Oct

14

Think Positive

Posted by at 7:31 pm on October 14, 2009
Category: Anti-Boycott

Boycotting the BoycottPerhaps in order to remind everyone that it still exists, the the Bureau of Industry and Security’s Office of Anti-Boycott Compliance (“OAC”) issued a warning letter to CENTRIA, a manufacturer of building enclosure systems based in Moon Township, Pennsylvania. According to the letter, CENTRIA supplied to its freight forwarder a commercial invoice with the following language:

THE GOODS SHIPPED ARE NOT OF ISRAELI ORIGIN NOR DO THEY CONTAIN ANY ISRAELI MATERIALS. THEY ARE NOT DESIGNATED TO VISIT ANY ISRAELI PORTS NOR ARE THEY EXPORTED FROM ISRAEL. THEY ARE OF USA ORIGIN.

The OAC said it was closing the matter with just a warning letter because CENTRIA had voluntarily disclosed the violation.

As usual, the OAC provided little commentary as to why this language was problematic and merely asserted simply that “Section 760.2(d) of the Regulations prohibits providing such information.” OAC’s bare bones explanation is certainly not the result of OAC being too busy to spend the time explaining its reasoning. Perhaps it’s an admission that the Anti-Boycott regulations, with their 101 pages of densely packed legalese and eleventy trillion or so hypothetical examples of what’s naughty and what’s nice, are simply too complex to explain and summarize in any meaningful sense in less than, well, a hundred or so pages.

The problem here is that the absence of such an explanation, even a brief one, might give the wrong impression to exporters. The letter could be read as saying that the regulations prohibit supplying the information that the goods are made in the U.S.A. The warning letter might have at least provided an explanation of the difference between a negative certificate of origin (mostly naughty) and a positive certificate of origin (mostly nice). A positive certificate of origin is generally acceptable unless the person supplying that certificate knows that it is being used to enforce a boycott as, for example, when the request for the positive certificate comes from an anti-boycott compliance office of an Arab League country.

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Copyright © 2009 Clif Burns. All Rights Reserved.
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One Comment:

A positive certificate is always in good taste. That said, the prohibition against negative certs, as my old friend Eric Hirshhorn suggested years and years ago, run afoul of the Berman Amendment when IEEPA id the only statutory authority. But in addition to Berman Amendment, the whole prohibition on furnishing information runs afoul of the 1st Amendment: The Briggs&Stratton case, which was the only Circuit court case to consider a First Amendment challenge to the OAC information furnishing regs, predated the majority of the Supreme Court’s decisions narrowing the so-called commercial exception to the First Amendment. The OAC information furnishing regs are so blatantly content-based prohibitions that they can not withstand First Amendment scrutiny in the modern era.

Comment by Hillbilly on October 15th, 2009 @ 11:52 pm