Task Force Seeks Comments on Implementation of Ban on Import of Forced Labor Goods from China – International Law

Worldwide: Task Force Seeks Comments on Implementation of Ban on Import of Forced Labor Goods from China

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Yesterday, the U.S. Department of Homeland Security, on behalf of the Interagency Task Force on Combating Forced Labor (Task Force), issued an advisory in the Federal Register which is seeking public comment on the implementation of the Uyghur Forced Labor Prevention Law (UFLPA), which was passed with bipartisan support and signed into law last month. The UFLPA is a new law that will restrict certain imports from China, due to concerns over forced labor in the Xinjiang Uyghur Autonomous Region (Xinjiang) and elsewhere in China. The UFLPA will require US and global companies to introduce new due diligence measures to ensure supply chain integrity and uninterrupted trade flows, as long as their supply chains pass through China.

the Federal Register the notice offers companies a first opportunity to influence the implementation of the restrictions which are due to come into force in June 2022.

Import ban targeting forced labor in China

The UFLPA creates a new rebuttable presumption that goods mined, produced or manufactured in Xinjiang have been produced with forced labor and are therefore subject to a pre-existing legal prohibition against importing such goods.1 The legislation also requires the task force to generate a list of entities and facilities, whether or not located in Xinjiang, that facilitate the use of forced labor in China or engage in the export from China of products made with forced labor. Imports from these entities/facilities will also be subject to the rebuttable presumption.

To rebut the presumption, importers must fully comply with upcoming U.S. government guidance and associated regulations on due diligence, effective supply chain tracing, and supply chain management measures, among others; respond fully and substantially to US Customs and Border Protection (CBP) requests for information; and demonstrate by “clear and convincing evidence” that the products to which the presumption applies were not made in whole or in part by forced labour.

The UFLPA import ban is the latest enforcement action in the U.S. government’s campaign to prevent the importation of Chinese goods produced by forced labor. In fiscal year 2020, CBP issued eight hold release orders (WROs) against goods from China.2 This trend continued in fiscal 2021 with three additional WROs, one of which was the first-ever region-wide WRO against certain products originating from Xinjiang, including cotton, tomatoes and their downstream products. . On July 13, 2021, the executive branch issued an updated business advisory on Xinjiang’s supply chain that outlines heightened risks for companies with supply chain ties and investments in Xinjiang, given US government findings regarding forced labor and other human rights abuses in the region.

The new UFLPA import restrictions will be administered and enforced by CBP, possibly through new regulations that have not yet been published, and will take effect on June 21, 2022. The Request for Public Comment in yesterday’s edition Federal Register the notice is one of many administrative steps before the effective date.

Possibility of public comments

the Federal Register the notice seeks public comment on how to “ensure that goods, commodities, articles and commodities extracted, produced or manufactured in whole or in part by forced labor in the People’s Republic of China are not imported into the States -United”. This includes goods produced by certain persecuted minorities in China (including Uyghurs, Kazakhs, Kyrgyz and Tibetans), as well as other individuals in Xinjiang. The advisory lists 18 questions for reviewers to answer, including comments on the following topics:

  • Import risks: What are the risks of importing articles soiled by forced labour?
  • Entities using forced labor: How can the United States identify entities that export products made with forced labor?
  • Due Diligence for US Importers: What due diligence, effective supply chain traceability and supply chain management measures can importers rely on to ensure that they are not importing goods produced from China? by forced labor?
  • Sectors: Which sectors, beyond cotton, tomato and polysilicon (which are listed in the UFLPA), should be priority areas of application?
  • Evidence to rebut the presumption: What type/nature/extent of evidence can companies provide to demonstrate that items from China are free from forced labor?
  • Origin tracing: What steps can be taken to trace the origin of goods, provide greater supply chain transparency and identify supply chain routes to third countries for items from China that are tainted with forced labor ?
  • Public-private collaboration: How can the US government improve coordination with NGOs and the private sector to address forced labor in supply chains, and how can this serve as a model for UFLPA implementation?

Next implementation dates

Upcoming dates related to the implementation of the UFLPA include the following:

  • Comment period: The period for submitting comments in response to the Notice will be 45 days from the date of publication (i.e. comments will be due no later than March 10, 2022).
  • Public audience: Within 45 days of the close of the comment period, the working group will hold a public hearing to discuss measures to effectively implement the law (i.e. by April 25, 2022, assuming there is no delay).
  • Submission of enforcement strategy to Congress: No later than 180 days after the date of enactment of the UFLPA, and annually thereafter, the task force must submit a report to Congress with a strategy for enforcing China’s import ban on goods produced by forced labor (i.e. before June 21, 2022 and annually thereafter).
  • Effective date: As noted above, the effective date of import restrictions imposed under the LFUAP is no later than 180 days after the date of enactment of the Act (i.e. no later than late June 21, 2022).

Because the task force’s strategy must be submitted to Congress the same day the UFLPA import restrictions take effect, the business community may have a limited opportunity to comment on the strategy before t begins to influence the implementation of the UFLPA. Comments responding to the notice will be posted on a publicly accessible portal. (There is a process for excluding confidential business information from the public portal.)

Consequences

U.S. and global companies that have supply chains through China and supply goods to the U.S. market should consider responding to yesterday’s request for comment – either individually or through a coalition or group. trade association – to shape the implementation of UFLPA. In addition, these companies should consider the due diligence steps they need to take to assess the risks associated with forced labor in their supply chains, as well as possible remedial and preparatory actions before the June effective date. 2022 of the UFLPA.

Footnotes

1 Section 307 of the Tariff Act of 1930, as amended (19 USC § 1307).

2 A WRO has the effect of holding all shipments of goods within the WRO parameters and may result in forfeiture proceedings.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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