In March and April, the public had the opportunity to comment on the Uyghur Forced Labor Prevention Act (“UFLPA” or “the law”) through written comments and a public hearing. These events were the great opportunity for the public to provide input to the Forced Labor Enforcement Task Force (“FLETF”) on the implementation of the UFPLA. Now, FLETF will review the comments and use them to inform about the final implementation of the law. UFPLA will be fully effective on June 21, 2022.
Written comment responses
The comments to the UFPLA can be grouped into three main categories: companies importing and exporting between the United States and China, human and labor rights groups, and Chinese manufacturers.
Companies engaged in cross-border trade sought more detail on various definitions in the UFLPA, in particular the “clear and convincing evidence” standard needed to dispel the presumption that goods from the Xinjiang Uyghur Autonomous Region (“XUAR”) is made with forced labor.1 These companies acknowledged that it is extremely difficult to gather comprehensive information on factories in XUAR, and expressed their hope that the standard will not contain a lack of evidence against importers and will be one that can be met through the use of auditing services available. and XUAR.2 They also requested further clarification on forced labor investigations and hoped that the FLETF would consider options for importers to reject claims of forced labor before issuing a detention order (“WRO”). They added that a “trusted importer” program that would pre-clear goods from a forced labor context would help give importers peace of mind.3 Exporters and importers also sought one de minimis exception to avoid conducting a full forced labor audit due to the presence of a minor input in their final products.4 Finally, these importers requested delayed enforcement of the law once it was implemented so that companies could adapt their business models and gather the necessary documentation to comply with the law.5
Human and labor rights groups wanted strict enforcement of the UFPLA, with limited exceptions. They stated that an inability to obtain information on parts of the supply chain should be held against an importer. They also wanted the standard of “clear and convincing evidence” to require substantial documentation, including complete supply chain mapping, which would include photos of all facilities and copies of contracts with suppliers.6 Some human rights groups even called for all companies and products with links to XUAR to be subject to a general WRO, which would streamline enforcement and reduce the need for hundreds of individual WROs.7
Finally, Chinese companies denied that their companies used forced labor and denied the existence of forced labor in XUAR. They also hoped that the burden of proving a lack of forced labor in the supply chains would not be too great.8
On April 8, the FLETF held a public hearing and allowed witnesses to testify about the use of forced labor in China. As the calls for both the public hearing and the written comments significantly overlapped, the arguments largely traced the written testimony.9
Now that all public comments on the UFLPA are closed, the FLETF must create its strategy to prevent imports of Chinese goods made by forced labor. This strategy expires 180 days after the adoption of the UFLPA; it is the same day that the refutable presumption for goods manufactured in XUAR takes effect. There is no set deadline for publication of rules or guidance for importers to comply with the UFPLA’s rebuttable presumption.
1 E.g American Apparel & Footwear Association, Retail Industry Leader Association, National Retail Federation, United States Fashion Industry Association, Forced Labor Working Group Comment on Uyghur Forced Labor Prevention Act Enforcement, DHS-2022-0001-0181 Comment).
2 E.gUS Council on International Business, USCIB Submission: Forced Labor Enforcement Task Force [Docket No. DHS-2022-001] Notice seeking comments on methods of preventing the importation of goods obtained, produced or manufactured by forced labor in the People’s Republic of China, in particular in the Xinjiang Uyghur Autonomous Region, to the United States, DHS-2022-0001-0137, at 15 (hereinafter USCIB Commentary).
3 E.g USCIB comment at 7-10.
4 E.g American Apparel & Footwear Association Comment at 14-15
5 E.g US-China Business Council, U -ghur Forced Labor Prevention Act, DHS-2022-001-0167, at. 4 (hereinafter referred to as the USCBC Commentary); American Apparel & Footwear Association Comment on 2.
6 E.g American Federation of Labor and Congress of Industrial Organizations, RE: DHS Doc. No. DHS-2022-001, DHS-2022-001-0118, at 6.
7 Human Trafficking Legal Center, commentary on methods of preventing the importation of goods obtained, produced or manufactured by forced labor in the People’s Republic of China, in particular in the Xinjiang Uyghur Autonomous Region, to the United States, DHS-2022-001-0123, 9 am.
8 E.gFujian Luhangshun Import & Export Co., Ltd, Comment submitted by Fujian Luhangshun Import & Export Co., Ltd, DHS-2022-001-0085.
9 E.g China Chamber of International Commerce, Supplementary Written Evidence of Uyghur Forced Labor Prevention Act, DHS-2022-0001-0187; Uyghur Human Rights Project, Testimony of Louisa Greve, Director of Global Advocacy, Uyghur Human Rights Project, DHS_2022-0001-0184.