FAQs: Uyghur Forced Labor Prevention Act (UFLPA) Enforcement
Yes. CBP will report Uyghur Forced Labor Prevention Act (UFLPA) enforcement statistics on CBP.gov. This information will include an interactive dashboard containing data on the total number and value of shipments detained pursuant to the UFLPA, with an anticipated release date of March 31, 2023. We will solicit feedback to learn what other information would be useful to publish.
If imported merchandise was not produced in whole or in part in the XUAR or by an entity on the UFLPA Entity List, the rebuttable presumption established by the UFLPA does not apply to that import. If such merchandise is detained by CBP under the UFLPA, the importer may submit an applicability review request and CBP will conduct an applicability review to determine if the UFLPA applies to the imported good. In other words, the importer has the opportunity in the applicability review process to demonstrate that the import is not sourced wholly or in part from the XUAR or an entity on the UFLPA Entity List.
Importers who contend that their imports are not within the purview of the UFLPA should refer to Section IV, B & D (pages 14 through 15), of CBP’s Operational Guidance for Importers, which contains information on the types of documentation typically required to show that the imported goods and their inputs are not sourced from the XUAR or from entities on the UFLPA Entity List.
As outlined in CBP’s Operational Guidance for Importers, for applicability reviews, importers should provide documentation produced in the ordinary course of business (and translated into English if necessary), including:
- Transaction and Supply Chain Records:
- full records of transactions and supply chain documentation that demonstrate the country of origin and its components (e.g., packing list, bill of lading, manifest);
- Documents Demonstrating the Parties Participating in the Transaction:
- all parties involved in the manufacture, manipulation, or export of a particular good (e.g., summarize the roles of parties involved as substantiated by other supporting documents, flow chart of supply chain);
- Documentation Relating to the Payment and Transportation of Raw Materials:
- the origin of the raw materials, and documentation showing that these business transactions (e.g., invoices, contracts, purchase orders) have occurred financially (e.g., proof of payments) and physically (e.g., documents to support goods were transferred from one entity to another.)
The above information is not intended to serve as an exhaustive list of documentation CBP may request. But this list, which also appears in CBP’s Operational Guidance for Importers, generally represents documents that facilitate CBP’s review and should be included in importer submissions for an applicability review. Please take a look at our Sample Table of Contents for an Importer Applicability Review Package. CBP considers all information provided by an importer in assessing the admissibility of merchandise.
When submitting supply chain documentation for CBP review, the importer should clearly indicate in its submission package that the supply chain is identical to a previously reviewed supply chain for which the goods were found admissible (either through an applicability review, a UFLPA exception request, or an advance ruling pursuant to 19 CFR Part 177).
Importers can significantly accelerate the applicability review process for shipments from a supply chain identical to one previously reviewed and cleared by CBP by providing a summary tracing report to the assigned Center of Excellence. A summary tracing report should include the suppliers/producers for all production stages and a business record—such as an invoice number, contract number, or purchase order number—involved in the production of the merchandise being imported. This information enables CBP to quickly verify that the new shipment is from the same supply chain. Using this approach, the detention period for detained shipments that employ a supply chain identical to one previously cleared has declined to an average of ten to 14 days.
This guidance applies equally to shipments from supply chains that rely on inputs commingled during the production process with materials suspected of being manufactured using forced labor. Importers using such supply chains should expect shipments to be detained pending CBP’s review of documents demonstrating that the imported merchandise complies with the UFLPA. As described above, however, importers can accelerate the review process for future shipments relying on the same commingled supply chain by providing a summary tracing report with their submission package.
Yes. CBP has published a document, Best Practices for Applicability Reviews: Importer Responsibilities, that identifies and summarizes best practices drawn from importer submissions. These practices facilitated the release of goods and streamlined the CBP review process. Such recommended best practices for applicability reviews include:
- Prepare a plan for responding to a detention under the UFLPA. This includes confirming that suppliers are aware of the UFLPA and maintaining supply chain documentation for ready/immediate submission to CBP. Set expectations for the types of supply chain documentation required and put in place processes to protect trade secrets. Suppliers may be hesitant to share business documentation that may reveal sensitive information but may be willing to provide that documentation directly to CBP.
- Communicate early with the appropriate CBP Center of Excellence and Expertise (“Center”) regarding a high-risk import before it arrives at a U.S. port of entry.
- Notify the appropriate Center when the supply chain for a particular import is identical to that previously reviewed by CBP to facilitate faster review.
- Be responsive to CBP requests for information and documentation.
- Submit a complete, well-organized package with English translations that document the supply chain of the imported merchandise.
- Provide a list of suppliers that identifies each supplier’s role in the production of the goods and the documents associated with each supplier.
- Demonstrate that supply chains do not rely on inputs commingled with materials manufactured or produced with forced labor.
These practices facilitate CBP’s review and determination of whether to exclude or release detained goods. Furthermore, CBP cannot make a determination unless the document package is complete. Once the document package is complete, CBP conducts its review of the package. Although review times vary based on the complexity of the supply chain and other factors, the average review period for a complete package is two to three weeks. CBP will continue to share best practices for UFLPA processing and will publish updates as they become available.
Information on documentation and evidentiary requirements is available in CBP’s Operational Guidance for Importers and in the UFLPA Strategy. Although CBP understands the desire for specific guidance, supply chains differ, making it impossible to create a single definitive list of documents required to secure the release of detained goods. CBP considers the totality of information provided by an importer. CBP therefore exercises its discretion to maintain flexibility and consider the totality of information submitted. Once a shipment is detained under the UFLPA, CBP works closely with importers to obtain relevant information and resolve questions and deficiencies. If an importer needs additional time to provide requested documents, it may request an extension from the Port Director or applicable Center Director. To request an extension, importers should email or call the point of contact identified on the detention notice prior to the expiration of the initial 30-day detention period.
In instances where the UFLPA applies to imports, the importer of record is required by the UFLPA, among other requirements, to provide clear and convincing evidence that the merchandise, although sourced from the XUAR or from an entity on the UFLPA Entity List, was not made wholly or in part by forced labor. Clear and convincing evidence is a higher standard of proof than a preponderance of the evidence, and generally means that a claim or contention is highly probable.
The UFLPA establishes a rebuttable presumption that goods mined, produced, or manufactured wholly or in part in XUAR or by an entity on the UFLPA Entity List are prohibited from U.S. importation under 19 U.S.C. § 1307. The Commissioner of CBP may grant an “exception” to the presumption if, among other requirements, an importer of record can demonstrate by clear and convincing evidence that the goods subject to the rebuttable presumption were not produced wholly or in part by forced labor as required by Section 3(b) of the UFLPA. (Although Section 3(b) uses the term “Exceptions,” its text is better understood as setting forth the requirements for rebutting the UFLPA’s presumption, described in Section 3(a).) If an importer wishes to contend that the UFLPA does not apply to its importation—i.e., that its imported goods were not mined, produced, or manufactured wholly or in part in the XUAR or by an entity on the UFLPA Entity List—the importer may request an applicability review as described in FAQ #3.
CBP takes due process seriously and is following the requirements outlined in its regulations, specifically, 19 CFR Part 151. Detention notices include the basis for the detention and an attachment that specifies the information CBP is requesting from the importer. Once a shipment is detained under the UFLPA and the importer requests an applicability review or an exception to the rebuttable presumption, CBP works closely with importers to obtain relevant information and resolve questions or deficiencies. If an importer needs additional time to provide requested documents, they may request an extension with the Port Director or applicable Center Director.
Importers who contend their imports are not within the purview of the UFLPA may request an applicability review. Importers should refer to Section IV, B & D (pages 14 through 15), of CBP’s Operational Guidance for Importers, which contains information on the types of documentation typically required to show that the imported goods and their inputs are not sourced from the XUAR or from entities on the UFLPA Entity List. Please reference FAQ #3 above, which provides examples of the types of documents that an importer should provide to demonstrate that the UFLPA does not apply to their goods.
Alternatively, if an importer wishes to request an exception to the UFLPA’s presumption, the statute requires that the importer:
- Provide clear and convincing evidence that the merchandise, although sourced from the XUAR or from an entity on the UFLPA Entity List, was not made wholly or in part using forced labor;
- Fully comply with the Forced Labor Enforcement Task Force’s (FLETF) Guidance to Importers described in Section VI of the UFLPA Strategy and;
- Respond in a satisfactory manner to all inquiries for information submitted by CBP so that CBP can ascertain whether the goods were mined, produced, or manufactured wholly or in part with forced labor.1
1See Uyghur Forced Labor Prevention Act (P.L. 117-78) Sec.3 (b)(1&2).
Detentions effectuated to enforce the UFLPA are pursuant to CBP’s authority to inspect, examine, and detain imported merchandise under 19 U.S.C. §1499 and 19 CFR Part 151. For most imports into the United States, CBP exercises its authority pursuant to 19 U.S.C. § 1499 and 19 CFR Part 151 to examine and, if appropriate, detain shipments. This statutory and regulatory scheme is well known to importers and consistent with CBP’s treatment of most importations into the United States. In the UFLPA context, it brings greater consistency with CBP’s treatment of virtually all other imports subject to detention.
Additionally, CBP’s use of 19 U.S.C. § 1499 and 19 CFR Part 151 for detentions pursuant to the UFLPA is consistent with the only other existing law that requires CBP to apply a rebuttable presumption, the Countering America’s Adversaries Through Sanctions Act (22 U.S.C. § 9241a), which requires CBP to apply a presumption that all goods made by North Korean citizens or nationals are in violation of Section 1307.
All entities whose supply chains touch the XUAR or any entity on the UFLPA Entity List should undertake due diligence measures to ensure compliance with U.S. laws and trace their supply chains for potential exposure to forced labor. DHS encourages stakeholders in the trade community to closely examine their supply chains to ensure goods imported into the United States are not mined, produced, or manufactured, wholly or in part, with prohibited forms of labor in the XUAR or elsewhere, or by entities on the UFLPA Entity List.
Businesses and individuals should undertake due diligence to ensure compliance with U.S. law and to identify potential supply chain exposure to companies operating in the XUAR, linked to the XUAR (e.g., through the pairing assistance program or XUAR supply chain inputs), or using Uyghur or other minority laborers in the PRC. The financial implications of failing to do so may be significant: Goods containing any input from the XUAR or a company on the UFLPA Entity List are prohibited from entering U.S. commerce unless the importer can satisfy the exacting requirements of Section 3(b) of the UFLPA, outlined above in FAQ #6. In addition, within 30 days of any determination to grant an exception, the Commissioner of CBP must submit to Congress and make available to the public a report outlining the evidence supporting the exception.
Section VI of the FLETF’s UFLPA Strategy provides due diligence and supply chain guidance for importers. CBP’s Operational Guidance for Importers also lists resources available to trade stakeholders to support their ability to conduct supply chain due diligence, tracing, and management, including resources available on CBP.gov and other websites. While systems may vary from industry to industry, an effective due diligence system in any industry may include the following elements:
- Engagement with suppliers and other stakeholders to assess and address forced labor risk;
- Mapping of the supply chain and assessment of forced labor risks along the supply chain from raw materials to production of the imported good;
- Written supplier code of conduct forbidding the use of forced labor and addressing the risk of use of Chinese government labor schemes;
- Training on forced labor risks for employees and agents who select and interact with suppliers;
- Monitoring of supplier compliance with the code of conduct;
- Remediation of any forced labor conditions identified or termination of the supplier relationship if remediation is not possible or is not timely completed;
- Independent verification of the implementation and effectiveness of the due diligence system; and
- Reporting performance and engagement publicly on its due diligence system.
U.S. law also requires importers to exercise reasonable care to ensure that imported goods comply with U.S. laws. The Department of Labor’s Comply Chain application outlines critical elements of a social compliance program. Importers may find additional information on effective forced labor/corporate social responsibility programs on the forced labor page on CBP’s website.
The UFLPA’s rebuttable presumption applies to goods imported on or after June 21, 2022, that were produced wholly or in part in the XUAR or by entities on the UFLPA Entity List. WROs that were in effect prior to June 21, 2022 and connected to the XUAR were subsumed under the UFLPA. These WROs include: (1) silica-based products from Hoshine Silicon Industry Co. Ltd. and subsidiaries; (2) all products from Lop County No. 4 Vocational Skills Education and Training Center; (3) hair products made in the Lop County Hair Product Industrial Park; (4) apparel produced by Yili Zhuowan Garment Manufacturing Co., Ltd. and Baoding LYSZD Trade and Business Co., Ltd; (5) cotton produced and processed by Xinjiang Junggar Cotton and Linen Co., Ltd; (6) computer parts made by Hefei Bitland Information Technology Co., Ltd.; (7) hair products from Lop County Meixin Hair Product Co. Ltd; (8) hair products from Hetian Haolin Hair Accessories Co. Ltd.; (9) garments produced by Hetian Taida Apparel Co., Ltd; (10) cotton from the Xinjiang Production and Construction Corps; and (11) all Xinjiang cotton and tomatoes and all downstream products using Xinjiang cotton and tomatoes as inputs.
For all other goods, CBP will continue to enforce WROs and Findings pursuant to existing regulations found in 19 CFR 12.42-45.
The FLETF publishes the UFLPA Entity List, which is a consolidated register of the four lists required to be developed and maintained pursuant to Section 2(d)(2)(B) of the UFLPA. Goods produced by an entity on the UFLPA Entity List are subject to the UFLPA rebuttable presumption. The UFLPA Entity List includes: (1) a list of entities in XUAR that mine, produce, or manufacture wholly or in part any goods, wares, articles, and merchandise with forced labor; (2) a list of entities working with the government of XUAR to recruit, transport, transfer, harbor, or receive forced labor or Uyghurs, Kazakhs, Kyrgyz, or members of other persecuted groups out of XUAR; (3) a list of entities that exported products made by entities in lists 1 and 2 from the People’s Republic of China into the United States; and (4) a list of facilities and entities, including the Xinjiang Production and Construction Corps, that source material from XUAR or from persons working with the government of XUAR or the Xinjiang Production and Construction Corps for purposes of the “poverty alleviation” program or the “pairing-assistance” program or any other government-labor scheme that uses forced labor.
It is the importer’s responsibility to know its supply chain. Importers should carefully assess XUAR and related supply chain risks, establish and maintain a due diligence program, and be prepared to respond to CBP inquiries and demonstrate that goods are not mined, produced, or manufactured wholly or in part with forced labor.
The FLETF, which is chaired by the Department of Homeland Security (DHS), is responsible for managing the UFLPA Entity List. The initial UFLPA Entity List was included in the UFLPA Strategy, and CBP began enforcing the UFLPA’s rebuttable presumption against entities on the UFLPA Entity List on June 21, 2022. On August 4, 2022, DHS published the Notice on the Addition of Entities to the Uyghur Forced Labor Prevention Act Entity List in the Federal Register, which included additional information on how entities are added to and removed from the UFLPA Entity List. The UFLPA Entity List can be viewed at https://www.dhs.gov/uflpa-entity-list.
The UFLPA requires the FLETF to develop a list of high-priority sectors for enforcement, and the statute expressly mandates that cotton, tomatoes, and polysilicon be prioritized. CBP targeting is focused on goods that have been found to have a nexus to producers in the XUAR, subsidiaries and affiliates of the Xinjiang Production and Construction Corps, and other producers found to utilize forced labor via a Chinese government-labor scheme, including those identified in the UFLPA Entity List. These goods include products produced and exported by these entities, as well as goods exported by other manufacturers that were produced with inputs (e.g., raw materials) from these entities.
CBP is also focused on transshipped goods with inputs from the XUAR, as well as goods imported into the United States by entities that, although not located in the XUAR, are related to an entity in the XUAR (whether as a parent, subsidiary, or affiliate).
CBP is providing trusted traders with benefits in return for their implementation of social compliance programs, including programs to ensure due diligence and supply chain risk management relating to forced labor. The Customs Trade Partnership Against Terrorism (CTPAT) is a voluntary public-private partnership where CBP works with industry to strengthen international supply chains and improve border security while facilitating the flow of legitimate trade. From its inception in November 2001, CTPAT has continued to grow. Today, more than 10,900 certified partners, spanning all corners of the trade community, have been accepted into the program. These partners accounted for 51 percent (by value) of cargo imported into the United States in FY2022.
To join CTPAT, a company must first ensure that its practices comply with CTPAT’s Minimum Security Criteria (MSC); the company must then submit a basic application via the CTPAT Portal system and complete a supply chain security profile outlining its compliance with the MSC. Once a qualified CTPAT member, a company is eligible to participate in the CTPAT Trade Compliance Program. The CTPAT Trade Compliance Handbook provides an overview of new member requirements related to forced labor and the benefits CTPAT Trade Compliance members receive. CBP values its trusted traders and provides priority UFLPA-related benefits to CTPAT members in good standing.
On November 14, 2022, three additional benefits of the CTPAT Trade Compliance program went into effect:
Front-of-the-Line Admissibility Review Benefit: CTPAT Trade Compliance partners who have shipments detained due to forced labor will have their admissibility packages prioritized for review by the appropriate Center. The importer must assert that they are an active member of the CTPAT Trade Compliance program and request prioritized review at the time that supporting documentation is submitted to CBP.
Redelivery Benefit: CTPAT Trade Compliance partners who have shipments arrive at their facility that are later determined to be held due to ties to forced labor, where redelivery is normally requested, may hold their shipments intact at their facility rather than redelivering the goods to CBP until an admissibility determination is made or until such time that a physical inspection is required.
Shipments Detained Due to a Withhold Release Order Allowed to Move to a Bonded Facility: CTPAT Trade Compliance partners who have a shipment detained by CBP due to a WRO will be allowed to move the goods to a bonded facility to be held intact until such time that an admissibility determination is made by CBP.
Yes. CBP will consider laboratory test results as part of the total package of information submitted by an importer to document a supply chain. Importers providing this type of evidence should be prepared to show that the evidence is credible and specific to the goods under detention.
Should an importer want to obtain sample(s) from a detained shipment to conduct testing, the importer may make a manipulation request with the Port Director who detained the shipment. Chain of custody for obtained sample(s) for testing must be secure and the testing report must indicate that the sample(s) were from the detained shipment. In some cases, if requested and circumstances allow, CBP may assist by collecting a sample from the affected shipment and submitting it to a testing laboratory at the expense of the importer to maintain the chain of custody.
Yes. CBP is prioritizing supply chain tracing and product testing. CBP allocated resources to develop scientific testing capabilities in evaluating commercially available services that provide insight into supply chain transactions, data holdings that detail business relationships, advanced trade analytics to identify trends in commodity flows from the XUAR, and commodity-specific isotopic testing for auditing and targeting. CBP expects to finalize the results of this test in fiscal year 2023.
CBP actively engages with industry groups to partner on technology innovations for supply chain tracing, such as isotopic testing for cotton. CBP encourages industry to submit proposals informally, which can be sent to UFLPAInquiry@cbp.dhs.gov.
During the Spring of 2023, CBP will host a Forced Labor Technical Expo at the Ronald Reagan Building in Washington, DC. The Technical Expo is tentatively scheduled on March 14-15. The two-day expo will be open to industry and the Federal interagency to exhibit and present their capabilities. The goal of this event is to make the trade community aware of existing resources, without endorsement, allowing companies to assess the best fit for verifying compliance in their supply chains.