export-controls 26 June 2019

FedEx sues Commerce: ‘We’re a transportation company, not a law enforcement agency.’

On 24 June, international freight carrier FEDEX announced that it has filed a suit in the US District Court in the District of Columbia against the US Department of Commerce ‘seeking to enjoin the US Department of Commerce from enforcing prohibitions contained in the Export Administration Regulations (“EAR”) against FedEx.’

The company said: ‘FedEx believes that the EAR violate common carriers’ rights to due process under the Fifth Amendment of the US Constitution as they unreasonably hold common carriers strictly liable for shipments that may violate the EAR without requiring evidence that the carriers had knowledge of any violations. This puts an impossible burden on a common carrier such as FedEx to know the origin and technological make-up of contents of all the shipments it handles and whether they comply with the EAR.’

It said: ‘We have invested heavily in our internal export control compliance program. However, we believe that the EAR, as currently constructed and implemented, place an unreasonable burden on FedEx to police the millions of shipments that transit our network every day. FedEx is a transportation company, not a law enforcement agency.’

‘Even if it could inspect every shipment, the complexity of the EAR would render such a potentially-privacy-infringing program ineffective,’ the suit says, arguing that ‘Common carriers, as transporters for the public, cannot reasonably be expected to police the contents and ultimate destinations of the millions of daily shipments to ensure compliance with the EAR. Without a safe harbor, the EAR give FedEx two options: continue to operate under threat of imminent enforcement actions, or cease operations that may conceivably lead to enforcement and face possible legal consequences from customers and foreign governments.

‘The Due Process Clause of the Fifth Amendment to the US Constitution was enacted to prevent such oppression and deprivations of liberty. Accordingly, FedEx brings this action for declaratory and injunctive relief to secure its constitutional due process and other rights which are imminently threatened by Defendants’ enforcement of provisions of § 736 the EAR.

‘Further, the regulatory regime imposed by the EAR is such a substantial burden that it deprives FedEx of substantive due process under the Fifth Amendment. Thus, this Court should review, declare unlawful, and permanently enjoin Defendants’ unconstitutional actions. Further, in implementing this regulatory regime, Defendants have exceeded their statutory grant of authority under the ECRA [Export Control Reform Act], and Defendants’ actions must be enjoined.’

Media reports have linked the suit with delivery problems encountered involving Huawei goods. The suit, however, does not make explicit mention of the Chinese telecoms company (recently added to the EAR Entity List).