Ban on Xinjiang Goods to Apply from 21 June 2022

President Joe Biden on 23 December signed into law 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.

Effective from 21 June 2022, the Uyghur Forced Labor Prevention Act establishes 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 of the Tariff Act of 1930. This presumption will 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 wholly or in part with forced labour; and
2. by clear and convincing evidence, the goods were not made wholly or in part by forced labour.

No later than 30 days after making a determination of an exception, CBP will be required to submit to the appropriate congressional committees and make publicly available a report identifying the good and the evidence considered.

The Forced Labor Enforcement Task Force must seek public input no later than 24 January 2022 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. The public will be given no less than 45 days to submit comments and a public hearing on this matter must be held within 45 days after the close of the public comment period.

Once public comment and any other pertinent information is considered, the Forced Labor Enforcement Task Force will have to develop a strategy by 21 June 2022 and update it annually thereafter to support enforcement of Section 307 in order to prevent 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 must:

• 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;
• describe additional resources required by CBP to ensure that no goods are entered at any U.S. port in violation of Section 307;
• 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.