U.S. House and Senate Agree To Compromise Legislation on Uyghur Forced Labor Import Ban

Having previously passed slightly different versions of legislation designed to address forced labor in the Xinjiang Uyghur Autonomous Region (see here and here), the U.S. House of Representatives and Senate have now reached a compromise and drafted legislation that both have agreed to. This legislation has passed the House (H.R.6256), and is expected to pass the Senate soon and be signed into law by President Biden.

A key part of the legislation is Section 3, which is entitled "Rebuttable Presumption That Import Prohibition Applies To Goods Mined, Produced, Or Manufactured In the Xinjiang Uyghur Autonomous Region or by Certain Entities." Under this provision, the Commissioner of U.S. Customs and Border Protection shall, subject to an exception described below, "apply a presumption that, with respect to any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China or produced by [certain entities] (1) the importation of such goods, wares, articles, and merchandise is prohibited under section 307 of the Tariff Act of 1930 (19 U.S.C. 1307); and (2) such goods, wares, articles, and merchandise are not entitled to entry at any of the ports of the United States."

The key change from existing law is that there will now be a presumption that such goods cannot be imported, whereas currently evidence must be presented first in order to stop their import.

There is an exception from the prohibition where certain conditions are met. The prohibition will not apply where the Commissioner determines:

(1) that the importer of record has—

(A) fully complied with the guidance described in section 2(d)(6) and any regulations issued to implement that guidance; and

(B) completely and substantively responded to all inquiries for information submitted by the Commissioner to ascertain whether the goods were mined, produced, or manufactured wholly or in part with forced labor; and

(2) by clear and convincing evidence, that the good, ware, article, or merchandise was not mined, produced, or manufactured wholly or in part by forced labor.

The legislation states that the Commissioner may prescribe regulations "to implement paragraphs (1) and (2)," which could help clarify the operation of the exceptions. The statute also calls for the Commissioner to submit a report to the appropriate congressional committees and the public identifying the good and the evidence considered "not later than 30 days after making a determination of an exception ... ."

Beyond this presumption and its immediate impact on Chinese imports, the legislation also calls for the development of a strategy for supporting enforcement of Section 307 of the Tariff Act of 1930 (19 U.S.C. 1307) to prevent the importation into the United States of goods mined, produced, or manufactured wholly or in part with forced labor in the People’s Republic of China. In this regard, the Forced Labor Enforcement Task Force, established under section 741 of the United States-Mexico-Canada Agreement Implementation Act (19 U.S.C. 4681), is to gather information on this issue through public comments and hearings; make recommendations "for efforts, initiatives, and tools and technologies to be adopted to ensure that U.S. Customs and Border Protection can accurately identify and trace goods made in the Xinjiang Uyghur Autonomous Region entering at any of the ports of the United States"; and offer guidance to importers on issues such as "the type, nature, and extent of evidence that demonstrates that goods originating in the People’s Republic of China were not mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region."

In addition, the legislation calls for the Secretary of State to develop a "diplomatic strategy," in coordination with the heads of other appropriate federal departments and agencies, "to promote initiatives to enhance international awareness of" these issues.

And finally, it calls for sanctions against foreign persons, including officials of the Government of China, that the President determines are "responsible for serious human rights abuses" in connection with "forced labor with respect to Uyghurs, Kazakhs, Kyrgyz, or members of other persecuted groups, or other persons in the Xinjiang Uyghur Autonomous Region."

UPDATE December 23, 2021:

On December 23, President Biden signed the bill into law.