Apparel Trade Group Blasts CBP's Forced Labor Law Enforcement in Amicus Brief at CIT

Virtus' palm oil imports from Malaysia were originally detained by CBP in February, then excluded in March under suspicion that the goods were barred from entry under the WRO on palm oil products made by Sime Darby Plantation Bhd in Malaysia (see 2105130055). The importer claims the goods are made by a different producer, Wilmar. Virtus originally sought an expedited briefing schedule to simply prove that its products were not made with forced labor. This schedule was ultimately not adopted by the court following pushback from the Department of Justice (see 2105170056).

Virtus' case represents a more rare instance of a company whose goods were excluded by CBP due to alleged forced labor ties that is now challenging the exclusions in federal court. Companies in similar predicaments do not file their cases for fear of the publicity of being associated with forced labor, Patrick Gill of Sandler Travis, counsel to AAFA, told Trade Law Daily. "Nobody wants to be the front man in one of these cases, and that's what's holding them back," Gill said. "It's just a fear of being a potential forced labor violator, and there is a real fear that you can get tarred and feathered if you make a challenge."

Seeing an opening to critique CBP's broader enforcement of U.S. forced labor law once Virtus did file its case, AAFA submitted its amicus brief. One central element of the brief is the association's claims that CBP's system of detaining and excluding goods violates these companies' due process rights. CBP excludes these imports, such as the palm oil in Virtus' case, without revealing to any party what evidence it has of forced labor, the brief said. There are also no hearings in which the importer can refute any of this evidence.

"Even if Virtus is ultimately successful in causing the government to reveal the information on which its WRO decision was based during the course of this litigation, that fact will not help importers who do not have the financial means to litigate the CBP WRO decision," the association said. "What is required is a decision in this case that procedural due process requires CBP to reveal any non-classified information used to support a WRO decision and allow the importer an opportunity to review and rebut any such specific information at the administrative level."

Gill believes that these broader questions, although not central to Virtus' complaint, have a solid chance at surfacing later in the case. "If they take the brief and the case goes on, I think they will consider these issues because they're at the heart of everything that's going on," he said. "What we're really doing is sharing what the companies are experiencing, what we're all experiencing, and it's unfair, and it needs to be corrected." Gill assured that the AAFA members want to work with CBP to root out forced labor, and that if CBP were to share its evidence with the companies accused of aiding forced labor, the supplier-in-question would be dropped in a heartbeat.

AAFA also argued that CBP has "imposed an unreasonable standard of evidence," when dealing with products accused of being made with forced labor. This standard leads CBP to continuously "move the goal posts," and change what evidence the agency requires to make a forced labor determination. For instance, CBP has changed its tune on requiring whether all documents must be fully translated into English or include a narrative that explains the documents, the brief argues.

Little to no feedback is provided to the importers during the WRO review process as well, AAFA said. The association points to multiple instances where its members have submitted rebuttal documents and after weeks of consideration, CBP merely issues a explanation-less response that the documents are insufficient. "There is no reason why CBP cannot provide feedback during a detention review to all importers who submit traceability documents to attempt to clear goods detained under a WRO," the brief said. "Instead of potentially resolving any issues in a single administrative process, after providing a limited response, CBP tells importers that if they disagree and want a further explanation, they engage in a second proceeding by filing a protest and Application for Further Review ('AFR'). CBP is under no time constraints to act on a protest, and any decision to grant an AFR is discretionary.

"The court should hold that CBP must issue specific guidance as to what information importers should submit to contest a WRO detention and should then follow its own guidance."