Alex Cotoia on Compliance with the Uyghur Forced Labor Prevention Act

On December 31, 2021, President Joseph R. Biden, Jr. signed the the Uyghur Forced Labor Prevention Act (“UFLPA”) into law to address the ongoing exploitation of the ethnic minority Uyghur population by the government of the People’s Republic of China (“PRC”). Among other things, the UFLPA creates a rebuttable presumption that all goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in Xinjiang, or by entities designated for inclusion on the UFLPA Entity List, are prohibited from entry into the United States. To overcome the presumption, entities are required to demonstrate, by “clear and convincing evidence,” that such imports were not mined, produced, or manufactured in whole or in part by forced labor.

In this episode, Mike and Alex discuss practical steps to comply with the UFLPA.

• The Uyghur Forced Labor Prevention Act, enacted by Congress, establishes a presumption that goods from Xinjiang are tied to forced labor. Importers must prove otherwise by providing extensive documentation, such as invoices, packing slips, and billing information, to demonstrate the origin of the goods and ensure compliance with the law.
• The UFLPA has led to a significant increase in enforcement by CBP, resulting in the detention of billions of dollars worth of commodities. This heightened scrutiny has prompted global companies to prioritize robust ethics and compliance programs to mitigate legal and economic risks associated with forced labor.
• Compliance with the UFLPA requires importers of record to furnish CBP with clear and convincing evidence that their goods were not produced using forced labor. This evidence includes supply chain tracing information, wage and payment records, credible audits, and attestations from every entity involved in the production process.
• Chinese entities have been known to employ deceptive practices to avoid detection and documentation requirements. This includes creating separate companies outside the Uyghur area and providing misleading information to purchasers. Due diligence and thorough investigation of beneficial ownership are crucial to ensure compliance.
• CBP's operational guidance for importers, published in 2022, provides essential information on navigating the complexities of the UFLPA. Importers should familiarize themselves with this guidance and engage in one-on-one discussions with their suppliers to communicate expectations and ensure compliance.
• The UFLPA places a significant burden on organizations relying on imports from China, as they must provide extensive documentation and meet the clear and convincing evidence standard. Failure to meet these requirements can result in the detention of goods, leading to supply chain disruptions and potential financial losses.
• Clear Channel, the former Chinese subsidiary of Clear Media, faced charges related to bribery violations. The bribes included expensive gifts, entertainment, and travel given to influence contract renewal negotiations with Chinese government officials. Clear Media engaged in deceptive practices, including falsifying payments and creating false invoices, to fund these illegal payments.

Resources

Alex Cotoia on LinkedIn | Email

Michael Volkov on LinkedIn | Twitter

The Volkov Law Group