Camel Group Co., Ltd. v. United States

Slip Op. 26-95 UNITED STATES COURT OF INTERNATIONAL TRADE CAMEL GROUP CO., LTD., Plaintiff, v. UNITED STATES OF AMERICA; DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; FORCED LABOR Before: Lisa W. Wang, Judge ENFORCEMENT TASK FORCE; ALEJANDRO MAYORKAS, in his official Court No. 25-00022 capacity as the Secretary of the Department of Homeland Security; TROY A. MILLER, in his official capacity as the Senior Official Performing the Duties of the Commissioner for U.S. Customs and Border Protection; ROBERT SILVERS, in his official capacity as Under Secretary for Office of Strategy, Policy, and Plans and Chair of the Forced Labor Enforcement Task Force, Defendants. OPINION AND ORDER [Remanding the determination of the Forced Labor Enforcement Task Force under the Uyghur Forced Labor Prevention Act.] Dated: August 14, 2026 Mark V. Heusel, Dickinson Wright PLLC, of Ann Arbor, MI, argued for Plaintiff Camel Group Co., Ltd. With him on the brief was Jacob L. Clark. Monica P. Triana, Senior Trial Counsel, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for the Defendants. With her on the brief were Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Director, Justin R. Miller, Attorney-In-Charge, and Aimee Lee, Assistant Director. Court No. 25-00022 Page 2 Wang, Judge: This action arises out of the final determination of the Forced Labor Enforcement Task Force (“FLETF”), which denied Plaintiff Camel Group Co., Ltd.’s (“Camel Group”) request for removal (“Removal Request”) from a list of entities prescribed by section 2(d)(2)(B)(ii) of the Uyghur Forced Labor Prevention Act (“UFLPA”), Pub. L. No. 117-78, 135 Stat. 1525 (2021). Memorandum from Robert Silvers, Under Sec’y of Homeland Sec., Off. of Strategy, Policy, and Plans, Forced Labor Enforcement Task Force Denial of Camel Group Co., Ltd. Request for Removal from the Uyghur Forced Labor Prevention Act Entity List (Sept. 4, 2024) (“Removal Request Denial”), ECF No. 19, AR10–AR17. Plaintiff moves for judgment on the agency record pursuant to CIT Rule 56.1. Pl.’s Mot. for J. on Agency R. (“Pl.’s Br.”), ECF No. 48. Plaintiff challenges several aspects of the FLETF’s Removal Request Denial, arguing: (1) the FLETF exceeded its statutory authority by denying Camel Group’s Removal Request based on the “reasonable cause to believe” standard; (2) the FLETF failed to adhere to the statutory definition of “out of” the Xinjiang Uyghur Autonomous Region (“XUAR”); and (3) the FLETF’s determination was “not supported by an adequate, reasoned explanation” and unsupported by substantial evidence. See generally Pl.’s Br. Plaintiff seeks vacatur of the Removal Request Denial. Id. at 19. The United States et al. (“Defendants” or “government”) ask the court to sustain the FLETF’s Removal Request Denial. See Defs.’ Resp. in Opp. to Pl.’s Mot. for J. on Agency R. (“Defs.’ Resp. Br.”), ECF No. 63. For the following reasons, Plaintiff’s motion for judgment on the agency record is Court No. 25-00022 Page 3 granted in part and denied in part. BACKGROUND Plaintiff Camel Group is a publicly-listed company on the Shanghai Stock Exchange that offers battery-related products for internal combustion engines and pure electric models of automobiles. The Camel Group and its subsidiaries import such products into the U.S. market. Pl.’s Br. at 2; Compl. ¶ 2, ECF No. 5. The FLETF was established by Executive Order 13923 in 2020 and is chaired by the United States Department of Homeland Security (“DHS”). 19 U.S.C. § 4681; Exec. Order No. 13923, Establishment of the Forced Labor Enforcement Task Force Under Section 741 of the United States-Mexico-Canada Agreement Implementation Act, 85 Fed. Reg. 30,587 (May 20, 2020) (“Executive Order 13923”). The FLETF is an interagency task force comprised of seven member agencies: (1) DHS; (2) the United States Trade Representative; (3) the United States Department of Justice; (4) the United States Department of Labor; (5) the United States Department of State; (6) the United States Department of the Treasury; and (7) the United States Department of Commerce (“Commerce”).1 See Notice Regarding the Uyghur Forced Labor Prevention Act Entity List, 88 Fed. Reg. 38,080, 38,081 (DHS June 12, 2023). The FLETF is tasked with carrying out provisions of the UFLPA. Pub. L. No. 117- 78, § 2, 135 Stat. 1525 (2021). 1 DHS, as the FLETF Chair, has the authority to invite representatives from other executive departments and agencies as appropriate. See Executive Order 13923. Commerce is a member of the FLETF as invited by the FLETF Chair. Court No. 25-00022 Page 4 I. Uyghur Forced Labor Prevention Act The UFLPA stands on the pillar of section 307 of the Tariff Act of 1930, as amended (“section 307”), which has long prohibited the importation of foreign goods made by forced labor. Section 307 states, in relevant part: All goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor or/and indentured labor under penal sanctions shall not be entitled to entry at any of the ports of the United States, and the importation thereof is hereby prohibited, and the Secretary of the Treasury is authorized and directed to prescribe such regulations as may be necessary for the enforcement of this provision. 19 U.S.C. § 1307.2 As directed by the United States–Mexico–Canada Agreement Implementation Act of 2020, the President established by executive order, the FLETF, “to monitor United States enforcement of the prohibition under [section 307].” 19 U.S.C. § 4681(a); see also Executive Order 13923. In 2021, the UFLPA was enacted to “ensure that goods made with forced labor in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China do not enter the United States market,” among other purposes. Pub. L. No. 117-78, 135 Stat. 1525 (2021). The law aimed to “strengthen the prohibition against the importation of goods made with forced labor, including by ensuring that the Government of the People’s Republic of China does not undermine the effective enforcement of section 2 Section 307 defines forced labor as “all work or service which is exacted from any person under the menace of any penalty for its non-performance and for which the worker does not offer himself voluntarily[,]” and includes forced or indentured child labor. 19 U.S.C. § 1307. Court No. 25-00022 Page 5 307 of the Tariff Act of 1930 ….” Id. § 1(1). Further, and among other statements of policy,3 Congress intended UFLPA “to address gross violations of human rights in the Xinjiang Uyghur Autonomous Region … using all the authorities available to the United 3 In full, section 1 of the UFLPA contains six statements of policy: (1) to strengthen the prohibition against the importation of goods made with forced labor, including by ensuring that the Government of the People’s Republic of China does not undermine the effective enforcement of section 307 of the Tariff Act of 1930 (19 U.S.C. 1307), which prohibits the importation of all “goods, wares, articles, and merchandise mined, produced or manufactured wholly or in part in any foreign country by … forced labor”; (2) to lead the international community in ending forced labor practices wherever such practices occur through all means available to the United States Government, including by stopping the importation of any goods made with forced labor, including those goods mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region; (3) to coordinate with Mexico and Canada to effectively implement Article 23.6 of the United States-Mexico-Canada Agreement to prohibit the importation of goods produced in whole or in part by forced or compulsory labor, including those goods mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region; (4) to actively work to prevent, publicly denounce, and end human trafficking including with respect to forced labor, whether sponsored by the government of a foreign country or not, and to restore the lives of those affected by human trafficking, a modern form of slavery; (5) to regard the prevention of atrocities as it is in the national interest of the United States, including efforts to prevent torture, enforced disappearances, severe deprivation of liberty, including mass internment, arbitrary detention, and widespread and systematic use of forced labor, and persecution targeting any identifiable ethnic or religious group; and (6) to address gross violations of human rights in the Xinjiang Uyghur Autonomous Region— (A) through bilateral diplomatic channels and multilateral institutions where both the United States and the People’s Republic of China are members; and (B) using all the authorities available to the United States Government, including visa and financial sanctions, export restrictions, and import controls. UFLPA § 1 (Statement of Policy). Court No. 25-00022 Page 6 States Government, including visa and financial sanctions, export restrictions, and import controls.” Id. § 1(6)(B). Congress tasked the FLETF to implement a “strategy to enforce [the] prohibition on importation of goods made through forced labor in the Xinjiang Uyghur Autonomous Region.” Id. § 2. An element of this strategy includes a “comprehensive description and evaluation” of certain lists, which include: i. [A] list of entities in the Xinjiang Uyghur Autonomous Region that mine, produce, or manufacture wholly or in part any goods, wares, articles and merchandise with forced labor; ii. a list of entities working with the government of the Xinjiang Uyghur Autonomous Region to recruit, transport, transfer, harbor or receive forced labor or Uyghurs, Kazakhs, Kyrgyz, or members of other persecuted groups out of the Xinjiang Uyghur Autonomous Region; iii. a list of products mined, produced, or manufactured wholly or in part by entities on the list required by clause (i) or (ii); iv. a list of entities that exported products described in clause (iii) from the People’s Republic of China into the United States; v. a list of facilities and entities, including the Xinjiang Production and Construction Corps, that source material from the Xinjiang Uyghur Autonomous Region or from persons working with the government of the Xinjiang Uyghur Autonomous Region or the Xinjiang Production and Construction Corps for purposes of the ‘‘poverty alleviation’’ program or the ‘‘pairing-assistance’’ program or any other government labor scheme that uses forced labor. Id. § 2(d)(2)(B)(i)–(v). Section 3 of the UFLPA provides that for entities listed pursuant to clause (i), (ii), (iv) or (v) of section 2(d)(2)(B), U.S. Customs and Border Protection (“Customs”) must apply a presumption that any imports “mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China or produced by an entity on a list” are prohibited from entry into the United States by section 307. Id. § 3(a). The presumption is rebuttable if the importer of record meets Court No. 25-00022 Page 7 certain procedural requirements and demonstrates to Customs “by clear and convincing evidence, that the good, ware, article, or merchandise was not mined, produced, or manufactured wholly or in part by forced labor.” Id. § 3(b). To effectuate the UFLPA, the FLETF released its strategy to Congress on June 17, 2022. DHS, Strategy to Prevent the Importation of Goods Mined, Produced, or Manufactured with Forced Labor in the People’s Republic of China (2022) (“FLETF Strategy”), https://www.dhs.gov/sites/default/files/2022-06/22_0617_fletf_uflpa- strategy.pdf (last visited July 16, 2026). This document provided an initial list of entities (“UFLPA Entity List”) that were “subject to the presumption that their products are prohibited from entry into the United States under 19 U.S.C. § 1307, effective June 21, 2022.” Id. at 22. The Camel Group was not on this initial list. The FLETF, however, stated that “any future updates, will be published in the Federal Register” and that it “intends to update the UFLPA Entity List multiple times per year.” Id. at 22, 58. II. The FLETF’s Actions Related to the Camel Group On August 2, 2023, DHS, as the chair of the FLETF, published a Federal Register notice placing the Camel Group on the UFLPA Entity List. Notice Regarding the Uyghur Forced Labor Prevention Act Entity List, 88 Fed. Reg. 50,902, 50,904 (DHS Aug. 2, 2023) (“Camel Group Listing Notice”). Specifically, the Camel Group was added to the UFLPA Entity List pursuant to section 2(d)(2)(B)(ii) of the UFLPA, which identifies “entities working with the government of the Xinjiang Uyghur Autonomous Region to recruit, transport, transfer, harbor or receive forced labor or Uyghurs, Kazakhs, Kyrgyz, or members of other persecuted groups out of the Xinjiang Uyghur Autonomous Region.” Id. Court No. 25-00022 Page 8 Although not in the Camel Group Listing Notice, the FLETF subsequently informed the Camel Group that its placement on the UFLPA Entity List was based on the following evidence: UFLPA Entity List Package 23-004 added Camel Group to the list described in Section 2(d)(2)(B)(ii) of the UFLPA (Attachment 11). Package 23-004 identifies a February 2022 Sheffield Hallam University report, Financing & Genocide: Development Finance and the Crisis in the Uyghur Region and a July 10, 2017, announcement from Toksun County's official WeChat page (which is also cited in the Financing & Genocide report). The Toksun County WeChat announcement identifies Camel Group as one of several companies that participated in a “handover ceremony” coordinated by the Toksun County government in Turpan Prefecture in Xinjiang that received workers in 2017 from Kashgar and Hotan, which are Uyghur-majority areas in southern Xinjiang. The handover ceremony was conducted under the Toksun County labor transfer program known as the “Three-year Plan for the Autonomous Prefecture to Promote the Organized Transfer and Employment of Urban and Rural Surplus Labor Forces in Kashgar, Hotan Region (2017-2019)” …. Removal Request Denial at AR10. The Camel Group Listing Notice provided that “[a]ny listed entity may submit a request for removal (removal request) from the UFLPA Entity List along with supporting information to the FLETF Chair.” 88 Fed. Reg. at 50,904 (DHS Aug. 2, 2023). The notice provided that such a request should include “information that demonstrates that the entity no longer meets or does not meet the criteria described in the applicable clause ((i),(ii), (iv), or (v)) of section 2(d)(2)(B) of the UFLPA.” Id. III. The FLETF’s Denial of the Camel Group’s Removal Request On November 7, 2023, the Camel Group submitted a request to the FLETF seeking to be removed from the UFLPA Entity List. Removal Request Denial at AR10. In its request, the Camel Group provided certifications and affidavits, employee lists, corporate records and other documents to support its argument that the Camel Group Court No. 25-00022 Page 9 “did not participate in or benefit from any labor transfer programs.” Id. at AR11. The Camel Group also argued that, notwithstanding its denial of participation in a labor transfer program, the program identified by the FLETF ended in 2019, and as such, could not have met the contemporaneity requirements of the UFLPA. Id. Subsequently, the FLETF sought answers to follow-up questions, and identified additional information for inclusion in the administrative record. See id. On July 9, 2024, the FLETF notified the Camel Group through its counsel that “that the information provided by Camel Group as part of its removal request did not demonstrate that Camel Group either does not meet or no longer meets the criteria described in Section 2(d)(2)(B)(ii) of the UFLPA.” Letter from DHS to Mark V. Heusel, “The Forced Labor Enforcement Task Force’s Decision Regarding Camel Group Co., Ltd.’s Request for Removal from the Uyghur Forced Labor Prevention Act Entity List” (July 9, 2024), AR2977–AR2987. Specifically, the FLETF provided the following explanation to the Camel Group: The FLETF determined that Camel Group did not provide sufficient, credible information to demonstrate it did not and does not participate in Toksun County government’s labor transfer programs to recruit, transfer, or receive workers from Uyghur-majority areas in southern Xinjiang. Based on publicly available information from 2017, 2023, and 2024 illustrating continued Toksun County implementation of labor transfer schemes and Camel Group participation in Toksun County-sponsored labor recruitment events, the FLETF has reasonable cause to believe that Camel Group is working with the Toksun County government to recruit individuals from Uyghur-majority areas who are likely Uyghurs, Kazakhs, and/or Kyrgyz. These sources therefore cast doubt on Camel Group’s assertion that it has not employed anyone through the Labor Transfer Program. Id. at AR2979. Court No. 25-00022 Page 10 As a result, the FLETF determined that the Camel Group would “remain on the UFLPA Entity List.” Id. at AR2977. The FLETF stated that its decision denying Camel Group’s request for removal “is not appealable [to the administrative entity]; however, Camel Group may submit a new request for removal if it can provide new information to support such a request.” Id. at AR2979. This appeal followed. On January 15, 2025, under 28 U.S.C. § 1581(i), Plaintiff filed a complaint seeking judicial review of the FLETF’s Removal Request Denial. See Compl. A protective order was entered on May 21, 2025. ECF No. 25 (“Protective Order”). On June 18, 2025, Plaintiff filed a motion for in camera review of certain documents designated as “Confidential Information”4 that Plaintiff believed should have been unredacted as public information, or in the alternative, redesignated as “Camel Confidential Information.”5 Pl.’s Mot. and Br. in Supp. of In Camera Review, ECF No. 32. The parties submitted various filings on this motion between June and July 2025. See ECF Nos. 35, 37, 38, 39, 41, 42. On September 9, 2025, the court denied Plaintiff’s motion. ECF Nos. 43, 44. Plaintiff filed its CIT Rule 56.1 motion for judgment on the agency record on 4 “Confidential Information” includes, among other types of protections, “information, data, and documents the disclosure of which, to, or by, the receiving party would, in the good faith belief of the producing party, result in the disclosure of … law enforcement sensitive information or other similarly sensitive government information, including information designated as ‘for official use only.’” Protective Order ¶ 1. 5 “Camel Confidential Information” is information that would otherwise be considered Confidential Information but “may be disclosed to officers or directors of Camel Group Co., Ltd.” Protective Order ¶ 7. Court No. 25-00022 Page 11 September 29, 2025. Pl.’s Br. Defendants filed their opposition on January 29, 2026. Defs.’ Resp. Br. Plaintiff filed its reply on February 26, 2026. Pl.’s Reply in Supp. of Mot. for J. on Agency R., ECF No. 65. Oral arguments were held on May 14, 2026. ECF No. 68. JURISDICTION AND STANDARD OF REVIEW The court has exclusive jurisdiction over this action pursuant to 28 U.S.C. § 1581(i) “[b]ecause the UFLPA is a ‘law … providing for … embargoes.’” Ninestar Corp. v. United States, 666 F. Supp. 3d 1351, 1363 (CIT 2023) (quoting 28 U.S.C. § 1581(i)(1)(c)). 28 U.S.C. § 2640(e) provides that actions falling within the court’s “residual” jurisdiction under 28 U.S.C. § 1581(i) are subject to the standard of review set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See Humane Soc'y of the United States v. Clinton, 236 F.3d 1320, 1324 (Fed. Cir. 2001) (“[T]his Court will apply the standard of review set forth in 5 U.S.C. § 706 to an action instituted pursuant to 28 U.S.C. § 1581(i).”); see also Cal. Steel Indus., Inc. v. United States, 745 F. Supp. 3d 1287, 1296 (CIT 2024); Ninestar Corp. v. United States, 687 F. Supp. 3d 1308, 1314 (CIT 2024) (“Ninestar II”). Section 706 of the APA directs, in relevant part, the court to “set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2). The scope of the arbitrary and capricious standard is narrow; courts are not to substitute their judgment for that of the agency. Motor Vehicle Mfrs. Ass’n of United Court No. 25-00022 Page 12 States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has cautioned that the “arbitrary and capricious” standard is “‘highly deferential’ to the administrative agency’s factual findings.” Humane Soc’y, 236 F.3d at 1325. However, even under this standard, the FLETF must have “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Federal Circuit has explained: Courts have found an agency’s decision to be arbitrary and capricious when the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (alteration in original) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). DISCUSSION The court has not had occasion to review the government’s actions in reviewing a party’s request to be removed from the UFLPA Entity List.6 Here, Plaintiff challenges several aspects of the FLETF’s Removal Request Denial, contending that: (1) the FLETF exceeded its statutory authority by denying 6 In the years since the enactment of the UFLPA, the court has had occasion to review the government’s actions with respect to placement of a company on the UFLPA Entity List. See Ninestar II, 687 F. Supp. 3d at 1308. The Camel Group does not challenge its placement on the UFLPA Entity List. See Pl.’s Br. at 15–16. Court No. 25-00022 Page 13 Camel’s Removal Request based on the “reasonable cause to believe” standard; (2) the FLETF failed to adhere to the statutory definition of “out of” the XUAR; and (3) the FLETF’s determination was “not supported by an adequate, reasoned explanation” and unsupported by substantial evidence. See generally Pl.’s Br. Plaintiff seeks vacatur of the Removal Request Denial. Id. at 19. The government asks the court to sustain the FLETF’s Removal Request Denial. See Defs.’ Resp. Br. The court addresses each claim in turn. I. Burden of Proof Before the Agency for UFLPA Entity List Removal Requests A. Party Bearing the Burden of Proof The first issue is which party bears the burden of proof before the agency for removal requests from the UFLPA Entity List. The court has previously found that, in initial listing decisions, the burden of proof is on the FLETF, and that “[r]easonable cause is the appropriate burden of proof ….” Ninestar II, 687 F. Supp. 3d at 1333. The court, however, has yet to address the appropriate burden of proof in requests for removal from the UFLPA Entity List, and which party bears this burden. On these outstanding issues, Plaintiff argues that it is incumbent on the FLETF to demonstrate, based on a “preponderance of evidence,” whether the evidence submitted by a requesting party has met the requirements for removal from the UFLPA Entity List. Pl.’s Br. at 39–40. That is because, according to Plaintiff, “[i]n an agency action that denotes sanctions, as in this case, the agency (FLETF), as the proponent of the decision, has the burden of proof to support it with ‘substantial evidence.’” Id. at 15 (citing Steadman v. S.E.C., 450 U.S. 91, 98 (1981)). Plaintiff argues that “the FLETF Court No. 25-00022 Page 14 provided no evidence to rebut the supporting evidence and explanations provided by Camel Group in its Removal Petition and Responses.” Comp. ¶ 181. Defendants maintain that their decision to deny Plaintiff’s Removal Request was lawful, but offer contradictory claims as to their rationale. For example, in sections of their brief, Defendants argue that when a party requests its removal from the UFLPA Entity List, “they must show sufficient evidence to establish that there is no longer ‘reasonable cause to believe’ that the statutory requirements are met.” Defs.’ Resp. Br. at 49.7 Thus, in Defendants’ view, the burden of proof before the agency is incumbent on the requester and is based on the sufficiency of evidence provided to the FLETF by the requester. Despite protestations to Plaintiff’s burden, in other sections of their brief, Defendants also argue that “the same burden of proof that this Court has already applied to a FLETF listing decision – reasonable cause to believe that the statutory requirements have been met – applies equally to a decision by the FLETF to deny an 7 Defendants also argue that Plaintiff waived its argument regarding the appropriate burden of proof in removal decisions as “Camel did not claim, in its Complaint, that the FLETF’s application of the reasonable cause to believe standard exceeded its statutory authority.” Defs.’ Resp. Br. at 40 (emphasis in original). A complaint must provide the Defendant with “fair notice of what the plaintiff's claim is and the grounds upon which it rests,” but need not be exhaustive. DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1320 (Fed. Cir. 2006); see also Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1062 (Fed. Cir. 2012). Here, Plaintiff alleged in count 3 of its complaint that the FLETF’s actions were in excess of its statutory authority. Compl. ¶¶ 185–88. The issue of the appropriate burden of proof for removal from the UFLPA Entity List was then briefed in Plaintiff’s Rule 56.1 motion as a FLETF action that exceeded its statutory authority. See Pl.’s Br. at 37–43. In such circumstances, Defendants had fair notice of Plaintiff’s claim. Plaintiff’s argument is not waived. Court No. 25-00022 Page 15 entity’s request for removal from the UFLPA Entity List.” Defs.’ Resp. Br. at 17. These arguments suggest that Defendants share in Plaintiff’s contention that the FLETF has the burden of proof for removal request decisions. Both parties are incorrect. As an initial matter, there is a difference between the burden of proof that a party is required to make before the agency, and the responsibility of this court to review decisions of that agency based on the applicable standard of review. As the Federal Circuit has explained: The burden of proof and the scope of review in administrative law cases, as in ordinary judicial proceedings, are separate matters. The former is the measure of belief which legally must exist in the mind of the trier of fact in order to sustain a finding. The scope of review, of course, marks the bounds of a reviewing court’s authority to set aside factual findings, and review is customarily limited to ascertaining whether there is enough evidence of the legally correct sort to save the findings from irrationality. Rodriguez v. Dep’t of Veterans Affs., 8 F.4th 1290, 1299 (Fed. Cir. 2021). At times, the parties treat the burden of proof before the agency and the standard of review as interchangeable concepts, but the arbitrary and capricious standard used by this court is not and cannot be substituted for the burden of proof in the underlying proceeding before the FLETF. In proceedings before the court, “the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims.” Schaffer v. Weast, 546 U.S. 49, 56 (2005) (citing 2 J. Strong, McCormick on Evidence § 337, at 412 (5th ed. 1999) (“The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion.”)). The Court No. 25-00022 Page 16 Supreme Court has explained that “Congress also expressed its approval of the general rule when it chose to apply it to administrative proceedings under the Administrative Procedure Act, 5 U.S.C. § 556(d).” Id. at 57. In other words, for administrative proceedings, the party seeking to change “the present state of affairs” bears the burden of proof. As such, parties requesting removal from the UFLPA Entity List bear the initial burden of proof before the agency, as they are the ones seeking to change the present state of affairs.8 Here, once the government placed the Camel Group on the UFLPA Entity List, it is Plaintiff that must meet the burden of proof before the agency to obtain its removal. Such a shift in the burden of proof is inherent in situations when parties seek removal from government sanctions or embargo lists. See e.g., 19 C.F.R. § 12.42 (providing that once an import entry is subject to a withhold release order under section 307, “the importer [must] establish[ ] by satisfactory evidence that the merchandise was not mined, produced, or manufactured in any part with the use of a class of labor specified in the finding.”); 15 C.F.R. § 744.16(e) (setting out procedures for companies to meet when seeking removal from Commerce’s export control-related entity lists). B. Burden of Proof Before the Agency for UFLPA Entity List Removal Requests Having established that parties requesting removal from the UFLPA Entity List bear the burden of proof before the agency, the court turns to the appropriate burden of 8 It follows from this directive that the FLETF carries the burden of proof in the initial designation of a company on the UFLPA Entity List. See Ninestar II, 687 F. Supp. 3d at 1308. Court No. 25-00022 Page 17 proof in such proceedings. Defendants propose that the appropriate burden of proof in agency removal request proceedings is “reasonable cause to believe.” Defs.’ Resp. Br. at 39.9 Plaintiff argues that the “UFLPA provides a higher standard of proof for post- listing decisions like removal decisions.” Pl.’s Br. at 39. The court agrees. The higher burden of proof before the agency, however, is incumbent on the party requesting removal from the UFLPA Entity List. That is, a party requesting removal from the UFLPA Entity List must demonstrate by clear and convincing evidence to the agency that it no longer meets or does not meet the criteria of section 2(d)(2)(B)(i), (ii), (iv), or (v) of the UFLPA. The court then reviews the FLETF’s removal decisions to determine whether it was arbitrary and capricious, or otherwise not in accordance with law. The statutory scheme of the UFLPA supports the application of this standard. The relevant portion of the statute first provides that Customs shall “apply a presumption that … [imports] … produced by an entity on a list required by clause (i), (ii), (iv), or (v) of section 2(d)(2)(B)” are prohibited under section 307. UFLPA § 3(a). Thus, by virtue of its placement on the UFLPA Entity List based on clause (ii) of section 2(d)(2)(B) of the UFLPA, all of Plaintiff’s imports would be presumptively prohibited from 9 The court in Ninestar II reasoned that because the UFLPA is silent as to the burden of proof for a listing decision, an appropriate analogue would be withhold release orders issued by Customs pursuant to section 307. Ninestar II, 687 F. Supp. 3d at 1334 (“Reasonable cause … better strengthens forced labor enforcement by bringing UFLPA listing decisions in line with section 307 WROs and avoiding that statutory asymmetry.”). Here, there is no need to reference analogues when the statute itself provides the burden of proof for modification requests from the lists required by section 2(d)(2)(B)(i), (ii), (iv), or (v) of the UFLPA. Court No. 25-00022 Page 18 entry into the United States under section 307. The statute further instructs that an entity like Plaintiff may seek to rebut this presumption by meeting certain criteria: (b) EXCEPTIONS. – The Commissioner shall apply the presumption under subsection (a) unless the Commissioner determines— (1) that the importer of record has-- (A) fully complied with the guidance described in section 2(d)(6) and any regulations issued to implement that guidance; and (B) completely and substantively responded to all inquiries for information submitted by the Commissioner to ascertain whether the goods were mined, produced, or manufactured wholly or in part with forced labor; and (2) by clear and convincing evidence, that the good, ware, article, or merchandise was not mined, produced, or manufactured wholly or in part by forced labor. Id. § 3(b). Thus, in order to import products from a company on the UFLPA Entity List, an importer, among other procedural requirements, must show by “clear and convincing evidence, that the good, ware, article, or merchandise was not mined, produced, or manufactured wholly or in part by forced labor.” Id. § 3(b)(2) (emphasis added). The law is clear that each entry of imports from a company on the UFLPA Entity List must meet the clear and convincing evidence standard in order to rebut the presumption of section 3(a) of the UFLPA. There are no allowances for repeat importations, nor is there a company-wide exception to the presumption. Allowing a lower burden of proof, such as a preponderance of the evidence Court No. 25-00022 Page 19 standard or reasonable cause to believe standard,10 to apply to companies that produce or export these products would mean that a company en toto could more easily meet the import exceptions of the UFLPA than the company’s individual shipments. Such an allowance would result in the type of “statutory asymmetry” that the court in Ninestar II cautioned would follow from the adoption of a preponderance standard in listing decisions and would fail to reflect the “unique challenges to forced labor enforcement involving Xinjiang.” See Ninestar II, 687 F. Supp. 3d at 1334; Sucic v. Wilkie, 921 F.3d 1095, 1098 (Fed. Cir. 2019) (“It is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’”). The statute does not allow for a company to be removed from the UFLPA Entity List using a less stringent burden of proof than would be required for all of the company’s individual goods. In sum, the party requesting removal from the UFLPA Entity List must demonstrate by clear and convincing evidence to the agency that it no longer meets or does not meet the criteria of section 2(d)(2)(B)(i), (ii), (iv), or (v) of the UFLPA. Given the lack of clarity from the FLETF, the court grants Plaintiff’s motion for a remand of the Removal Request Denial for further consideration on this issue. See Ala. 10 The Federal Circuit has explained that “[a] requirement of proof by clear and convincing evidence imposes a heavier burden upon a litigant than that imposed by requiring proof by preponderant evidence but a somewhat lighter burden than that imposed by requiring proof beyond a reasonable doubt. ‘Clear and convincing’ evidence has been described as evidence which produces in the mind of the trier of fact an abiding conviction that the truth of a factual contention is ‘highly probable.’” Price v. Symsek, 988 F.2d 1187, 1191 (Fed. Cir. 1993) (internal citations omitted). Court No. 25-00022 Page 20 Aircraft Indus., 586 F.3d at 1375. Specifically, on remand, the FLETF should reconsider Plaintiff’s request for removal from the UFLPA Entity List to determine if Plaintiff has demonstrated by clear and convincing evidence that it no longer meets or does not meet the criteria of section 2(d)(2)(B)(i), (ii), (iv), or (v) of the UFLPA.11 The court expresses no opinion on whether the FLETF should reopen the record of the underlying proceeding in conducting its remand redetermination. See Essar Steel Ltd. v. United States, 678 F.3d 1268, 1278 (Fed. Cir. 2012) (“The decision to reopen the record is best left to the agency ….”).