June 16th, 2022 - Update 02
This message serves to notify you that CBP has now released importer guidance to assist importers and the trade community in preparing for the implementation of the UFLPA Act, that goes into effect on June 21, 2022.
For your convenience, please see below for a summary of the guidance from CBP:
- CBP will have authority, effective 21 June 2022, to detain, and thereon investigate and seize, any items attempted to be imported into the US that it unilaterally determines was manufactured or sourced, wholly or in part, in the Xinjiang Uyghur Autonomous Region (XUAR) or by entities on the U.S.’s new UFLPA Entity List. Detention notices will be provided to importers.
- Enforcement will be aggressive, as the law applies a presumption that everything from the XUAR is in violation of the UFLPA. In practice, this means anything that CBP concludes may be from XUAR will be seized for investigation.
- The WRO process (used otherwise for shipments in violation of US import laws, including 19 USC Sec. 1307 (banning forced labor imports to the US generally)) will not be used, as this process for XUAR supersedes it.
- Upon seizure notice, an importer can rebut the presumption that the items are in violation of the UFLPA by providing evidence in support of this rebuttal.
- Importers may request an exception to the rebuttable presumption from CBP during a detention, after an exclusion, or during the seizure process. For these three processes, importers will receive either a detention notice, exclusion notice, or a seizure notice. Such notices will provide information regarding the detention, exclusion, or seizure, along with options for additional administrative processes, in accordance with applicable legal requirements.
- To request an exception to the UFLPA presumption, importers must clearly state that the importer is seeking an exception to the UFLPA presumption and provide appropriate supporting documentation substantiating the request.
- The standard of evidence to be produced by the importer is the highest under US law – clear and convincing evidence. This, in effect, means the importer must leave almost no doubt whatsoever in the evidence to support its argument that the items are not sourced or manufactured using forced labor in XUAR.
- For the types of information required to overcome the presumption, refer to Section IV, A-C, E of the CBP guidance. In addition, if CBP has taken an enforcement action under the UFLPA on an importation, but an importer believes that its importation is outside the scope of the UFLPA, an importer may provide information to CBP to that effect, i.e., information that the imported goods and their inputs are sourced completely from outside Xinjiang and have no connection to the UFLPA Entity List.
- For the types of information required to establish that the importation is outside the scope of UFLPA, refer to Section IV, B & D of this CBP guidance document and the UFLPA Strategy.
- Note that all disclosures by importers are, by law, subject to public disclosure.
- If an importer fails to provide evidence that the items are not in violation of the UFLPA, CBP may exclude (i.e., prohibit for import) or seize (i.e., take and destroy) the items.
- This evidence will be weighed by CBP applying the clear and convincing evidentiary standard. Under US federal law, this means that the importer “must present evidence that leaves CBP with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true.”
Contact our customs experts for more information.
June 14th, 2022 - Update 01
This message serves to remind our customers of the forthcoming Uyghur Forced Labor Prevention Act, which will take effect June 21, 2022. With this legislation scheduled to take effect less than two weeks from today, importers to the US are urged to take efforts to ensure your supply chains do not include goods made in whole or in part from the Xinjiang Uyghur Autonomous Region in China (XUAR), to ensure that your goods will not be subjected to detainment and withhold release orders by USCBP.
This new legislation signed into law by the Biden Administration on December 23, 2021, effectively presumes all goods manufactured, mined or produced in the XUAR to be made through the use of forced labor. In addition, companies that do not import directly from China will also be subjected to having their goods detained by USCBP if it is determined that second and third tier suppliers located in the XUAR or specific entities were involved in producing the final product.
As a result of this new legislation, a new USCBP/Force Labor Task Force has been created and is expected to prepare and submit its strategy to Congress on June 21 and it will be made available to the public thereafter. As part of this new strategy on the Forced Labor issue, it is anticipated that the level of evidence required for supply chain tracking to be raised to a higher standard and deemed by USCBP to be “clear and convincing”.
Implementation of this new legislation is planned to take effect on June 21, 2022 and importers should immediately plan for increased enforcement of the new forced labor provisions, as well as satisfy requirements to a level that which USCBP has suggested to be “be clear and convincing.”
Maersk Customs Services North America and Altana AI recently conducted a webinar regarding forced labor that contains additional information on the upcoming UFLPA legislation. A recording of that Forced Labor Webinar can be found here on our Expert Opinion Page.
Contact our customs experts for more information.
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