Importing From China? What You Need To Know To Comply With The Uyghur Forced Labor Prevention Act

• Published date: 23 June 2023
• Subject Matter: International Law, Compliance, International Trade & Investment
• Law Firm: Eckland & Blando
• Author: Mr Robert Dube

The United States has worked diligently in recent years to publicly denounce human trafficking, address violations of human rights, and prevent the importation of goods produced from forced labor.¹ In 2021, the Uyghur Forced Labor Prevention Act (UFLPA) was passed by Congress in efforts to ensure that goods made with forced labor in the Xinjiang Uyghur Autonomous Region (XUAR) do not enter the United States market.² Like many acts of Congress, the UFLPA is substantially broader than its name, and covers almost any product being exported from China, not just those coming from Xinjiang. If you are entity importing products from China at any point, the UFLPA almost certainly applies to you. To make sure you're in compliance, here's what you need to know:

Among other things, UFLPA instructed the Forced Labor Enforcement Task Force (FLETF) to develop a strategy to enforce the Tariff Act of 1930 and end forced labor practices through all means available.³ Under the UFLPA, if a good is found to be the product of forced labor in the XUAR or from any entity listed by the Department of Homeland Security (DHS) or Customs and Border Protection (CBP), an importer is presumed to be in violation of the Tariff Act of 1930, 19 U.S.C. ' 1307.⁴ When the FLETF published its strategy on June 17, 2022, it included input from many public and private stakeholders on topics such as (1) the risk of importing goods mined, produced, or manufactured with forced labor in China, (2) an evaluation of forced-labor schemes, (3) additional resources to ensure no forced labor goods enter US ports, and (4) guidance to importers.⁵ The scope of this article will focus on the fourth prong.

Although the CBP applies a presumption that any goods found to be the product of forced labor under entities on the UFLPA Entity List are in violation of the Tariff Act, this is rebuttable so long as the importer requests an exception on the grounds that there is clear and convincing evidence that its imports were not "mined, produced, or manufactured wholly or in part with forced labor."⁶

This raises the obvious question: what is a good that is "manufactured or produced, wholly or in part?" More importantly, what is "forced labor?" The UFLPA adopted the Tariff Act's definition of forced labor, which is broadly described as "all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily.[including] forced...