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Volume XII, Number 343

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US Leads the Global Crackdown on Forced Labor

The US and EU have ramped up their enforcement initiatives to eliminate forced labor in supply chains. Importers, particularly in the fashion, electronics, solar, and automotive industries, should review the updated DOL List of Goods Made with Child Labor or Forced Labor for potential future CBP enforcement targets. 

What to Know

In August 2022, US Customs and Border Protection (CBP) targeted $266.5 million in goods for suspected use of forced labor, according to the agency’s operational statistics report. 

  • This includes goods targeted under the Uyghur Forced Labor Prevention Act (UFLPA) and Withhold Release Orders (WROs). 

  • On September 28, 2022, the US Department of Labor (DOL) updated its List of Goods Made with Child Labor or Forced Labor (Forced Labor List) with 32 additional products, including textiles, lithium ion batteries, palm oil products, and solar components. These products could potentially be targets for CBP enforcement in the future, particularly as CBP staffs up its Forced Labor Division. 

  • On September 14, 2022, the European Union (EU) issued proposed supply chain and forced labor regulations, which will affect many multinational corporations.

Updates on the UFLPA and Forced Labor Enforcement

The UFLPA establishes a rebuttable presumption that goods made in whole or in part in the Xinjiang Uyghur Autonomous Region (XUAR) of the People’s Republic of China are produced with forced labor. If a shipment is detained under the UFLPA, an importer can rebut this presumption with “clear and convincing evidence” that merchandise originating or connected to the XUAR was not produced with forced labor. 

Alternatively, an importer can demonstrate that the merchandise has no nexus to the XUAR, and therefore is not within the scope of the UFLPA.

CBP has wasted no time in enforcing the UFLPA since it took effect in June 2022. According to reports, CBP “targeted” (identified a shipment for further inspection) 1,452 entries valued at $429 million from June 21 to September 20, 2022. Additionally, according to CBP’s Monthly Operational Update, in August 2022 CBP targeted 838 entries valued at more than $266.5 million for suspected use of forced labor (under UFLPA and WROs). While targeting alone does not mean the shipment was detained, these figures indicate that CBP has been active in inspecting shipments for potential indications of forced labor. In response to detentions, companies have submitted documentation to prove that goods have no nexus to XUAR and are outside of the scope of UFLPA. We have heard conflicting reports regarding whether CBP has released any of those shipments. However, it is unsurprising given the heavy burden of proof under the “clear and convincing standard,” that the agency has reported that CBP has not received a request for an exception from the UFLPA.  

DOL List of Goods Made with Child Labor or Forced Labor 

The DOL recently updated its Forced Labor List to include 32 additional products, including products from countries such as Ghana, China, and Pakistan. The DOL publishes the Forced Labor List with the goal of raising awareness about unethical labor practices in the production of merchandise around the world. Importers should review this updated Forced Labor List closely, as these products may be targets of CBP forced labor enforcement actions, as the agency continues to bolster its forced labor enforcement division. Specifically, companies in the following industries should pay special attention to new developments: fashion, electronics, solar, and automotives.

Updates to the Forced Labor List 

A notable addition to the Forced Labor List is lithium-ion batteries, which is significant considering the current administration’s sustainable energy initiatives and the increased demand for electric vehicles. Another notable category is solar components from XUAR, which will fall under the UFLPA ban. The Forced Labor List removes one line item, cotton from Uzbekistan, which demonstrates that forced labor in the cotton industry can be remediated. A full list of all 32 additions is below.

Table of 32 Additions to Forced Labor List

Country

Good/Product

Bangladesh

Garments

Brazil

Açaí berries

Cameroon

Gold

China

Lithium-Ion Batteries (produced with DRC Cobalt)

China

Solar Products (produced with China Polysilicon)

  • Photovoltaic Ingots

  • Photovoltaic Wafers

  • Solar Cells

  • Solar Modules

Ecuador

Bovines

Ecuador

Hogs

Ecuador

Poultry

Ecuador

Rice

Ghana

Bovines

Ghana

Textiles

Ghana

Rice

India

Tea

India

Thread/Yarn

Indonesia

Palm Oil Products

  • Crude Palm Oil

  • Crude Palm Kernel Oil

  • Refined Palm Oil

  • Refined Palm Kernel Oil

  • Oleochemicals

Kenya

Cattle

Pakistan

Baked Goods

Pakistan

Bovines

Pakistan

Dairy Products

Pakistan

Electronics

Pakistan

Furniture

Pakistan

Garments

Pakistan

Rice

Pakistan

Textiles

Zimbabwe

Gold

 

Forced Labor Recognized by Other Governments

The United States is not alone in its efforts against the use of forced labor. On September 15, 2022, the Trade and Labor Ministers of the United States, Japan, and the EU issued a Trilateral Joint Statement condemning the use of forced labor and committing to eradicating forced labor.  

This follows the September 14, 2022, European Commission proposal for a new regulation that would ban all goods made with forced labor. Taking a step further than the US’ UFLPA, the proposed EU regulation would exclude products made with forced labor from being imported into or exported from the EU. Under the proposed regulation, the EU Commission aims to focus on high-risk products, and it will operate a public database containing information about products suspected of being produced by forced labor. Multinational companies should prepare for the impact on their supply chains.

Recommended Steps

As the United States and other governments continue to adopt and enforce initiatives focusing on preventing forced labor in supply chains, we strongly recommend that companies update their compliance measures. Companies should understand the entities in their supply chains, from raw material suppliers to finished goods manufacturers.

© 2022 ArentFox Schiff LLPNational Law Review, Volume XII, Number 286
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About this Author

Angela M. Santos Labor and Customs Attorney New York ArentFoxSchiff
PARTNER

Angela helps companies identify business solutions and structure their transactions to facilitate the importation of merchandise, ensure regulatory compliance, minimize duties, and eliminate Customs penalty exposure. She is especially knowledgeable in the field of fashion imports and has assisted many of the prominent brands and fashion houses. Her experience allows her to comprehensively advise fashion and retail companies on the issues specific to their industry.

Angela also has experience beyond the fashion industry. She has assisted a number...

212-484-3925
Lucas A. Rock New York Trade Attorney ArentFox Schiff
Associate

Lucas Rock is an Associate at ArentFox Schiff's New York office. Lucas supports clients on International Trade matters. Lucas’s practice is focused on import compliance matters and international trade law. As a member of ArentFox Schiff’s Forced Labor Task Force, Mr. Rock has experience helping companies conduct due diligence on their supply chains and preparing submissions to Customs for the release of merchandise detained in connection with forced labor Withhold Release Orders. 

Mr. Rock also has experience with the classification of...

212-457-5492
Jodi Tai Corporate Litigation Lawwyer ArentFox Schiff Law Firm San Francisco
Associate

Jodi is an Associate at ArentFox Schiff based in the San Francisco office, where she represents companies and individuals in various business, commercial, and litigation matters.

Prior to joining ArentFox Schiff, Jodi was a law clerk at the San Francisco District Attorney’s Office where she assisted in the prosecution of child abuse and sexual assault crimes. During law school, she mediated small claims and civil harassment within the Los Angeles Superior Court System as a member of the USC Gould Mediation Clinic. She was also part of USC’s...

415.805.7993
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