Public Hearing Provides Insight into Possible Application of Uyghur Forced Labor Prevention Law | Womble Bond Dickinson

  • What is the Uyghur Forced Labor Prevention Law (UFLPA) and how might it impact your business?
  • Issues surrounding the UFLPA
  • Key Dates for Customs and Border Patrol (CBP) Guidelines and UFLPA Implementation
  • What you need to do to be ready

The Uyghur Forced Labor Prevention Act (UFLPA) was signed into law by President Biden on Dec. partly in Xinjiang Uyghur Autonomous Region [XUAR] of the People’s Republic of China” – or by entities listed by the United States as having ties to forced labor in the XUAR – were manufactured using forced labor and cannot be imported into the United States pursuant to Section 307 of the Tariff Act of 1930 (19 U.S.C. 1307).The UFPLA will become fully effective June 21, 2022.

U.S. Customs and Border Protection (CBP) is required to issue guidance under the UFLPA on the standard of proof required to overcome this presumption, alongside an enforcement strategy that will be recommended by the Forced Labor Enforcement Task Force (FLETF). As part of this process, FLETF held a virtual public hearing on April 8, 2022 to solicit testimony on the use of forced labor in China and potential measures to prevent the importation of goods mined, produced or manufactured in whole or partly with forced labor. in China in the United States. Public comments presented at the hearing, along with written public comments received in March and April, will inform FLETF’s decision-making on the final implementation of the UFLPA.

Public comments on the implementation of the UFLPA fell into several broad categories:

Industry groups and importers asked for clarity on how to comply with the UFLPA and peace of mind that their business could continue unimpeded. The main points of discussion included:

  • Clarification on what will meet the “clear and convincing” standard of proof imposed by the UFLPA;
  • Adoption of a “trusted importer” or similar program that would allow importers to pre-clear goods and proactively refute allegations of forced labor, without having to receive a Hold Release Order (WRO) US Customs and Border Protection (CBP);
  • Establishment of a de minimis exception that would allow importers of products containing small amounts of suspect material to avoid the need for a full audit and investigation; and
  • Delayed enforcement to give companies time to gather necessary documentation and modify their business practices and supply chains as needed.

Companies based in China or with long-standing business relationships in the XUAR denied the use of forced labor, argued that they had never witnessed forced labor during their inspections or business dealings, and expressed concern about the burden companies would have to prove the absence of forced labour. forced labor to authorities in the United States

Human rights groups have vigorously opposed the demands made by the industry and have encouraged strict interpretation and application of the UFPLA by FLETF and CBP. The main points of discussion included:

  • Businesses should not be given “advance notice” of CBP’s evidentiary requirements;
  • Substantial documentation should be required to meet the “clear and convincing evidence” standard, perhaps beyond what is currently required to remove a WRO, including full supply chain mapping, evidence photographs of facilities, copies of supplier contracts, etc. ; and
  • WRO coverage for all XUAR-related businesses and products, no exceptions.

The FLETF will need to consider all of these conflicting positions when drafting guidance on how to comply with the UFLPA. It is important to note that the date on which the FLETF is required to provide this guidance is the same date on which the UFLPA comes into full effect, June 21, 2022.

CBP also recently announced that prior to June 21st, CBP will send letters to importers identified as having previously imported goods that may be subject to the UFLPA. These letters are intended to encourage these importers to address any forced labor issues in their supply chains in a timely manner.

If an importer does not receive a letter from CBP, it does not mean that the importer’s supply chain is free of forced labor. CBP expects all importers to carefully examine their supply chains and put in place “reliable measures” to ensure imported goods are not produced in whole or in part by forced labor .

Businesses should make every effort to proactively review their supply chains and put reliable measures in place before the UFLPA’s effective date of June 21, 2022, and should be prepared to comply with the guidelines of the FLETF as soon as these guidelines are published. Additionally, companies must be prepared to respond to CBP inquiries with sufficient evidence and support to demonstrate that their goods were not produced in whole or in part with forced labor.