Furtive US car tariff report could become public as funding bill clears Congress

19 Dec 2019 12:37 pm by Kat Lucero

The Trump administration's classified national security car tariff report may emerge from the shadows next month after the US Congress today sent the White House a 2020 federal spending bill that contains a requirement to publicize the details.

Making the report public could be a blow to President Donald Trump, who has agitated allies — such as major car exporters Japan and the EU — with a tariff threat on foreign automobiles and parts as leverage in trade negotiations, without showing substantive proof of the imports' national security risks.

His administration says those reasons for tariffs, governed by Section 232 of the Trade Expansion Act of 1962, are in the report. Skeptics in Congress, however, think claims of the security risks are overblown.

"They're embarrassed to make public what the report actually says," US Senate Finance Committee Chairman Chuck Grassley, an Iowa Republican, said last month when asked whether the administration will move forward with the tariff threat.

The national security appropriations minibus, HR 1158, contains a provision that would require the Commerce Department to publish the report's findings in the Federal Register within 30 days of Trump's signing of the law — as already required by the deadlines embedded in Section 232. Classified portions of the report would only be viewed by Congress and staff with appropriate security clearances.

The Senate passed the funding bill today after the House approved it Tuesday. Trump is expected to sign it tomorrow — which means Commerce would be required to release the contents of the report by late January.

Pennsylvania Republican Senator Pat Toomey, who authored the provision, said today he's confident his proposal won't stop the president from signing the broader funding bill into law. Inaction would lead to a partial federal government shutdown starting this weekend that Congress and the White House have been trying to avoid.

Commerce officially ended the year-long investigation in February. Trump was scheduled to decide on an action in May but postponed it to November while US Trade Representative Robert Lighthizer negotiated with the EU, Japan and other countries.

The tariff threat, meanwhile, still looms, even though the president didn't announce another delay after the self-imposed Nov. 14 deadline for a decision passed. The White House has also been mum on the topic, and hasn't responded to MLex inquiries.

Some trade observers, however, say the Section 232 threats have already been weakened because the November deadline has passed. Boosting that interpretation is a Court of International Trade ruling last month that said Trump violated Section 232 deadlines when he ordered a 50 percent national security tariff on just steel imports from Turkey.

Even so, some in the US auto industry don't want the report public because they fear the details do indeed reveal why the imports pose a national security threat.
The provision's likelihood of becoming law parallels the Cause of Action Institute's pending litigation against Commerce for failing to publicize the report under the Freedom of Information Act. The nonprofit filed a complaint in March at the US District Court of the District of Columbia.

— Litigation —

Judge Carl J. Nichols recently asked Cause of Action and Commerce to provide legislative updates on the funding measure by tomorrow. "I wonder — this is my musing in some respects  —  whether I should wait for some modest period of time to see whether this becomes law," Nichols said.

Nichols also said there's "a good chance" that proposal would change Commerce's arguments or position on whether the report is going to be published.

The proposal demonstrates that "Congress has grown weary of the Department of Commerce ignoring its statutory obligations to publish the Section 232 report on automobile tariffs," said James Valvo, executive director of the Cause of Action Institute.

"Our FOIA lawsuit combined with Senator Toomey's rider hopefully can force Commerce to comply with the law," Valvo said.