March 30, 2011

Proposed Puerto Rican Scanning Regulation Is Likely Unconstitutional

Washington D.C., partner Douglas Heffner has written an article for North American Free Trade & Investment Report on the likely unconstitutionality of a proposed regulation from the Puerto Rico Ports Authority that would require all inbound cargo containers, regardless of the container’s country of origin, to be scanned for contraband.


Doug, a partner in the Corporate & Securities Practice Group and a member of its Customs & Trade Team, argues that it is likely the proposed PRPA scanning regulation violates the Constitution, in particular the dormant commerce clause, because Puerto Rico is enacting a regulation that excessively burdens interstate commerce. Doug concludes that the proposed regulation sets a bad precedent; were similar scanning regulations to become the norm, “under the guise of health and safety claims, states could scan -- and charge fees for -- cargo containers originating in any other state.”  If a similar requirement were imposed in New York for example, under the guise of protecting the health and safety of the state, the likely result would be that many states would adopt similar revenue raising schemes and interstate commerce would grind to a standstill. “Companies should band together to fight the enactment of this regulation,” says Doug.”


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