The US Senate on 14 July unanimously approved legislation aimed at ensuring that goods made with forced labour in mainland China’s Xinjiang Uyghur Autonomous Region do not enter the US market. The legislation would have to be approved by the House of Representatives and signed into law by President Biden for it to enter into force.
The Uyghur Forced Labor Prevention Act (S. 65) aims to strengthen the current US prohibition against the importation of goods made with forced labour, including by thwarting any efforts by the mainland Chinese government to undermine the implementation of the ban on the importation of goods, wares, articles and merchandise mined, produced or manufactured wholly or in part in any foreign country by forced labour, as set forth in Section 307 of the Tariff Act of 1930. To do that, the legislation would establish effective 300 days from its enactment date a rebuttable presumption that any goods, wares, articles and merchandise mined, produced or manufactured wholly or in part in Xinjiang, or produced by a properly identified entity, are made with forced labour and therefore barred from entry into the US under Section 307. This presumption would apply unless:
- The importer of record has fully complied with the relevant guidance provided by US Customs and Border Protection as well as any regulations issued to implement that guidance, and has completely and substantively responded to all inquiries for information submitted by CBP to ascertain whether the goods were made with forced labour; and
- The goods were not made wholly or in part by forced labour.
The legislation would require the Departments of Treasury and Homeland Security, in consultation with the Office of the US Trade Representative and the Departments of State and Labor, to seek public input on how best to ensure that such goods produced with forced labour in mainland China, including by Uyghurs, Kazakhs, Kyrgyz, Tibetans and members of other “persecuted groups” in mainland China, and especially in Xinjiang, are not imported into the US. Such input would have to be requested within 45 days from the date of enactment of the legislation and the public would have 60 days to submit comments. Moreover, a public hearing on this matter would have to be held within 45 days after the close of the public comment period.
Preventative measures to be considered would include any measures that can be taken to trace the origin of goods, offer greater supply chain transparency and identify third country supply chain routes.
The relevant US government agencies will then need to develop strategies to :
- Identify threats, including through the potential involvement in supply chains of entities that may use forced labour, that could lead to the importation into the US from mainland China, including through third countries, of goods made with forced labour;
- Identify procedures that could be implemented or improved to reduce such threats;
- Comprehensively describe and evaluate ”pairing assistance”, ”poverty alleviation” and any other government labour schemes that include the forced labour of Uyghurs, Kazakhs, Kyrgyz, Tibetans or members of other “persecuted groups” outside of Xinjiang, or similar mainland Chinese programmes in which work or services are extracted from Uyghurs, Kazakhs, Kyrgyz, Tibetans or members of other “persecuted groups” through the threat of penalty or involuntarily;
- Provide recommendations for efforts, initiatives, and tools and technologies to be adopted to ensure that CBP can accurately identify and trace such goods entering at any US port;
- Provide guidance to importers with respect to (i) due diligence, effective supply chain tracing and supply chain management measures to ensure that they do not import any goods made with forced labour from mainland China, and especially from Xinjiang; (ii) the type, nature and extent of evidence that demonstrates that goods originating in mainland China were not made wholly or in part in Xinjiang; and (iii) the type, nature and extent of evidence that demonstrates that goods originating mainland China, including goods detained or seized pursuant to Section 307, were not made wholly or in part with forced labour; and
Develop a plan to coordinate and collaborate with appropriate non-governmental organisations and private sector entities to implement and update the developed strategy.