Public Comments on Uyghur Forced Labor Prevention Law – International Trade & Investment

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In March and April, the public had the opportunity to comment on the Uyghur Forced Labor Prevention Law (“UFLPA” or the “Law”) through written comments and a public hearing. These events were the main opportunities for the public to contribute to the Anti-Forced Labor Task Force (“FLETF”) on the implementation of the UFPLA. Now, the FLETF will consider the comments and use them to inform the final implementation of the law. The UFPLA will come into full effect on June 21, 2022.

Replies to Written Comments

Comments to UFPLA can be grouped into three main categories: companies that import and export between the United States and China, human and labor rights groups, and Chinese producers.

Businesses engaged in cross-border trade have requested more detail on various definitions from the UFLPA, particularly the “clear and convincing evidence” standard needed to rebut the presumption that goods from the Xinjiang Uyghur Autonomous Region (“XUAR “) are made with forced labor.1 These companies acknowledged that it is extremely difficult to collect complete information on XUAR factories and expressed their hope that the standard will not hold a lack of evidence against importers and that it can be satisfied through the use audit services available in the XUAR. .2 They also asked for further clarification on forced labor investigations and hoped that the FLETF would consider opportunities for importers to refute forced labor allegations before issuing a suspension of release (“WRO”) order. They added that a “trusted importer” program that would pre-screen goods from a forced labor context would help bring peace of mind to importers.3 Exporters and importers also requested a 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 asked for a deferral of the enforcement of the law, once implemented, so that companies can adapt their business models and gather the documentation required to comply with the law.5

Human and labor rights groups wanted strict enforcement of the UFPLA, with limited exceptions. They said the inability to obtain information on parts of the supply chain should be held against an importer. They also wanted the “clear and convincing evidence” standard to require extensive documentation, including a full supply chain map, which would include photos of all facilities and copies of supplier contracts.6 Some human rights groups have even called for all XUAR-related businesses and products to be subject to a general WRO, which would streamline enforcement and reduce the need for hundreds of individual WROs.7

Finally, the Chinese companies denied that their companies used forced labor and denied the existence of forced labor in the XUAR. They also hoped that the burden of proving the absence of forced labor in supply chains would not be too heavy.8

Next steps

On April 8, the FLETF held a public hearing and allowed witnesses to testify about the use of forced labor in China. Since the prompts for the public hearing and the written comments overlapped considerably, the arguments largely followed 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 products made with forced labor. This strategy is due 180 days after the enactment of the UFLPA; this is the same day that the rebuttable presumption for goods manufactured in the XUAR comes into effect. There is no set deadline for the publication of regulations or guidelines allowing importers to comply with the UFPLA’s rebuttable presumption.

Footnotes

1 For example American Apparel & Footwear Association, Retail Industry Leader Association, National Retail Federation, United States Fashion Industry Association, Forced Labor Working Group Comment Concerning Enforcement of the Uyghur Forced Labor Prevention Act, DHS-2022-0001-0181 (hereinafter American Apparel & Footwear Association Comment).

2 For exampleUS Council on International Business, USCIB Submission: Forced Labor Enforcement Task Force [Docket No.
DHS-2022-001] Notice Seeking Comments on Methods to Prevent the Importation of Goods Extracted, Produced, or Manufactured by Forced Labor in the People’s Republic of China, Particularly in the Xinjiang Uyghur Autonomous Region, United States, DHS-2022-0001 -0137, at 15 (hereinafter USCIB Commentary).

3 For example USCIB comment at 7-10.

4 For example American Apparel & Footwear Association Comment at 14-15

5 For example US-China Business Council, US-China Business Council Comments Concerning Enforcement of the Uyghur Forced Labor Prevention Act, DHS-2022-001-0167, p. 4 (hereinafter USCBC Comment); American Apparel & Footwear Association Comment at 2.

6 For example American Federation of Labor and Congress of Industrial Organizations, Re: DHS Docket No. DHS-2022-001, DHS-2022-001-0118, p. 6.

7 The Human Trafficking Legal Center, Comment on Methods to Prevent the Importation of Goods Mined, Produced, or Manufactured With Forced Labor in the People’s Republic of China, especially in the Xinjiang Uyghur Autonomous Region, USA, DHS-2022- 001 -0123, to 9.

8 For exampleFujian Luhangshun Import & Export Co., Ltd, comment submitted by Fujian Luhangshun Import & Export Co., Ltd, DHS-2022-001-0085.

9 For example China International Chamber of Commerce, Supplemental Written Evidence on Uyghur Forced Labor Prevention Law, DHS-2022-0001-0187; Uyghur Human Rights Project, Testimony of Louisa Greve, Director of Global Advocacy, Uyghur Human Rights Project, DHS_2022-0001-0184.

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This article by Mayer Brown provides information and commentary on interesting legal issues and developments. The foregoing is not a complete treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action regarding the matters discussed here.

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