The Uyghur Forced Labor Prevention Act (the UFLPA) came into effect last week, and US Customs and Border Protection (CBP) and US Department of Homeland Security (DHS) have released guidance for importers for demonstrating that their supply chain is free from content derived from forced labor. As detailed in our February 2022 article, President Biden signed UFLPA into law on December 23, 2021, with an effective date of June 21, 2022.

In an effort to aide importers’ compliance with UFLPA,

  • on June 13, 2022, CBP issued the UFLPA Operational Guidance for Importers (CBP Guidance), providing guidance regarding the implementation of the UFLPA;
  • on June 17, 2022, DHS, as chair of the Forced Labor Enforcement Task Force (FLETF), issued the much anticipated “Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China” (DHS Guidance), which provides guidance in greater detail than the CBP Guidance.

What does the UFLPA do?

The UFLPA establishes a rebuttable presumption that all goods mined, produced,

or manufactured wholly or in part in Xinjiang were made with forced labor; therefore such goods will presumptively be denied entry into the United States. The rebuttable presumption applies to goods that contain any level of materials produced with forced labor and at any level of the supply chain. Importers will need to include a detailed description of the supply chain for the imported goods and their components, including all stages of sourcing, manufacturing and production. For instance, CBP may deny entry to clothing that was made in and shipped from a 3rd country if CBP suspects that the clothing contains cotton picked by forced labor in Xinjiang.

CBP may exclude or detain, seize or forfeit the goods presented to it for importation if it believes the goods are within the scope of UFLPA. To overcome the rebuttable presumption, the importer must demonstrate with clear and convincing evidence that the imported goods were not mined, produced, or manufactured wholly or in part by forced labor. If the importer overcomes this burden, the CBP Commissioner will determine that an exception to the presumption is warranted and the port director will release the merchandise.

Where should importers look for guidance?

CBP will rely on the US Department of Labor’s (DOL) List of Goods Produced by Child Labor or Forced Labor, List of Products Produced by Forced or Indentured Child Labor, and Better Trade Tool, as well as the US Department of State’s (DOS) Trafficking in Person Report and Responsible Sourcing Tool, to help identify targets and implement the UFLPA.

DHS also recommends that importers use DOL’s Comply Chain as guidance for developing and demonstrating due diligence in the supply chain. Namely, due diligence processes should include procedures for

  1. identifying and engaging with stakeholders;
  2. conducting risk assessments;
  3. adopting a written code of conduct or equivalent standards;
  4. training to their employees or agents responsible for selecting suppliers;
  5. monitoring supplier compliance with their code of conduct; (6) demonstrate remediation of all indicators of forced labor;
  6. independent third-party verification to demonstrate the implementation and effectiveness of an importer’s due diligence system; and
  7. regular and timely public reporting on its due diligence system, including the auditing and verification processes.