On March 5, 2021, U.S. Customs and Border Protection (CBP) denied Dandong Huayang’s protest, which asserted that North Korean nationals did not produce  garments that were imported under two separate entries. CBP determined that the materials submitted by the protestant did not establish clear and convincing evidence that Dandong Huayang did not use North Korean forced labor in the manufacture of the excluded garments.

Background and Analysis

On December 23, 2020, CBP detained two entries at the Port of Newark, New Jersey, on the basis that the merchandise was subject to the Countering America’s Adversaries Through Sanctions Act (CAATSA), which prohibits goods mined, produced, or manufactured, in whole or in part, by North Korean nationals or North Korean citizens is prohibited under 19 USC 1307 and cannot be entered at any ports of the United States. 22 U.S.C. § 9241a(a).

An importer who wishes to import merchandise that is subject to the rebuttable presumption under CAATSA Section 321 carries the burden to overcome the presumption by providing information that meets the clear and convincing standard. Clear and convincing evidence is a higher standard of proof than a preponderance of the evidence, and generally means that a claim or contention is highly probable. See e.g., Colorado v. New Mexico, 467 U.S. 310 (1984) (holding that complainant did not meet “clear and convincing” burden of proof because it failed to show that the evidence is highly and substantially more likely to be true than untrue; the fact finder must be convinced that the contention is highly probable).

Dandong Huayang cited a Worldwide Responsible Accredited Production (WRAP) report ,which determined that the manufacturer uses Chinese nationals and produced photocopies of employees’ Chinese (national) Resident Identity Cards. However, CBP noted inconsistencies among other evidence, such as a photograph labeled “Production process: Packing” that depicts Dandong Huayang workers next to a stack of boxes of personal protective equipment (PPE), specifically disposable clothing. Notably, the boxes of PPE were identical to images of PPE boxes featured in The Guardian’s November 2020 exposé of North Korean forced labor used in Dandong Province factories in the production of PPE coveralls. The three-month investigation found evidence that protective coveralls ordered for the UK Department of Health and Social Care (DHSC) originated from Dandong factories, including Dandong Huayang, using North Korean forced labor.

The full CBP ruling is available here.

For more information on actions addressing CAATSA, human rights and forced labor claims, please see our prior posts or contact John Brew, Jeffrey Snyder, Frances Hadfield, Laurel Saito, or Clayton Kaier.

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Photo of John Brew John Brew

John Brew is the former chair of Crowell & Moring’s International Trade Group and a partner in the firm’s Washington, D.C. office.

John has extensive experience in import and export trade regulation, collaborating with corporations, trade associations, foreign governments, and nongovernmental organizations on…

John Brew is the former chair of Crowell & Moring’s International Trade Group and a partner in the firm’s Washington, D.C. office.

John has extensive experience in import and export trade regulation, collaborating with corporations, trade associations, foreign governments, and nongovernmental organizations on customs administration, enforcement, compliance litigation, legislation, and policy matters. He represents clients in proceedings at the administrative and judicial levels as well as before Congress and the international bureaucracies that handle customs and trade matters. John advises clients on all substantive import regulatory issues handled by U.S. Customs and Border Protection and Immigration and Customs Enforcement, such as classification, valuation, origin, marking, tariff preference programs, other agency regulations, admissibility, customs brokerage, Section 321, drawback, foreign trade zones, duty recovery programs, import restrictions, quotas, audits, prior disclosures, penalties, investigations, Customs Trade Partnership Against Terrorism and trade compliance programs, importations under bond, the Jones Act, and vessel repairs.

Photo of Jeffrey L. Snyder Jeffrey L. Snyder

Since 1986, Jeff’s practice has concentrated on the U.S. regulation of international trade. Clients seek him out for troubleshooting and problem solving in cross-border transactions. Jeff advises on import, export, and sanctions laws. He develops approaches for multinationals to manage the impact of…

Since 1986, Jeff’s practice has concentrated on the U.S. regulation of international trade. Clients seek him out for troubleshooting and problem solving in cross-border transactions. Jeff advises on import, export, and sanctions laws. He develops approaches for multinationals to manage the impact of U.S. extraterritorial regulations. Jeff assists companies in day-to-day compliance with these laws, and with interventions — such as audits and investigations, and civil enforcement proceedings.