Public Comments on the Uyghur Forced Labor Prevention Act
In March and April, the public had the opportunity to comment on the Uyghur Forced Labor Prevention Act (“UFLPA” or the “Act”) through written comments and a public hearing. These events were the public’s major opportunities to provide input to the Forced Labor Enforcement Task Force (“FLETF”) on the implementation of the UFPLA. Now, the FLETF will review the comments and use them to inform final implementation of the Act. The UFPLA will fully enter into force 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 US and China, human and worker’s rights groups, and Chinese producers.
Companies engaged in cross-border trade sought more detail on various definitions in 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 collecting comprehensive information on factories in the XUAR is extremely difficult, and expressed their hope that the standard will not hold a lack of evidence against importers and will be one that can be met through the use of auditing services available in the XUAR.2 They also requested additional clarity on forced labor investigations, and hoped the FLETF would consider opportunities for importers to disprove allegations of forced labor prior to issuing a withhold release order (“WRO”). They added that a “trusted importer” program that would pre-clear goods from a forced labor context would help bring peace of mind to importers.3 Exporters and importers also sought 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 sought delayed enforcement of the Act, once implemented, so that companies can adapt their business models and gather the required documentation needed to comply with the Act.5
Human and worker’s rights groups wanted strict enforcement of the UFPLA, with limited exceptions. They stated that an inability to get information on parts of the supply chain should be held against an importer. They also wanted the “clear and convincing evidence” standard to require significant 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 the XUAR to be subject to a blanket 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 the XUAR. They also hoped that the burden of proving a lack of forced labor in supply chains would not be too great.8
Next Steps
On April 8, the FLETF held a public hearing and allowed witnesses to testify on the use of forced labor in China. Since the prompts for both the public hearing and the written comments overlapped significantly, the arguments largely tracked the written testimony.9
Now that all public comment on the UFLPA has closed, the FLETF must create its strategy for preventing imports of Chinese goods made with forced labor. That strategy is due 180 days after the enactment of the UFLPA; this is the same day the rebuttable presumption for goods made in the XUAR goes into force. There is no set deadline for publication of regulations 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 Regarding Enforcement of the Uyghur Forced Labor Prevention Act, DHS-2022-0001-0181 (hereinafter American Apparel & Footwear Association Comment).
2 E.g., U.S. 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 Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China, Especially in the Xinjiang Uyghur Autonomous Region, Into the United States, DHS-2022-0001-0137, at 15 (hereinafter USCIB Comment).
4 E.g. American Apparel & Footwear Association Comment at 14-15
5 E.g. US-China Business Council, US-China Business Council Comments Regarding Enforcement of the Uyghur Forced Labor Prevention Act, DHS-2022-001-0167, at 4 (hereinafter USCBC Comment); American Apparel & Footwear Association Comment at 2.
6 E.g. American Federation of Labor and Congress of Industrial Organizations, RE: DHS Docket No. DHS-2022-001, DHS-2022-001-0118, at 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, Into the United States, DHS-2022-001-0123, at 9.
8 E.g., Fujian 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, Supplemental Written Testimony on the 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.
