On Friday, the Department of Homeland Security (DHS) published the long awaited Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China, (aka, the UFLPA Strategy). This strategy provides the framework for full implementation of the Uyghur Forced Labor Prevention Act (UFLPA), which takes effect on June 21, 2022.
This strategy was developed through input from various public and private-sector stakeholders and includes:
- Risks of importing goods that are mined, produced, or manufactured, wholly or in part, with forced labor
- Forced-labor schemes
- UFLPA Entity Lists
- Entities in Xinjiang that mine, produce, or manufacture (wholly or in part) goods with forced labor
- Entities working with the Xinjiang government to recruit, transport, transfer, harbor, or receive forced labor
- Entities and facilities that source material from Xinjiang for the purposes of the ‘‘poverty alleviation’’ program or the ‘‘pairing-assistance’’ program or any other government-labor scheme that uses forced labor
- A listing of products mined, produced, or manufactured wholly or in part by such entities
- U.S. Customs and Border Protection (CBP) plans to enhance its use of legal authorities and tools to prevent entry of goods subject to the UFLPA at U.S. ports as well as efforts, initiatives, tools, and technologies to accurately identify and trace affected goods
- Additional resources to help ensure that no goods made with forced labor enter the U.S.
DHS urges importers whose supply chains include Chinese-made goods to comply with the UFLPA Strategy to ensure their goods are fully compliant with the provisions of the UFLPA.
Operational Guidance For Importers
In addition, U.S. Customs and Border Protection (CBP) has published guidance to help importers comply with the provisions of the Uyghur Forced Labor Prevention Act (UFLPA). Key highlights include:
- CBP will exercise its authority under the law to detain, exclude, or seize and forfeit shipments that fall within the scope of the UFLPA
- Goods previously subject to WROs (cotton, tomatoes, XPCC goods) will now be covered under UFLPA
- The difference being that under WRO, importers were given three months to provide documentation challenging the WRO, while UFLPA only allows them 30 days
- Importers may request an exception to the UFLPA’s rebuttable presumption by providing clear and convincing evidence that forced labor was not used in any part of the creation of the product, including the mining of raw materials
- NOTE: Importers must comply with guidance in the UFLPA Strategy (link above) in order to be eligible for an exception
- To facilitate the faster release of identical shipments, importers may identify additional shipments that have identical supply chains to those that have been reviewed previously and determined to be admissible by CBP
What is UFLPA?
The Uyghur Forced Labor Prevention Act, signed into law on December 23, 2021, prohibits the importation of all goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor under 19 U.S.C. § 1307.
The UFLPA establishes a “rebuttal presumption” that all goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region (Xinjiang) of the People’s Republic of China (PRC), or by entities identified by the U.S. government on the UFLPA Entity List, are presumed to be made with forced labor, and are thus prohibited from entry into the U.S. The presumption also applies to goods made in, or shipped through, the PRC and other countries that include inputs made in Xinjiang.
Key Takeaways
- The UFLPA will apply to merchandise imported (not entered) to the U.S. on or after June 21, 2022
- Importers are required to demonstrate:
- Due diligence
- Effective supply chain tracing
- NOTE: This requirement extends throughout the entire supply chain, including goods that where further processed and shipped from other regions in China or third countries
- Supply chain management measures to ensure that they do not import any goods made, in whole or in part, by forced labor, especially from the Xinjiang Region
- Seizure of goods subject to the UFLPA is possible
The UFLPA aims to 1) combat trade in illicit goods produced with forced labor, including government-sponsored forced labor or convict labor, 2) protect against unfair competition for compliant U.S. and international manufacturers, and 3) promotes American values of free and fair trade, the rule of law, and respect for human dignity.
Forced labor in internment camps and other labor schemes remain a central tactic by China for the repression of Uyghurs, Kazakhs, Kyrgyz, Tibetans, and members of other persecuted groups. The possibility of internment in these labor programs functions as an explicit or implicit threat to compel members of persecuted minorities to work. In some cases, workers are transferred directly from detention to factories in and outside of Xinjiang. Even when workers in these programs are not transferred directly from internment camps, their work is the product of forced labor. They do not undertake the labor with free and informed consent and are not free to leave; they are subject to discriminatory social control, including pervasive surveillance, and the threat of detention.
