Customs and Border Protection released importer guidance for importers preparing to comply with the Uyghur Forced Labor Prevention Act (UFLPA). Notably, this is not the Strategy to Prevent the Importation of Goods Minded, Produced, or Manufactured with Forced Labor in the People’s Republic of China (UFLPA Strategy). That document will be published by the Department of Homeland Security and is expected to be released on the UFLPA effective date, June 21, 2022. However, the CBP guidance includes useful information on CBP enforcement of the UFLPA, requesting an exception to the UFLPA rebuttable presumption, resources for due diligence, the type of information CBP may require, and commodity-specific supply chain tracing documentation.
CBP states that it will provide importers with notice when enforcement actions are taken on their shipments under the UFLPA. This will come in the form of a detention notice, exclusion notice, or seizure notice. If a detention notice is issued, CBP will provide the reason for the detention and the anticipated length of detention. This notice will also include instructions for the importer on the information to submit that would rebut the UFLPA presumption. In the event an exclusion notice or seizure notice is issued, importers are instructed to follow the administrative protest procedure or petition process, respectively, to rebut the rebuttable presumption.
CBP may determine that the UFLPA presumption is rebutted and the port director will release the merchandise if the importer has complied with specified conditions and, by clear and convincing evidence, established that the goods, wares, articles, or merchandise were not mined, produced, or manufactured wholly or in part by forced labor. Specifically, CBP states that the importer of record must establish it has:
Fully complied with the guidance described in section 2(d)(6) of the UFLPA (UFLPA Strategy) and any regulations issued to implement that guidance; and
Completely and substantively responded to all inquiries for information submitted by the Commissioner to ascertain whether the goods were mined, produced, or manufactured wholly or in part by forced labor; and
Established, by clear and convincing evidence, that the good, ware, article, or merchandise was not mined, produced, or manufactured wholly or in part by forced labor.
Importers may request an exception to the rebuttable presumption from CBP at any time during a detention, after an exclusion, or during the seizure process. CBP states that it will attempt to prioritize exception requests of Customs Trade Partnership Against Terrorism (CTPAT) Trade Compliance members in good standing.
It is important to recognize that if an exception is granted, CBP must submit to Congress and the public a report identifying the good and the evidence considered in reaching the determination. While certain information may be withheld from release under the Freedom of Information Act, information submitted by an importer will be subject to public disclosure and Congressional reporting when CBP grants an exception.
As an alternative to an exception, the importer may submit information to CBP that establishes that the importation is outside the scope of the UFLPA. For example, if the imported goods and their imports are sourced completely from outside Xinjiang and have no connection to the UFLPA Entity List. In these cases the importer must provide documentation that substantiates the absence of inputs subject to the UFLPA from its supply chain. If CBP determines that the information provided by the importer demonstrates that the merchandise is outside the scope of the UFLPA because it lacks a connection to Xinjiang or to an entity on the UFLPA Entity List, the importer will not need to obtain an exception to the UFLPA presumption and CBP will release such shipments, provided they are otherwise in compliance with U.S. law.
The CBP guidance also provides a list of information that may be required by CBP, including a commodity specific supply chain tracing documentation. The agency notes that the list is intended to complement the forthcoming UFLPA Strategy’s guidance, but it is helpful to understand the type of evidence and documentation CBP will expect from importers. Conspicuously absent from this guidance is specific instruction on what information will be examined in the documents or information about what how CBP will evaluate the validity of the documents.
This new guidance from CBP is helpful for importers building UFLPA compliance programs. However, without the UFLPA Strategy from DHS, importers still do not have a full set of tools. There is no one-size-fits all solution for UFLPA compliance and importers may find they face certain challenges unique to their industry or products. Do not hesitate to contact any attorney at Barnes, Richardson & Colburn, LLP if you have any questions about forced labor issues, complying with the UFLPA, or any other import or export question.