Home -> Law Blog Directory -> Administrative Law Blogs -> Customs Law

Administrative Law

: Customs Law

Open Thread: Uniform Rules of Origin

I know my open thread experiments never work. Nevertheless, I will soldier on once again.

I have been having a lot of discussions about Customs and Border Protection's proposal to implement tariff-shift based rules of origin and do away with the old substantial transformation approach. For background, see here.

Here is what I want to know? Do we think this is legal?

One argument goes that CBP has the authority to implement the marking requirements through regulations and that agencies have the ability to change their policies by changing regulations. They just need to go through the proper notice and comment steps and explain the change rationally. So this is routine and permissible.

Another argument goes that agencies can only regulate when given express authority or to fill gaps in ambiguous statutes. When the Supreme Court decided that an origin determination is made by finding the last substantial transformation, it removed the ambiguity in the statute leaving the agency without authority to regulate a different test. A contrary approach leads to the absurd result that Court decisions are meaningless except with respect to the individual case that was decided because agencies can regulate their way around any judicial interpretation.

Are there more arguments out there?

I know that there are lots of customs lawyers reading this. I also know people are often hesitant to talk about live issues that might end up in court. But come on, throw the trade community a bone. What do you think?

By the way, note that I affirmatively did not say what I think. Unlike the rest of you, I am not anonymous.

Full post as published by Customs Law on August 15, 2008 (boomark / email).