Cause of Action Sues Commerce Department for Failing to Release Section 232 Uranium Report

Washington, D.C. (Sept. 10, 2019) – Cause of Action Institute (CoA Institute) has stepped up its ongoing battle with the Department of Commerce (Commerce) by suing the agency for failing to respond to its Freedom of Information Act (FOIA) requests seeking access to the agency’s final report to the President regarding its Section 232 investigation into the “Effect of Imports of Uranium on the National Security” and the Department of Defense’s response letter to that report. Learn More

Commerce Provides Poor Excuse in First Substantive Answer on Secrecy of 232 Auto Tariff Report

Washington, D.C. (June 19, 2019) – After nearly four months, Cause of Action Institute (CoA Institute) has finally received an explanation from the Department of Commerce (Commerce) that claims the Commerce Secretary’s final report to the President regarding the Section 232 investigation into the national security impacts of the Administration’s proposed automobile tariffs may constitute a presidential record. In this determination, which is in response to CoA Institute’s Freedom of Information Act (FOIA) request and subsequent litigation, Commerce states it is reviewing whether the report does in fact constitute a presidential record, which would remove it from the scope of the FOIA. It also claims that if the report ultimately is classified as an “agency record,” Commerce will still refuse to provide access to the report under the guise of presidential communications or deliberate process privileges.

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CoA urges release of secret 232 auto report in response to POTUS proclamation

CoA urges release of secret 232 auto report in response to POTUS proclamation

Washington, D.C. (May 17, 2019) – In response to the President’s proclamation concerning auto tariffs, Cause of Action Institute (CoA Institute), a nonpartisan government watchdog organization, urged the release of the Department of Commerce’s Section 232 auto tariff report. CoA Institute filed a freedom of information request for the report when it was finalized, and later sued the administration for failing to respond to the FOIA and release the report.

The President’s proclamation responded to the U.S. Department of Commerce Secretary’s final report regarding the Section 232 investigation into the national security impact of the import of foreign automobile and automobile parts.

James Valvo, counsel and senior policy advisor at Cause of Action Institute:

“Today’s proclamation by the President, summarizing the Department of Commerce’s Section 232 auto report, serves as the latest reminder that the public deserves to see this report, and we urge its immediate release. The report was paid for by taxpayers and its recommendations could harm American consumers and businesses. The public should not be kept in the dark about findings in a secret report, and that’s why Cause of Action Institute continues to fight for its release to ensure a robust debate on the merits.”

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Media ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

Cause of Action Sues Commerce Dept. for Failing to Release Auto-Tariff Report

Washington, D.C. (Mar. 21, 2019) – Cause of Action Institute (CoA Institute) filed a lawsuit against the Department of Commerce (Commerce) for failing to respond to two Freedom of Information Act (FOIA) requests seeking a copy of the Commerce Secretary’s final report to the President regarding the Section 232 investigation into the national security impacts of the Administration’s proposed foreign automobile tariffs. The Commerce Department has previously stated that it will not make the report public. In an effort to increase transparency and protect Americans’ economic freedom, CoA Institute filed a FOIA request so the public can see the report, but Commerce did not produce it within the statutory timeline.

James Valvo, counsel and senior policy advisor at Cause of Action Institute:

“Commerce claims that the information contained in their report justifies the proposed auto-tariffs, but the government refuses to release this report.  The public should not have to take the government’s word that the report supports tariffs when the administration withholds the document it claims supports its position. The tariffs will harm American consumers and businesses, and the public has a right to see the information contained in the report. We are dedicated to placing this vital information into the public sphere, ensuring that the government complies with its statutory obligations, and we look forward to a robust debate about the merits of the report.”

The Section 232 National Security Investigation of Imports of Automobiles, Including Cars, SUVs, Vans and Light Trucks, and Automotive Parts will provide recommendations for the Administration’s proposal to impose a 25% tariff on imports of cars and car parts. CoA Institute sent requests to both the Department of Commerce and the Bureau of Industry and Security for a copy of this report.

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Media ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

 

Cause of Action Institute Files FOIA Requests for Commerce’s Section 232 Auto-Tariff Report

Washington, D.C. (Feb. 19, 2019) – Cause of Action Institute (CoA Institute) filed two Freedom of Information Act (FOIA) requests seeking a copy of the Department of Commerce (Commerce) Secretary’s final report to the President regarding the Section 232 investigation into the national security impacts of the Administration’s proposed automobile tariffs. The Administration has recently stated that it will not make the report public and has no obligation to do so.  CoA Institute disagrees and filed FOIA requests so that the public can see the report.

“The public has a right to see the Commerce report that purports to justify the Administration’s escalating tariffs, which are nothing more than taxes on American consumers,” said CoA Institute Director of Investigations Kevin Schmidt. “A 25 percent tariff on imported cars and automobile parts will harm American consumers and businesses and is likely to provoke retaliation from our trade allies. Cause of Action Institute intends to use all avenues available to ensure that this report is released to the public, including litigation if necessary.”

The Section 232 National Security Investigation of Imports of Automobiles, Including Cars, SUVs, Vans and Light Trucks, and Automotive Parts will provide recommendations for the Administration’s proposal to impose a 25% tariff on imports of cars and car parts. CoA Institute sent requests to both the Department of Commerce and the Bureau of Industry and Security for a copy of this report.

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Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government.

CoA Institute Sends Letter to Secretary Ross Requesting Public Confirmation of Controversial Fishery Regulation

The importance of an open and transparent government is rooted in the federal government’s ability to choose winners and losers, create barriers to economic freedom, and limit personal liberties. Family-owned fishing firms in New England recently had their economic freedom put at-risk when it was revealed that the government had secretly approved a proposal to impose new, and statutorily unauthorized, costs on their fishing operations. That’s why Cause of Action Institute (CoA Institute) sent a letter to U.S. Department of Commerce Secretary Wilbur Ross yesterday, criticizing his office’s lack of transparency and inadequate analysis surrounding the controversial fishery management regulations.

In January, CoA Instituted published a previously unreported letter, which revealed that the National Oceanic and Atmospheric Administration (NOAA) and the U.S Department of Commerce (Commerce) approved the New England Industry-Funded Monitoring Omnibus Amendment (Omnibus Amendment), but without providing any reasoned responses to public comments.  The approval also came in the midst of a second public comment period for implementing regulations. The Omnibus Amendment is estimated to impose new costs of up to $810-per-day on certain herring fishermen.  These costs, which will be used to fund a third-party monitoring scheme, would have  devastating economic consequences—especially for small and family-owned fishing operations.

Commerce’s failure to address the valid and pressing concerns raised by several interested parties in the first round of public comments, including questions about the statutory authorization for industry-funded monitoring raised by CoA Institute, is particularly egregious.  CoA Institute has repeatedly argued that the government lacks statutory authority to force commercial fishermen on the East Coast to pay for at-sea monitoring. The Secretary of Commerce was responsible for reviewing the Omnibus Amendment for compliance with applicable laws as well as considering public comments. The Secretary appears to have failed to do so in this case.  Government officials also are expected to conduct rulemaking in a manner that promotes accountability and transparency.  This is meant to protect the openness of the regulatory process. That transparency was seriously lacking in this instance.

CoA Institute’s letter requests that Secretary Ross (1) publicly confirm his approval of the Omnibus Amendment (2) and publish responses to the issues raised during the initial comment period. CoA Institute also requests that Commerce disapprove the implementing regulations for the Omnibus Amendment, which are expected to be finalized later this spring.  We look forward to a response addressing these concerns.

A copy of the letter to Secretary Ross can be found here. Additional background on this issue can be found here, here, and here.

Government Officials Ignore Public Comment, Create New Financial Burden on Fisherman

In a letter acquired by Cause of Action Institute (CoA Institute), it appears that the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Department of Commerce have approved a controversial fishery management proposal while ignoring public comments critical of the plan. This approval also seems to have been issued before the close of a second public comment period for implementing regulations. The NOAA rulemaking is expected to seriously impact commercial fishing on the Eastern seaboard by applying costly new burdens on fishermen.

The Background

In September 2018, the New England Fishery Management Council (NEFMC), in coordination with the National Marine Fisheries Service (NMFS), a component of NOAA, sought approval for a controversial set of regulatory measures known as the New England Industry-Funded Monitoring Omnibus Amendment. The Omnibus Amendment would create a new financial burden on fishermen by mandating that they pay as much as $810 per sea day for at-sea monitoring in the Atlantic herring fishery. It would also create a standardized process for introducing similar costly monitoring requirements to other New England fisheries.

CoA Institute argued in its initial public comment on the Omnibus Amendment that the burdensome monitoring would unfairly and unlawfully restrict economic opportunity in the fishery. Aside from the questionable legal authority to create this effective new tax on fishermen, the $810-per-sea-day cost has the potential to wipe out the narrow margins that small-scale fishermen rely on to survive.

Following the publication of the notice of availability for the Omnibus Amendment, but before any approval decision was made, the agency oddly proposed implementing regulations in November 2018. Again, CoA Institute filed a public comment in opposition to the regulations.

CoA Institute’s second comment reiterated the legal infirmities with the funding scheme and, among other things, highlighted fatal flaws in the rulemaking’s Environmental Assessment. For example, after NEFMC’s adoption of the Omnibus Amendment’s herring measures, herring quota was reduced by more than 50%. The Council and NMFS plan to lower the annual catch limit even further over the next three years. By some estimates, these new cuts could reduce herring revenue by up to 87%. Such a loss in profitability on top of the costs associated with industry-funded monitoring would cripple fishermen who rely on the industry. Yet the government has done nothing to address these concerns or dilemma.

The Letter

Now, CoA Institute has discovered a letter from Michael Pentony, the Regional Administrator for NMFS’s Greater Atlantic Regional Office, which suggests that the Commerce Department has already approved the Omnibus Amendment, despite the fact that nothing has been published in the Federal Register, posted to NMFS’s herring bulletin, or communicated to the general public.

This supposed “approval” of the Omnibus Amendment ostensibly occurred on or around December 18, 2018, nearly a week before the close of public comment on NMFS’s implementing regulations. Given the agency’s publication of a notice of availability, and its solicitation of public comments on the substance of the Omnibus Amendment, it should also have published its approval decision for the fishery management plan in the Federal Register.

The fact that NMFS secretly approved the Omnibus Amendment, perhaps to avoid public outcry, only adds to concerns surrounding its decision to propose implementing regulations before publicly approving, in part or in full, the amendment’s various management measures, including industry-funded monitoring. Taken together, these facts strongly suggest the government prejudged the legality of the Omnibus Amendment and intended to force it through no matter the pushback. Indeed, it seems the government never planned to give adequate attention to the concerns raised by stakeholders, including CoA Institute. Those concerns certainly went unaddressed in the newly discovered letter.

The Questions

Administrator Pentony’s letter indicates that NMFS does not have adequate funding to administer the at-sea monitoring and portside sampling programs in the herring fishery for the current fishing year, which already started on January 1, 2019. Instead, NMFS would plan to implement the industry funding requirement in 2020. This estimated date of implementation, however, assumes that the Omnibus Amendment will not face challenge in the courts. CoA Institute has filed a Freedom of Information Act request for background information on the December 18, 2018 letter, and the possible reasoning for why the agency has yet to make any public announcements. We will provide additional details as they become available.

Ryan P. Mulvey is Counsel at Cause of Action Institute