Two years after an ambitious, first-of-its-kind import ban on products made with forced labor went into effect, Congress still has little visibility into how customs officials decide what scrutinized cargo gets let into the country.
Officials have allowed thousands of shipments into the United States after initially stopping them for suspected ties to forced labor. But according to lawmakers, administration officials have not sent a single report to Congress detailing why they chose to let those shipments in.
It’s not quite what members envisioned. As Congress prepares for a new presidential administration in January, some lawmakers are thinking about how to measure success thus far — and how to hold officials accountable in implementing the forced labor ban.
Rep. Dan Bishop, the North Carolina Republican who heads a subcommittee that oversees Customs and Border Protection, told NOTUS the struggle to get details from the executive branch as it rolls out the new law represents “the epitome of failure of government.”
And Sen. Ron Wyden, the Oregon Democrat who chairs the Senate Finance Committee, said that for the law “to be as effective as it can be, CBP needs to be as transparent as possible in its engagement with stakeholders.”
Congress passed the Uyghur Forced Labor Prevention Act with overwhelming support in late 2021, marking a massive shift in trade policy. Products made with forced labor had been banned from the U.S., in theory, for nearly a century, but the government had hardly enforced it, thanks to a gaping loophole that allowed entry to forced labor products when America couldn’t meet domestic demand on its own.
Congress closed that loophole in 2015, and with passage of the UFLPA, lawmakers expected the executive branch to significantly step up its trade enforcement.
To gauge whether it was working as intended, and to make sure the administration’s rollout of the law was fair, the legislation required officials to submit a report to Congress for each shipment CBP exempted from the ban by determining with “clear and convincing” evidence that its supply chain was free of forced labor.
But instead of seeking exceptions by proving their shipments are clean, as laid out by the law, companies have used a separate system created by CBP to protest that customs officials were simply incorrect to stop their goods and that their products aren’t within the scope of the law. Administration officials don’t believe this separate review system is subject to the congressional reporting mandate.
Lawmakers and staff are left with few details beyond a CBP database that broadly aggregates the agency’s decision statistics without identifying specific products or companies.
Bishop, when asked about this, blamed Congress for having become “so quiescent, so inactive, inert, stagnated, stalemated,” that it “has left government to run by bureaucracy.”
“When Congress makes these commands, the bureaucracy feels pretty damn comfortable just ignoring it,” he told NOTUS.
And a GOP congressional aide, who is familiar with the law and asked to speak anonymously to be frank, said they don’t think “anyone who worked on this is necessarily happy.”
“We wanted this to be, basically, block all goods and then show us the exemption,” this staffer added.
Still, given how new it is, this staffer gave the administration some slack, saying many officials are earnestly trying to solve the problem of forced labor.
“Could they be doing more? A hundred percent,” this staffer said. But “it’s unfair to say they’re just totally dropping the ball.”
Trade lawyers and experts said CBP’s “applicability reviews,” as this separate process is known within the government, don’t just skirt congressional oversight — they also offer importers an easier evidentiary standard to meet than the threshold required by the law.
To have their shipments released, companies try their best to show with documents and manufacturing maps that they know their own supply chains and that those supply chains don’t involve forced labor in China.
That evidence can be sketchy.
Robert Kossick, a trade attorney and adviser with the firm A.N. Deringer, told NOTUS these supply chain maps are “one of the easiest things in the world to manipulate.”
Kossick said that when CBP halts a shipment under the UFLPA, importers who haven’t already mapped their supply chains are left contacting suppliers overseas to ask for documents demonstrating their partners aren’t relying on forced labor.
He told NOTUS he has advised companies whose foreign partners have offered to fabricate evidence outright: “‘You want what result? There you go. There it is. We’ll tell you what you want to hear,’” he summarized. He remembered trying to sift through obviously fudged Xerox copies and other manipulated documents from a foreign firm as an importer tried to do due diligence.
More reliable forms of evidence — third-party, on-the-ground audits of manufacturing facilities, for example — have become increasingly difficult to obtain in China, where officials don’t want to cooperate with America’s trade restrictions.
But if the easily manipulated supply chain evidence is “good enough for the U.S. government, which is what it looks like when you look at some of these released-detained numbers,” Kossick said, “well, you can’t argue with that.”
Those numbers raise obvious questions for Congress. Of the 9,791 shipments initially halted by CBP under the law, nearly half — 4,573 — have ultimately been released into the U.S. Fewer have been denied — 3,976 shipments. (More than a thousand cases are still pending, and some importers have redirected their shipments to other markets instead of fighting it out.)
This dynamic is striking when compared year over year.
In fiscal year 2022, the first year of implementation, roughly 58% of halted shipments were ultimately denied entry.
In fiscal year 2023, the number of shipments denied decreased to about 45%.
And in the latest numbers from fiscal year 2024, that figure was about 30%.
The rest of the shipments CBP initially halted were either later allowed into the country — about 38% in fiscal year 2022, 49% in fiscal year 2023 and 48% so far from fiscal year 2024 — or redirected by importers to other markets.
In the same time period, CBP received more than $100 million from Congress to stop more forced labor products from coming into the U.S., according to the House and Senate committees that deal with spending.
Has the agency gotten worse over time at identifying shipments that are made with forced labor — even though it has far more resources and personnel working on this issue now than when the law first launched — or is the government’s evidentiary threshold lower today than it was in the first year of implementation? Or are trade attorneys just getting better at submitting evidence?
Kossick didn’t sound very convinced by that last explanation, saying that in his own experience, each case poses different challenges. Even if the trends are explained by lawyers becoming more comfortable with the process, he reiterated, the evidence they are often relying on is “easily manipulated or misrepresented.”
“I don’t think there’s anything, substantively, that I’ve prepared and presented that I would consider to rise to the level of clear and convincing evidence,” he said of his own requests to CBP for shipments to be released. “I’m very skeptical about the underlying information.”
CBP did not respond to a request for comment on Kossick’s remarks or questions from NOTUS about the number of shipments it has released after initially halting them under the UFLPA.
Rep. Jim McGovern, the Massachusetts Democrat who cowrote the forced labor bill, defended the administration’s track record. He said lawmakers recognize it is a learning process, especially because a ban like this has never really been attempted before.
“CBP is doing their job and enforcing the law the best that they can,” he said in an interview. He denied the possibility that the administration was doing anything otherwise: “I don’t believe they’re releasing shipments that should be detained,” he told NOTUS.
However, McGovern said that if Donald Trump takes power in January, he would be worried because Trump is very “transactional.” Still, if Trump doesn’t enforce the law, McGovern said, he is confident his Republican allies who worked on the bill, like Sen. Marco Rubio, would help hold the new administration accountable.
“It’s clear that we’re currently not stopping every shipment containing forced labor from coming into the country,” McGovern added. “Everyone needs to continue to try to improve the process.”
McGovern praised the Biden administration for expanding a public list of companies and organizations that have been implicated in forced labor, including participants in the Chinese government’s forced labor transfer schemes.
That list has grown significantly since the first year of the law’s rollout, largely fueled by third-party researchers, who, for example, have uncovered evidence of forced labor in the seafood and auto industries.
Lawmakers from both parties want to see more companies added to the list, and they are thinking about how to make it easier for officials to do so.
Rep. Glenn Ivey of Maryland — the top Democrat on the House subcommittee that exercises oversight of CBP — raised concerns that seven different agencies are involved in approving additions to it.
“It’s a pretty cumbersome structure, it seems to me,” he told NOTUS in an interview. “We might need something that’s a little bit more nimble than that.”
Ivey also had some criticism for his GOP colleagues’ priorities: “This Congress, especially the House, wasted a lot of oversight resources on attacking the Biden administration in a variety of ways that I thought had little or nothing to do with addressing the priorities of the nation,” he said.
For Bishop, the chair of that subcommittee, the biggest question is whether Congress will assert itself in the oversight and rulemaking process.
“We have a lot of fakery and a lot of posing,” he said of the institution. “Almost everything that seems to be a problem up there is ultimately traceable to the nature of American legislative leadership in this era.”
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Haley Byrd Wilt is a reporter at NOTUS.