Congress Reaches Forced Labor Compromise

Dec. 14. 2021
By: David G. Forgue

We have written in the past about the rapidly emerging issue with imports of goods made with forced labor. This includes updates about Congressional efforts to pass legislation to address imports specifically from Xinjiang, as well as incremental updates from the government. While Congress had shown a bipartisan interest in further regulating imports from Xinjiang made using forced labor, it had not been able to agree across the House and Senate on legislative language.

As of December 14, it appears that Congress has finally reached an agreement to pass a law specifically to imports from Xinjiang. In understanding the changes the proposed law contemplates, it is important to remember that under 19 USC 1307 it is already against the law to import goods made with forced labor. The proposed law does not change Section 1307. Instead, it adds specific processes to address the situation in the Xinjiang Uyghur Autonomous Region of China.

First, the law directs the Forced Labor Enforcement Task Force to open a period of public comment to solicit industry comment on the best means to ensure that goods mined, produced, or manufactured using forced labor in China are not imported into the United States. Interestingly, the language in this provision does not limit the scope of the comments to Xinjiang or the Uyghur minority. Instead, the language makes clear that it is contemplating forced labor across China, including forced labor by other minority ethnic groups like the Kazakhs, Kyrgyz, Tibetans, and others.

We regard this public comment period as being crucial for importers because it will be an opportunity to identify legitimate trade from trade in forced labor goods, with the potential to shape policies in procedures used by Customs in enforcement going forward. One deliverable from the public process contemplated in the law will be specific guidance to importers regarding due diligence, supply chain management, and the evidence that Customs will use to determine whether goods are made using forced labor. Some of this guidance will be gleaned from public input during the process.

Finally, the law creates a rebuttable presumption that imports made (in whole or in part) in the Xinjiang Uyghur Autonomous Region of China are made from forced labor. This presumption would take effect 180 days after enactment of the law. Following the guidance discussed above is one element of rebutting this presumption. Thus, for importers who do import goods made in Xinjiang that are not made using forced labor, the elements of the guidance will effectively become standard operating procedures. If they do not, Customs will deny entry for the goods because the rebuttable presumption is not rebutted.

Because this is a bipartisan issue, we expect the law to be able to quickly move through Congress. As of today, Congress is not scheduled to be in session again in 2021. Therefore, it is likely that the earliest there would be a vote is early 2022. Based on the 180 day schedule for the rebuttable presumption, importers could expect such a presumption beginning in the summer of 2022. Similarly, we would expect a Federal Register notice on the public input required under the bill within 30 days of enactment, which could be as early as the beginning of February.

Do not hesitate to contact any attorney at Barnes, Richardson & Colburn, LLP if you have any questions about importing from China, forced labor issues, or any other import or export question.