Comment Period on Imports of China Made with Forced Labor Commenced

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Feb. 8, 2022

The U.S. Department of Homeland Security (DHS), specifically the Forced Labor Enforcement Task Force (FLETF), issued notice seeking comments from the public on how to best ensure that goods of the People’s Republic of China (PRC or China) made with forced labor are not imported into the United States. The issuance for comments comes under the Uyghur Forced Labor Prevention Act (UFLPA), which was signed into law December 23, 2021. We reported on the Act prior to its passage here and here.

Most notable for trade purposes, the Act creates a rebuttable presumption that all goods manufactured even partially in China’s Xinjiang Uyghur Autonomous Region (the “XUAR”) are the product of forced labor and are thus barred from entry into the U.S. Specifically, pursuant to the Act, U.S. Customs and Border Protection (CBP) is instructed to presume that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part” in the XUAR were made with forced labor. On those grounds. Customs is permitted to deny entry to the allegedly offending merchandise. The denial of entry under the Act is appropriate even absent a Withhold Release Order (WRO) – which is the traditional tool used by the government to prevent import of goods made with forced labor – and absent any specific showing of forced labor in the supply chain. Note that the Act’s coverage extends to goods manufactured in whole or in part by forced labor of Uyghurs, Kazakhs, Kyrgyz, Tibetans, and members of other persecuted groups in the PRC.

Pursuant to the Act, the presumption of forced labor in the supply chain is rebuttable where the Commissioner of CBP determines that:

• An Importer of Record has:

              - Fully complied with all due diligence and evidentiary guidance established by the FLEFT pursuant to the Act, along with any associated implementing regulations; and

              - Completely and substantively responded to all CBP inquiries seeking to ascertain whether the goods were produced with forced labor.

• Clear and convincing evidence shows that the goods were not produced wholly or in part with forced labor.

Presumably, the comment period will serve to help FLETF to flesh out the meaning of “clear and convincing” evidence in this context as well as what documentation will be required to substantiate any such showing. While the practicalities of the Act will not be fleshed out until after close of comment period, we expect that importers will be counseled to rebut a forced labor presumption under the Act in a similar manner to what Customs has come to expect in detentions under relevant WROs. Importers seeking release of goods detained pursuant to a WRO often present:

• An affidavit from the provider of the product;
• Purchase orders, invoices, and proof of payment;
• A list of production steps and records for the imported merchandise;
• Transportation documents;
• Daily manufacturing process reports;
• Evidence regarding the importer’s anti-forced labor compliance program; and
• Any other relevant information that the importer believes may show that the shipments are not subject to the import ban.

Comments are due on or before March 10, 2022, at 11:59 p.m. EST. Note that all comments must include the task force name (FLETF) and DHS Docket No. DHS-2022-001; comments should be submitted by email, to FLETF.PUBLIC.COMMENTS@hq.dhs.gov. After the comment period, FLEFT will conduct a public hearing and develop a strategy for supporting enforcement of the UFLPA.

For any questions on submitting a comment related to UFLPA enforcement, or an importer’s obligations under the Act generally, please contact a trade attorney at Barnes, Richardson & Colburn.