Can CBP Seize Goods for Forced Labor?

Assessing the Tools of UFLPA Enforcement

If you took a survey of the importing public—and indeed, the community of trade advisors—to ask how U.S. Customs and Border Protection (CBP) intends to enforce the Uyghur Forced Labor Prevention Act (UFLPA), one answer would rise above all others: “by seizing goods at the border”.

In part, this is just a colloquial misuse of the term “seize”. CBP certainly is stopping goods at the border to enforce the UFLPA, but in the parlance of customs law, such stoppages are actually “detentions”. A seizure entails the government taking custody of goods, typically as a precursor to forfeiture, the process by which the government claims ownership over goods previously owned by a private party.

But even accounting for the colloquial misuse of the term “seize”, both CBP and the Department of Homeland Security (acting in its capacity as the chair of the Forced Labor Enforcement Task Force) have asserted that CBP will use seizure and forfeiture as tools for enforcing the UFLPA. There is only one problem: as currently written, U.S. customs laws do not authorize CBP to seize goods made with forced Uyghur labor.

The legal analysis supporting this assertion is fairly technical. But it carries far-reaching implications both for companies trying to navigate UFLPA enforcement, and also for the UFLPA itself. It is yet another indication that this marquis piece of human rights legislation remains inexplicably out of step with the rules-based trading order.

I am grateful to the team over at Lawfare for graciously agreeing to publish my analysis of CBP’s and DHS’s misstatement of CBP’s seizure authority in the context of UFLPA enforcement. I hope you find it helpful.

It would be incredibly easy for Congress to fix what it will no doubt view as a “gap” in CBP’s enforcement authority, by creating a provision to explicitly authorize seizure of goods made with forced labor. That said, correcting this omission in the law without properly considering the many underlying shortcomings of Section 307 would be both a massive mistake and a missed opportunity. In due course, I look forward to writing about and discussing changes that would improve Section 307 and the UFLPA.