Forced Labor Task Force Should Exercise 'Restraint' for Entity List, Lawyer Says
The Forced Labor Enforcement Task Force (FLETF) should "exercise restraint" in putting entities on the Uyghur Forced Labor Prevention Act Entity List and focus only on companies that are "clearly implicated" in the use of forced labor, international trade lawyer John Foote said in a blog post Aug. 28.The blog post focuses on Ninestar Corporation's case against FLETF and the potential impact of being included on the Entity List (see 2308230016).
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Ninestar wrote in its complaint that the company was being accused of "aiding and abetting human trafficking," which has harmed its reputation with investors, business partners and "the consuming public," Foote said. "UFLPA Entity Listing is the closest thing to a per se death knell in U.S. import trade," Foote said. While there is a rebuttable presumption in the UFLPA, it is "rebuttable in name only," Foote said. As rebutting the presumption is very difficult, for many companies a listing is "the end of the story," Foote said.
While it would be possible to use an entity listing as a "warning shot" that would allow parties to scrutinize a company that is listed and the evidence of forced labor being the deciding factor, "that's not how the UFLPA is designed," Foote said. The consequences can be stark even if the truth is more complicated, he said.
"The point is, the real world contains real shades of gray. And if gray-shaded intel is the sort that FLETF regards as actionable under the UFLPA Entity Listing process, the public (or at least the community of experts in Mandarin OSINT [open source intelligence]) deserves to know that," Foote said. If FLETF acted on classified information for the Ninestar listing, "including information that might be dispositive of the listing criteria," FLETF should say so publicly, even if the task force cannot reveal the substance of the classified information, Foote said.
CBP did not immediately respond to our request for comment.