When the UFLPA Does Not Apply

A bussing metaphor to correct a misunderstanding.

A couple months ago, I sent out a newsletter update called The UFLPA Playbook, in which I set out some tactical guidance for importers preparing for enforcement. I noted that the U.S. government would be publishing “guidance” documents (CBP’s Importer Guidance, and the UFLPA Strategy), and recommended, if at all possible, to avoid ingesting them whole.

I’m writing today to deliver on my promise to help you zero in on some of the Useful and Important bits therein, and to try and clear up an apparent misunderstanding.

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Imagine you’re on a cross-country drive with your family. You’re rolling down a highway through the Great Plains when you see some lights in the rear-view mirror, and you navigate over to the shoulder. State trooper gets out, approaches your car, and asks for your license and registration. He then also asks for proof that none of your paying passengers are victims of human trafficking.

There must be some mistake, you say. The only passengers are your spouse and a gaggle of freeloaders, also known as your children. Clearly, no one is being trafficked here. You don’t actually have any paying passengers.

Look, says the officer. That may be so. But the state passed a bussing regulation last year to fight human trafficking, and he has to enforce it. He hands you a citation for conducting human trafficking and lets you know that, if you have proof your paying passengers aren’t trafficked, you can return to traffic court in 30 days to try and argue that you qualify for an exception.

An exception?! You protest. You’re just taking your family in your family car on a family vacation. You’re not a bus driver, and, notwithstanding how you sometimes feel ferrying kids around town to sporting activities, this is clearly not a bus. Set aside the trafficking allegation—how can you get a ticket for violating a bussing regulation when you’re just driving your SUV on vacation? But the officer is already back in his cruiser, tearing off down the highway to enforce this new law against a pack of motorcycles.

This same confusion is evident both in the UFLPA Strategy (on page 40) and the CBP Importer Guidance (on page 7).

These documents each contain just a single full paragraph—the same paragraph in each document—addressing importers with a detained shipment who would dispute any nexus to Xinjiang or a UFLPA Listed Entity. Seeing as nearly every importer that will ever confront a UFLPA detention is likely to fit that description, this paragraph is disproportionately important. It reads as follows:

If CBP has taken an enforcement action under the UFLPA on an importation, but an importer believes that its importation is outside the scope of the UFLPA, an importer may provide information to CBP to that effect, i.e., information that the imported goods and their inputs are sourced completely from outside Xinjiang and have no connection to the UFLPA Entity List. Providing such documentation in English will facilitate CBP’s efficient review of these exception requests.

(Emphasis added.)

What has me hot and bothered here is the notion that an importer is seeking an “exception” when it presents evidence that a detained shipment is not subject to the UFLPA. It’s like getting a ticket for violating a bussing regulation while driving a passenger car. If you’re cited for violating a law you’re not subject to, you don’t need to avail yourself of an exception built into that law. You need to correct a serious misunderstanding!

I’m not entirely certain what to make of this paragraph, which appears quite deliberately in each document, and also appears to be contradicted in the CBP Importer Guidance.¹ Perhaps it's just an oversight. However, recent comments from a senior CBP official with responsibility for enforcement suggests to me that there is still confusion over whether importers in these circumstances are seeking an "exception" and trying to "rebut the presumption" of the UFLPA, when they are simply trying to demonstrate their shipment is outside the scope.²

Returning to and extending the metaphor for a moment, if the UFLPA were this “bussing regulation”, it would apply to busses coming from the border with certain types of passengers who present a high risk for being trafficked. When the authorities stop such a bus and find those high-risk passengers on board, the driver is to receive a citation for human trafficking. The citation gives her three options: return to court in 30 days with documentary proof that all her passengers are voluntary travelers, surrender her passengers to state custody, or take them back to the border. That’s how the UFLPA is written.

But like the state trooper in the analogy above, although CBP is only authorized to enforce this regulation against busses with high-risk passengers, it is essentially vehicle-blind. In most cases, CBP simply cannot tell whether the vehicle it is pulling over (the shipment it is detaining) is in fact a bus with high risk passengers (a shipment manufactured wholly or in part in Xinjiang or by a UFLPA Listed Entity), until the vehicle is on the side of the road. And, not to get too spooky or metaphysical, but . . . not even then. (Throughout the traffic stop, you and the trooper are almost certain not to agree on what it is you’re driving.)

The reason this matters is because the UFLPA contains detailed and specific rules about how violators may seek an exception under the law. But those rules only apply to busses with high-risk passengers (detained shipments that were made wholly or in part in Xinjiang or by a UFLPA Listed Entity). If you are handed this citation through the window of your family SUV, those detailed and specific rules do not apply. Instead, the question becomes how do you prove you’re not driving a bus with high-risk passengers. And that is a spooky and metaphysical riddle for another post.

“In the event CBP determines that the information provided by the importer demonstrates that the merchandise is outside the scope of the UFLPA because it lacks a connection to Xinjiang or to an entity on the UFLPA Entity List, the importer will not need to obtain an exception to the UFLPA presumption and CBP will release such shipments, provided they are otherwise in compliance with U.S. law.”

1. CBP Importer Guidance at 7.

2. CBP’s acting executive director of the UFLPA implementation task force was quoted as saying “Thirty days into this[,] I have not seen any documentation that has been able to overcome the rebuttable presumption[.]” In context, it seems highly likely she means that no importer has been able to prove their detained shipment is outside of the scope, as any importer that had overcome the rebuttable presumption would be due for reporting out to Congress. Pub. L. 117-78, Sec. 3(c). https://internationaltradetoday.com/article/view?search_id=581689&p=1&id=1328492&BC=bc_62ff79ba58bc5 (paywall).