in a letter that noted the concern in Congress that the UFLPA Entity List has not yet expanded to companies outside Xinjiang that are connected to Uyghur forced labor. The letter also said Congress may change the current law on de minimis, and asked CBP to share how it is or is not able to enforce UFLPA in the small-package environment (see 2304110034). "The problem with de minimis, from our perspective, is that it doesn't require importers to give you the detailed information about country of origin, for example, that would make it easier to know that a product ... should have a presumption of being banned."

Stanton was asked if there will be more legislation like UFLPA, and she said she doesn't know, but said there is a statement of policy in the text that says the U.S. government should use every means it can to end forced labor. "So I think one can take that as sort of an opening shot," she said, and UFLPA is a potential model for other efforts.

She said Congress may learn lessons from UFLPA's implementation. "A bill can often be improved in subsequent iterations," she said. She noted that some elements of the bill didn't make it into law, and that there have been proposals to lower the de minimis threshold, "given these concerns that I mentioned before about that being a channel for sort of sidestepping the ban on importation."

Stanton urged companies not to wait for further legislation and rather "get out in front of this issue .... because the concern about forced labor is long-standing and growing. We don't expect it to go away."