What is the scope of the Xinjiang Uyghur Autonomous Region (XUAR) Withhold Release Order (WRO)?
Does it apply to only cotton and cotton products, and tomatoes and tomato products produced in the XUAR, or does it also cover products made in other parts of China, or third countries using inputs from the XUAR?
The WRO was issued against cotton and tomatoes and their downstream products produced in whole or in part in the XUAR, and includes downstream products produced outside the XUAR that incorporate these inputs. Examples of covered products include apparel, textiles, tomato seeds, canned tomatoes, tomato sauce, and other goods made with cotton or tomatoes. Importers are responsible for ensuring the products they are attempting to import do not exploit forced labor at any point in their supply chain. The WRO was issued against cotton and tomatoes and their downstream products produced in whole or in part in the XUAR, and includes downstream products produced outside the XUAR that incorporate these inputs. Examples of covered products include apparel, textiles, tomato seeds, canned tomatoes, tomato sauce, and other goods made with cotton or tomatoes. Importers are responsible for ensuring the products they are attempting to import do not exploit forced labor at any point in their supply chain.
Can imported goods within the scope of the WRO be seized if they were imported and/or received prior to the WRO being put in place?
Redelivery may be ordered on goods within the scope of the WRO. Generally, demand for redelivery will be made no later than 30 days after the date that the merchandise was released, or 30 days after the end of the conditional release period, whichever is later.
Shipments subject to this WRO will be detained, not seized. Upon detention of the merchandise, importers have the option to export the goods, or provide proof of admissibility in accordance with 19 CFR 12.43. The merchandise will be excluded from entry to the U.S. commerce if the importer does not provide proof of admissibility within the three-month period, or if the documentation provided is insufficient to establish that the goods are admissible.
Does the WRO apply to goods in a Foreign Trade Zone (FTZ) or warehouse?
The WRO applies to goods entered from a FTZ or warehouse on or after January 13, 2021, the date the WRO was issued.
Will CBP communicate detentions directly to importers or will it communicate with customs brokers? Will detention communications specify that the detention is because of the WRO or provide specific instructions to the importers on how to respond?
The port of entry will issue a detention notice to the importer for merchandise detained under the WRO. The notice will state that the merchandise is detained pursuant to the WRO, and will provide instructions for response.
What guidance can CBP offer regarding proof of admissibility?
To request release of a particular shipment, importers may submit evidence to the port of entry where the shipment is being detained, in accordance with 19 C.F.R. § 12.43. It is incumbent upon the importer to prove admissibility of the merchandise within three months, per 19 C.F.R. § 12.43.
Evidence submitted to establish admissibility must demonstrate that the imported merchandise was not produced in whole or in part in the Xinjiang Uyghur Autonomous Region using forced labor.
What evidence will CBP require from importers who have goods detained pursuant to the WRO to prove that the goods were not produced with forced labor?
Are there examples of information that CBP finds helpful in making this determination? For example, will CBP require chain of custody documentation?
Importers contending that merchandise detained under 19 CFR § 12.42(a) was not produced with forced labor must submit the Certificate of Origin signed by the foreign seller as required by 19 C.F.R. § 12.43(a), which may be submitted in electronic form, and a detailed statement from the importer, as outlined in 19 C.F.R. §12.43(b).
Guidance Concerning the Certificate of Origin:
- A standard Certificate of Origin is not acceptable. The required format for the certificate of origin is detailed in 19 C.F.R. § 12.43(a). This paragraph includes the exact wording of the certificate that should be signed by the seller/manufacturer.
- The statement required by 19 C.F.R. § 12.43(b) should be submitted by the importer, not the seller. The importer’s statement should be sufficiently detailed and include proof that the goods were not produced, wholly or in part, with forced labor.
Supporting documentation should trace the supply chain from point of origin of the cotton or tomatoes, to the production and processing of downstream products, to the merchandise imported into the United States.
Detention notices will request the following types of documentation. This is not an exhaustive list. Additional documentation may be required.
For cotton products: Affidavit from yarn producer and the source of raw cotton that identifies where the raw cotton was sourced. Purchase Order, Invoice, and Proof of Payment for the yarn and raw cotton. List of production steps and production record for the yarn, including records that identify the cotton and cotton producer of the raw cotton. Transportation documents from cotton grower to yarn maker. Supporting documents related to employee's that picked the cotton, time cards or the like, wage payment receipts, and daily process reports that relate to the raw cotton sold to the yarn producer.
For tomato products: Provide supply chain traceability documents pointing to the point of origin of the tomato seeds, tomatoes, or tomato products. Affidavit from the tomato processing facility that identifies both the parent company and the estate that sourced the tomato seeds and or tomatoes. Purchase Order, Invoice, and Proof of Payment for the tomato seeds, tomatoes, or tomato products, from the processing facility and the estate that sourced the raw materials. All production records for the tomato seeds, tomatoes, and/or tomato products that identify all steps, from seed to finished product, from the farm to shipping to the United States
If an importer has a shipment detained, who should importers work with to demonstrate their shipment is compliant? Should importers work with the port of entry executing the detention or the importer’s assigned Center of Excellence?
In accordance with 19 C.F.R. § 12.43, evidence that a particular shipment was not produced with forced labor should be submitted to the port of entry where the shipment is detained.
What are best practices recognized by CBP for importers to ensure their suppliers are not engaging in forced labor?
CBP recommends that the trade community use the following resources to better understand and address the risks of forced labor in global supply chains:
- The Department of Labor’s Comply Chain App [1];
- The Department of Labor’s List of Goods Made by Child Labor or Forced Labor [2];
- The Department of State’s Trafficking in Persons Report [3]; and
- The July 2020 Xinjiang Business Advisory [4].
In addition, please refer to the CBP website for information on responsible business guidance: CBP Responsible Business Practices on Forced Labor [5] and CBP's Informed Compliance Publication on Reasonable Care [6].
How should importers ensure due diligence if they do not have a direct relationship with the upstream suppliers/manufacturers?
To combat the risks of forced labor in supply chains, importers should have a comprehensive and transparent social compliance system in place. CBP’s Informed Compliance Publication on Reasonable Care [6] includes a section on forced labor.
The Department of Labor’s website provides guidance on setting up a social compliance system: https://www.dol.gov/ilab/complychain/ [7]
Will CBP allow importers to remove and enter goods that are not subject to the WRO from containers that include detained goods? What is the process for entering such containers?
Yes, when goods subject to a WRO are only a portion of a shipment, the importer may file a request for a manipulation permit with the Port of Entry.
Upon approval of the request for a manipulation permit by the Port of Entry, the importer may choose to amend the entry to secure the release of the goods that are not subject to the WRO. If the importer intends to contest that the goods are subject to the WRO, those goods may be entered into a bonded warehouse. Alternatively, the goods may be exported or destroyed.
Will CBP treat individual company information confidentially with respect to enforcement?
Yes, under the Trade Secrets Act, CBP cannot reveal confidential business information, as described in 19 C.F.R. § 201.6 [8], to the public.
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