CBP Seeks to Quell Concerns Over Prohibition on Goods Made by North Koreans, Though Questions Remain

CBP is working on a regulatory update for its prohibition on imports made by forced labor that it hopes will offer some guidance for compliance, said Brenda Smith, executive assistant commissioner-trade at CBP, while speaking at an April 25 American Apparel and Footwear Association event. That should help to alleviate some, but not all, of the concerns over a change in law that requires CBP to treat goods made by North Koreans as made through forced labor, Smith said. "We also have been looking at our regulations to understand where the gaps are and why we are not as effective as we would like to be," she said.

The currently used forced labor regulations that were issued in 1963 came prior to a lot of CBP's current detention and seizure legal framework, Smith said. "We've been working to develop a rulemaking that will allow us to communicate with the private sector about what our expectations are. I hope to recognize where an effort has been made to then provide predictability and transparency and time frames around the detention and seizure process and exclusion process."

But that rulemaking would not get into issues about what questions companies are allowed to ask in order to stay compliant with the Countering America’s Adversaries Through Sanctions Act (CAATSA), Smith said. That was one question apparel groups, including the AAFA and the Footwear Distributors and Retailers of America, asked in a letter to Michael Dougherty, assistant secretary, Border, Immigration and Entry Policy at the Department of Homeland Security, earlier this month. The letter, which also went to CBP officials, sought clarity on several points included in a DHS document about the law (see 1804020018). For example, those groups ask for a list of locations where North Korean citizens are likely working and whether there are discrimination concerns for inquiries about the nationalities of workers.

All the issues raised in the letter will be considered by a governmental interagency group focused on forced labor, Smith said. "It's been a very educational conversation between us as we learn what information people have, what their policy goals are, and then what some of the real-life issues are we have to address to be successful."

Government officials recently discussed the law at an event (see 1803200024) focused on compliance with the forced labor prohibitions. During that meeting, Julie Turner, a foreign affairs officer within the State Department, offered some details on the major areas of concern, according to consultancy CT Strategies in a blog post. "Currently, the State Department is tracking forced North Korean laborers in at least 35 countries, and ... expanding that list as more abuses become known," according to CT Strategies. "The two most prominent offenders are Russia and China which employ 40,000 and 80,000 forced North Korean laborers respectively." North Korean labor is thought to be involved in seafood, textiles, electronics and some pharmaceuticals.

The government is less interested in companies that do due diligence into supply chains "and will take that into consideration when issuing fines and penalties," said William Ross, a deputy director at ICE, according to CT Strategies. A bigger focus will be on identifying companies that are willfully using North Korean laborers, he said. Jerry Malmo, director of the Civil Enforcement Division for the CBP Office of Trade, "also emphasized due diligence systems as helping Government enforce Anti-Forced Labor and CAATSA laws, while reducing penalties and fines for businesses," CT Strategies said.