Senate Steps Up Efforts to More Effectively Bar Imports Made with Xinjiang Forced Labour

The 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 U.S. 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 U.S. 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 U.S. under Section 307. This presumption would apply unless:

1. the importer of record has fully complied with the relevant guidance provided by U.S. 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
2. 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 U.S. Trade Representative and the Departments of State and Labor, to seek public input on how best to ensure that goods mined, produced or manufactured wholly or in part 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 U.S. 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 for goods made wholly or in part with forced labour in mainland China, as well as any other measures for ensuring that goods made with forced labour do not enter the U.S.

Once public comment and any other pertinent information is considered, the relevant U.S. government agencies would be required to develop a strategy for preventing the importation into the U.S. of goods mined, produced or manufactured wholly or in part with forced labour in mainland China. Among other things, this strategy would have 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 U.S. 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 goods made in Xinjiang entering at any U.S. port;
• describe how CBP plans to enhance its use of legal authorities and other tools to ensure that no goods are entered at any U.S. port in violation of Section 307, including through the initiation of pilot programmes to test the viability of technologies to assist in the examination of such goods;
• 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 co-ordinate and collaborate with appropriate non-governmental organisations and private sector entities to implement and update the developed strategy.

Notably, among its many components the strategy would have to include (i) a list of entities working with the Xinjiang government to move forced labour, or Uyghurs, Kazakhs, Kyrgyz or members of other “persecuted groups”, out of Xinjiang; (ii) a list of products mined, produced or manufactured wholly or in part by such entities; (iii) a list of entities that exported the products described point (ii) from mainland China to the U.S.; (iv) a list of facilities and entities, including the Xinjiang Production and Construction Corps, that source material from Xinjiang or from persons working with the Xinjiang government or XPCC for purposes of the “poverty alleviation” or “pairing-assistance” programmes, or any other government labour schemes that use forced or involuntary labour; (v) an enforcement plan for each such entity, which may include the issuance of withhold release orders; (vi) a list of high-priority sectors for enforcement, which must include cotton, tomatoes and polysilicon; and (vii) an enforcement plan for each such high-priority sector.

The required strategy would have to be submitted to the relevant congressional committees within 270 days from the date of enactment of the legislation, and any updates would be due annually thereafter.

The legislation also requires the development of a diplomatic strategy to promote initiatives to enhance international awareness of, and to address forced labour in, Xinjiang. This would include, for example, enhanced bi-lateral and multi-lateral co-ordination, counter-messaging efforts to promote awareness of the human rights situation, and efforts to raise awareness about goods made with Xinjiang forced labour. Moreover, the legislation would amend the Uyghur Human Rights Policy Act of 2020 to allow for the imposition of sanctions for serious human rights abuses in connection with forced labour in Xinjiang.