September 27, 2022

Volume XII, Number 270


September 26, 2022

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Examining the Uyghur Forced Labor Prevention Act and Department of Homeland Security Enforcement

Key Highlights

  • Review the UFLPA Strategy and CBP Operational Guidance for Importers;

  • Conduct supply chain due diligence and instate reliable measures to prevent the use of forced labor; and

  • Maintain recommended documentation to demonstrate that imported goods are not subject to the UFLPA or should be granted an exemption.

The Uyghur Forced Labor Prevention Act (UFLPA) was signed into law by President Biden on December 23, 2021. The UFLPA creates a rebuttable presumption that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region [XUAR] of the People’s Republic of China”—or by entities listed by the U.S. as having ties to forced labor in the XUAR—were made using forced labor and cannot be imported into the U.S. per Section 307 of the Tariff Act of 1930 (19 U.S.C. 1307). As we have previously discussed, the UFPLA went into full effect on June 21, 2022, meaning that U.S. Customs and Border Control (CBP) now has the authority to detain, exclude, or seize any goods that the agency believes were made using forced labor.

Several important documents are now available to aid importers in complying with the UFLPA. On June 17, 2022, the U.S. Department of Homeland Security (DHS) issued the UFLPA Strategy, which covers a range of topics including risks related to forced labor, enforcement of the UFLPA, and guidance for importers. The guidance in the UFLPA Strategy is complemented by more practical Operational Guidance for importers, which was issued by CBP on June 13, 2022. Finally, on August 4, 2022, DHS published an updated UFLPA Entity List. The UFLPA requires CBP to apply the rebuttable presumption of forced labor to goods mined, produced, or manufactured by entities on this list.

Importers whose shipments are detained will have a choice between (1) providing information to CBP indicating that the goods are not subject to the UFLPA (i.e., goods and inputs were sourced outside of the XUAR and are not connected to any entities on the UFPLA Entity List), or (2) requesting an exemption to the rebuttable presumption. The burden for receiving an exemption under the UFLPA is significant. If an importer of record can:

  • Demonstrate by “clear and convincing evidence” that the goods in question were NOT produced wholly or in part by forced labor;

  • Fully respond to ALL CBP requests for info about goods under review; AND

  • Demonstrate that it has fully complied with the guidance outlined in the UFLPA Strategy,

Then, the Commissioner of CBP may grant an exemption. All such exemptions must be submitted to Congress within 30 days, along with a public report outlining the evidence supporting the exemption.

UFLPA Strategy

The UFLPA Strategy guidance to importers focuses on 3 topics:

  1. Due diligence and supply-chain measures to prevent importation of goods produced with forced labor in China or the XUAR;

  2. Evidence needed to show that goods originating in China were not produced wholly or in part in Xinjiang; and

  3. Evidence needed to show that goods originating in China, including goods detained, excluded, or seized for violations of the UFLPA, were not produced with forced labor.

The bulk of FLETF’s recommendations are focused on due diligence, including effective supply chain tracing and management. Such due diligence is vital for preventing the importation of goods produced using forced labor, but also serves as the foundation for ensuring importers have sufficient evidence to present to CBP when shipments are detained.

CBP Operational Guidance for Importers

The CBP Operational Guidance for Importers provides more practical information on how CBP plans to enforce the UFLPA, including how CBP plans to approach the detention, release, exclusion, seizure, and forfeiture of shipments. This information includes:

  • Resources to assist trade stakeholders in conducting supply chain due diligence, tracing, and management;

  • Documentation that may be helpful in demonstrating that imported goods are not subject to the UFLPA or should be granted an exemption; and

  • Commodity-specific documentation that importers may consider submitting for commodities at high risk of forced labor (cotton, polysilicon, tomatoes).

Companies should make every effort to proactively review their supply chains and instate reliable measures in accordance with the UFLPA Strategy and CBP’s Operational Guidance for Importers. Also, companies should be prepared to respond to inquiries from CBP with sufficient evidence and support to demonstrate that their goods are either not subject to the UFLPA or were not produced with forced labor.

Copyright © 2022 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XII, Number 223

About this Author

James Kearney, Government Contracting Attorney, Womble Carlyle Law FIrm

Mr. Kearney represents clients in matters involving government contracting, cross-border regulatory compliance, internal investigations, and enforcement proceedings. His practice focuses on helping clients assess and manage the unique regulatory risks involved in contracting with government entities, entering into federal grant and other funding agreements, and with managing cross-border transactions and global supply chains. He is a member of the Firm’s Government Contracts Group, Global Practice Group, and Supply Chain Initiative. Mr. Kearney represents regulated...

Michael J. Sullivan, Womble Carlyle, risk management attorney, cost control lawyer

Michael Sullivan is Managing Partner in the Atlanta office of Womble Carlyle, a full-service business law firm with more than 530 lawyers in 14 offices throughout the Southeast and Mid-Atlantic United States and in Silicon Valley. Michael is a mass tort and complex commercial litigation attorney with over 30 years of experience representing clients in bet-the-company litigation.  His practice today includes acting as trusted advisor to senior level executives on risk management, cost control and litigation management issues.  In addition to his leadership role in the...

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Mark Vaders provides cost-effective scientific and legal solutions to clients whose branded products are regulated by the FDA and state agencies. He has assisted in drafting many submissions to FDA’s Center for Tobacco Products, and serves as an in-house resource on vapor product science. His practice also focuses on developing legal- and science-based defenses to product liability lawsuits. Mark has provided counsel to RJ Reynolds Tobacco Company, RJ Reynolds Vapor Company, a leading national supplier of scientific and medical equipment, a global reinsurance provider, and other clients....