Background

U.S. Customs and Border Protection’s enforcement actions against goods suspected of being made with forced labor could ramp up under a new law, but first importers have an opportunity to tell federal officials how they’re being affected and seek improvements.

Importers have consistently said they support the U.S. prohibition on imports of forced labor goods, but they have a number of longstanding complaints about CBP’s enforcement process. For example, a recent filing in a court case challenging CBP on this issue argued that the agency “routinely ignores exculpatory evidence provided by importers, provides no rationale why such evidence is deficient, makes exhaustive documentation requests then complains that it gets too much information, and fails to disclose enforcement targets, or the evidence used to identify those targets, so the industry can avoid those bad supply chain actors.”

However, the Uyghur Forced Labor Prevention Act signed into law Dec. 23, 2021, gives importers an opportunity to possibly influence future enforcement efforts. This law, which basically prohibits imports of all goods made in whole or in part from any material from China’s Xinjiang Uyghur Autonomous Region, also requires a federal Forced Labor Enforcement Task Force to develop a strategy to prevent the importation of forced labor goods from China.

The Department of Homeland Security is now seeking public comments through March 10 that will be used to inform this strategy, which itself is due by June 21, the day the UFLPA’s import ban takes effect. A public hearing will also be held, though the date has not yet been set.

Specific issues on which comments are being solicited include the following.

- the type, nature, and extent of evidence companies can provide to reasonably demonstrate that goods originating in China were not made with forced labor in the XUAR

- the type, nature, and extent of evidence that can demonstrate that goods originating in China, including those detained or seized for forced labor concerns, were not made with forced labor

- mechanisms that could lead to the importation of forced labor goods from China, including through third countries, and procedures to reduce those threats

- measures that can be taken to trace the origin of goods, offer greater supply chain transparency, and identify third-country supply chain routes for goods made with forced labor in China

- high-priority sectors for enforcement (in addition to cotton, polysilicon, and tomatoes) and unique characteristics of their supply chains to be considered in developing measures to prevent imports of goods made with forced labor in China

- goods made with forced labor in the XUAR or by entities that work with the XUAR government to recruit, transport, transfer, harbor, or receive forced labor and how to identify additional entities that export such goods

- due diligence, effective supply chain tracing, and supply chain management measures importers can leverage to ensure they do not import goods made with forced labor from China, especially the XUAR

- efforts, initiatives, tools, and technologies that should be adopted to ensure that CBP can accurately identify and trace forced labor goods

- the risks of importing forced labor goods from China, including from the XUAR or made by Uyghurs, Kazakhs, Kyrgyz, Tibetans, or members of other persecuted groups in any other part of China

- forms that forced labor takes in China and the XUAR (e.g., pairing assistance and poverty alleviation schemes)

- ways to effectively enforce the UFLPA against entities whose goods are made with forced labor in China and imported into the U.S.

- tools that could provide greater clarity to companies on how to ensure upcoming imports from China are not made with forced labor in the XUAR, including a common set of supply chain traceability and verification standards through a widely-endorsed protocol

For more information, please contact Elise Shibles (at (415) 490-1403 or via email),  Amanda Levitt (at (212) 549-0148) or via email), or David Olave (at (202) 730-4960 or via email).

Copyright © 2022 Sandler, Travis & Rosenberg, P.A.; WorldTrade Interactive, Inc. All rights reserved.

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