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Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations apply where the impetus for the release of information to a member of the public by CBP stems from a request from a member of the public, while USMCArelated disclosures involve CBP
proactively releasing information to third parties, for example, the importer, exporter, producer, or other USMCA
country, to fulfill the United States commitments under the USMCA.
Nonetheless, CBP will maintain the confidentiality and disclosure protections in part 103 for USMCArelated information disclosures, including 103.23b detailing the circumstances where disclosures will not be made and 103.33 addressing the release of information to foreign agencies.
The Trade Secrets Act 18 U.S.C.
1905 bars the unauthorized disclosure by government officials of any information received in the course of their employment or official duties when such information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association. See 18 U.S.C. 1905.
Specifically, the Trade Secrets Act protects those required to furnish commercial or financial information to the government by shielding them from the competitive disadvantage that could result from disclosure of that information by the government. The courts have interpreted the Trade Secrets Act as covering the same type of information that falls under Exemption 4 of the FOIA. See, e.g., CNA Fin. Corp.
v. Donovan, 830 F.2d 1132, 1140 D.C.
Cir. 1987. Exemption 4 of the FOIA
protects trade secrets and commercial or financial information obtained from a person that is privileged or confidential. See 5 U.S.C. 552b4.
The Trade Secrets Act permits those covered by the Act to disclose protected information when the disclosure is otherwise authorized by law, which includes both statutes expressly authorizing disclosure and properly promulgated substantive agency regulations authorizing disclosure based on a valid statutory interpretation. See Chrysler v. Brown, 441 U.S. 281, 294
316 1979. For example, 19 U.S.C.
1514e grants the Secretary of the Treasury authority to provide, in the case of a negative USMCA
determination, the entry number and any other entry information considered necessary to allow the exporter or producer, who is the subject of the determination and completed the certification of origin, to exercise its
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protest rights pursuant to 19 CFR part 174, except when there is a pattern of conduct of false or unsupported representations pursuant to 19 U.S.C.
1514f.
Thus, CBP is adding a new 182.2 to address CBPs responsibility to maintain the confidentiality of the USMCArelated information it receives from the public in accordance with existing statutory and regulatory requirements, including 19 CFR part 103, 6 CFR part 5, and all other applicable statutes and regulations, the legally permitted disclosures of this information that CBP
is authorized to make to third parties and other USMCA countries, and the information sharing that is permissible with U.S. government authorities, including the Department of Labor with respect to the USMCAs labor value content requirements.
Section 182.2 fulfills CBPs commitment under USMCA Article 7.22
to apply measures governing the protection, use, and disclosure of information collected from traders.
Section 182.2 is focused on USMCArelated disclosures of information collected from members of the trade community traders. As discussed in more detail in Section III.F., Subpart GOrigin Verifications and Determinations below, the USMCA
requires several notifications, unique to the USMCA, that permit authorized disclosures to importers, exporters, or producers of information collected from traders. Under the USMCA and the Uniform Regulations regarding origin procedures, the confidentiality requirements apply when CBP provides a determination of origin, originally issued to the exporter or producer, to the importer in accordance with USMCA Article 5.9.14 and the Uniform Regulations regarding origin procedures.
In order to ensure compliance with the applicable U.S. statutory and regulatory provisions, CBP is also extending the confidentiality regulations in 182.2 to any of the notifications made during a verification that potentially involve information disclosures to third parties. These include CBPs notification of the initiation of a verification to the importer 182.73c, sending a request for information to the exporter or producer prior to issuing a negative determination 182.75c1, the issuance of a positive or negative determination of origin 182.75, and the issuance of the intent to deny 182.75c3. Section 182.2b also authorizes CBP to disclose confidential information collected from traders to U.S. government authorities responsible for the administration and enforcement
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of USMCA requirements, such as the information in the labor value content vehicle certifications to the Department of Labor. The provision that allows the importer, exporter, or producer to send information directly to CBP to protect its proprietary information is set forth in 182.72c. See subpart G of part 182.
While 182.2 is intended to address only USMCA-specific information collections and disclosures, CBP will continue to treat all confidential information received from the public, such as routine entry information, in accordance with existing statutory and regulatory requirements, including the routine uses of the systems of record notices SORNs for the trade systems maintained by CBP. As discussed above, the exchange of information between USMCA countries is governed by statutory authority 19 U.S.C. 1628.
Subpart BImport Requirements Subpart B of part 182 19 CFR 182.11
182.16 contains the USMCA import requirement provisions, as provided for in Chapter 5 of the USMCA, including the filing of a claim for preferential tariff treatment upon importation 182.11, certification of origin requirements 182.12, importer obligations 182.13, certification of origin not required 182.14, maintenance of records 182.15, effect of noncompliance, and failure to provide documentation regarding transshipment 182.16.
Section 182.11, Filing of claim for preferential tariff treatment upon importation, sets forth the procedure for making a claim for preferential tariff treatment upon importation, the basis for making a claim, and the requirement that the importer correct a claim if it has reason to believe that the claim is based on inaccurate information or is otherwise invalid. In accordance with Article 5.2.1 of the USMCA, an importer may make a claim for USMCA
preferential tariff treatment based on a certification of origin completed by the importer, exporter, or producer for the purpose of certifying that a good being exported from the territory of a USMCA
country into the territory of another USMCA country qualifies as an originating good. An importer who makes a claim for preferential tariff treatment upon importation, pursuant to 182.11b, also qualifies for an exemption from the merchandise processing fee.
Section 182.12, Certification of Origin, indicates the requirements for the certification of origin, consistent with Articles 5.2 and 5.3 of the USMCA, including the specifics on what the certification of origin must contain, its
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