What is the Uyghur Forced Labor Prevention Act?
The Uyghur Forced Labor Prevention Act was enacted on December 23rd, 2021 and became effective on June 21st, 2022.
The purpose of the act is to exclude products made in whole or in part with the forced labor of persecuted minorities in China from entry into the United States. It focuses particularly on the Xinjiang Uyghur Autonomous Region of China and is intended to strengthen the existing legislation prohibiting the importation of goods made in whole or in part with forced labor.
What Are the Key Points of the Uyghur Forced Labor Prevention Act?
- It creates a rebuttable presumption that all items produced, in whole or in part, in the Xinjiang region of China are made with forced labor.
- It requires CBP to create an Entity List of companies believed to use forced labor.
- Products covered by the presumption are prohibited from importation into the United States.
What is Forced Labor in the Uyghur Autonomous Region of China?
A March 11, 2020 hearing before the 116th Congress reports that:
“Over the past several years, the Chinese government created and expanded a system of extrajudicial mass internment camps. As many as 1.8 million Uyghurs and members of other Muslim groups, including Kazakhs, Hui, and Kyrgyz have been arbitrarily detained in the camps and subjected to forced labor, torture, political indoctrination, and other severe human rights abuses.”
Who are the Uyghurs?
The Uyghurs (pronounced Wee-goors) are a Muslim ethnic and religious minority in western China. Many of them have been enslaved by the Chinese government under the guise of offering them an escape from poverty and preventing the spread of religious fanaticism.
Who Operates the Internment Camps?
According to the U.S. Department of State:
“The camps are operated by the PRC government’s Xinjiang Production and Construction Corps (Bingtuan), an economic and paramilitary organization with administrative control over several areas in the region comprising nearly three million personnel, forces members of prison populations and local communities alike to work in hazardous mining, construction, manufacturing, food processing, and—for many thousands of Uyghur adults and children—cotton harvesting.”
What Products are Affected?
Affected products specifically listed by the U.S. Department of Labor, Bureau of International Labor Affairs identify these items as being produced by child labor or forced labor:
- Tomato products, especially tomato paste
- Bricks
- Gloves
- Polysilicon
- Electronics
- Hair products
- Cotton
- Textiles
- Thread and yarn
- Toys
- Fish
The Uyghur Forced Labor Prevention Act, however, is not limited to these products.
CBP will likely focus on transshipments and downstream products made with Xinjiang content like cotton and polysilicon.
I expect these are the types of items that will be in CBP’s crosshairs. If I’m right, importers of items made from them, like textiles and apparel, and solar panels and semiconductors, are likely to be among the first enforcement victims.
The statute’s coverage also would include articles made with those textiles and semiconductors, so importers of items two or more steps removed from the Xinjiang content also are at risk. Once CBP starts down that rabbit hole, there’s no telling where it may end up.
The other low-hanging fruit will be products made by companies on the Entity List. Affiliates of the listed companies outside Xinjiang also are subject to the forced labor presumption, as of course are downstream products made with content from the listed sources and their affiliates.
In my view, there is no way right now to fully predict what items will get caught, or whether CBP will be narrow in focus or institute a dragnet instead.
What Can I Do if CBP Excludes Merchandise from Entry?
There are two different procedures that an importer can follow, depending on the underlying facts.
The first is to attempt rebutting the presumption. This requires a showing that any Xinjiang content in the product was not made with forced labor, under a clear and convincing evidence standard.
To succeed, the importer must have a program in place to map, and document, each stage of the production process, what CBP calls supply chain tracing. Importers also must respond to all CBP requests for information. If the agency is convinced, the goods will be released. Note, however, that each exception granted by CBP is subject to Congressional notification and public disclosure, which I expect will make the agency very cautious in granting them.
The second procedure is to demonstrate that a product was neither made in Xinjiang nor has any content from there or from an Entity Listed source. This, too, requires supply chain tracing, to document that the product and its contents aren’t subject to the presumption in the first place.
Even if CBP does confirm exclusion under the process, the importer may protest the determination, and appeal denial of the protest to the Court of International Trade.
What Safeguards Can I Implement to Ensure My Imports from China are Allowed Entry to the U.S.?
Importers of products made in China, or with Chinese content, need to have a system in place right now to confirm their products are outside the UFLPA’s coverage. Waiting until an entry is excluded by CBP, or the merchandise is seized, will be too late to gather the extensive proof required to either rebut the presumption or show its inapplicability.
Remember, the statutory presumption means that CBP does not have to show an item or any of its content was made with forced labor, to take enforcement action. Instead, the burden falls on the importer to show that it wasn’t. Preparation will be the key to success in doing so.
Contact Thompson & Associates, PLLC for assistance with any aspect of the UFLPA. My skill and expertise are at your service.
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