Summary

On January 24, 2022, the U.S. Department of Homeland Security (DHS) published a Federal Register notice requesting public comments on methods to prevent the importation into the United States of goods made wholly or in part with forced labor in the People’s Republic of China, as directed by the Uyghur Forced Labor Prevention Act (UFLPA or the “Act”). The comments may consider suggested questions and are due online no later than March 10, 2022.

As we have previously reported, Section 3(a) of the Act establishes a rebuttable presumption effective June 21, 2022 that goods sourced from China’s northwest Xinjiang Uyghur Autonomous Region (XUAR or “Xinjiang”), or certain facilities or entities operating in the region, have benefitted from forced labor—particularly by the Uyghur and other Muslim minority communities—and are thus subject to exclusion or seizure under Section 307 of the Tariff Act of 1930, 19 U.S.C. § 1307. DHS is soliciting the comments in its role as chair of the multiagency Forced Labor Enforcement Task Force (the “Task Force”), established to monitor enforcement of Section 307 itself.

Notwithstanding the explicit ban on goods implicating Xinjiang, the Act charges the Task Force with developing a comprehensive enforcement and prevention strategy focused on forced labor in China at large, and lists various elements that the strategy must include. With respect to the ban, however, one element is guidance with which the Act will require importers to comply to rebut the Section 3(a) presumption, namely due diligence, effective supply chain tracing, and supply chain management measures; and the type, nature, and extent of evidence, to demonstrate that Chinese-originating goods were produced neither in Xinjiang nor otherwise with forced labor.

Reflecting the strategy elements, the notice lists, non-exhaustively, 18 specific questions that commenters may wish to consider. Among the topics covered by those questions are the presumption guidance, plus the following:

• Risks of importing goods made in China by forced labor or persecuted groups;
• Mechanisms such as supply chains that could lead to the direct or indirect importation from China of goods made with forced labor and procedures to reduce such threats;
• Forms of Chinese government forced labor schemes such as “pairing assistance” and “poverty alleviation”;
• Types of goods made or benefitting from forced labor, and high-priority sectors in addition to tomatoes, cotton, and polysilicon;
• Characteristics of such high-priority sector supply chains;
• Identification of and effective enforcement against entities that export offending goods;
• Efforts, initiatives, tools, technologies to identify and trace entered offending goods;
• Tools to clarify compliance, including a common set of supply chain traceability and verification standards, and current supportive infrastructure;
• Measures to trace the origin of goods, offer greater supply chain transparency, and identify third-country supply chain routes for offending goods; and
• Coordination among the U.S. Government, nongovernmental organizations, and private sector to implement the enforcement strategy and to combat forced labor in supply chains.

As we’ve noted, related informative guidance now exists in the International Labour Organization (ILO) indicators used by U.S. Customs and Border Protection (CBP) in withhold release order (WRO) investigations; the implementation history of a similar ban aimed at goods made by North Korean nationals; and the multiagency advisory issued in July 2021 addressing supply chain exposure to human rights abuses in China and elsewhere.

Relatedly, on January 25, 2022, the USTR, also a member of the Task Force, announced that it will develop its “first-ever focused trade strategy to combat forced labor.” The strategy will include contributing the USTR’s “expertise on global supply chains in the implementation of the Uyghur Forced Labor Prevention Act.” Companies should monitor this effort for ways to provide input in the future.

The Act will have wide-ranging effects on companies not only that import goods made wholly or in part in Xinjiang, but also that import from China generally.