CIT Should Condition Dismissal of WRO Case on Reexport of Withheld Goods, Importer Argues
The Court of International Trade should condition its dismissal of a lawsuit seeking to release goods excluded over forced labor concerns on CBP honoring an agreement that would allow the goods to be exported, importer Virtus Nutrition argued in a Nov. 28 reply brief. Responding to the U.S.'s refusal to commit to honoring the Temporary Storage Agreement, which would ensure that the goods could be exported, Virtus said that it is not trying to extend the agreement, as the government argues, but merely to enforce it (Virtus Nutrition v. U.S., CIT #21-00165).
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The case involves Virtus’ challenge to CBP's exclusion of one shipment of palm fatty acid distillate and palm stearin from entry under the forced labor statute. The products were detained under a withhold release order (WRO) barring the entry of palm oil products made in Malaysia by Sime Darby Plantation Bhd on the grounds that the manufacturer's palm oil was made with forced labor (see 2105130055).
Shortly after CBP detained the merchandise, the agency and Virtus entered into a Temporary Storage Agreement while the administrative and judicial proceedings played out. Under the agreement, Virtus was required to secure the goods where CBP inspectors could access them. Virtus was allowed to export the goods if they were not released. The goods were then excluded from entry.
Virtus said its intention was to show that it was more likely than not the excluded merchandise didn't have any content from Sime Darby and was thus not subject to the WRO. This goal "was thwarted" when the manufacturer declined to participate in the litigation. Virtus then turned to reexport options, entering talks with Mitsui & Co. to take back the detained palm fatty acid distillate and with another buyer to buy the palm stearin. Virtus moved to condition the dismissal of the case along the terms of the Temporary Storage Agreement and allow the company to export the goods (see 2210030067).
DOJ agreed the action should be dismissed but opposed Virtus' motion to enforce the agreement beyond the dismissal of the litigation, because "the agreement does not extend beyond the date that plaintiff is no longer seeking a final decision" (see 2211040049). In its reply, Virtus said that it's not trying to extend the terms of the agreement but only to trigger the exportation part by dismissing the case. "Through its counsel, CBP declines to inform the Court whether it will honor that Agreement," the brief said. "For that reason, the Court should condition its order of dismissal on the requirement that CBP honor the Agreement."