This is an update to our December 22, 2021 post on the Uyghur Forced Labor Prevention Act.

On December 23, 2021, President Joe Biden signed into law the Uyghur Forced Labor Prevention Act (UFLPA). This action by President Biden comes a week after the law passed both chambers of Congress. After stalling in the Senate last year, an updated version of the bill was reintroduced on January 27, 2021 by Senator Marco Rubio (R-FL) and passed the Senate on July 14. The House version of the bill was introduced by Congressman James McGovern (D-MA) on February 18, 2021 and passed on December 8. Congressman McGovern and Senator Rubio reconciled the bill and delivered it to each respective chamber a week later. The reconciled version then passed the House and the Senate through unanimous decisions on December 14 and December 16, respectively.

The Uyghur Forced Labor Prevention Act instructs U.S. Customs and Border Protection (CBP) under Section 3 of the Act to adopt a rebuttable presumption that goods mined, produced, or manufactured in the Xinjiang Uyghur Autonomous Region (XUAR) or by certain entities are prohibited from being imported into the U.S. An overview of the prohibitions as set forth by the UFLPA is provided below:

Prohibitions per Section 3 of the Uyghur Forced Labor Prevention Act
Section 3(a) – CBP shall take a rebuttable presumption that import prohibition applies to goods mined, produced, or manufactured in the XUAR or by certain entities. Scope – Under Section 3(a), any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the XUAR and by the following are prohibited and not entitled to entry:

 

  • Entities in the XUAR that use forced labor;
  • Entities working with the government of the XUAR to relocate Uyghurs, Kazakhs, Kyrgyz, and members of other persecuted groups in the People’s Republic of China (PRC) out of the XUAR;
  • Entities that export products that used forced labor from the PRC to the U.S.; and
  • Entities that source from the XUAR or from the Xinjiang Production and Construction Corps (XPCC) or from persons working with the government of the XUAR (1) for the purposes of the “poverty alleviation” or (2) “pairing-assistance” programs or (3) similar government labor schemes that use forced labor.
Section 3(b) – CBP shall apply the presumption under Section 3, subsection (a), unless the importer of record has fully complied with CBP guidance and CBP finds that there is clear evidence that the items were not partly or wholly produced using forced labor. Scope –Section 3(b) provides exceptions to Section 3(a), where the importer of record must:

 

  • Fully comply with the guidance set forth in the Act, which includes but is not limited to (1) proper due diligence, (2) effective supply chain tracing, and (3) supply chain management measures to ensure no imports were produced using forced labor from the PRC; and
  • Completely and substantively cooperate with CBP.

 

In addition, CBP must find “clear and convincing evidence” that the items were NOT made wholly and in part by forced labor. Under the following Section 3(c), CBP must provide a public report to Congress no later than 30 days after making a determination of an exception.

In addition, the Uyghur Forced Labor Prevention Act has assigned the Forced Labor Enforcement Task Force to publish an annual strategy report that includes a guidance to importers. The Forced Labor Enforcement Task Force was established under the United States-Mexico-Canada Agreement and is chaired by the Secretary of Homeland Security and composed of representatives from the Department of State, the Department of the Treasury, the Department of Justice, the Department of Labor, and the Office of the U.S. Trade Representative. Notable deadlines, including those in relation to the Forced Labor Enforcement Task Force’s activities, are as follows:

Notable Deadlines Set Forth in the Uyghur Forced Labor Prevention Act
Sections 2(a)(1) and 2(a)(2) – no later than 30 days after the enactment of the Act (no later than January 22, 2022), the Forced Labor Enforcement Task Force, established under Section 741 of the USMCA, will publish a notice seeking comments within 45 days soliciting public comments on how to ensure items wholly or partly produced with forced labor in the PRC, and especially the XUAR, are not imported into the United States

Section 2(b)(1) – no later than 45 days after the close of the period to submit comments, the Forced Labor Enforcement Task Force shall conduct a public hearing inviting witnesses to testify with respect to the use of forced labor in the PRC

Section 2(e)(1) – no later than 180 days after the date of enactment of the Act (no later than June 21, 2022), and annually thereafter, the Forced Labor Enforcement Task Force shall submit to Congress a strategy report that includes:

  • A risk assessment of importing goods that use forced labor in the PRC and the XUAR
  • Lists of entities that fall within the scope of the prohibitions and a list of high priority sectors
  • Tracing recommendations for CBP and recommendations on how CBP should use technologies to accurately identify and trace goods made in the XUAR entering U.S. ports
  • Guidance to importers with respect to due diligence, supply chain tracing, and supply chain management measures as well as the type, nature, and extent of evidence that demonstrates that goods from the PRC, and especially the XUAR, were not produced using forced labor

Section 3(e) – All of Section (3) will take effect 180 days after the date of enactment of the Act (beginning June 21, 2022)

Chinese officials have been outspoken against the passage of the Uyghur Forced Labor Prevention Act. On December 15 – one day before the Act passed through the Senate – Chinese Foreign Ministry spokesperson Zhao Lijian announced that the Act was an attempt by Congress to interfere with China’s internal affairs and that China will retaliate. Shortly after the Act gained passage through Congress, the Chinese government then announced that it would be sanctioning four members of the U.S. government’s Commission on International Freedom.

The Uyghur Forced Labor Prevention Act is available here.

For more information on the UFLPA and actions addressing human rights and forced labor abuses, contact our team.