Enforcement of the Uyghur Forced Labor Prevention Act Begins in the United States & More News Here

June 23, 2022

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The Uyghur Forced Labor Prevention Act (“UFLPA” or “Act”)—and its stringent import restrictions—took impact on June 21, 2022.[1] The Act, the newest effort by the United States regarding the Uyghur inhabitants in China’s Xinjiang Uyghur Autonomous Region (“XUAR”), tremendously will increase the displaying that firms have to make to show that items produced in the XUAR, in full or in half, are entitled to entry into the United States. All merchandise manufactured in the area or produced by a listing of entities which have now been designated by the interagency Forced Labor Enforcement Task Force (“FLETF”) are presumptively barred from entry into the United States except the importer can current “clear and convincing” proof that the product has not been tainted by the use of pressured labor.[2]

As U.S. Customs and Border Protection (“CBP”) begins to implement the Act, importers of sure merchandise and merchandise that will incorporate uncooked supplies or manufactured components or elements which might be suspected to have touchpoints with the XUAR or with a number of of China’s “anti-poverty alleviation” applications ought to be conscious of heightened diligence and provide chain tracing necessities essential to rebut the UFLPA’s presumptive import ban on XUAR-linked shipments.

I. Background

As we’ve got shared in previous shopper alerts, the UFLPA is the newest in a protracted line of U.S. government and legislative efforts focusing on alleged pressured labor in the provide chains of items getting into the United States.

For practically a century, the 1930 Tariff Act has approved CBP to forestall the importation of “[a]ll goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by . . . forced labor” by issuing Withhold Release Orders (“WROs”).[3] CBP’s authority underneath the Tariff Act was strengthened in 2016 when Congress eradicated a loophole that allowed importation of merchandise made with pressured labor if the merchandise was not additionally out there in the United States in portions ample to fulfill U.S. consumptive demand.[4]

More just lately, the U.S. reaffirmed its broad dedication to stopping imports tainted by pressured labor in the 2020 United States-Mexico-Canada Agreement (“USMCA”). Under this free commerce settlement, every North American nation agreed to “prohibit the importation of goods into its territory from other sources produced in whole or in part by forced or compulsory labor.”[5] To oversee the implementation of this dedication, former President Trump issued an government order creating the FLETF, chaired by the Secretary of Homeland Security and together with representatives from the Departments of State, Treasury, Justice, Labor, and the Office of the U.S. Trade Representative.[6]

The measures described above goal pressured labor wherever it happens, however, in latest years, the U.S. has centered more and more on allegations of pressured labor and different human rights abuses in the XUAR. New laws approved sanctions for these alleged abuses in 2020,[7] and, in 2021, CBP’s heightened scrutiny of imports from the XUAR led to a region-wide WRO affecting cotton and tomato imports[8] and a further WRO focusing on silica-based merchandise from Xinjiang.[9]

After passing each homes of Congress with broad bipartisan assist, President Biden signed the UFLPA into legislation on December 23, 2021.[10] The UFLPA represents the U.S.’s most forceful effort to this point to handle this situation in the XUAR. Experts estimate that the UFLPA will have an effect on the international economic system “measured in the many billions of dollars.”[11]

The Act’s attain is broad, presumptively banning the importation of “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in” the XUAR, in addition to these produced by a quantity of entities recognized by the FLETF.[12] To rebut this presumptive ban, importers should present: (1) their compliance with all of the Act’s implementing rules and FLETF’s due diligence steerage,[13] (2) that they responded “completely and substantively” to all company inquiries,[14] and (3) “clear and convincing evidence” that their items weren’t produced with pressured labor.[15]

II. FLETF Enforcement Strategy

The Act requires the FLETF to promulgate an enforcement technique[16] which is able to embody particular steerage to importers concerning due diligence, the quantity and kind of proof that importers might want to present to rebut the Act’s presumption, and what entities will likely be presumptively barred.[17] In the months following the UFLPA’s enactment, the FLETF solicited enter from the public to tell its eventual Enforcement Strategy,[18] holding a public listening to,[19] and receiving 180 written feedback from U.S. and international companies, {industry} associations, civil society, teachers, and personal people.[20] After the shut of this public remark interval, the FLETF revealed its enforcement technique and submitted it as a report back to Congress on June 17, 2022.[21] To complement this technique, CBP revealed “Operational Guidance for Importers“ on June 13, 2022.[22]

A. The UFLPA Entity Lists

In addition to presumptively prohibiting imports originating, in entire or in half, in the XUAR, the UFLPA’s rebuttable presumption extends to items, wares, articles, and merchandise produced by varied entities recognized by the FLETF in its enforcement technique.[23] These embody entities that work with the XUAR authorities to recruit, transport, or obtain alleged pressured labor from the XUAR, in addition to entities that take part in “poverty alleviation” and “pairing-assistance” applications in the XUAR.[24] These PRC government-administered labor applications reportedly goal Uyghurs, Kazakhs, Kyrgyz, Tibetans, and different persecuted teams, putting them in farms and factories in the XUAR and throughout China. Workers in these schemes are reportedly subjected to systemic oppression by way of pressured labor.[25] In “pairing-assistance” applications, for instance, Chinese firms are reportedly inspired to create satellite tv for pc factories in XUAR that then depend on internment camps for low-skilled labor.[26] The FLETF discovered that indicators of pressured labor are significantly robust throughout the 4 sectors it has recognized as high-priority sectors for enforcement underneath the UFLPA: attire, cotton, silica-based merchandise, and tomatoes.[27]

The UFLPA Entity List[28] that the FLETF revealed on June 17 stays comparatively slim, together with solely entities topic to current WROs or listed to the Department of Commerce Bureau of Industry and Security’s (“BIS”) Entity List for his or her use of pressured labor.[29] Notably, no downstream photo voltaic cell or photo voltaic module producers have been added to the UFLPA Entity List at the moment, which was a particular concern raised by some in the photo voltaic {industry}.[30] A quantity of Chinese polysilicon corporations, nonetheless, are listed.

However, the Act requires the FLETF to replace the UFLPA Entity List not less than yearly, and the whole-of-government strategy that the FLETF will likely be taking to determine new entities means that the FLETF might be aggressive in its designation of new Chinese entities linked to pressured labor violation allegations going ahead.

B. Priority Sectors for Enforcement

As half of its enforcement technique, the UFLPA requires the FLETF to determine a listing of “high-priority sectors for enforcement,” which the statute signifies should embody cotton, tomatoes, and polysilicon.[31]

The enforcement technique revealed on June 17, 2021 doesn’t stray considerably from the statutorily mandated checklist of high-priority sectors. It expands this checklist barely to incorporate:

1. Apparel;
2. Cotton and cotton merchandise;
3. Silica-based merchandise (together with polysilicon); and
4. Tomatoes and downstream merchandise.

However, since there isn’t a de minimis exception in the Act, importers of a variety of merchandise could discover their merchandise the goal of a possible exclusion order, detention or seizure.  To illustrate, in its report back to Congress, CBP notes that these silica-based merchandise could embody aluminum alloys, silicones, and polysilicon, that are themselves used in constructing supplies, cars, petroleum, concrete, glass, ceramics, electronics, and photo voltaic panels, amongst different items. Especially for importers with last merchandise or with merchandise that will have any of the foregoing as materials inputs, importers will must be acquainted with and meet the evidentiary burden in reference to the complete provide chain, regardless of how small or distant a provider’s enter could also be to a last product.[32]

For XUAR-linked cotton, tomatoes, and polysilicon, CBP has revealed particular steerage on provide chain documentation that could be crucial to beat the UFLPA’s rebuttable presumption towards importation. While this advisable documentation varies barely throughout the three sectors, at a excessive degree, CBP recommends the following:

1. Documentation displaying the complete provide chain;
2. A movement chart mapping all steps of the procurement and manufacturing processes;
3. Maps of the area(s) the place the manufacturing processes happen; and
4. An inventory of all entities concerned in every step of the manufacturing processes, with citations denoting the enterprise data used to determine every upstream entity with whom the importer didn’t straight transact.

The CBP’s enforcement of the UFLPA’s presumptive import ban on every of these high-priority sectors can have a considerable impact on international provide chains involving these merchandise. More than 40 p.c of the world’s polysilicon, 1 / 4 of its tomato paste, and a fifth of its cotton provides originate in the XUAR.[33] Industry teams from these focused sectors have already begun to organize for elevated scrutiny and mitigate the menace of provide shortages by growing industry-wide requirements for provide chain traceability.[34] Even these requirements, nonetheless, will not be ample to beat the presumption that merchandise which incorporate any quantity of materials sourced from the XUAR have been produced with prohibited labor inputs.

C. Guidance on Effective Due Diligence & Supply Chain Tracing

As a key factor of their rebuttal to the UFLPA’s presumption, importers should present that they’ve complied with CBP and FLETF steerage on due diligence, together with efficient provide chain tracing and provide chain administration practices. In its enforcement technique, the FLETF outlines essential parts of this due diligence course of, whereas additionally elevating issues that efficient diligence could not all the time be doable in the XUAR.

1. Effective Due Diligence

The FLETF technique refers largely to the Department of Labor’s Comply Chain program[35] in defining the parts of an efficient due diligence system. These parts embody:

1. Engaging stakeholders and companions;
2. Assessing dangers and impacts;
3. Developing a code of conduct;
4. Communicating and coaching throughout the provide chain;
5. Monitoring compliance;
6. Remediating violations;
7. Independent critiques; and
8. Reporting efficiency and engagement.

However, FLETF raises issues that some of these parts will not be doable when coping with items made in the XUAR or made utilizing the labor of employees from sure PRC labor schemes. For instance, the FLETF notes that importers could also be unable to sufficiently interact with stakeholders, resembling workers of its suppliers, or conduct credible audits as a result of restrictions on entry to Xinjiang and reported authorities surveillance and coercion that renders witnesses unable to talk freely about working circumstances.[36] At a minimal, as a result of of these issues, audits of compliance by suppliers and subcontractors in the XUAR should “go beyond traditional auditing.” The FLETF means that importers might have to make use of expertise or partnerships with civil society to gather proof to rebut the presumption, however doesn’t present extra concrete steerage on the what expertise and partnerships will likely be deemed by CBP to supply credible proof.[37]

Additionally, an importer’s capacity to conduct due diligence and remediate violations could also be restricted by Chinese legal guidelines, resembling the PRC’s Anti-Foreign Sanctions Law. In reality, the FLETF acquired written feedback from {industry} teams reporting that the Chinese authorities had retaliated towards Chinese firms for complying with U.S. necessities to get rid of provide chain inputs from the XUAR.[38]

2. Effective Supply Chain Tracing

At a minimal, importers looking for to rebut the UFLPA’s presumption should conduct a whole mapping of the provide chains that present inputs to their merchandise, “up to and including suppliers of raw materials used in the production of the imported good or material.”[39] Per the FLETF enforcement technique, efficient provide chain mapping should transcend a mere checklist of names of suppliers and their sub-tiers and embody accounts of the circumstances underneath which work is being executed on the inputs at every step in the sourcing course of.[40]

In addition to mapping, the FLETF technique emphasizes the significance of id preservation and segregation to forestall the commingling of inputs at any level in the provide chain. This threat is especially excessive for importers whose suppliers supply uncooked or partially processed materials inputs from each Xinjiang and areas outdoors of the XUAR. Without robust id preservation or segregation protocols, these importers threat their shipments being detained as a result of of the issue of verifying that their provide chain makes use of solely non-Xinjiang inputs.

3. Effective Supply Chain Management Measures

The FLETF defines “supply chain management measures” as these measures “taken to prevent and mitigate identified risks of forced labor.”[41] Such measures could contain processes to vet potential suppliers for pressured labor previous to contracting or outlining particular penalties for a provider’s breach of its pressured labor commitments. Practically talking, the design and implementation of these measures would require sturdy info methods to handle and recurrently replace provide chain information.

Notably, nonetheless, an importer’s capacity to demand these provide chain administration measures could also be restricted by the leverage it holds over its suppliers and its visibility into its provide chains. Therefore, importers with static provide chains involving long-term success contracts could also be higher positioned to implement such measures than these collaborating in one-time transactions involving a provide chain with steadily altering inputs.

D. Guidance on the “Clear and Convincing” Standard

Neither the FLETF’s enforcement technique nor CBP’s operational steerage clearly outline the contours of the “clear and convincing” normal for proof essential to rebut the UFLPA’s presumption. In a collection of unrecorded webinars, nonetheless, CBP officers have said that they view this normal as greater than a preponderance of the proof normal and would require a a lot larger displaying than the present normal required for WROs.[42] CBP indicated that it will mannequin its interpretation of this “clear and convincing evidence” normal on the Countering America’s Adversaries Through Sanctions Act (“CAATSA”) which it additionally applies to implement import prohibitions on North Korea.[43]

As in the UFLPA, underneath CAATSA, solely “clear and convincing evidence” can rebut the presumption that every one North Korean labor is pressured labor.[44] CBP interprets CAATSA’s “clear and convincing” normal to imply “highly probable,”[45] suggesting that the burden will solely be met “if the material [] offered instantly tilt[s] the evidentiary scales in the affirmative when weighed against the evidence . . . offered in opposition.”[46]

Under this normal, a lot proof which could have been ample underneath the WRO normal won’t be enough to rebut the presumption of exclusion. For instance, whereas CBP workers indicated that provider audits is perhaps related proof in figuring out whether or not pressured labor was used whereas producing detained items,[47] audits are possible inadequate on their very own to beat UFLPA’s presumption.[48] Amidst allegations of surveillance and harassment of auditors in the XUAR, workers could not be at liberty to completely focus on their employers, working circumstances, or governmental applications, and native suppliers may restrict the entry of auditors to the premises.[49] As such, CBP workers implied that even third-party audits will likely be presumptively faulty except the firm presents ample proof to persuade the company of the audit’s independence and effectiveness.[50] Amidst these uncertainties, it’s extra possible that CBP will discover that nobody piece of proof is ample by itself, and that importers’ efforts to assist their arguments with a number of items of proof will likely be extra prone to be accepted as compelling by CBP.[51]

Furthermore, the reality {that a} product has acquired an exception to the presumption in the previous shouldn’t be a assure that the identical provide chain will likely be permitted in the future. While CBP said that proof of previous exceptions is clearly related and ought to be submitted to the company, it has not given any definitive rule concerning previous exceptions.[52] However, this does suggest that importers utilizing extra common provide chains, involving the identical suppliers and sub-tier suppliers over time, will have the ability to extra simply present clear and convincing proof than will importers utilizing less-regular provide chains.

III. Enforcement Procedures

A. Enforcement Timeline

The UFLPA’s adjustments to CBP’s mandate and authorities grew to become efficient on June 21, 2022.  Going ahead, CBP will evaluate every cargo for UFLPA applicability on a case-by-case foundation, based mostly on the UFLPA Entity List and a spread of different sources.

The UFLPA’s shortened timeline for CBP’s identification of dispositioning of doubtlessly problematic imports locations a premium on provider planning and preparation. Under UFLPA, CBP derives its detention authority from 19 CFR § 151.16, making the timeline for enforcement a lot shorter than underneath the preexisting WROs.[53] As against the 90-day interval underneath a WRO, importers whose shipments have been detained pursuant to the UFLPA have solely 30 days to problem this detention.

After a cargo has been offered for examination, CBP can have 5 days, excluding weekends and holidays, to find out whether or not the cargo ought to be launched or detained.[54] If CBP determines {that a} cargo falls inside the scope of the UFLPA—both based mostly on hyperlinks to the XUAR or to listed entities—CBP will situation a detention discover instructing the importer to submit info rebutting the UFLPA’s presumption.[55] After 30 days, CBP is required to situation a last ruling on the items’ admissibility.[56]

Because of this accelerated timeline for evaluate, CBP has emphasised that importers ought to be ready to submit proof in assist of their requests promptly and in accessible codecs, noting that submitting documentation in English will facilitate an environment friendly evaluate.[57] In flip, CBP will try to prioritize requests from importers who’re Customs Trade Partnership Against Terrorism (CTPAT) Trade Compliance members in good standing.[58]

If CBP points a last ruling excluding the cargo, the importer could protest that call inside 180 days.[59] CBP then has 30 days to reply to the protest, after which will probably be deemed denied.[60] Having exhausted this administrative process, importers then have 180 days from the denial of the protest to file a courtroom motion difficult CBP’s final determination.[61]

Certain shipments decided to be in violation of the UFLPA could also be topic to seizure and forfeiture.[62] In an unrecorded webinar on June 7, 2022, nonetheless, CBP officers indicated that seizure would solely happen in instances of apparent fraud, versus good religion errors.[63]

B. Challenging Detention of a Shipment

An importer whose cargo has been detained pursuant to the UFLPA can pursue two completely different claims to acquire the launch of their merchandise: (1) that the cargo shouldn’t be topic to the UFLPA, and (2) that the cargo is entitled to an exception from the UFLPA.

Though each may end up in a launched cargo, these two claims apply in very completely different conditions. The former arises when an importer alleges that their cargo doesn’t include any inputs linked to the XUAR or entities on the UFLPA Entity List. In distinction, the latter arises if the importer can show that—though the cargo is linked to the XUAR or an entity of the UFLPA entity checklist—no half of the cargo was produced with pressured labor.

1. For Imports Not Subject to the UFLPA

A cargo is taken into account outdoors the scope of the UFLPA’s rebuttable presumption if each the imported items and their inputs are “sourced completely from outside Xinjiang and have no connection to the UFLPA Entity List.”[64]

CBP’s operational steerage signifies that importers trying to set up {that a} cargo shouldn’t be topic to the UFLPA should make showings underneath each of the following classes of proof: (1) provide chain mapping info, and (2) proof that the items weren’t mined, produced, or manufactured wholly or in half in the XUAR. The former ought to embody proof pertaining to the general provide chain, in addition to to merchandise or any element thereof in addition to to the miner, producer, or producer. CBP’s steerage offers non-exhaustive examples of the sorts of proof that may fulfill these necessities.

2. For Imports Subject to UFLPA’s Rebuttable Presumption

In distinction, shipments are topic to the UFLPA in the event that they include items which might be both “mined, produced, or manufactured wholly or in part in” the XUAR or produced wholly or in half by an entity on the UFLPA entity. These shipments will solely be launched if the importer requests an “exception” to the UFLPA and may show (1) their compliance with all of the Act’s implementing rules and FLETF’s due diligence steerage,[65] (2) that they responded “completely and substantively” to all company inquiries,[66] and (3) “clear and convincing evidence” that their items weren’t produced with pressured labor.[67]

To meet these necessities, CBP states that an importer should make a displaying underneath every of the following classes of proof:

1. Due Diligence System Information
2. Supply Chain Tracing Information
3. Information on Supply Chain Management Measures
4. Evidence Goods Originating in China Were Not Mined, Produced, or Manufactured Wholly or In Part by Forced Labor

In its steerage, CBP offers a non-exhaustive checklist of proof that could possibly fulfill these necessities. If CBP determines that this proof is “clear and convincing,” the presumption will likely be rebutted and the items will likely be launched underneath an exception to the Act. Within 30 days of any determination to grant an exception to the UFLPA, CBP should submit a publicly out there report back to Congress, outlining the proof supporting this exception.[68] However, importers could search to have sure info withheld from the public report pursuant to any relevant exemptions contained in the Freedom of Information Act.[69]

C. Predicting Enforcement Strategies and Trends

While the authorities has expressed an intent to implement the UFLPA to its fullest extent, CBP sources are finite. In the fast future, subsequently, we count on to see enforcement centered on the UFLPA Entity List and on the 4 sectors recognized by the FLETF as high-priority sectors: attire, cotton, silica-based merchandise, and tomatoes. Beyond these key sectors, CBP’s early enforcement consideration will possible be centered by media reporting, Congressional scrutiny, and civil society ideas.

Even U.S. firms not in any of these instantly prioritized enforcement sectors should, nonetheless, stay aware of their provide chain publicity to the XUAR and be ready to focus compliance program sources on their provide chains. This is very true as enforcement of the UFLPA expands with the availability of new applied sciences, extra funding for UFLPA enforcement, and elevated collaboration amongst enforcement businesses, {industry} teams, and civil society.

1. Enhanced Supply Chain Tracing Technologies

Given the ever-increasing complexity of international provide chains, efficient identification of shipments topic to the UFLPA would require subtle provide chain tracing applied sciences. Accordingly, the FLETF enforcement technique instructs CBP to prioritize a variety of technological capabilities. These embody:

• Advanced engines like google that will enable CBP to extra simply hyperlink identified pressured labor violators with associated companies, together with shell firms and layered possession buildings;
• Foreign company registry information that will enable CBP to map the buildings or multinational firms and networks;
• Scanning, translation, and information extraction of non-text-searchable paperwork;
• Remote sensors to assist digital traceability of uncooked supplies sourced from Xinjiang; and
• Enhanced modeling instruments and machine leaning.[70]

As CBP acquires and refines these applied sciences, the company will have the ability to develop enforcement of the UFLPA past shipments most clearly tied to listed entities and high-priority sectors in the XUAR.

2. Increased Funding for UFLPA Enforcement

Despite its intention to implement the UFLPA robustly, CBP’s sources are finite. Various funding requests included in the FLETF’s enforcement technique, nonetheless, point out how the company could scale its enforcement of the Act in the coming years.

In addition to price range requests associated to the tracing expertise mentioned above, the technique focuses largely on three areas for elevated spending, each at CBP and at DHS: staffing, technique and coordination, and outreach.[71] Notably, the technique signifies that CBP has already acquired funding to create 65 extra positions, in addition to funding to cowl extra time, to make sure ample staffing to implement the UFLPA.[72] Likewise, funding for technique efforts will enable DHS to interact with worldwide companions and coordinate different U.S. authorities initiatives associated to Chinese pressured labor.[73]

3. Inter-Agency Collaboration and Stakeholder Engagement

Lastly, the FLETF enforcement technique emphasizes the want for coordination and collaboration with related stakeholders in order to successfully implement the UFLPA. This collaboration will span the personal sector, civil society, and different authorities businesses.

FLETF has indicated an intention to host a quantity of joint-interagency conferences and working-level conferences with each NGOs and the personal sector to debate UFLPA enforcement on not less than a biannual foundation.[74] While these conferences could enable {industry} teams to voice issues with the UFLPA’s impression on their enterprise, they will even facilitate NGO recommendations on pressured labor in provide chains past the UFLPA’s high-priority sectors.

Moreover, elevated interagency coordination could result in the designation of extra entities to the UFLPA Entity List and the identification of extra high-priority enforcement sectors. For instance, the Department of Labor recurrently produces detailed experiences on Goods and Products Produced by Forced or Indentured Child Labor. Although FLETF has centered UFLPA enforcement on attire, cotton, silica-based merchandise, and tomatoes, these Department of Labor experiences already checklist a quantity of different merchandise tainted by pressured labor in China, resembling bricks, electronics, and synthetic flowers. Increased communication between the Department of Labor and the FLETF might result in these extra sectors being designated as high-priority.

IV. Expected PRC Response

The PRC authorities has lengthy denied any allegations of pressured labor in the XUAR and has  seen international makes an attempt to handle this situation as assaults on Chinese sovereignty.[75] Immediately following the passage of the UFLPA in December 2021, the PRC Ministry of Foreign Affairs reiterated these issues, characterizing the act as “violat[ing] international law” and “grossly interfer[ing] in China’s internal affairs.”[76] In gentle of these feedback, the PRC authorities is prone to view U.S. enforcement of the Act as an escalation of this perceived assault on Chinese sovereignty.

Given this robust response from Beijing, it’s possible that China could implement new countersanctions and enhance enforcement of its current blocking statute, described in element in our earlier alert. By creating vital authorized penalties for Chinese individuals who adjust to prohibited extraterritorial purposes of international legislation, enforcement of this blocking statute can have the added impact of making efficient diligence in the XUAR much more difficult. U.S. importers could also be left unable to assemble from their Chinese suppliers the documentation essential to fulfill the UFLPA’s excessive evidentiary normal.

Notably, the elevated pressure between the U.S. and China brought on by the UFLPA coincides with the continued financial isolation of Russia. In coming months, we will count on China to proceed to be pushed nearer towards Russia and the small group of non-aligned international locations which have remained impartial with respect to Russia.

Despite the prospect of countersanctions and elevated commerce between China and Russia, neither the Biden administration nor the U.S. Congress are prone to be sympathetic to Chinese issues about the UFLPA’s attain. Instead, sturdy enforcement of the UFLPA will be anticipated to proceed, motivated by bipartisan assist for pressured labor initiatives and U.S. issues about China’s place as an financial and strategic competitor. Companies with substantial sources could possibly leverage adjustments to their provide chains to adjust to the UFLPA’s calls for. Still, they might contemplate bifurcated provide chains, with one provide chain resulting in the Chinese market and the different destined for the U.S. and different jurisdictions the place pressured labor initiates are on the rise. Companies with fewer sources, nonetheless, could also be pressured to supply their uncooked supplies and different inputs from different jurisdictions.

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   [1]   U.S. Customs & Border Prot., Fact Sheet: Uyghur Forced Labor Prevention Act of 2021 (2022), https://www.cbp.gov/sites/default/files/assets/documents/2022-Jun/UFLPA%20Fact%20Sheet_FINAL.pdf.

   [2]   Uyghur Forced Labor Prevention Act, Pub. L. No. 117-78, § 3(a), (b)(2) (2021).

   [3]   19 U.S.C. § 1307.

   [4]   Pub. L. No. 114-125 § 910 (2016)

   [5]   United States-Mexico-Canada Agreement artwork. 23.6, Dec. 10, 2019, Pub. L. 116-113 (2020).

   [6]   Exec. Order No. 13923, 85 Fed. Reg. 30587 (2020).

   [7]   Uyghur Human Rights Policy Act, Pub. L. No. 116-145 (2020).

   [8]   Press Release, CBP Issues Region-Wide Withhold Release Order on Products Made by Slave Labor in Xinjiang, U.S. Customs & Border Prot. (Jan. 13, 2021), https://www.cbp.gov/newsroom/national-media-release/cbp-issues-region-wide-withhold-release-order-products-made-slave?language_content_entity=en.

   [9]   Press Release, The Department of Homeland Security Issues Withhold Release Order on Silica-Based Products Made by Forced Labor in Xinjiang, U.S. Customs and Border Prot. (Jun. 24, 2021), https://www.cbp.gov/newsroom/national-media-release/department-homeland-security-issues-withhold-release-order-silica?language_content_entity=en.

  [10]   Uyghur Forced Labor Prevention Act, Pub. L. No. 117-78 (2021).

  [11]   Ana Swanson, Companies Brace for Impact of New Forced Labor Law, NY Times (Jun. 22, 2022), https://www.nytimes.com/2022/06/22/us/politics/xinjiang-uyghur-forced-labor-law.html?smid=em-share.

  [12]   Pub. L. No. 117-78 § 3(a) (2021).

  [13]   Id. § 3(b)(1)(A).

  [14]   Id. § 3(b)(1)(B).

  [15]   Id. § 3(b)(2).

  [16]   Id. § 2(c).

  [17]   Id. § 2(e).

  [18]   Notice Seeking Public Comments on Methods To Prevent the Importation of Goods Mined, Produced, or Manufactured With Forced Labor in the People’s Republic of China, 87 Fed. Reg. 3567 (Jan. 24, 2022).

  [19]   FLETF Public Hearing on the Uyghur Forced Labor Prevention Act, Regulations.gov, https://www.regulations.gov/document/DHS-2022-0001-0192 (final visited June 10, 2022).

  [20]   Report to Congress, Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China at 8, U.S. Dep’t of Homeland Sec. (Jun. 17, 2022), https://www.dhs.gov/sites/default/files/2022-06/22_0617_fletf_uflpa-strategy.pdf (hereinafter “FLETF Enforcement Strategy”).

  [21]   Id.

  [22]   Uyghur Forced Labor Prevention Act: Operational Guidance for Importers, U.S. Customs & Border Prot. (Jun. 13, 2022), https://www.cbp.gov/sites/default/files/assets/documents/2022-Jun/CBP_Guidance_for_Importers_for_UFLPA_13_June_2022.pdf (hereinafter “CBP Operational Guidance for Importers”).

  [23]   Pub. L. 117-78 § 3(a) (2021).

  [24]   Id. at § 2(d)(2)(B).

  [25]   Xinjiang Supply Chain Business Advisory (Jul. 2, 2020, up to date Jul. 13, 2021), U.S. Department of the Treasury, https://home.treasury.gov/system/files/126/20210713_xinjiang_advisory_0.pdf (joint advisory by Departments of Treasury, State, Commerce, Labor, and Homeland Security and the Office of the U.S. Trade Representative).

  [26]   FLETF Enforcement Strategy at 19.

  [27]   Id. at 18.

  [28]   UFLPA Entity List, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/uflpa-entity-list (final visited Jun. 22, 2022).

  [29]   FLETF Enforcement Strategy at 22.

  [30]   Kelly Pickerel, Solar {industry} prepares for Uyghur Forced Labor Prevention Act implementation, Solar Power World (Jun. 20, 2022), https://www.solarpowerworldonline.com/2022/06/solar-industry-prepares-for-uyghur-forced-labor-prevention-act-implementation/.

  [31]   Pub. L. 117-78 § 2(d)(2)(B)(viii) (2021).

  [32]   Jane Luxton, Imports From China: The Clock Is Ticking On Implementation Of Uyghur Forced Labor Prevention Act, Lewis Brisbois (June 9, 2022), https://lewisbrisbois.com/newsroom/legal-alerts/imports-from-china-the-clock-is-ticking-on-implementation-of-uyghur-forced-labor-prevention-act?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration.

  [33]   Swanson, supra observe 11.

  [34]   See, Solar Supply Chain Traceability Protocol, Solar Energy Industries Assoc., https://www.seia.org/research-resources/solar-supply-chain-traceability-protocol (final visited Jun. 22, 2022).

  [35]   Comply Chain, U.S. Dep’t of Labor, https://www.dol.gov/ilab/complychain/ (final visited Jun. 22, 2022)

  [36]   FLETF Enforcement Strategy at 42, 44.

  [37]   Id. at 44.

  [38]   United States Council for International Business Comment to the Forced Labor Enforcement Task Force, Regulations.gov, 29 (Mar. 10, 2022), https://downloads.regulations.gov/DHS-2022-0001-0137/attachment_1.pdf.

  [39]   FLETF Enforcement Strategy at 45.

  [40]   Id. at 46.

  [41]   Id.

  [42]   Angela M. Santos et al., Uyghur Forced Labor Prevention Act Is Coming… Are You Ready?: CBP Issues Hints at the Wave of Enforcement To Come, NAT. L. REV. (June 2, 2022), https://www.natlawreview.com/article/uyghur-forced-labor-prevention-act-coming-are-you-ready-cbp-issues-hints-wave.

  [43]   Webinar with CBP workers (June 7, 2022). TJ Kendrick famous that “there is not much difference [between CAATSA and UFLPA] except we have a UFLPA strategy,” Joanne Colonnello referred to “several [CBP] rulings” concerning clear and convincing proof (together with on CAATSA) and Elva Muneton confirmed Kendrick and Colonnello’s observations.

  [44]   Countering America’s Adversaries Through Sanctions Act FAQs, DHS, February 11, 2021 (accessed: https://www.dhs.gov/news/2021/02/11/countering-america-s-adversaries-through-sanctions-act-faqs). Find CAATSA § 302A at 22 U.S.C. § 9241(a) and discover a side-by-side comparability of the related sections of CAATSA and UFLPA in the Appendix.

  [45]   Id. See additionally, Poof Apparel Application for Further Review, HQ H317249, Protest No. 4601-21-125334 (Mar. 5, 2021), out there at https://rulings.cbp.gov/ruling/H317249).

  [46]   Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (discovering in an equitable apportionment case that Colorado failed to fulfill the “clear and convincing” normal). Cited in Poof Apparel Application for Further Review, HQ H317249, Protest No. 4601-21-125334 (Mar. 5, 2021), out there at https://rulings.cbp.gov/ruling/H317249).

  [47]   Luxton, supra observe 32.

  [48]   Webinar with CBP workers (June 7, 2022).

  [49]   Alexandra Stevenson & Sapna Maheshwari, ‘Escalation of Secrecy’: Global Brands Seek Clarity on Xinjiang, New York Times (May 29, 2022), https://www.nytimes.com/2022/05/27/business/cotton-xinjiang-forced-labor-retailers.html.

  [50]   Webinar with CBP workers (June 7, 2022).

  [51]   See, e.g., 545231, Application for Further Review of Protest 1303-92-100212, U.S. Customs & Border Prot. (Nov. 5, 1993), https://rulings.cbp.gov/ruling/545231.

  [52]   Id.

  [53]   Santos et al., supra observe 42. Furthermore, future actions taken underneath the present XUAR WROs will comply with the UFLPA timeline. Webinar with CBP workers (June 7, 2022).

  [54]   19 C.F.R. § 151.16(b) (2022).

  [55]   Santos et al., supra observe 42.

  [56]   19 C.F.R § 151.16(e) (2022).

  [57]   CBP Operational Guidance for Importers at 10.

  [58]   Id. at 9–10.

  [59]   19 C.F.R. § 174.12(e) (2022).

  [60]   Id. § 151.16(g).

  [61]   Santos et al., supra observe 42.

  [62]   See 19 U.S.C. § 1595a; 19 C.F.R. Part 171

  [63]   Webinar with CBP workers (June 7, 2022). Joanne Colonnello cited for example of apparent fraud a cargo from Malaysia the place, upon opening the field, CBP might see a label stating “made with Xinjiang cotton.”

  [64]   FLETF Enforcement Strategy at 49.

  [65]   Id. § 3(b)(1)(A).

  [66]   Id. § 3(b)(1)(B).

  [67]   Id. § 3(b)(2).

  [68]   FLETF Enforcement Strategy at V.

  [69]   CBP Operational Guidance for Importers at 8.

  [70]   FLETF Enforcement Strategy at 31.

  [71]   Id. at 35–39.

  [72]   Id. at 37.

  [73]   Id. at 36.

  [74]   Id. at 53.

  [75]   China tells U.N. rights chief to respect its sovereignty after Xinjiang feedback, Reuters (Sep. 11, 2018), https://www.reuters.com/article/us-un-rights-china/china-tells-u-n-rights-chief-to-respect-its-sovereignty-after-xinjiang-comments-idUSKCN1LR0L0.

  [76]   Press Release, Foreign Ministry Spokesperson’s Statement on US’ Signing of the So-called Uyghur Forced Labor Prevention Act, Ministry of Foreign Affairs of the PRC (Jan. 24, 2021), https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/202112/t20211224_10475191.html.

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