On July 26, 2023, the Forced Labor Enforcement Task Force (“FLETF”) issued the first annual update to its guidelines for enforcing the Uyghur Forced Labor Prevent Act (“UFLPA”) in a Report to Congress titled “2023 Updates to the Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China” (“Updated UFLPA Strategy”). This report is the first strategy update since the UFLPA came into effect a little over one year ago.
The Updated UFLPA Strategy explains how several agencies have significantly reallocated resources to meet the requirements of the statute. This includes U.S. Customs and Border Protection (“CBP”), the Department of Homeland Security (“DHS”), which leads FLETF, the Department of Labor’s Bureau of International Labor Affairs, which monitors CBP’s enforcement efforts and provides expertise on forced labor, supply chain tracing and due diligence, and U.S. Immigration and Customs Enforcement, which conducts criminal investigations, including from the U.S. Embassy in Beijing and at other locations in China. Each agency identified near and long-term resource gaps in continuing its ongoing work.
CBP noted a particular need for additional resources, explaining that it has already added sixty-five new positions to support its UFLPA enforcement efforts. The additional resources would help train and develop its workforce “on the complexities of supply chains, risk management, and forced labor.” CBP is also investing in new data analytics systems, including piloting the Advanced Trade Analytics Platforms, deploying enhancements to the Automated Commercial Environment, exploring improvements to the allegations submission portal, and exploring emerging technologies such as artificial intelligence, laboratory testing, and distributed ledger technology to identify and interdict goods made with forced labor.
Notably, since FLETF issued the Updated UFLPA Strategy, the Court of Appeals for the Federal Circuit (“Federal Circuit”) ruled that in Enforce and Protect Act (“EAPA”) proceedings, CBP must release business confidential information it relies upon to importers under an administrative protective order (“APO”). As explained in a previous post, the Federal Circuit ruled that CBP has inherent authority to use APOs in appropriate circumstances, even in the absence of an explicit statutory authorization, and that denying an importer access to this information denies its due process rights. The Federal Circuit’s ruling may also require that importers have access to all confidential information relied on by the government in UFLPA enforcement proceedings. These requirements are likely to result in an even greater need for additional resources for government agencies than anticipated in the report, or at lease a redirection of resources already planned.
The Updated UFLPA Strategy also explains that in addition to CBP’s current enforcement efforts, DHS will now send referrals of allegations of forced labor to Homeland Security Investigation field offices to pursue criminal investigation and Federal prosecution, as appropriate. The report also explains that while CBP will continue to focus its enforcement efforts on all sectors, it will prioritize the highest-risk goods, which are those imported directly from Xinjiang and from entities on the UFLPA Entity List, and the highest risk sectors, which include cotton, tomatoes, and polysilicon. Finally, the report notes FLETF’s continued engagement and outreach efforts with nongovernmental organizations and private-sector entities.
Husch Blackwell continues to monitor developments relating to the Updated UFLPA Strategy and its effect on CBP’s enforcement actions. In the meantime, for guidance or questions relating to U.S. customs laws, companies can contact Husch Blackwell’s International Trade and Supply Chain team.