Background

Importers, exporters, and others have a new avenue for seeking relief from pending and future federal enforcement actions under an executive order signed May 19 by President Trump as part of an expanding effort to restore U.S. economic health in the wake of the COVID-19 pandemic. This EO may also open the way to expedited actions by federal agencies with trade oversight responsibilities. Companies with pending trade actions before the government should consider the new possibilities in addressing both individual cases and more general concerns over regulatory reform with the appropriate customs, import, or export agencies.

Regarding enforcement actions, the EO directs federal agencies to recognize businesses’ regulatory compliance efforts and commit to fairness in administrative enforcement and adjudication. This applies to investigations as well as assertions of statutory or regulatory violations.

More specifically, the order directs agencies to revise their enforcement and adjudication procedures and practices in light of a number of specified principles, including the following.

- subjects of enforcement actions should not bear the burden of proving compliance, and agencies should provide them with favorable relevant evidence in their possession

- liability should be imposed only for violations of laws or duly issued regulations after notice and opportunity to respond

- enforcement should be prompt, fair, and free of unfair surprise

- penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law

- temporary enforcement discretion or extensions of time for compliance may be considered

More broadly in regard to regulatory and other requirements, the EO directs federal agencies to temporarily or permanently rescind, modify, waive, or provide exemptions from regulations and other requirements that may inhibit economic recovery. This direction could enable agencies to act more quickly on a wide range of trade-related measures, from tariff exemption and refund requests to applications for drawback and foreign-trade zone actions. However, agencies will have to take into account the concerns listed above as well as factors such as public health and safety, national and homeland security, and budgetary priorities and operational feasibility. 

Sandler, Travis & Rosenberg’s experienced trade policy professionals can help companies evaluate their options under this order and take appropriate actions. For more information, please contact Lee Sandler, Lenny Feldman, or Nicole Bivens Collinson.

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