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U.S. Government Takes First Steps Under Uyghur Forced Labor Prevention Act – Comment Period Opens and Published Questions Provide Initial Insights

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On January 24, 2022, the U.S. Department of Homeland Security (DHS) on behalf of the Forced Labor Enforcement Task Force (FLETF) issued a 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, especially in the Xinjiang Uyghur Autonomous Region, into the United States (RFC). The notice is available here. Comments are due by March 10, 2022.

Background
The RFC has been issued to assist the U.S. Government in implementing the Uyghur Forced Labor Prevention Act (UFLPA). The UFLPA requires, among other things, that the FLETF develop a strategy to apply Section 307 of the Tariff Act, preventing the importation into the United States of goods, wares, articles and merchandise mined, produced or manufactured wholly or in part by forced labor in the People’s Republic of China, and especially in the Xinjiang Uyghur Autonomous Region (XUAR).

The FLETF will conduct a public hearing by April 24, 2022, and invite witnesses to testify on the issue of forced labor and measures to prevent importation of products made with forced labor into the United States.

Request for Comments
The RFC seeks comments from the public regarding “how best to ensure that goods, wares, articles and merchandise mined, produced, or manufactured wholly or in part with forced labor in the People’s Republic of China.” Specifically, DHS asked for comment on the following:

    1. What are the risks of importing goods, wares, articles and merchandise mined, produced, or manufactured wholly or in part with forced labor in the People’s Republic of China, including from the Xinjiang Uyghur Autonomous Region or made by Uyghurs, Kazakhs, Kyrgyz, Tibetans, or members of other persecuted groups in any other part of the People’s Republic of China?
    2. To the extent feasible, as part of the assessment of risks, what mechanisms, including the potential involvement in supply chains of entities that may use forced labor, could lead to the importation into the United States from the People’s Republic of China, including through third countries, of goods, wares, articles and merchandise mined, produced, or manufactured wholly or in part with forced labor?
    3. What procedures can be implemented or improved to reduce the threats identified in Question 2?
    4. What forms does the use of forced labor take in the People’s Republic of China and the Xinjiang Uyghur Autonomous Region? For example, what “pairing assistance” and “poverty alleviation” or other government labor schemes exist in the People’s Republic of China that include the forced labor of Uyghurs, Kazakhs, Kyrgyz, Tibetans, or members of other persecuted groups outside of the Xinjiang Uyghur Autonomous Region? What similar programs exist in which work or services are extracted from Uyghurs, Kazakhs, Kyrgyz, Tibetans, or members of other persecuted groups under the threat of penalty or for which they have not offered themselves voluntarily?
    5. What goods are mined, produced, or manufactured wholly or in part with forced labor in the Xinjiang Uyghur Autonomous Region or by entities that work with the government of the Xinjiang Uyghur Autonomous Region to recruit, transport, transfer, harbor, or receive forced labor?
    6. In addition to cotton, tomatoes and polysilicon, are there any other sectors which should be high-priority for enforcement?
    7. What unique characteristics of such high-priority sector supply chains, including cotton, tomato and/or the polysilicon supply chains, need to be considered in developing measures to prevent the importation of goods mined, produced, or manufactured wholly or in part with forced labor in the People’s Republic of China?
    8. How can the United States identify additional entities that export products that are mined, produced, or manufactured wholly or in part with forced labor in the Xinjiang Uyghur Autonomous Region or by entities that work with the government of the Xinjiang Uyghur Autonomous Region to recruit, transport, transfer, harbor, or receive forced labor?
    9. How can the United States most effectively enforce the UFLPA against entities whose goods, wares, articles, or merchandise are made wholly or in part with forced labor in the People’s Republic of China and imported into the United States?
    10. What efforts, initiatives, and tools and technologies should be adopted to ensure that U.S. Customs and Border Protection can accurately identify and trace goods entered at any U.S. ports in violation of section 307 of the Tariff Act of 1930, as amended?
    11. What due diligence, effective supply chain tracing and supply chain management measures can importers leverage to ensure that they do not import any goods mined, produced, or manufactured wholly or in part with forced labor from the People’s Republic of China, especially from the Xinjiang Uyghur Autonomous Region?
    12. What type, nature and extent of evidence can companies provide to reasonably demonstrate that goods originating in the People’s Republic of China were not mined, produced, or manufactured wholly or in part with forced labor in the Xinjiang Uyghur Autonomous Region?
    13. What tools could provide greater clarity to companies on how to ensure upcoming importations from the People’s Republic of China were not mined, produced, or manufactured wholly or in part with forced labor in the Xinjiang Uyghur Autonomous Region? To what extent is there a need for a common set of supply chain traceability and verification standards, through a widely endorsed protocol, Start Printed Page 3570 and what current government or private sector infrastructure exists to support such a protocol?
    14. What type, nature and extent of evidence can demonstrate that goods originating in the People’s Republic of China, including goods detained or seized pursuant to section 307 of the Tariff Act of 1930, as amended, were not mined, produced, or manufactured wholly or in part with forced labor?
    15. What measures can be taken to trace the origin of goods, offer greater supply chain transparency, and identify third-country supply chain routes for goods mined, produced, or manufactured wholly or in part with forced labor in the People’s Republic of China?
    16. How can the U.S. Government coordinate and collaborate on an ongoing basis with appropriate nongovernmental organizations and private sector entities to implement and update the strategy that the FLETF will produce pursuant to the UFLPA?
    17. How can the U.S. Government improve coordination with nongovernmental organizations and the private sector to combat forced labor in supply chains, and how can these serve as a model to support implementation of the UFLPA?
    18. Is there any additional information the FLETF should consider related to how best to implement the UFLPA, including other measures for ensuring that goods mined, produced, or manufactured wholly or in part with forced labor do not enter the United States?

These questions provide initial insights into the areas of interest for the U.S. government. DHS noted that comments should be detailed and provide sufficient information to understand and assess concerns related to the risk of importing goods procured from China.