FedEx has filed a lawsuit against the United States Department of Commerce (DoC) after the government threatened to fine the company for the accidental diversion of embargoed Huawei packages to the US.
Besides the DOC itself, the complaint also lists Secretary of Commerce Wilbur Ross, the DOC Bureau of Industry and Security, and Assistant Secretary for Industry and Analysis Nazak Nikakhtar as defendants.
In the lawsuit, FedEx argues that the current Export Administration Regulations (EAR) place an unreasonable burden on carriers, such as itself. The logistics giant claimed that the regulations violate the right to due process enshrined in the Fifth Amendment of the US Constitution by holding the carriers strictly responsible for the shipments they handle.
"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," the firm said in its complaint.
FedEx further pointed out that it is unreasonable to expect companies such as itself to "police" their shipments and know the origin and the technological make-up of all packages.
"The Export Controls - specifically, the EAR - require considerably more screening than possible from common carriers like FedEx... The determination of whether the tendered package contains an "item subject to the EAR" and whether a license is required are virtually impossible for common carriers to comply with... The EAR essentially deputize FedEx to police the contents of the millions of packages it ships daily even though doing so is a virtually impossible task, logistically, economically, and in many cases, legally," FedEx said.
The company underlined that it complies with the export controls by screening the names and addresses of its shippers and the designated recipients prior to delivering any package. It also pointed out that the law offers protection for common carriers, excepting them from liability for the contents of packages and communications they transmit, such as internet service providers and telecommunications companies.
The firm is seeking an order granting permanent relief against the DoC from enforcing the EAR against FedEx and an award covering its costs and expenses, including reasonable attorney fees and further "just and proper" relief.
FedEx was threatened with fines by the DoC after it accidentally diverted some Huawei shipments from the UK to the US. The Chinese technology giant has been embargoed by the US government and its products are barred from entering the country. The Chinese government separately said it would probe the event.
