Forced Labor Questionnaires: Another Helpful Hint – International Trade & Investment

In February 2024, Customs and Border Protection (CBP) began
taking a new approach to Uyghur Forced Labor Prevention Act (UFLPA)
enforcement—questionnaires. Once again, the solar industry is
among the first targets, vanguards among importers, hacking their
way through new regulatory growth, hopefully exposing a clear way
through for all who follow. Active enforcement mechanisms like
questionnaires—and the Forced Labor Enforcement Task Force
(FLETF) itself—are still evolving. But the prohibition on
imports “manufactured wholly or in part [by] forced
labor” is nearly 100 years old. Importers with serious
compliance programs, and who have strategically contemplated their
global networks in the UFLPA’s light, already possess the basic
tools required for compliance. CBP’s demand regarding forced
labor is the same now as it was in 1993, when Congress modified the
Tariff Act of 1930 and clarified importers’ duty of reasonable
care: Know your value chains and be ready to prove it when CBP
asks.

CBP never used to ask—that is why this duty feels new. But
prepared importers can reasonably view these questionnaires as a
windfall because they clarify the legally necessary scope and depth
of a compliance program that includes forced labor, as well as the
content of a satisfactory response. In the publications Operational Guidance for Importers
and Guidance on Executive Summaries and Sample
Tables of Contents: Preparing a UFLPA Applicability Review
Submission, CBP details the areas of due diligence,
categories of evidence, and specific documents that importers whose
merchandise is at risk of detention should be ready to defend. The
questionnaires do not depart substantially from that guidance,
but—unlike the processes following detention, where the
burden is entirely on importers—they provide additional
insight into what CBP wants. For each importer, and all related
entities in the targeted value chain, questionnaires solicit
information about:

1. Corporate structure, including forced labor due diligence
   measures;




2. Supply chains generally, including maps and supplier details at
   each tier;




3. Specific “walk-through” entries, meaning value chain
   mapping starting with specific entries that CBP has
   identified;




4. Accounting and financial practices, including those related
   foreign affiliates’ sourcing practices;




5. Production, tracing each manufacturing input upstream to raw
   materials;




6. Labor; and




7. Sales.

By studying CBP’s guidance and considering the
questionnaires’ content, importers can prepare boilerplate
responses to many elements of these forced labor inquiries and have
them ready to hand over at a moment’s notice. A description of
an internal compliance program, for example, likely requires little
updating. And even where boilerplate responses do not suffice,
importers can—and must, under UFLPA’s terms—do most
of the work ahead of time by documenting appropriate reasonable
care efforts. Importers should begin by identifying the value
chains that carry the greatest risk of forced labor. Withhold
release orders (WROs), the UFLPA Entity List, the UFLPA Statistics
Dashboard, priority enforcement areas, and other government
guidance strongly indicate where the government perceives risk.
External resources such as interprovincial trade statistics,
research reports, investigative reporting, and supply chain
analysis tools can also reveal both actual risk and the likely
trajectory of CBP’s enforcement efforts. Even by focusing on a
single value chain—just one product from one
supplier—importers can develop a permanent, replicable
mapping and documentation framework that satisfies CBP’s
demands.

A common frustration for importers is that even the best due
diligence efforts may be virtually fruitless, disproving neither
the existence of forced labor in any part of the value chain nor a
nexus between Xinjiang and a raw material or a step in the
production process. But finding a smoking gun—or proving that
there was no gun in the first place—is not the goal. The goal
is reasonable care. And the fruit of an importer’s efforts is
not certainty—it is control. Importers who build forced labor
due diligence into their business practices, who study their
products and partners so systematically that they can document
whole value chains with the granularity of a CBP inquiry,
effectively make a strategic investment in a durable asset.

As if forced labor were not a sufficient inducement to action,
the UFLPA is also one of many components in a piecemeal industrial
policy. Its aim is to enhance domestic capacity and global
competitiveness in critical industries, incentivize development of
green technologies, shorten supply chains, and bolster national
security. This industrial policy began to take shape under Obama
and has persisted through two subsequent administrations,
manifesting more fully under Biden’s 2021 Bipartisan
Infrastructure Act, 2022 Inflation Reduction and CHIPS Acts, and
related laws that fund clean energy projects and restrict trade
with global competitors. Beyond forced labor, enhanced enforcement
in domestic content requirements, foreign investment, sanctions,
and similar areas show that this evolving industrial policy has
teeth. Initiatives such as the Indo-Pacific Economic Framework, the
Global Arrangement on Sustainable Steel and Aluminum, and the US-EU
Trade and Technology Council show that it has an appetite. By
earnestly and actively complying with the UFLPA, importers move to
the frontline of a greater bipartisan effort to reposition the US
economy for challenging times ahead.

Braumiller can help. Reasonable care requires more than just
software and affidavits—it requires a whole program, a suite
of practices that put the importer in control of forced labor risk.
CBP’s new questionnaires, along with earlier guidance, point
the way forward. If you are an importer, then the government has
placed you on notice—arguably in 1930—so get to know
your value chains and be ready to prove it when CBP asks.

Check out our new Digital Magazine Get the inside scoop on the
Braumiller Law Group & Braumiller Consulting Group
“peeps.” Expertise in International Trade Compliance.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.