As discussed in Reed Smith’s June 10 client alert, beginning June 21, 2022, the UFLPA applies a rebuttable presumption that imports of all goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region (Xinjiang) of the People’s Republic of China, or by entities on the forthcoming UFLPA Entity List, are made with forced labor and prohibited from entry into the United States. The presumption also applies to goods made in, or shipped through, China and other countries that include inputs made in Xinjiang. CBP will enforce the UFLPA by detaining, excluding, or seizing shipments subject to the rebuttable presumption. Those enforcement actions will follow existing procedures for detentions, protests, and seizures.1
Importers can request an exception to the UFLPA presumption during a detention, after an exclusion, or during the seizure process. CBP will prioritize requests from Customs Trade Partnership Against Terrorism (CTPAT) Trade Compliance members in good standing. Requests for an exclusion to the UFLPA presumption must be clearly stated and provide supporting documentation substantiating the request.
The types of supporting documentation CBP will require if an importer requests an exception include:
- Due diligence system information showing the importer has a due diligence system in place to ensure compliance with the UFLPA’s prohibition on forced labor. The due diligence system—in essence, a UFLPA compliance program—may include engagement with suppliers and stakeholders to address forced labor risks, supply chain mapping, a written supplier code of conduct forbidding the use of forced labor, employee and agent training on forced labor risks, ongoing monitoring of supplier compliance, remediation of any forced labor conditions identified, and public performance and engagement reporting. Additionally, importers should consider external, independent audits to verify the implementation and effectiveness of the due diligence system.
- Supply chain tracing information showing a detailed description of the overall supply chain from the raw materials to the imported goods. This may include merchandise and component documents (e.g., purchase orders, invoices for suppliers and sub-suppliers, payment records, etc.); records related to the miner, producer, or manufacturer (e.g., raw material tracing, reports on factory production capacity, reports on factory site visits, etc.); and the roles of the entities in the supply chain.
- Evidence the goods were not mined, produced, or manufactured wholly or in part in Xinjiang, which should be included in the importer’s supply chain tracing information.
- Evidence goods originating in China were not mined, produced, or manufactured wholly or in part by forced labor, including information about the workers involved in the production of the goods (e.g., wage payments, production output per worker, etc.), worker recruitment practices and internal controls to ensure all workers were recruited and are working voluntarily, and credible audits to identify forced labor indicators and remediate these issues.
- Supply chain management measures showing an importer has internal controls to mitigate forced labor risks.