A less stringent "reasonable cause" standard for adding companies to the Uyghur Forced Labor Prevention Act Entity List is justified on statutory and policy grounds, the U.S. told the Court of International Trade in a brief opposing Chinese exporter Ninestar Corp.'s motion for a preliminary injunction. Using a higher standard, such as a preponderance of the evidence standard, for making listing decisions, would undermine the UFLPA's goal of placing a burden on exporters to show that their goods are not made with forced labor (Ninestar Corp. v. U.S., CIT # 23-00182).
UFLPA Entity List Litigation
Under the Uyghur Forced Labor Prevention Act (UFLPA), the Forced Labor Enforcement Task Force (FLETF) will add companies to an Entity List if it suspects they are exporting products made with forced labor in China's Xinjiang region. Listed companies can appeal the decision before FLETF, and if that appeal is denied, they can challenge their listing at the Court of International Trade. Given the recency of UFLPA, very few cases have made their way to the trade court, though the early cases on this new statutory tool raise important questions of due process and FLETF's standard of review when adding companies to the Entity List. Guiding current litigation is CIT's key decision in Ninestar Corp. v. United States, in which the court upheld a "reasonable cause" standard of review for FLETF's listing decisions.
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