Xinjiang Exclusions

How can importers challenge detentions under the Uyghur Forced Labor Prevention Act (UFLPA)?

By Bruce Leeds, Senior Counsel, Braumiller Law Group

Quick Answer

Importers can challenge detentions under the Uyghur Forced Labor Prevention Act (UFLPA) by providing satisfactory evidence that their merchandise was not produced with forced labor. The UFLPA, effective June 21, 2022, establishes a rebuttable presumption that goods from Xinjiang or listed entities violate 19 U.S.C. § 1307, placing the burden of proof on the importer. To overcome this, importers must present comprehensive documentation, such as certificates of origin, sales contracts, and detailed production flow maps, to demonstrate the absence of forced labor inputs. Braumiller Law Group highlights a case where an importer successfully rebutted a U.S. Customs & Border Protection (CBP) detention for wearing apparel by providing extensive supply chain documentation tracing inputs outside of Xinjiang.

In April of this year U.S. Customs & Border Protection (CBP) issued Headquarters Ruling H330077.  The ruling was in response to a protest filed by an importer that had a shipment of  wearing apparel excluded from entry under a Withhold Release Order (WRO) at the port of Newark, NJ.  The wearing apparel was processed from cotton produced in India, made into yarn and fabric in China, and converted to wearing apparel in Cambodia.  None of the parties to the transaction were located in the Xinjiang Region of China.  

The documents accompanying the subject shipment (commercial invoice, packing list, certificates of origin, and bill of lading) listed the seller and manufacturer of the wearing apparel as the company in Cambodia.  CBP suspected that the wearing apparel was made in whole or part with inputs from the Xinjiang Region and detained the shipment under the WRO.  

What is the background and legal basis of Xinjiang import restrictions and UFLPA?

On January 13, 2021, the Executive Assistant Commissioner of the CBP Office of Trade issued a WRO to withhold the release of all cotton and tomatoes and their downstream products produced in whole or part in the Xinjiang Region of China.   This WRO was based on information that reasonably indicated there was forced labor present in the supply chains of cotton and tomato products from the Xinjiang Region.

Under 19 USC 1307 provides that all merchandise produced in whole or part by forced, convict or indentured labor is denied entry into the US.  The implementing regulations under 19 CFR 12.42-12.45 provide that if CBP finds at any time that information available reasonably but not conclusively indicates that imported merchandise is within the purview of Section 1307 release of any imported shipments shall be withheld unless the importer can establish by satisfactory evidence that the merchandise was not mined, produced, or manufactured in part with forced, indentured or convict labor. 

OK – that is a long sentence but what it means is that if CBP reasonably believes imported merchandise was made with forced labor it can deny release of the shipment.  

The Uyghur Forced Labor Prevention Act (UFLPA) superseded WROS on various products and replaced WROs with the application of a rebuttable presumption as of June 21, 2022. The UFLPA requires CBP to presume that goods manufactured wholly or in part in the Xinjiang or made by entities on the the UFPLA Entity List violate 19 U.S.C. § 1307. The burden of proof will be on the importer to prove its goods did not contain any such inputs.

Outcome in This Case

The importer in this case produced certificates of origin, sales contracts, commercial invoices, proof of payment, supply certificates, transaction certificates, maps and graphs showing production of cotton in India, processing it into yarn and fabric in China and processing the fabric into clothing in Cambodia.  This evidence showed that no step of the production took place in the Xinjiang Region.  

However, internal CBP documents indicated that one of the companies in this supply chain was linked with the Xinjiang Region.  CBP then held that the importer did not produce sufficient evidence to establish that the wearing apparel was not produced wholly or in part with forced labor or that the supply chain was not linked with the Xinjiang Region.  Accordingly, the protest was denied that the wearing apparel was excluded from entry.  

What are the key takeaways and compliance advice for UFLPA and Xinjiang exclusions?

    Key takeaways for UFLPA and Xinjiang exclusions include understanding that CBP may possess undisclosed information, that any input from the Xinjiang Region can lead to exclusion regardless of final manufacturing location, and that extensive, verifiable evidence is crucial. Importers should proactively check the UFLPA Entity List and ensure supplier contracts explicitly prohibit Xinjiang inputs, require detailed evidence upon request, and include reimbursement clauses for UFLPA violations. For example, even an Italian company using Xinjiang tomatoes for spaghetti sauce would face exclusion. There is no such thing as too much evidence to show there were no Xinjiang entities in the supply chain. Your documents may be extensive – but are they extensive enough?
Read more articles by this author: https://www.braumillerlaw.com/author/bruceleeds/

Frequently Asked Questions

1 How can an importer challenge a shipment detained under a Withhold Release Order (WRO) related to Xinjiang exclusions?

The page describes a protest filed by an importer whose shipment was detained under a WRO. Under 19 CFR 12.42-12.45, importers must establish by satisfactory evidence that the merchandise was not produced with forced labor to secure its release. This involves providing specific documentation to U.S. Customs & Border Protection (CBP).

2 What kind of evidence is required to prove merchandise is not subject to Xinjiang exclusions?

Importers must provide satisfactory evidence to CBP that their merchandise was not mined, produced, or manufactured in whole or part with forced, indentured, or convict labor. The ruling H330077 example shows that even with non-Xinjiang parties, CBP may suspect origin and require robust proof of the entire supply chain.

3 Can products manufactured outside the Xinjiang region still be subject to a Withhold Release Order (WRO)?

Yes, the article details a case where wearing apparel made in Cambodia, from yarn and fabric produced in China (outside Xinjiang) using Indian cotton, was still detained. CBP suspected inputs from the Xinjiang Region, demonstrating that downstream products can be affected regardless of final manufacturing location.

4 What is the legal basis for U.S. Customs & Border Protection's (CBP) Xinjiang exclusions?

The exclusions are based on 19 USC 1307, which denies entry to the U.S. for all merchandise produced in whole or part by forced, convict, or indentured labor. This statute is implemented by regulations under 19 CFR 12.42-12.45, allowing CBP to withhold release if information reasonably indicates forced labor.