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  4. Hoshine Silicon Industry Co. Ltd Withhold Release Order Frequently Asked Questions

Hoshine Silicon Industry Co. Ltd Withhold Release Order Frequently Asked Questions

The Withhold Release Order applies to silica-based products made by Hoshine Silicon Industry Co. (Hoshine) and its subsidiaries as well as to materials and final goods derived from or produced using those silica-based products, regardless of where the materials and final goods are produced.  Examples include but are not limited to:

  1. Component Materials – silicon, including metallurgic grade silicon, silicon oxide and certain silicones in primary forms;

  2. Intermediate Goods - additives for aluminum alloys and concrete, integrated circuits,  and semiconductor devices;

  3. Finished Goods - adhesives, electronics, lubricants, photovoltaic cells, solar generators, solar panels, and parts thereof. 

CBP recognizes that there are manufacturers in China and other countries that produce silica-based products without using forced labor.  This WRO does not apply to such products or materials or to finished goods derived from or produced using those silica-based products.  Importantly, CBP utilizes risk-based targeting methodologies to ensure that only goods within the scope of this WRO are identified for detention and inspection.  

The scope of this WRO is not geographic, but rather entity-specific.  This means that not all goods containing silica-based products from China will be targeted for detention. 

This WRO is not expected to affect the majority of silica-based products imported into the United States.  For this and all other WROs, CBP applies a strategic, risk-based targeting methodology based on a variety of information sources to identify and interdict imports subject to the WRO.  

For the Hoshine WRO, CBP’s application of this risk-based targeting approach is precise and, as a result, is expected to affect only those imports that contain silica-based products made by Hoshine or its subsidiaries.  CBP’s risk-based targeting methodologies rely on multiple sources, which may include the specific geographic location of suppliers of polysilicon in an importer’s supply chain, public and private reports from reputable sources regarding Hoshine content in a U.S. supply chain, statements by suppliers indicating that they source from Hoshine, and other sources that reasonably indicate the existence of Hoshine content in a U.S. supply chain.

When CBP identifies such a shipment, the agency will detain the shipment. The importer will subsequently have an opportunity to provide information to CBP demonstrating that the imports are admissible to the United States.  Detentions and admissibility determinations are executed based on a review of the specific facts and circumstances associated with each particular shipment. 

CBP identified two of the International Labour Organization’s 11 indicators of forced labor during its investigation: intimidation and threats and restriction of movement.

CBP will issue a detention notice to the importer of record when CBP detains merchandise subject to the WRO.  Importers have three months either to export the detained shipment or to submit information to CBP demonstrating that the imports do not violate the WRO.  In cases in which an importer fails to export the goods or to provide the necessary information for admissibility within the three-month period, the shipment will be excluded from entry.  Once a shipment is excluded, the importer has another 60 days to re-export the shipment.  If the merchandise is not exported during this timeframe, it will be deemed abandoned and CBP will take the necessary steps to destroy the merchandise.

Importers have a responsibility to ensure that any foreign goods presented for importation to the United States comply with all applicable U.S. laws and regulations.  See, e.g., 19 U.S.C. § 1499; see also 19 U.S.C. §§ 1481, 1484, 1485.  CBP’s Informed Compliance Publication details the reasonable care standard by which parties must abide, including a checklist of questions that importers should be able to answer, when importing products into the United States.  See U.S. Customs and Border Protection, What Every Member of the Trade Community Should Know: Reasonable Care, An Informed Compliance Publication (September 2017).

Some importers have informed CBP that they are facing difficulties in documenting the sourcing of product components.  CBP will engage with importers, consistent with 19 CFR § 12.43(b), to ascertain whether they have made every reasonable effort to trace their supply chains and guard against the use of forced labor.  In no circumstances will detained products be released if they were produced or manufactured wholly or in part by forced labor.

Importers contending that merchandise detained under 19 CFR § 12.42(a) (providing for detention of a product subject to a WRO) was not in fact produced with forced labor must submit the Certificate of Origin signed by the foreign seller, which may be submitted in electronic form.  A standard Certificate of Origin is not acceptable.  Importers also must provide a detailed statement from the importer as outlined in 19 C.F.R. § 12.43(b).  This must be submitted by the importer, not the seller.  

Additional documentation including, but not limited to the following, will be helpful and may be requested:

  • Affidavit from the provider of the silica-based product about the origin and components of the silica-based product.  
     
  • Other business documentation that can support the origin of the materials, such as but not limited to:
    • purchase orders, invoices, and proof of payment;
    • a list of production steps and records for the imported merchandise;
    • transportation documents;
    • daily manufacturing process reports;
    • a list of entities that supplied inputs for the silica-containing products being imported;
    • any other relevant information that the importer believes may show that the shipments are not subject to the WRO.
       
  • Evidence regarding the importer's anti-forced labor compliance program.

The above-listed documents are not an exhaustive list of documentation that might be requested to demonstrate admissibility.  CBP will evaluate the evidence and supporting materials submitted on a case-by-case basis.

Given the volume of packages for CBP review for admissibility, it is helpful if the documents submitted are organized and include a road map to facilitate CBP review.  An English translation is also helpful and may be required.  Only documents relevant to the goods being detained should be included.  

Any questions regarding specific detained shipments should be directed to either the port of entry where the goods arrived or the point of contact identified in the Detention Notice.
 

CBP seeks to promote clarity and transparency to importers who want to know if their product is subject to a WRO, including the Hoshine WRO.  There are several options available to importers who have questions about whether and how the WRO will apply to their product. 

First, an importer may seek a “ruling” regarding the admissibility of a “prospective transaction,” meaning a transaction that is not already pending before a Customs Official.  See 19 CFR Part 177.  Such rulings apply to specific, prospective imports.  Details on how to apply for this kind of advance ruling are here.  The importer may expect enforcement of the WRO consistent with that ruling as to future shipments of products involving substantially identical facts, unless CBP has new information that reasonably indicates that merchandise contained in the shipment contains silica-based products made by Hoshine or its subsidiaries, or if the merchandise is otherwise violative of U.S. laws.

Second, importers can also reach out with any questions to the Center of Excellence and Expertise (“Center”) assigned to the particular commodity being imported using the directory and contact information on CBP’s website located here.  Please note that the website offers a listing of all ten Centers across the country, with a dropdown menu for each Center containing specific email and telephone contact information, including the name of the Center Director.

Third, importers may contact the Deputy Executive Director for Trade Remedy Law Enforcement at TRLED_DXD@cbp.dhs.gov or via telephone at (202) 325-7952 with any questions about an active WRO, including this WRO.
 

Consistent with CBP’s guidance document What Every Member of the Trade Community Should Know: Reasonable Care, U.S. Customs and Border Protection (Sept. 2017), the following questions may prompt or suggest a program, framework, or methodology that importers may find useful in avoiding compliance problems and meeting reasonable care responsibilities:

  1. Has the importer implemented a traceability program that includes an independent third-party audit mechanism?
  2. Is the importer of solar products able to establish the source of the component materials in an imported solar module product, depending on the importer’s level of vertical integration?
  3. Has the importer implemented social compliance audits to guard against forced labor? 

As explained in the U.S. government’s Xinjiang Supply Chain Business Advisory: Risks and Considerations for Businesses and Individuals with Exposure to Entities Engaged in Forced Labor and other Human Rights Abuses linked to Xinjiang, China (updated July 13, 2021), polysilicon products sourced from Xinjiang carry a high risk of forced labor.  An importer can lower its risk of exclusions under the Hoshine WRO if it sources polysilicon from outside of Xinjiang.

Current guidance on WROs against goods produced in Xinjiang or by entities on the entities lists contained in the Forced Labor Enforcement Task Force’s UFLPA Strategy will continue to apply to goods imported on or before June 20, 2022.  When the UFLPA’s rebuttable presumption goes into effect on June 21, 2022, all goods imported on or after that date that are within the scope of these WROs, are also within the scope of the UFLPA, and will become subject to the UFLPA’s rebuttable presumption.  The rebuttable presumption applies to all goods produced in Xinjiang or by entities on the entities lists contained in UFLPA Strategy, regardless of whether these goods are currently subject to WROs. 

CBP will post operational guidance on the UFLPA’s rebuttable presumption prior to June 21, 2022. This guidance complements the UFLPA Strategy. Importers requesting an exception to the presumption must comply with the guidance in the UFLPA Strategy.  Please visit https://www.cbp.gov/trade/forced-labor/UFLPA for additional information.

The FLETF’s UFLPA Strategy will be submitted to Congress and published by June 21, 2022.

CBP will host webinars on UFLPA on June 1, 7, and 16.  The same content will be presented at each webinar and a recording will also be available.  Registration links for the webinars are below. 

The Withhold Release Order applies to silica-based products made by Hoshine Silicon Industry Co. (Hoshine) and its subsidiaries as well as to materials and final goods derived from or produced using those silica-based products, regardless of where the materials and final goods are produced.  Examples include but are not limited to:

  • Component Materials – silicon, including metallurgic grade silicon, silicon oxide and certain silicones in primary forms;
  • Intermediate Goods - additives for aluminum alloys and concrete, integrated circuits,  and semiconductor devices;
  • Finished Goods - adhesives, electronics, lubricants, photovoltaic cells, solar generators, solar panels, and parts thereof.

CBP recognizes that there are manufacturers in China and other countries that produce silica-based products without using forced labor.  This WRO does not apply to such products or materials or to finished goods derived from or produced using those silica-based products.  Importantly, CBP utilizes risk-based targeting methodologies to ensure that only goods within the scope of this WRO are identified for detention and inspection.   

The scope of this WRO is not geographic, but rather entity-specific.  This means that not all goods containing silica-based products from China will be targeted for detention.

This WRO is not expected to affect the majority of silica-based products imported into the United States.  For this and all other WROs, CBP applies a strategic, risk-based targeting methodology based on a variety of information sources to identify and interdict imports subject to the WRO. 

For the Hoshine WRO, CBP’s application of this risk-based targeting approach is precise and, as a result, is expected to affect only those imports that contain silica-based products made by Hoshine or its subsidiaries.  CBP’s risk-based targeting methodologies rely on multiple sources, which may include the specific geographic location of suppliers of polysilicon in an importer’s supply chain, public and private reports from reputable sources regarding Hoshine content in a U.S. supply chain, statements by suppliers indicating that they source from Hoshine, and other sources that reasonably indicate the existence of Hoshine content in a U.S. supply chain.

When CBP identifies such a shipment, the agency will detain the shipment. The importer will subsequently have an opportunity to provide information to CBP demonstrating that the imports are admissible to the United States.  Detentions and admissibility determinations are executed based on a review of the specific facts and circumstances associated with each particular shipment.

CBP identified two of the International Labour Organization’s 11 indicators of forced labor during its investigation: intimidation and threats and restriction of movement.

CBP will issue a detention notice to the importer of record when CBP detains merchandise subject to the WRO.  Importers have three months either to export the detained shipment or to submit information to CBP demonstrating that the imports do not violate the WRO.  In cases in which an importer fails to export the goods or to provide the necessary information for admissibility within the three-month period, the shipment will be excluded from entry.  Once a shipment is excluded, the importer has another 60 days to re-export the shipment.  If the merchandise is not exported during this timeframe, it will be deemed abandoned and CBP will take the necessary steps to destroy the merchandise.

Importers have a responsibility to ensure that any foreign goods presented for importation to the United States comply with all applicable U.S. laws and regulations.  See, e.g., 19 U.S.C. § 1499; see also 19 U.S.C. §§ 1481, 1484, 1485.  CBP’s Informed Compliance Publication details the reasonable care standard by which parties must abide, including a checklist of questions that importers should be able to answer, when importing products into the United States.  See U.S. Customs and Border Protection, What Every Member of the Trade Community Should Know: Reasonable Care, An Informed Compliance Publication (September 2017).

Some importers have informed CBP that they are facing difficulties in documenting the sourcing of product components.  CBP will engage with importers, consistent with 19 CFR § 12.43(b), to ascertain whether they have made every reasonable effort to trace their supply chains and guard against the use of forced labor.  In no circumstances will detained products be released if they were produced or manufactured wholly or in part by forced labor. 

Importers contending that merchandise detained under 19 CFR § 12.42(a) (providing for detention of a product subject to a WRO) was not in fact produced with forced labor must submit the Certificate of Origin signed by the foreign seller, which may be submitted in electronic form.  A standard Certificate of Origin is not acceptable.  Importers also must provide a detailed statement from the importer as outlined in 19 C.F.R. § 12.43(b).  This must be submitted by the importer, not the seller. 

Additional documentation including, but not limited to the following, will be helpful and may be requested:

  • Affidavit from the provider of the silica-based product about the origin and components of the silica-based product. 
  • Other business documentation that can support the origin of the materials, such as but not limited to:
    • purchase orders, invoices, and proof of payment;
    • a list of production steps and records for the imported merchandise;
    • transportation documents;
    • daily manufacturing process reports;
    • a list of entities that supplied inputs for the silica-containing products being imported;
    • any other relevant information that the importer believes may show that the shipments are not subject to the WRO.
  • Evidence regarding the importer's anti-forced labor compliance program.

The above-listed documents are not an exhaustive list of documentation that might be requested to demonstrate admissibility.  CBP will evaluate the evidence and supporting materials submitted on a case-by-case basis.

Given the volume of packages for CBP review for admissibility, it is helpful if the documents submitted are organized and include a road map to facilitate CBP review.  An English translation is also helpful and may be required.  Only documents relevant to the goods being detained should be included. 

 Any questions regarding specific detained shipments should be directed to either the port of entry where the goods arrived or the point of contact identified in the Detention Notice.

CBP may grant an exception to the UFLPA’s presumption if the importer complies with due diligence, supply chain, and evidentiary guidance provided in the UFLPA Strategy, and CBP determines, by clear and convincing evidence, that the goods were not produced wholly or in part by forced labor. Current guidance pertaining to the Hoshine WRO will continue to apply to goods imported on or before June 20, 2022.   

An importer contending that its importations are outside the scope of the UFLPA may provide information to CBP to that effect, i.e., information that the imported goods and their inputs are sourced completely from outside Xinjiang and have no connection to the UFLPA Entity List.  An importer must provide documentation that substantiates the absence of inputs subject to UFLPA from its supply chain.  Currently, importers seeking release of goods detained under the Hoshine WRO submit admissibility packages containing this type of documentation. 

CBP seeks to promote clarity and transparency to importers who want to know if their product is subject to a WRO, including the Hoshine WRO.  There are several options available to importers who have questions about whether and how the WRO will apply to their product.

First, an importer may seek a “ruling” regarding the admissibility of a “prospective transaction,” meaning a transaction that is not already pending before a Customs Official.  See 19 CFR Part 177.  Such rulings apply to specific, prospective imports.  Details on how to apply for this kind of advance ruling are here.  The importer may expect enforcement of the WRO consistent with that ruling as to future shipments of products involving substantially identical facts, unless CBP has new information that reasonably indicates that merchandise contained in the shipment contains silica-based products made by Hoshine or its subsidiaries, or if the merchandise is otherwise violative of U.S. laws.

Second, importers can also reach out with any questions to the Center of Excellence and Expertise (“Center”) assigned to the particular commodity being imported using the directory and contact information on CBP’s website located here.  Please note that the website offers a listing of all ten Centers across the country, with a dropdown menu for each Center containing specific email and telephone contact information, including the name of the Center Director.

Third, importers may contact the Deputy Executive Director for Trade Remedy Law Enforcement at TRLED_DXD@cbp.dhs.gov or via telephone at (202) 325-7952 with any questions about an active WRO, including this WRO.

Consistent with CBP’s guidance document What Every Member of the Trade Community Should Know: Reasonable Care, U.S. Customs and Border Protection (Sept. 2017), the following questions may prompt or suggest a program, framework, or methodology that importers may find useful in avoiding compliance problems and meeting reasonable care responsibilities:

  • Has the importer implemented a traceability program that includes an independent third-party audit mechanism?
  • Is the importer of solar products able to establish the source of the component materials in an imported solar module product, depending on the importer’s level of vertical integration?
  • Has the importer implemented social compliance audits to guard against forced labor?

As explained in the U.S. government’s Xinjiang Supply Chain Business Advisory: Risks and Considerations for Businesses and Individuals with Exposure to Entities Engaged in Forced Labor and other Human Rights Abuses linked to Xinjiang, China (updated July 13, 2021), polysilicon products sourced from Xinjiang carry a high risk of forced labor.  An importer can lower its risk of exclusions under the Hoshine WRO if it sources polysilicon from outside of Xinjiang. Additionally, if a factory sources polysilicon both from Xinjiang and from outside of Xinjiang, then the import of goods from that factory risks being subject to detention, as it may be harder to verify that the supply chain is only using non-Hoshine polysilicon and the materials have not been replaced by or co-mingled with Hoshine polysilicon at any point in the manufacturing process.

  • Last Modified: June 2, 2022