CBP Constrained in Sharing WRO Information Under Xinjiang Cotton WRO
The government is not trying to trip up importers by obscuring which exporters have been targeted under a withhold release order, a former top CBP trade official said, but the Trade Secrets Act prohibits CBP from releasing manufacturer IDs when the seizure was done under a regional WRO, as with Xinjiang cotton.
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Brenda Smith, former executive assistant commissioner for trade, was speaking at “Enforcing U.S. Trade Laws in a Contentious Global Market,” a forum hosted by the National Press Foundation and the Hinrich Foundation on April 13. Smith said, “Without additional statutory protection, CBP is really precluded from releasing that information.” She said that when a finding is complete, the agency can share who the exporter was, but that takes time. She acknowledged that knowing the manufacturer ID codes for the goods that are stopped under an WRO would be useful, and said that the administration and Congress may examine this issue as they look at “what is the art of the possible” in stopping the import of goods made with forced labor.
A CBP spokesman said that in the case of a broad WRO, releasing a manufacturing ID number of the producer subject to a detention under that order “would be law enforcement sensitive and CBP therefore would not be able to disclose it.”
The panel host noted how timely the panel was, as Secretary of State Antony Blinken, on “Meet the Press” two days earlier, talked about oppression in Xinjiang. “We need to take, actually, concrete actions to make sure, for example, that none of our companies are providing China with things that they can use to repress populations, including the Uyghur population; we need to be looking at products that are made in that part of China to make sure that they’re not coming here,” he said.
But that's harder to know when goods weren't manufactured in Xinjiang but instead have prohibited raw material from the Chinese province. The panel, which also included American Apparel and Footwear Association CEO Steve Lamar, was asked how can importers know where the cotton in garments comes from, when those garments are sewn in Vietnam or Bangladesh, far from Xinjiang province.
Smith said “that is one of the most significant challenges, for both Customs and the private sector.” She said CBP is trying to leverage Customs mutual assistance agreements with Vietnam or other countries that could import inputs from China. She also said that the government has used DNA-like testing for years, and it's possible that the presence of pollen on cotton could identify where it was grown. “There’s two challenges. One is cost. Can you get the cost of testing down to reasonable levels? The other is time,” she said, noting that if a test doesn't give instant results, a CBP inspector would have to either store the goods or create a backup in port while a shipment waits for clearance.
Lamar agreed that cost is a challenge. “Great technologies are being invented all the time but are they scalable? Cotton is extremely fungible,” he said, and noted that at a cotton gin, cotton from various places could be mixed, so even if you knew the cotton you purchased wasn't from Xinjiang, the fiber could come back mixed with Xinjiang product.