On January 14, 2021, Customs and Border Protection (CBP) issued a Withhold Release Order (WRO) stopping all cotton and tomatoes and all goods made with cotton and tomatoes from the Xinjiang Uyghur Autonomous Region (XUAR) in China from entering the United States. Under Section 307 of the Tariff Act of 1930, CBP has the authority to prohibit the importation of all goods produced with forced or prison labor. CBP issued this WRO after finding six indicators of forced labor under the International Labor Organization’s (ILO) indicators through its investigation: debt bondage, restriction of movement, withholding of wages, isolation, terrible living and working conditions, and threats of retaliation.
Over the past year, CBP has been increasingly active, issuing a record fifteen WROs in 2020, including nine against goods from China. While previous WROs targeted specific goods, factories, or companies, this most recent WRO is regional, touching all cotton and tomato goods produced even in part in the XUAR. Moreover, this WRO targets two large industries. In the past year, the US has imported $9 billion worth of cotton products and $10 million of tomato products from China.
This blog post begins with a brief overview of the human rights abuses taking place in the Xinjiang Uyghur Autonomous Region. It then discusses the WROs that CBP has previously issued against goods from the XUAR, as well as enforcement of these WROs.
Human Rights Abuses in the Xinjiang Uyghur Autonomous Region
The Xinjiang Uyghur Autonomous Region, located in northwestern China, is home to an ethnically and religiously diverse population, which includes the Uighur and other Muslim minorities. It has been an autonomous region in China since 1955 and is a key economic area for China’s new Silk Road.
Over the past few years, the Chinese government has persecuted Muslim minorities in China, including the Uyghurs in the XUAR. Experts estimate that over one million Uyghur are currently detained in camps, which makes this “the largest-scale detention of religious minorities since World War II.” Xinjiang also has the largest concentration of prisons in China, with an estimated 500,000–800,000 people incarcerated. There is evidence that China is using forced intrauterine devices, mass sterilization, and abortions to limit the Uyghur population. “Re-education” camps indoctrinate people with party teachings and alienate them from their language, culture and family. Experts, human rights groups, and President-Elect Joe Biden’s campaign have all called this systematic persecution “genocide.”
Forced labor is now so prevalent in Xinjiang that experts have concluded that “nothing made in whole or in part with products from Xinjiang should have any place in an ethically clean supply chain.” People are forced to work through internment in re-education camps, incarceration in prisons, and involuntary work placements as a part of “poverty alleviation” programs. In December 2020, the Center for Global Policy released a report, stating that any cotton from Xinjiang is very likely to involve coercive labor. The report documents these labor practices as a central element to this“coercive social re-engineering project.”
WROs Against Goods From the Xinjiang Uyghur Autonomous Region
In August 2020, CAL joined nine other NGOs and unions to file a petition under Section 307 of the Tariff Act of 1930 asking CBP to block the importation of all cotton and cotton-made goods from the XUAR. In this petition, the nine civil society organizations specifically asked CBP to issue a regional WRO, as we believed that the forced labor in Xinjiang is so endemic and widespread it taints all cotton goods produced even in part in the XUAR.
Over the past six months, the US government has slowly built pressure on companies sourcing goods from China. In July 2020, the Treasury Department sanctioned the Xinjiang Production and Construction Corps (XPCC), a quasi-military entity that is estimated to employ 12% of Xinjiang’s population. As a result, US companies had to cut direct ties with XPCC and its subsidiaries. That same month, the US government also sent an advisory to companies on human rights violations in the XUAR. Then, in September, CBP issued five WROs against companies in the region, prohibiting imports from specific factories, and included hair products, apparel, cotton, and computer parts
Most recently, in December 2020, CBP issued a WRO against all cotton products produced by XPCC. Under the WRO, all cotton products produced by XPCC, its subordinates or affiliated entities, and any products containing such cotton, like apparel, garments, and textiles, are prohibited from entering the US. Since the WRO was issued on December 2, 2020, CBP has detained 43 shipments of cotton-based products prohibited under the WRO.
Enforcement of Regional WROs
It is encouraging that CBP has already detained 43 shipments of cotton-based products since issuing the WRO against XPCC in December. In fact, on December 3, 2020, just one day after CBP issued the WRO, there were reports that CBP had already seized its first shipments.
But enforcement of such a broad WRO is challenging since the WRO applies both to products produced in the XUAR and to products processed in other countries that use cotton and tomatoes from the region. Tracing these supply chains is extremely difficult, as they are often quite long and complex. Each part of production may take place in another factory, city, or country. Moreover, both cotton and tomatoes can easily be combined with cotton and tomatoes from other areas in China or other countries. As a result, tracing goods produced with cotton or tomatoes picked in XUAR but processed in Bangladesh, Vietnam, or another country will be quite difficult.
However, CBP is using artificial intelligence and link analysis methods to track the raw material in cotton products. Moreover, CBP issued a detailed questionnaire to a number of companies asking them specific questions about their supply chains. This questionnaire may help CBP to trace supply chains and focus on stopping specific shipments of goods. CBP has also made clear that any company that tries to circumvent these WROs is subject to criminal investigations. According to CBP, Homeland Security currently has a number of ongoing investigations.
Conclusion
CBP rarely issues regional WROs. In this case, in listening to civil society and issuing this regional WRO, CBP took a big step forward in fighting forced labor in supply chains. This WRO is also a clear statement that enforcement of Section 307 is a real threat to companies importing goods produced with forced and prison labor. We hope to see similar actions in other industries in the near future.
Bettina Braun is a Legal Fellow at Corporate Accountability Lab.
