DOL ISSUES FINAL RULE TO SIMPLIFY RETAIL OR SERVICE ESTABLISHMENT EXEMPTION

WASHINGTON, DC – The U.S. Department of Labor today announced a final rule to provide greater simplicity and flexibility to retail industry employers.

Provisions in the Fair Labor Standards Act (FLSA) allow employers in retail and service industries to exempt certain employees paid primarily on a commission basis from overtime.

Today’s rule withdraws two provisions from the Department’s Wage and Hour Division regulations. The first listed industries that the Department previously viewed as having “no retail concept,” which made them ineligible to claim the exemption. The second listed industries that, in the Department’s view, “may be recognized as retail,” and were potentially eligible for the exemption. As the rule explains, some courts have questioned whether these lists lack any rational basis.

By withdrawing these two lists, establishments in industries that had been on the non-retail list may now assert that they have a retail concept and—if they meet the existing definition of retail and other criteria—may now qualify for the exemption. Insofar as these establishments were deterred from availing themselves of the exemption and its flexibilities, they may now do so if they qualify—including by having more flexibility to work with workers on commission-based pay arrangements. For these employers and workers, they could consider whether, for instance, more commission-based pay is sensible.

Establishments in industries that were on the “may be” retail list may continue to assert they have a retail concept.

Moving forward, the Department will apply the same analysis to all establishments to determine whether they have a retail concept and qualify as retail or service establishments, promoting greater simplicity and flexibility for employers and workers alike.

“This final rule unshackles job creators in the retail space who had previously been categorically excluded from the exemption without notice and comment,” said Wage and Hour Division Administrator Cheryl Stanton. “Permitting all retail employers to potentially qualify for this exemption can increase flexibility for businesses and workers. Eliminating confusion empowers job creators to grow their businesses, comply with the law and provide even more good jobs for American workers.”

The Department is issuing this rule without notice and comment, and it will take immediate effect. Neither notice and comment nor a delayed effective date are needed because both lists being withdrawn were interpretive regulations originally issued in 1961 without notice and comment or a delay.

DOC Issues Expected Final 90-Day Extension of Temporary General License Authorizations

The U.S. Department of Commerce announced today it is extending the terms of the existing Temporary General License (TGL) authorizations for Huawei Technologies Co. Ltd. and its non-U.S. affiliates (Huawei) on the Entity List for 90 days. The terms and duration of any future general licenses will be announced prior to the expiration of this 90-day time period.

This announcement follows public comments received from numerous companies, associations, and individuals about the TGL. The Department continues to assess the national security and foreign policy implications of companies and individuals that have not yet transitioned from Huawei equipment.

The 90-day extension provides an opportunity for users of Huawei devices and telecommunication providers—particularly those in rural U.S. communities—to continue to temporarily operate such devices and existing networks while hastening the transition to alternative suppliers.

In announcing this extension, the Department is also notifying the public that activities authorized in the TGL may be revised and possibly eliminated after August 13, 2020. Companies and persons relying on TGL authorizations should begin preparations to determine the specific, quantifiable impact of elimination if they have not done so already. Those companies and persons should be prepared to submit license applications to the Department to determine which, if any, activities will be authorized in the event that their TGL authorization is eliminated. The Department will provide prior notice via the Federal Register of a need to submit such applications.

The Bureau of Industry and Security (BIS) in the Department of Commerce is responsible for overseeing these export control activities. BIS’s mission is to advance U.S. national security and foreign policy objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership. BIS is committed to restricting U.S.-origin commodities and technology from use in support of Weapons of Mass Destruction projects, terrorism, or destabilizing military modernization programs.

Treasury, IRS Deliver Economic Impact Payments to 130 Million Americans in Record Time

WASHINGTON—The U.S. Department of the Treasury and IRS today announced that nearly 130 million Americans have received Economic Impact Payments, worth more than $218 billion, in less than five weeks. These totals do not include the more than $2.5 billion delivered to U.S. territories for payment to territory residents.

“This Administration has delivered Economic Impact Payments to Americans in record time,” said Secretary Steven T. Mnuchin. “More payments are on their way as we continue to deliver this much-needed relief to the American people.”

Treasury expects to deliver more than 150 million Economic Impact Payments in total.

USTR and Treasury Statement on Call With China

Vice Premier Liu He, U.S. Treasury Secretary Steven T. Mnuchin, and Ambassador Robert Lighthizer participated in a conference call today.  They discussed economic and trade issues, including the recently concluded Phase One agreement.  The parties shared updates on COVID-19 and their assessments of its effects on economic growth as well as the measures their countries are taking to provide support to their economies. 

The parties discussed the ongoing process of implementing the Phase One agreement between the two countries that went into effect February 14.  Both sides agreed that good progress is being made on creating the governmental infrastructures necessary to make the agreement a success.  They also agreed that in spite of the current global health emergency, both countries fully expect to meet their obligations under the agreement in a timely manner.  Meetings required by the agreement have been conducted via conference call and will continue on a regular basis.

Secretary of Commerce allocates $300 million in CARES Act aid to U.S. fishermen and seafood industries impacted by COVID-19

WASHINGTON – Today, Secretary of Commerce Wilbur Ross announced the allocation of $300 million in economic relief to U.S. fishermen and seafood industries impacted by the COVID-19 pandemic. The funds were allocated as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27 by President Trump.

Commercial fishing, charter/for-hire businesses, qualified aquaculture operations, processors, and parts of the seafood sector in coastal states and territories are among those eligible to apply for funds. Tribes are also eligible for funding including for any negative impacts to subsistence, cultural, or ceremonial fisheries. The Department of Commerce’s National Oceanic and Atmospheric Administration (NOAA) will work with the three Interstate Marine Fishery Commissions, organizations with a demonstrated track record of success in disbursing funds, to quickly deliver financial assistance into the hands of those who need it.

“This relief package will support America’s fishermen and our seafood sector’s recovery,” said U.S. Department of Commerce Secretary Wilbur Ross. “Thank you President Trump, Secretary Mnuchin, and our Congressional leaders of both parties for your work to pass the historic legislation that is bringing much needed relief to America’s fishermen. This Administration stands with the men and women working to provide healthy and safe seafood during this uniquely challenging time, while our U.S. fisheries work to continue to support 1.7 million jobs and to generate $200 billion in annual sales. The Nation is grateful to our fishermen for their commitment.”

Acting NOAA Administrator Neil Jacobs, Ph.D., lauded today’s announcement.

“For generations, our coastal communities have taken great pride in delivering protein-rich seafood to dinner tables across the country and enabling access to our world class recreational fisheries,” said Jacobs. “NOAA thanks our partners in the interstate marine fisheries commissions, states, territories, and tribes for their assistance. Together, we will work to distribute these funds as quickly as possible.”

In addition to these funds, the President recently signed into law other Federal financial assistance programs, including several programs at the Small Business Administration and U.S. Department of Agriculture, that can provide help to fishermen and related businesses.

DOC to Initiate Section 232 Investigation into Mobile Crane Imports

WASHINGTON – U.S. Secretary of Commerce Wilbur Ross announced today that the Department will initiate an investigation into whether the quantities or circumstances of mobile crane imports into the United States threaten to impair the national security. This decision follows a petition filed by domestic producer, The Manitowoc Company, Inc. (Manitowoc), on December 19, 2019, requesting that the Department of Commerce launch an investigation into mobile crane imports under Section 232 of the Trade Expansion Act of 1962, as amended.  The investigation, to be conducted by the Department’s Bureau of Industry and Security, will provide the opportunity for public comment once the rule is posted in the Federal Register.

“We will conduct this review thoroughly and expeditiously,” said Secretary Ross. “This investigation will help determine whether mobile cranes are being imported in such quantities or under such circumstances as to threaten to impair U.S. national security.”

Manitowoc alleges that increased imports of low-priced mobile cranes, particularly from Germany, Austria, and Japan, and intellectual property (IP) infringement by foreign competition,have harmed the domestic mobile crane manufacturing industry.The Department of Homeland Security has identified mobile cranes as a critical industry because of their extensive use in national defense applications, as well as in critical infrastructure sectors.

The petitioner claims the low-priced imports and IP infringement resulted in the closure of one of its two production facilities in the United States and eliminated hundreds of skilled manufacturing jobs in Wisconsin.  Manitowoc cites the U.S. International Trade Commission’s (USITC) Dataweb to note that imports of mobile cranes increased 152% between 2014 and 2019, and a 2015 finding that a Chinese manufacturer misappropriated six trade secrets and infringed on a patent, resulting in the USITC banning the sale of a Chinese crane in the United States.

Statement from U.S. Secretary of Commerce Wilbur Ross on Q1 2020 GDP Advance Estimate

Today, the Department of Commerce’s Bureau of Economic Analysis (BEA) released the advance estimate for gross domestic product (GDP) for the first quarter of 2020, finding that real gross domestic product contracted at an annual rate of 4.8 percent.

U.S. Secretary of Commerce Wilbur Ross issued the following statement in response:

“Today’s GDP numbers are weak, but in line with expectations as a result of the COVID-19-driven disruptions to daily lives at home and around the globe that have rocked global markets and supply chains. We continue to have the most resilient economy in the world, driven by innovative and hardworking Americans who have shown that they are willing to make the needed sacrifices to defeat this invisible enemy.

The President has taken bold action to leverage the expertise and resources of the entire Nation in this fight. Congress has confronted the seriousness of this challenge with trillions of dollars in relief funding for those impacted by the virus, establishing a firm footing for a swift and strong American comeback. When this chapter ends, America will be both stronger and healthier than ever because of the President’s decisive and timely actions.”

Commerce Tightens Restrictions on Technology Exports to Combat Chinese, Russian and Venezuelan Military Circumvention Efforts

The Department of Commerce announced today new export control actions to prevent efforts by entities in China, Russia, and Venezuela to acquire U.S. technology that could be used in development of weapons, military aircraft, or surveillance technology through civilian supply chains, or under civilian-use pretenses, for military end uses and military end-users.

“It is important to consider the ramifications of doing business with countries that have histories of diverting goods purchased from U.S. companies for military applications,” said Department of Commerce Secretary Wilbur Ross. “Certain entities in China, Russia, and Venezuela have sought to circumvent America’s export controls, and undermine American interests in general, and so we will remain vigilant to ensure U.S. technology does not get into the wrong hands.”

Specifically, the rule changes include:

  • Expansion of Military End Use/User Controls (MEU)
    Expands MEU license requirements controls on China, Russia, and Venezuela to cover military end-users in all three countries, as well as items such as semiconductor equipment, sensors, and other technologies sought for military end use or by military end-users in these countries.
  • Removal of License Exception Civil End Users (CIV)
    Removes a license exception for exports, reexports, or transfers (in-country) to civilian
    end-users in countries of national security concern for National Security- (NS) controlled items.
  • Elimination of License Exception Additional Permissive Reexports (APR) Provisions
    Proposes to eliminate certain provisions of a license exception for partner countries involving the reexport of NS-controlled items to countries of national security concern to ensure consistent reviews of exports and reexports of U.S. items.

The Bureau of Industry and Security (BIS) in the Department of Commerce is responsible for overseeing these export control activities. BIS’s mission is to advance U.S. national security and foreign policy objectives by ensuring an effective export control and treaty compliance system and promoting continued U.S. strategic technology leadership. BIS is committed to restrict U.S.-origin commodities and technology from use in support of Weapons of Mass Destruction (WMD) projects, terrorism, or destabilizing military modernization programs. For more information, please visit www.bis.doc.gov.

Proclamation on World Intellectual Property Day, 2020

Note: This proclamation was originally published on the Proclamations webpage of the White House website on April 24, 2020. 

Our Nation’s history is defined by discovery, ingenuity, and innovation. Americans are known for their resourcefulness and ability to find solutions to a wide range of challenges, including the development of technologies that advance our security, health, and prosperity. This resourcefulness has been a driving force of economic growth and human development since the founding of our Nation, and our future depends on the continued protection of our intellectual property. On World Intellectual Property Day, we renew our resolve to protect and secure the works and innovations of American artists, inventors, and other creators who continually push the boundaries of human knowledge and understanding.

Our Founding Fathers recognized the vital role that intellectual property plays in society and in supporting a robust economy. The Intellectual Property Clause of the Constitution reflects their understanding that laws must be in place to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” More than two centuries later, we remain committed to this idea, upholding and strengthening an intellectual property system that encourages greater American innovation and advances our global competitiveness.

My Administration is building on our Nation’s history of securing intellectual property rights. In the United States, intellectual property-intensive industries account for nearly one-third of all employment and approximately 40 percent of our country’s gross domestic product, an estimated $6.6 trillion. To support these industries, in January of this year I signed the United States-Mexico-Canada Agreement (USMCA) into law, replacing the outdated and unbalanced North American Free Trade Agreement. USMCA furthers my Administration’s pro-growth agenda by establishing ground-breaking protections for trade secrets, strengthening border security, and enhancing trademark, copyright, and patent provisions. These are the most comprehensive intellectual property standards ever included in a free trade agreement. Additionally, earlier this year I signed an Executive Order on Ensuring Safe and Lawful E-Commerce for United States Consumers, Businesses, Government Supply Chains, and Intellectual Property Rights Holders, which is aimed at finding improved ways to protect intellectual property rights holders from an increasing amount of counterfeit and pirated goods marketed online.

The importance of intellectual property has never been more apparent than it is now, as we continue the ongoing battle against the coronavirus. To respond to this national and international emergency, the Federal, State, and local Governments have partnered with the private sector to develop new and powerful tools to combat the spread of the virus and provide care to those in need, focusing every available resource on the fight against the invisible enemy. Relying on strong intellectual property protections, these industries are able to act boldly to invent new tests, begin developing experimental treatments and vaccines, and rapidly produce and reengineer medical equipment to help win this war. These efforts are saving tens of thousands of lives and reflect the unrivaled power of American industry and innovation.

This month, we pay tribute to our Nation’s long history of ingenuity and advancement, and we recommit to protecting, promoting, and prioritizing a business and economic environment that supports those who carry on this legacy. The pioneering spirit of these artists, authors, inventors, and other creators has improved our lives and the lives of millions of people around the world, and will continue to propel us toward a better future.

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 26, 2020, as World Intellectual Property Day. I encourage Americans to observe this day to celebrate the benefits of intellectual property to our economy and our country.

IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of April, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty-fourth.

DONALD J. TRUMP

USPTO announces extension of certain patent and trademark-related timing deadlines

USPTO announces extension of certain patent and trademark-related timing deadlines under the Coronavirus Aid, Relief, and Economic Security Act

The United States Patent and Trademark Office (USPTO) today announced extensions to the time allowed to file certain patent and trademark-related documents and to pay certain required fees. These actions are an exercise of temporary authority provided to the USPTO by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed by President Trump on March 27. 

“Inventors and entrepreneurs are the lifeblood of our economy, and we recognize that many of them are having difficulty as a result of COVID-19,” said Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office Andrei Iancu. “As a result, we are working to provide as much relief as possible to our stakeholders, consistent with our ability to maintain the USPTO’s fee-funded operations. We are especially mindful of the outsized impact on small businesses and independent inventors, and we have provided additional relief for these groups. Ultimately, our goal is to ensure not only that inventors and entrepreneurs can weather the storm, but that they can also hit the ground running once it passes.” 

The USPTO has made operational adjustments to keep its employees and the public safe as it remains open for business. In-person meetings, such as hearings and examiner interviews, are being conducted virtually by phone and video until further notice.