McCaul, Foxx, Green, Gallagher Criticize Mayorkas’ Decisions with Enforcing UFLPA

“Furthermore, we are concerned that since the UFLPA was signed into law the Administration has not issued any sanctions using the authorities under that act,” the lawmakers wrote. “Additionally, the Administration has not designated any parties in violation of the UFLPA. While we understand the process to identify and impose these actions requires due diligence, the amount of time passed without any action raises serious questions about the Administration’s efforts to implement the law dutifully.”

The full text of the letter can be found here and below.

On December 23, 2021, the Uyghur Forced Labor Prevention Act (UFLPA) was signed into law in order to prevent the importation of goods into the United States manufactured wholly or in part with forced labor in the People’s Republic of China (PRC), especially from the Xinjiang Uyghur Autonomous Region. While we are pleased with some aspects of the Administration’s implementation, we have strong concerns about others. Accordingly, we are writing to you—as the chair of the Forced Labor Enforcement Task Force (FLETF)—to express our concerns and to seek information to address these issues.

We support the withhold release orders and entity listings under UFLPA authorities such as the addition of nine PRC-based companies and their subsidiaries, the efforts to stop nearly 4,651 shipments for UFLPA reviews and enforcement actions, and the responsiveness of U.S. Customs and Border Protection (CBP) to oversight inquiries. However, we are concerned about other decisions within the implementation process.

Of note, we are concerned with the FLETF’s decision to grant the Department of Labor’s (DOL) Bureau of International Labor Affairs (ILAB) the critical role of monitoring forced labor in the PRC. When Congress wrote the UFLPA, it had an altogether different concept for implementing its monitoring provisions. ILAB does not and should not be expected to have the intelligence capabilities necessary to implement the UFLPA. It is our understanding that ILAB employs an insufficient number of cleared personnel and that it relies on open-source tools such as Google translate. While ILAB has a background in monitoring unfair labor laws globally, identifying instances of forced labor amid an ongoing genocide by the Chinese Communist Party in Xinjiang is drastically different. Moreover, globalized supply chains can present difficulties in pinpointing products manufactured with forced labor. This has resulted in lags in analysis needed for proper enforcement of the law and in robust utilization of the UFLPA Entity List. Accordingly, we request the FLETF designate a more appropriate, intelligence-oriented federal agency to lead the UFLPA’s monitoring provisions.

Furthermore, we are concerned that since the UFLPA was signed into law the Administration has not issued any sanctions using the authorities under that act. Additionally, the Administration has not designated any parties in violation of the UFLPA. While we understand the process to identify and impose these actions requires due diligence, the amount of time passed without any action raises serious questions about the Administration’s efforts to implement the law dutifully.

Lastly, we are concerned by the sluggish pace at which the Department of Commerce’s Bureau of Industry and Security (BIS) has made updates to its Entity List. We understand that the process to identify and impose these actions also requires due diligence. However, BIS has a disappointing track record of deficient actions, which raises further questions about its ability to implement the UFLPA appropriately.

To assist our oversight of the UFLPA and FLETF, we require responses to the following questions no later than October 27, 2023:

1. What is ILAB and DOL’s process for awarding contracts to conduct supply chain research and identify products manufactured with forced labor under the UFLPA? (In your response, please include answers to the following):
   1.  Who does ILAB report to within the FLETF hierarchy
   2.  Does ILAB fulfill all of DOL’s duties within the FLETF hierarchy?
   3. How were these contract awards chosen?
   4. What specific qualities or expertise do ILAB and DOL require of contractors for implementation of the UFLPA’s monitoring requirements?
2. Does ILAB have access to relevant commercial data to carry out its responsibilities in its implementation of the UFLPA’s monitoring requirements?
3. How does ILAB synthesize data from existing government agencies—including the intelligence community—when identifying products manufactured with forced labor?
4. What specific qualities and expertise does the FLETF believe are necessary for an agency beyond DOL to extract open-source information from Xinjiang?
5. What process is Treasury taking to identify entities for sanctions?
   1. Why has Treasury not imposed any sanctions under the UFLPA?
   2. What does Treasury’s coordination with the Department of Justice entail?
6. Do BIS and other FLETF member agencies utilize the same standards for Entity List
   designations?
   1.  Is BIS coordinating with other FLETF member agencies to ensure effective
      updates are made to the BIS Entity List?
   2. Are BIS and CBP coordinating to designate the same entities on the UFLPA
      Entity List and the BIS Entity List?
   3. How many full-time equivalents within BIS are dedicated solely to monitoring
      entities that suppress human rights and/or use forced labor?
   4. The intelligence community, the Department of Defense, and the Department of
      State have created PRC-focused offices to reflect the growing nature of the
      geopolitical relationship. When will BIS create a similar organization that can
      monitor export control risks for both forced labor and military-civil fusion?

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