FLT Spring News Roundup
Homegrown child labor, new scholarship on XJ cotton, and deadline confusion
Hello FLT community! Coming to you this week with a series of quick bites in another forced labor trade news roundup. Three updates this week: (1) a domestic news trend worth paying attention to, (2) a development in the scholarship of forced labor that is worth your read, and (3) some procedural uncertainty in the UFLPA space that carries big consequences, and needs clarification.
Child Labor in the United States
Raised in the Midwest, I know how to appreciate its charms. Humility! Frugality! Chili over spaghetti! I’ve even come to appreciate Iowans’ dedication to their birthright, first-in-the-nation Presidential caucuses. Don’t let their humble demeanor fool you. Iowans are a competitive lot, and they don’t like not being first.
What I didn’t appreciate until recently is that Iowa’s commitment to being first includes The Race To The Bottom. As I alerted you previously, Iowa was considering loosening child labor laws, and now they’ve done it. The Iowa legislature passed the bill, and Iowa governor Kim Reynolds has announced she will sign into law a new measure that will expand the access of children as young as 14 into numerous previously prohibited roles, including roofing, construction and demolition.
Of pertinence to those concerned about forced labor and trade, children will now be working in Iowa to “work in the production of [corn] seed” by “removal of off-type plants and corn tassels and hand-pollinating from June 1 through Labor Day.” They will also be “cleaning vegetables and fruits” for sale and, in an obscure provision that will no doubt be policed aggressively by careful employers, they’ll be doing “momentary work in freezers and meat coolers.” Here’s the bill.
Where child labor proliferates, forced child labor follows. Even under the best of circumstances, teenagers are vulnerable to undue influence. With the ongoing and worsening migrant crisis on the southern border, you better believe that human traffickers have a new top destination.
New FL Research on Xinjiang Cotton
I think because I take what I do so seriously, I find a natural affinity for true subject matter experts. I try to read the scholarship on forced labor. I try to understand it. I try to be candid with myself (and others) when I can’t follow the evidence or the logic. I think the Iraq/WMD debacle really made an impression on me when I was younger. Just because everyone believes something is true doesn’t mean that it is. Facts matter. Scholarship matters.
For some time, two things in the scholarship about forced labor in Xinjiang cotton production have bothered me. At one level, everyone knows that Xinjiang cotton is a prohibited commodity linked to egregious human rights abuses. But until very recently, if you actually read the scholarship on forced labor in cotton production, the actual evidence of forced labor was (in my view) not as compelling as I would have expected, given the magnitude of policy response.
I might have expected allegations, for example, that the million+ Uyghurs placed in reeducation camps in Xinjiang are being bussed daily to pick cotton by hand in the province. But I didn’t see this in the scholarship. To the contrary, there were high levels of mechanization reported in the cotton harvest. And in many instances where workers were being recruited by the state, advertisements for such work (if they are to be believed) touted reasonable pay.
To me, these were mere puzzlements. There is no question that the aggregate system of state surveillance and ethnic/religious persecution merited a province-wide rebuttable presumption of forced labor, such as is applied by the UFLPA. But now, they are puzzlements no longer.
This week, Dr. Adrian Zenz published a new peer-reviewed article on coercive labor in the cotton harvest in Xinjiang, and it is exceptional. (Which is to say, par for the course for Dr. Zenz.) He offers a conceptual examination of the factors behind Xinjiang’s state-sponsored forced labor involving cotton, which he compares and contrasts with the state-sponsored forced labor in cotton production in Uzbekistan. He also details new internal state documents including information on Uyghurs that were compelled to pick cotton, as part of the system of labor transfers.
Dr. Zenz tackles the question of increased mechanization directly, explaining and documenting how cotton production through increased mechanization is frequently enforced through large-scale collective transfers of land use rights from Uyghur family farmers. After losing their land, former Uyghur farmers are then subject to state-arranged labor transfers.
It’s incisive scholarship, and, if you’re like me, required reading. The article is here.
How Much Time Do We Have?
There is considerable uncertainty at present regarding the amount of time that CBP has—and that importers have—to act on a UFLPA detention. This is a byproduct of the fact that the UFLPA was legislated with essentially zero understanding of how existing customs rules are structured around detentions, and that the new law would flip all current practice on its head.
I’ll try to summarize this for you by first explaining what the law says. Then by explaining what current practice is. And finally, but explaining the points of concern.
The law governing customs detentions is predicated on an assumption that CBP (or whatever federal government agency claims jurisdiction over an import, be that the FDA, the USDA, the EPA, etc.), will have, or will be able to obtain, very shortly after the goods arrive in the United States, all information necessary to decide whether the goods are admissible.
These agencies have to make admissibility decisions all the time. The evidence required to prove admissibility is well defined. And SO, the law creates a deadline for admissibility decisions, but this law applies to the government, not to importers.
If CBP fails to act within a period of time, the spring-loaded platform that the government is standing on gets tripped, and the government goes flying. Basically. (Technically, an importer can challenge the government’s failure to act, and can even get in court on more favorable terms than it otherwise would.) This is all set out in 19 U.S.C. § 1499(c).
But as is the case in almost all respects, the UFLPA is flying upside down. Here, the evidence required to prove admissibility is fundamentally ill-defined. Neither CBP nor importers know exactly what will be enough to prove admissibility. And because of the steadfast refusal of CBP to provide any form of advance notice to importers, the first time an importer may know that proof will be required will be after the goods arrive in port.
Moreover, because the UFLPA is not just entry-specific, but merchandise-specific, sometimes even a tiny number of UFLPA detentions or entries can require a staggering amount of work. From a recent example, 4 detentions will cover approximately 28 varieties of imported merchandise, each with its own supply chain. Each variety of merchandise will require 8 different traceability files, each containing 30-40 documents, and running to a few hundred pages in length.
In other words, four small(ish) detention requires the collection, organization, translation and assembly of almost 9,000 individual documents, all of which must be checked for accuracy and interlinked, summarized, and mapped.
In current practice, when CBP issues a detention notice, it demands that the importer produce such documentation within 30 days. That 30 day deadline, as explained above, is actually CBP’s deadline, but now it’s treated as an importer’s deadline for submission. The importer must track this deadline and request extensions (on its own behalf, or CBP’s behalf, it isn’t clear).
But THEN, after an importer submits its traceability packages, the importer must still request extensions, even while CBP takes time to review the documentation. “I am writing to request that CBP extend the statutory deadline that applies to CBP so that CBP can take as much time as it needs to review my files and understand that my merchandise is not subject to the law that CBP thinks it could be subject to.” Zany.
A few weeks ago, CBP turned heads at a trade symposium in Boston by announcing that it would now allow no more than 90 days of extensions in the UFLPA context. This, of course, raised more questions than it answered. And while no guidance has yet been published, early returns from the field suggest vast confusion on the part of CBP officials and the trade alike, and vastly different interpretations of how this 90-day limit might apply.
When CBP roles this new policy out formally and in writing, it should take pains to be as clear as possible.
Thank you for reading!
Interested to see if you may comment on Ruling H330077 being posted then removed from the CBP public CROSS database? Have always found your posts to be very insightful. Thank you.