This presumption may be rebutted if the U.S. Customs and Border Protection (CBP) certifies that the seized goods are known to not have been made with forced labor. While not explicitly spelled out in the UFLPA, it is expected that this will be a very high burden for importers to meet in practice. To obtain such certification, the importer will most notably have to demonstrate by “clear and convincing evidence” that the goods in question were not – in whole or in part – made with forced labor. Following a public comment period, a task force chaired by the U.S. Department of Homeland Security will develop a strategy and issue a guidance document (expected May 2022) to clarify how importers should conduct their supply chain due diligence and the kinds of evidence that can be provided to demonstrate that goods imported from China were not made in Xinjiang or with forced labor.
The UFLPA builds on the U.S. policy codified in section 307 of the Tariff Act 1930 (19 U.S.C. § 1307) that already has a generalized prohibition on the import of goods mined, produced, or manufactured (wholly or in part) with forced labor. This U.S. policy gained further specificity and traction when the CBP issued a Withhold Release Order (WRO) that, from January 2021, directed personnel at U.S. ports to detain shipments of cotton and tomato products originating from Xinjiang. Another similar WRO was issued in June 2021 concerning silica-based products. The UFLPA applies much more broadly than the WROs (i.e., to all imports originating from Xinjiang), but does identify cotton, tomatoes, and polysilicon as “high-priority” goods for the purposes of enforcement.