How Congress plans to ban goods produced by Uyghur forced labor

Congress has finally reached a compromise on a law to address China’s reported use of forced labor among the country’s Uyghur population. On Tuesday, Sens. Marco RubioMarco Antonio RubioPut partisan politics aside — The Child Tax Credit must be renewed immediately These Senate seats are up for election in 2022 Lawmakers press Biden admin to send more military aid to Ukraine MORE (R-Fla.) and Jeff MerkleyJeff MerkleyDemocrats say change to filibuster just a matter of time Democrats call on Biden administration to ease entry to US for at-risk Afghans Manchin, Sinema join GOP to sink filibuster change for voting bill MORE (D-Ore.) along with Reps. Jim McGovern (D-Mass.) and Chris SmithChristopher (Chris) Henry SmithLawmakers seek 'assurances' Olympic uniforms not linked to forced labor Biden signs bill punishing China for Uyghur abuses Last living Nuremberg Trials prosecutor deserves Congressional Gold Medal MORE (R-N.J.) announced the new bipartisan legislative language that reconciles the Senate and House’s parallel proposals. With the White House signaling its willingness to sign the compromise Uyghur Forced Labor Prevention Act (UFLPA) into law, the Senate unanimously passed it on Thursday. Here are five key aspects of the bipartisan compromise:

Complicated context

Everyone agrees that governments should not allow businesses to import goods made by human trafficking victims into the United States because it enriches the companies that are profiting from exploitation and fails to improve the lives of forced labor victims. Tainted goods also unfairly compete with goods made by workers paid a market wage. The UFLPA focuses on the Uyghurs, a Muslim ethnic minority in the Xinjiang region of China. Reports of human rights abuses including forced labor have complicated the already vexing geopolitical concerns between China and the west.

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Blocking imports from this region creates supply chain disruptions and raises tensions between human rights, environmental and commercial priorities. With this complicated context, it is worth noting the rare bipartisanship consensus on Capitol Hill around a major human rights concern.

Rebuttal presumption of forced labor

The heart of the UFLPA is that it creates a presumption that all goods mined, produced or manufactured wholly or in part in Xinjiang are made with forced labor and therefore barred from entry into the United States. 

The presumption can be rebutted if a business can prove by “clear and convincing” evidence that the facility in Xinjiang did not use forced labor. Many businesses struggle to have access to the region and are concerned that it will be very difficult to meet the “clear and convincing” standard.

Additionally, the UFLPA requires the government to report to Congress any time it finds sufficient evidence to rebut the presumption and allow goods from Xinjiang to enter the country. Some observers believe this reporting requirement will have a chilling effect on entry decisions.

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New sanctions

In addition to highlighting the existing ability to use Global Magnitsky Act sanctions to fight forced labor, the UFLPA also creates a separate sanctions regime via an amendment to the Uyghur Human Rights Policy Act of 2020. These new sanctions can apply to individuals, entities and Chinese government officials who are responsible for serious human rights abuses in connection with forced labor.

New national strategy and entities list

Within 180 days of the UFLPA becoming law, the U.S. government must provide a “strategy” to Congress on how to deal with the import of goods made with forced labor from Xinjiang.

This timetable represents a compromise between 300 days in the Senate version and 120 days in the House version of the bill. 

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The “strategy” document will follow a period of public comment and public hearings to gather recommendations from business leaders, advocates, and the general public. The “strategy” must include a list of entities in Xinjiang that produce, transport, or export goods made in whole or part by human trafficking victims.

Early action imperative

With an existing crescendo of supply chain disruption, businesses should act quickly to insulate themselves from the risks associated with shipments of parts, products or produce blocked at U.S. ports of entry due to forced labor. This is the time for companies to review their current supply chains, contracts with entities based in Xinjiang, as well as compliance procedures related to human rights abuses. Early action will allow continuity of business operations as these new legal tools are used to help forced labor victims find freedom. 

John Cotton Richmond is a partner with Dentons and the former U.S. Ambassador-at-Large to Monitor and Combat Trafficking in Persons.