Last Thursday, President Trump issued Executive Order 14243, which generally seeks to eliminate barriers to sharing non-classified information as between agencies of the Federal Government. Participants in trade remedy proceedings and importers of products subject to such proceedings should be aware that this push to “facilitat{e} both the intra- and inter-agency sharing” of information could lead to more company confidential production and sales information being made available to other U.S. government agencies such as U.S. Customs and Border Protection (CBP) for enforcement action.
Executive Order 14243 Could Serve Trade Enforcement Ends
Relevant to trade practice, Executive Order 14243 directs agency heads to “rescind or modify all agency guidance that serves as a barrier” to sharing unclassified “records, data, software systems, and information technology systems” between and among federal agencies, and identify agency regulations governing unclassified data access for possible elimination or modification. The Executive Order instructs completion of these tasks by April 19, and articulates a goal of serving “Administration priorities related to the identification and elimination of waste, fraud, and abuse.”
Given the Executive Order’s open-ended language and the reportedly upcoming debut of the External Revenue Service, it is conceivable that increased information-sharing aimed at enhanced antidumping and countervailing duty (AD/CVD) enforcement could be among the intended aims. Pursuant to the 2015 Trade Facilitation and Trade Enforcement Act, the trade remedies statute specifically empowers the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (Commission) to share confidential information obtained in AD/CVD proceedings with CBP to aid in investigating related “negligence, gross negligence, or fraud.” Likewise, CBP is empowered by statute to share information with Commerce or the Commission for the purpose of identifying AD/CVD evasion.
Notwithstanding this statutory authority, regular information-sharing would be a change in practice. The agencies that administer U.S. trade laws — e.g., CBP, Commerce, and the Commission — have traditionally taken a cautious approach to inter-agency information-sharing. Applying the Executive Order’s instruction to maximize lawful information-sharing, U.S. trade agencies could soon shift toward a presumption in favor of sharing information among one another, at least in the AD/CVD space. Such information might include companies’ data on sales, production inputs and costs, supply chain information, invoices, mill certificates, or other documentation submitted during AD/CVD and other proceedings.
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Cassidy Levy Kent has industry-leading experience in maximizing outcomes for parties in AD/CVD proceedings and import compliance matters, advising importers navigating AD/CVD and other duty liability, and safeguarding sensitive client information. Please contact us with questions.