Attorney: Too Soon to Coordinate International Forced Labor Policy
Customs lawyer John Foote, speaking at the Washington International Trade Association during a panel on import bans, investments and export controls, questioned whether the Biden administration is ready to coordinate forced labor import bans with allies, given how the Uyghur Forced Labor Prevention Act is still in its infancy.
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"I applaud the development of a forced labor strategy by USTR," he said in remarks he shared on his blog. He said it makes sense to coordinate. "But we’re at such an inchoate stage of development when it comes to enforcing the forced labor import ban, the development of a trade strategy around the topic is premature. To put it simply: we have not figured out how to do this yet."
Foote, a partner at Kelley Drye, said Europe's approach is completely different.
Foote said that members of Congress didn't seem to foresee that most importers whose goods were detained would try to show that their production didn't go through Xinjiang or a company on the entity list.
"There’s this assumption that CBP can automatically tell which goods coming across the border have such a supply chain link. Of course it cannot do this. And since importers are neither required nor permitted to make any sort of advance declaration of relevance, CBP has no choice but to conduct detention-by-educated-guess," he said. "Based on CBP statistics, at least half of everything CBP has detained under the UFLPA has, on review by CBP, been proven -- typically at great effort and expense by the importer -- not to have a supply chain link to forced labor.
"Imagine, if you will, export controls targeting advanced semiconductors, but half of all exports impacted by the control turned out to be cell phones and toaster ovens. That might be a fair comparison to the UFLPA’s success rate in stopping goods with a supply chain link to forced labor.
"Nevertheless, companies have responded to this law by conducting greater levels of supply chain mapping and tracing and due diligence than ever before. And in that regard, I think the law’s been really been transformational."