U.S. Customs and Border Protection (CBP) appears poised to expand enforcement of the Uyghur Forced Labor Prevention Act (UFLPA) to aluminum products. Since the UFLPA went into effect in June 2022, CBP has focused its enforcement efforts on products in three sectors: cotton, polysilicon, and tomatoes. The UFLPA calls out these sectors as high risk and CBP previously published sector-specific guidance listing the documents which importers must submit to overcome detentions under the law. CBP's UFLPA detention notices often include an appendix (the UFLPA Detention Supplement) containing these product-specific lists of traceability documents. In late December or early January, CBP began issuing UFLPA detention notices naming a fourth sector/product: aluminum. 

As a refresher, when the UFLPA went into effect, it created a "rebuttable presumption" that all goods made in whole or in part in China's Xinjiang Uyghur Autonomous Region (XUAR) are made with forced labor and therefore inadmissible to the U.S. Aluminum is the first and only product outside of the three "high-priority sectors" discussed above for which CBP has provided specific guidance regarding how to prove the goods are admissible to the U.S. This revision to the UFLPA detention notice suggests that CBP has likely begun, or will shortly begin, targeted enforcement of the UFLPA against aluminum products, i.e., coordinated detentions of aluminum products at all U.S. ports of entry due to concerns that the products may be made with forced labor. 

While the U.S. government has not publicly added aluminum to the list of "high-priority sectors" for enforcement,¹ targeted enforcement against aluminum products would not be an unexpected development. Over the past year, several media organizations and non-governmental organizations (NGOs) have published articles detailing the aluminum supply chain's alleged exposure to the XUAR, where 10 percent of the world's aluminum is reportedly produced.² These reports have focused on the automotive supply chain.

What We Know About CBP's Interest in Aluminum

CBP's product-specific guidance on aluminum indicates that it will require the following documents from importers whose goods are detained (as applicable):

1. Flowcharts of all manufacturing steps involved in the production of the aluminum
2. Certificates of origin or manufacturers' affidavits attesting to the origin of each material used to produce the aluminum product
3. Raw material invoices, purchase orders, production records, proof of payment, and export documents
4. Details on the manufacturing process where the aluminum was produced into ingots and billets
5. The location where the aluminum was further manufactured into extrusions, coils, wire, or other aluminum products

Much of the document list for aluminum products mirrors the categories of documents required for the existing high-priority products. However, requesting documents down to the raw material for multiple inputs would set a higher bar for aluminum products. 

Questions Remain as to What Enforcement May Look Like

• Will enforcement target only aluminum products or also include downstream products for which aluminum is a relatively small input? Using past practice as a guide, CBP will likely focus on products made primarily of aluminum (i.e., those classified under Chapter 76 of the Harmonized Tariff Schedule). The UFLPA contains no de minimis exception, however, so goods containing smaller amounts of aluminum (e.g., electronics with an aluminum casing) could also experience enforcement.
• Will CBP focus its enforcement on a specific product or industry? A high-profile NGO report published in December called on the U.S. government to designate the automotive industry as a high-priority sector for enforcement. Numerous car parts are made from aluminum, including frames, wiring, headlights, and engine components. The U.S. Senate Finance Committee also recently sent letters to several large automotive equipment manufacturers requesting information on their supply chain due diligence programs, citing the concerns highlighted in the NGO report. Given these developments, we anticipate that CBP's aluminum enforcement may target, at least in part, companies in the automotive sector. 

Next Steps

CBP enforcement has caused significant supply chain disruptions to companies in the existing high-priority sectors. The UFLPA imposes a high standard for proving admissibility, and companies have only 30 days to provide CBP with the requested documentation proving that the goods either do not contain any inputs from the XUAR or were not made with forced labor. Preparation in advance of detention is incredibly important given this timeline. 

In our experience, companies operating in high-priority sectors are best situated to respond to enforcement if they have:

• Conducted risk-based supply chain mapping and supplier due diligence, focusing on products/inputs, suppliers, and regions with higher risk (e.g., aluminum or its downstream products)
• Conducted mock detentions to test the company's ability to collect sufficient documentation to overcome the evidentiary threshold to release products detained under the UFLPA within the 30-day time frame
• Updated policies, procedures, and contractual provisions to ensure that supply chains for at-risk products are regularly mapped to assess and manage risk
• After examining the supply chain, opened direct lines of communication with CBP to discuss any public allegations regarding the company or its suppliers, the company's due diligence process and results, and (if necessary) evidence which CBP will require from the company in event of UFLPA detentions

Contact us for further details on how Miller & Chevalier's Business & Human Rights and Customs & Import Trade practices are helping companies develop strategic approaches to anti-forced labor and compliance:

Richard A. Mojica, rmojica@milchev.com, 202-626-1571

Mary H. Mikhaeel, mmikhaeel@milchev.com, 202-626-5909

Virginia S. Newman*

*Former Miller & Chevalier attorney

------------

¹Technically, the UFLPA tasks the Forced Labor Enforcement Task Force, an inter-agency task force of which Department of Homeland Security (DHS) is Chair, with updating the UFLPA enforcement priorities. CBP is a part of DHS.

²CBP relies on both private and publicly available information, including media and NGO reports, to inform its UFLPA enforcement.
 

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.