Zachary Simmons

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On December 23, 2021, and following strong bipartisan support in Congress, President Biden signed the Uyghur Forced Labor Prevention Act (“UFLPA” or “Act”) into law.  P.L. 117-78 (2021).  The UFLPA builds on previous congressional and executive branch actions aimed at responding to allegations of forced labor and other human rights concerns in China’s Xinjiang Uyghur Autonomous Region (“XUAR”).  In particular, the UFLPA introduces a rebuttal presumption that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in” the XUAR were made with forced labor and are therefore ineligible for entry into the United States.  In addition, the UFLPA details Congressional expectations for a whole of government enforcement strategy with respect to allegations of XUAR-related forced labor and expands economic sanctions introduced under the Uyghur Human Rights Policy Act of 2020 to cover “{s}erious human rights abuses in connection with forced labor” in the XUAR.

In recognition of the compliance challenges related to the above-described rebuttable presumption, the Forced Labor Enforcement Task Force (“FLETF”) is soliciting comments on how best to ensure that “goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part with forced labor in the People’s Republic of China are not imported into the United States.”  These comments are due no later than March 10, 2022.  As discussed further below, importers should consider submitting comments to the FLETF concerning this set of issues, which will ultimately inform the enforcement strategy employed by U.S. Customs and Border Protection (“CBP”) at the border.  Additionally, importers should begin top-to-bottom reviews of their supply chains to ensure compliance with the newly-introduced rebuttable presumption prior to its implementation in June of this year.…

Continue Reading Understanding the Uyghur Forced Labor Prevention Act and What Comes Next

On April 20, 2021, the US Department of Energy (“DOE”) revoked a December 2020 Prohibition Order issued by the Trump Administration which banned the acquisition, importation, transfer, or installation of certain bulk-power system (“BPS”) electric equipment manufactured or supplied by “persons owned by, controlled by, or subject to the jurisdiction or direction of the {People’s Republic of China (“China”)}.”  The Prohibition Order was issued pursuant to EO 13920, “Securing the United States Bulk-Power System” (May 1, 2020), which was promulgated to address “foreign adversary countries creating and exploiting vulnerabilities in the United States bulk-power system.”  In response to this alleged exploitation, the EO declared an emergency and authorized the Secretary of Energy to prohibit transactions involving certain BPS electric equipment sourced from “foreign adversary” countries for one year. In the recent revocation notice, DOE cited the need to “create a stable policy environment” while the Department conducts a new review of how best to apply its EO 13920 authorities.

On January 20, 2021, the Biden Administration suspended EO 13920 for a period of 90 days to afford the Secretary of Energy and Director of the Office of Management and Budget time to consider whether to recommend a replacement Executive Order that “appropriately balances national security, economic, and administrability considerations,” Pursuant to last week’s Request for Information, DOE is now soliciting comments from electric utilities, academia, research laboratories, government agencies, and other stakeholders on various aspects of electric infrastructure.  Specifically, DOE is soliciting comments on the following questions concerning the development of a long-term strategy:…

Continue Reading US Department of Energy Revokes Trump Prohibition Order Restricting Chinese Bulk-Power System Electric Equipment and Seeks Comments on Securing US Critical Electric Infrastructure

On Tuesday, May 19, the Department of Commerce issued a Notice requesting comments on a newly initiated Section 232 national security investigation into electrical transformers, and key components of the transformers, which we addressed earlier in one of our blog posts. The investigation focuses on liquid and dry transformers above 1 KVA power handling capacity. As set forth in the notice: “[T]he investigation has been undertaken to determine the effect on the national security of imports of Laminations for Stacked Cores for Incorporation into Transformers, Stacked Cores for Incorporation into Transformers, Wound Cores for Incorporation into Transformers, Electrical Transformers, and Transformer Regulators (hereinafter “Products”). If the Secretary finds that Products are being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, the Secretary shall so advise the President in his report on the findings of the investigation.” …

Continue Reading Commerce Seeks Comments in National Security Investigation Involving Imports of Electric Transformers, Key Components of Transformers

On Friday, May 1, President Trump issued Executive Order (EO) 13920, “Securing the United States Bulk-Power System.” In EO 13920, the President declared a national emergency under the International Emergency Economic Powers Act (IEEPA) with respect to the threat posed to the US bulk-power system (BPS) by equipment liable to exploitation by “foreign adversaries.”

The EO directs the secretary of energy, in coordination and consultation with other heads of agencies, to impose restrictions on transactions involving bulk power system electric equipment that could raise national security concerns. Furthermore, the EO broadly delegates implementation authority to the secretary of energy, who is required to publish rules and regulations to implement the EO within 150 days, or by September 28.…

Continue Reading Client Advisory: Trump Administration Pursues Restrictions to Secure US Electricity Grid

On May 4, 2020, the US Department of Commerce (Commerce) announced in a press release that it will initiate an investigation pursuant to Section 232 of the Trade Expansion Act of 1962 (the TEA) into whether laminations for stacked cores for incorporation into transformers, stacked and wound cores for incorporation into transformers, electrical transformers, and transformer regulators are being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security.

According to the Commerce press release, “{l}aminations and cores made of grain-oriented electrical steel are critical transformer components” and “{t}ransformers are part of the U.S. energy infrastructure.”…

Continue Reading Department of Commerce Initiates National Security Investigation into Transformer Components

On April 19, following the issuance of an executive order by President Trump, US Customs and Border Protection (“CBP”) and the US Department of the Treasury (“Treasury”) announced a 90-day deferral of certain estimated duties, taxes, and fees that an importer of record would ordinarily be obligated to pay on merchandise imported into the United States.  The temporary final rule will extend the due date of covered duties, taxes, and fees, without interest, for a period of 90 days from the date that the duty deposit would otherwise have been due.  The temporary final rule includes a waiver of the regulatory requirement to deposit estimated duties, taxes, and fees for the purpose of establishing the time of entry in those instances where it would otherwise be required under 19 C.F.R. § 141.68, but otherwise does not modify existing procedures for entry.  Duty deferrals will be granted only for entries, or withdrawals from warehouse, for consumption, made on or after March 1, 2020 and no later than April 30, 2020, and no deferrals will be granted in any case where payment has already been made.
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Continue Reading Trump Administration Announces 90-Day Duty Deferral

On December 12, the Office of the United States Trade Representative (USTR) published in the Federal Register a notice proposing to impose tariffs of up to 100% ad valorem on a wide range of European products. If enacted, these proposed tariffs would escalate the US response to the European Union’s (EU) subsidization of Airbus, which the World Trade Organization’s (WTO) Appellate Body found to violate WTO rules. USTR has already imposed duties of 10% and 25% – effective October 18, 2019 – on a variety of European goods in response to these subsidies. USTR is currently seeking comments on the December 12 proposal with respect to both product coverage and duty rates, which must be submitted January 13, 2020.

USTR’s proposal to impose additional duties on European products follows recent developments in the decades-old dispute between the United States and Europe at the WTO. In particular, since the imposition of 10% and 25% duties on $7.5 billion of European goods on October 18, which followed an arbitral award permitting the United States to retaliate up to $7.5 billion, a WTO compliance panel determined that the EU had not ceased providing WTO-inconsistent subsidies to Airbus. Citing the compliance panel’s report and the “lack of progress in efforts to resolve this dispute,” USTR announced that it was initiating a process to assess whether it should subject additional European products to duties, and also whether it should increase tariff rates on products covered under the original $7.5 billion action.…

Continue Reading US Threatens to Ramp Up Pressure on EU in Boeing-Airbus Subsidy Dispute with Tariffs up to 100% on Range of European Products

On October 2, 2019, an arbitrator of the World Trade Organization (WTO) issued a decision on the level of countermeasures the United States (US) is authorized to impose to offset European Union (EU) subsidies in support of aircraft manufacturer Airbus. The arbitral award concluded the nearly 15-year-old dispute between the two parties, in which the…