USTR Requests Comments on Annual GSP Product Review

The Office of the United States Trade Representative (USTR) will be accepting petitions regarding the 2019 GSP (Generalized System of Preferences) Annual Product Review until June 26, 2019.

June 26, 2019 at midnight EDT is also the deadline for submission of comments, pre-hearing briefs, and requests to appear at the GSP Subcommittee Public Hearing on the 2019 GSP Annual Product Review.

On July 2, 2019 at 1:30 p.m. EDT, the GSP subcommittee will hold a public hearing on all petitioned product additions, product removals, and competitive needs limitation waiver petitions that it accepted for the 2019 GSP Annual Product Review. The hearing will be held in Rooms 1 and 2, 1724 F Street NW, Washington, DC 20508.

August 15, 2019 is the deadline for submitting any comments or briefs following the July 2 hearing. On September 7, 2019, the U.S. International Trade Commission (USITC) is expected to deliver a report to USTR providing advice concerning probably economic impacts of adding products to GSP eligibility, of removing products from eligibility, and of granting CNL waiver petitions during the GSP Annual Product Review.

Comments can be posted on the USITC report at www.regulations.gov using Docket Number USTR-2019-0001. Electronic comments are preferred. For alternatives to on-line submissions, please contact Yvonne Jamison at (202) 395-3475. Additional information can be obtained by contacting: Erland Herfindahl, Deputy Assistant USTR for GSP, 1724 F Street NW, Washington, DC 20508. The telephone number is (202) 395-2974 and the email address is gsp@ustr.eop.gov.

Suzanne DeCuir, Global Trade Expertise

Limitations of 4th Amendment Border Exceptions: United States v. Kolsuz

The Federal Government has consistently maintained, and been upheld in, the assertion that the border search exception allows it to conduct searches and seizures at international borders without a wrrant or probable cause. While this assertion is generally accepted, the government's stance that electronic devices, such as computers and smartphones, also fall within this exception has been a point of contention. However, a recent 4th Circuit Court of Appeals case, United States v. Kolsuz, is being hailed as a significant victory by civil rights organizations such as the Electronic Frontier Foundation and the American Civil Liberties Union.

    United States v. Kolsuz, deals with the case of Hamza Kolsuz, a Turkish national charged with three counts of violating the Arms Export Control Act. According to court filings, Kolsuz had attempted to smuggle prohibited firearms parts from the U.S. to Turkey on three separate occasions. On the third and most recent attempt, Customs officials were prepared and intercepted Kolsuz at Washington Dulles International Airport. Importantly, after his arrest, Customs agents conducted an immediate manual search of his smartphone and an additional month-long, off-site forensic analysis of the phone. Kolsuz's appeal concerns the suppression of this forensic analysis, which he maintains does not fall under the border search exception. 

    In many ways, this was a case that many likely saw coming. Case law concerning the 4th Amendment and electronic devices has been frequent and in the public eye. The notion that electronic devices may not fall under the border exception first came to the forefront in 2013. United States v. Cotterman, a 9th Circuit decision, held that manual searches of computers at the border fell under the exception, but forensic searches required reasonable suspicion. Prior to this, the governing decision was United States v. Ickes which held that computers were ordinary searches. Then, in 2014, the Supreme Court ruled in Riley v. California. Riley held that a warrant is required to search a cell phone following an arrest. The Supreme Court essentially established differential treatment between digital and physical items due to the sheer amount and sensitivity of personal information that can be stored on cell phones.

    These two cases, among others, caused many to question if Riley might influence Cotterman and also apply to the border. More recently, the Fifth and Eleventh Circuits heard cases on forensic searches but failed to reach a substantive conclusion due to the scope of their cases.

    The Kolsuz decision, citing Riley, affirms that at least reasonable suspicion is required for forensic searches of cell phones seized at the border. Taking Riley into account, the 4th Circuit, using language similar to United States v. Flores-Montano, found that forensic searches of phones are clearly non-routine border searches, but did not challenge Ickes due to the scope of the appeal. Moreover, the court left open the possibility that a standard even higher than reasonable suspicion could be required, but that which standard made no difference to the Kolsuz case. In response to Kolsuz, the Department of Homeland Security now internally requires reasonable suspicion for forensic searches of electronic devices.

    While the outcome of Kolsuz may not have been positive for Kolsuz himself, who was convicted of his export violations, it is being hailed by many as a win. Moreover, it is likely just one of many upcoming cases concerning the Fourth Amendment's application to digital searches as the ACLU and EFF, among other organizations, push ahead with their own cases.

Deadlines for Objecting to Proposed Tariffs

According to the United States Trade Representative (USTR), U.S. companies and individuals will have until May 22nd to voice objections to President Trumps’ proposed 25% tariffs on some 1,300 foreign goods.  In general, products subject to this retaliation against China fall within the sectors of aerospace, information and communication technology, robotics and machinery.  (Left off the list are retail mainstays such a mobile phones and clothing, items that might provoke a U.S. consumer backlash.)  

Important dates are as follows:

  • April 23 - due date for filing all requests to appear and to submit a summary of testimony to be presented at the public hearing; it is also the date for filing pre-hearing submissions
  • May 11  - due date for submission of written comments
  • May 15 - date of the 10 a.m. public hearing to be held at US International Trade Commission, 500 E. Street SW, Washington, D.C., 20436.
  • May 22 -  due date for rebuttal comments following the May 15 hearing

Note: USTR strongly prefers electronic submissions made through the Federal eRulemaking Portal: http://www.regulations.gov. Instructions for submitting comments in sections F and G can be found at this link. The docket number is USTR-2018-0005. 

On April 3, 2018, the United States Trade Representative published a proposed tariff retaliation list.  This follows just a few weeks after the USTR’s March 22nd release of its Section 301 Report detailing findings regarding Chinese acts, policies, and practices related to technology transfer, innovation and intellectual property. The 301 Fact Sheet states that  “the United States is committed to rebalancing the U.S.-China trade relationship to achieve more fair and reciprocal trade. After years of U.S.-China dialogues that produced minimal results and commitments that China did not honor, the United States is taking action to confront China over its state-led, market-distorting forced technology transfers, intellectual property practices, and cyber intrusions of U.S. commercial networks.” 

The complete list of products that could be subject to a 25% tariff is included in the annex to the 301 Report

Since the April 3 USTR tariff list was published, China responded by publishing its own list of products it may subject to increased tariffs if President Trump moves forward.  These items include agricultural commodities such as soybeans as well as exports such as autos, aircraft, and chemicals.  In response, Trump has threatened to slap additional tariffs on more goods, stating that he might consider whether an additional “100 billion in tariffs might be appropriate.” 

Suzanne DeCuir