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China Slavery Law Rules in Effect

U.S. Customs and Border Protection issued guidelines for importers regarding enforcement of the Uyghur Forced Labor Protection Act (UFLPA), which went into effect on June 21.

Under the law, all goods produced in whole or in part in the Xinjiang Uyghur Autonomous Region (XUAR) of China, or produced by entities on the UFLPA Entity List, are presumed to be made with forced labor and banned from entry into the U.S.

In anticipation of the June 21 deadline, the CBP issued “known importer letters” to companies who previously imported merchandise subject to the ban. However, importers are not in the clear if they have not received a letter from CBP.

Since then, CBP has issued a detailed guidance for importers about how they can demonstrate the goods that are blocked by CBP should not be held up under the terms of the law.

“This guidance has been anticipated by industry, especially importers sourcing products from China, since Dec. 23, 2021, when the UFLPA was signed into law by President Biden,” observe attorneys for the law firm of Foley Hoag.

Under the law, importers must provide “clear and convincing” evidence to CBP to rebut the presumption of forced labor. This presumption also applies to goods made in, or shipped through, other parts of China and other countries that include inputs made in the XUAR.

Under the UFLPA, an importer will have 30 days to challenge a detention, instead of the 90 days previously that were previously allowed by the Tariff Act, which blocked import of specific products that were assumed to have been made with Chinese forced labor.

The UFLPA supersedes Withhold Release Orders (WRO) previously issued blocking import of  cotton from XUAR and products made by the Xinjiang Production and Construction Corps.

The list of high-priority sectors included in the law was expanded by the CBP guidance to include apparel; cotton and cotton products; silica-based products (including polysilicon); and tomatoes and downstream products.

After a shipment is detained, importers must respond to all CBP requests for information and demonstrate by clear and convincing evidence that the goods were not produced wholly or in part by forced labor. The importer also must demonstrate due diligence processes, and effective supply chain tracing and management measures taken to ensure they do not import any goods made by forced labor.

If CBP decides the information provided by the importer demonstrates that the merchandise is outside the scope of the UFLPA, the importer will not need to overcome the law’s rebuttable presumption and CBP will release the shipment.

If an importer can demonstrate by that the goods were not made wholly or in part with forced labor, CBP will grant an exception to the UFLPA presumption and allow the goods to be imported.

The law also mandates that when an exception is granted, CBP must submit to Congress and the public a report identifying the goods and the evidence considered in reaching the determination that an exception was warranted.

China may implement new countersanctions and in addition to an existing blocking statute, which creates significant legal consequences for Chinese who comply with the new law. Its government already has said the act violates international law and grossly interferes in China’s internal affairs.

“U.S. importers may be left unable to gather from their Chinese suppliers the documentation necessary to satisfy the UFLPA’s high evidentiary standard, say attorneys for the Gibson Dunn law firm.

Click here to access the full version of CBP’s published guidance for importers.

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