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During the week of July 28, the Trump administration unleashed a new burst of actions aimed squarely at blocking wind and solar energy with the announcement of two new secretarial orders (SO) and three new policies by the Department of the Interior (DOI), plus one from the Department of Transportation (DOT). These latest measures follow on the heels of the recent internal directive from DOI Deputy Chief of Staff for Policy Gregory Wischer implementing three new levels of political review for a comprehensive list of approvals, consultations, and interim steps in the permitting processes for wind and solar projects with a nexus to DOI’s regulatory authority. Although couched in terms of curbing “preferential treatment” for wind energy, the measures go well beyond any leveling of the playing field, instead significantly disadvantaging wind and solar — which the DOI refers to as “foreign-controlled energy sources” — compared to other sources of energy or uses of public lands.

DOI Announcements

On July 29, the DOI announced a flurry of new policy measures that Secretary Doug Burgum characterized as representing “a commonsense approach to energy that puts Americans’ interests first,” “leveling the playing field in permitting support” in pursuit of “responsible energy growth that works for every American.” These policy measures include the following:

Restoring Congress’s Mandate to Consider All Uses of Our Public Lands and Waters Equally. DOI announced it would “consider withdrawing onshore areas with high potential for wind energy development to ensure compliance with legal requirements for multiple use and sustained yield of public lands,” although it is currently unclear what mechanism DOI would use and whether it would affect issued wind energy rights-of-way. It also indicated that it would terminate previously designated offshore Wind Energy Areas, which are areas that have been pre-approved for offshore wind lease auctions following an extensive public input and deconfliction process. The following day, on July 30, Bureau of Ocean Energy Management (BOEM) did just that, formally rescinding all designated Wind Energy Areas on the U.S. Outer Continental Shelf.

Enhancing Stakeholder Engagement for Offshore Wind Development. DOI will strengthen its guidance “to ensure more meaningful consultation regarding offshore wind development, especially with tribes, the fishing industry, and coastal towns,” to support “greater collaboration, transparency, and respect for community and regional priorities.”

Reviewing the Consequences of Developing Wind Turbines on Migratory Birds. DOI intends to conduct “a careful review of avian mortality rates” at wind projects to determine whether such impacts qualify as “incidental” under the Migratory Bird Treaty Act (MBTA). Earlier this year, the DOI solicitor issued an M-Opinion reinstating the previous Trump administration’s interpretation that the MBTA does not apply to incidental take, an interpretation that actually eliminated a significant regulatory concern for the wind industry. There is ample data establishing that wind farms present minimal risk to migratory birds, so an unbiased review of avian mortality data from wind farms should identify no widespread concern. However, the DOI seems to be telegraphing a legal strategy to use the MBTA to block wind energy, while avoiding a conflict with the M-Opinion by classifying avian mortality at wind farms as intentional take. Because the MBTA is a strict liability criminal statute, this could result in the criminalization of the operation of wind farms, representing an existential threat to the industry and setting a dangerous precedent that could selectively be applied to other industries in the future.

SO 3437, Ending Preferential Treatment for Unreliable, Foreign-Controlled Energy Sources in Department Decision Making. The DOI announced the issuance of a new SO that implements the provisions of the recent Executive Order (EO) 14315, Ending Market Distorting Subsidies for Unreliable, Foreign-Controlled Energy Sources (July 7, 2025). That EO directed the DOI to identify the existence of any “preferential treatment” toward wind and solar facilities, in comparison to dispatchable energy sources, in any department regulations, guidance, policies, or practices, and to make the necessary revisions to eliminate such preferences. Importantly, it also touches on key provisions of the January 20, 2025, Wind Presidential Memorandum (PM). SO 3437 calls out the Biden administration’s “arbitrary and preferential treatment towards expensive, unreliable, foreign-controlled intermittent energy sources like wind and solar power.” It provides several examples of such alleged preferential treatment, including reduction in BLM rents and capacity fees by roughly 80% below fair market value for wind and solar projects, and that “[p]ublic outreach, news releases, and website communications prominently featured intermittent sources of energy over much-needed baseload power.”

The specific directives under SO 3437 include:

1. Within 30 days — i.e., by the end of August — each assistant secretary must conduct a review of any regulations, guidance, policies, and practices within their jurisdiction, including but not limited to the following five categories: (i) land use and site authorizations; (ii) environmental and wildlife permits and analyses; (iii) processes related to tribal and native lands; (iv) commercial and financial authorizations; and (v) other actions and authorizations such as the following. The SO provides examples for each of these categories. With respect to environmental and wildlife permits and analyses, they include:

- Environmental analyses (EA and EIS under the National Environmental Policy Act (NEPA)).
- Biological assessments and biological opinions (including for marine mammals and fisheries).
- Incidental take permits.
- Programmatic Eagle take permits.
- Migratory Bird Treaty Act compliance consultation.
- Cultural resources consultations.
- Visual resource management analyses.

Raptor nest removal permits are also included among the other actions and authorizations category. Following this review, a report describing the findings and recommendations regarding actions the DOI should take to eliminate preferential treatment toward wind and solar development must be submitted to the secretary. This directive comes on the heels of a recent proposals to rescind the definition of harm under the ESA and request for comments for section 10 permit revisions.

2. Within 45 days of order — i.e., by September 12 — the assistant secretary for land and minerals management, in coordination with other agencies as appropriate, must prepare and submit a report that describes and provides recommendations regarding the following:

- Trends in environmental impacts from onshore and offshore wind projects on wildlife, especially birds, marine mammals, and fisheries.
- Economic costs associated with the intermittent generation of electricity.
- Effect of taxpayer-funded subsidies on artificially propping up the wind industry.
- Impacts that the development of offshore wind projects that have received a COP from the DOI may have on military readiness.

This requirement tracks closely the “comprehensive assessment and review of Federal wind leasing and permitting practices” President Trump required the DOI and other federal agencies to undertake back in January under its Wind PM (Section 2(a)). The Wind PM put a pause on issuing “new or renewed approvals, rights of way, permits, leases, or loans for onshore or offshore wind projects” pending the completion of such a comprehensive assessment, without putting a timeline for the assessment. We should now expect this assessment by mid-September, although it is not clear if it is going to be made public. Another follow-up requirement from the Wind PM is a review of the Lava Ridge Wind Project record of decision and the submittal of a brief report describing BLM’s recommendation on the need for a new, comprehensive analysis, the details on how to conduct such analysis, including a schedule. The Wind PM had placed a temporary moratorium on that project.

3. Also within 45 days of order — i.e., by September 12 — the solicitor, in coordination with the attorney general and other agencies, must review pending litigation challenging wind or solar project approvals. Where appropriate, the solicitor may recommend remanding approvals for reconsideration to ensure decisions are legally and factually supported and consistent with either the most recent judicial interpretation of the law or the department’s interpretation of the best reading of the applicable law.

Finally, to close out an already busy week, on August 1, DOI released SO 3438, which directed that NEPA analyses for wind and solar projects on federal lands or on the Outer Continental Shelf should consider “a reasonable range of alternatives that includes projects with capacity densities meeting or exceeding that of the proposed project.” The order then states that “the Department shall only permit those energy projects that are the most appropriate land use when compared to” those alternatives. The order makes no secret that this analysis is intended to disadvantage wind and solar projects, stating that “[b]ased on common sense, arithmetic, and physics, wind and solar projects are highly inefficient uses of Federal lands.” By way of example, the order compares the capacity density of an offshore wind farm with the density of an advanced nuclear power plant.

This approach seems to be in contrast with this administration’s efforts to streamline NEPA requirements and its emphasis on NEPA being a purely administrative review. It establishes (1) the types of alternatives that must be considered, including alternative types of energy projects; (2) a requirement that capacity density be assessed as part of the alternatives analysis; and (3) a mandate that the highest capacity density alternative must be selected. This would be an unprecedented approach to NEPA implementation to say the least, and it is likely that DOI’s efforts to implement this SO could face significant legal challenges.

DOT Press Release

Also on July 29, in a press release titled “President Trump’s Transportation Secretary Sean P. Duffy: Biden-Buttigieg Ignored the Dangers of Wind Turbines Near Railroads & Highways, Put Climate Religion Ahead of Safety,” the DOT calls on Congress “to investigate why safety recommendations were dropped, the depth of the Biden-Buttigieg scheme.” The release, which has been updated several times since its initial issuance, alleges that the Biden administration “blatantly ignored engineers who warned of the danger of constructing wind turbines near railroads and highways.” The safety concerns at issue relate to potential obstruction of radio communications and signal reception from wind turbines. As evidence of the “scheme,” the release references the DOT’s reversal of initial concerns raised in 2023 regarding a proposed wind farm with turbines to be located within a one to three mile boundary of a rail corridor carrying high speed passenger traffic and freight. In 2024, the DOT withdrew its concerns after internal review did not identify any radio frequency blockage. The release claims that an internal review identified 33 projects where the original safety recommendation was rescinded. Citing that review, and a new DOT-commissioned study that concludes that wind farms “could potentially obstruct radio communication,” the release announces that the DOT will recommend a minimum 1.2-mile setback for turbines built near highways and railroads.

Conclusion

While there was initial uncertainty about whether the Trump administration’s anti-wind sentiments were limited to offshore wind, there can now be no doubt that they were not, and that the animus is not even limited to wind, with solar energy also a target of many of these recent policies. These new pronouncements have profound implications for the wind and solar industries, and portend new and even more consequential policies in the near future. In the meantime, advancing projects through the permitting process will require creative new strategies to overcome what has become an effective federal moratorium on wind and solar energy projects. For questions or to discuss these latest developments, we encourage you to contact Troutman Pepper Locke’s environment and natural resource attorneys.

Our team published new content and podcasts to the Consumer Financial Services Law Monitor throughout the month of June. To catch up on posts and podcasts you may have missed, click on the links below:

On July 31, 2025, President Trump issued two executive orders that further refine U.S. trade policy. The first executive order, “Further Modifying the Reciprocal Tariff Rates” (the RT Order), adjusts tariff rates for various countries based on trade negotiations and economic alignments, while the second executive order, “Amendment to Duties to Address the Flow of Illicit Drugs Across Our Northern Border” (the Canadian Order), increases duties on Canadian goods imported into the U.S. that do not qualify for preferential treatment under the United States-Canada-Mexico Free Trade Agreement (USMCA).

Background

President Trump’s reciprocal tariff program began in April 2025 with Executive Order 14257, later amended by Executive Order 14266, and further amended by Executive Order 14316 (collectively with the RT Order, the Reciprocal Tariffs), which initially imposed significantly higher tariffs on imports from countries with which the U.S. had substantial trade deficits. These rates were subsequently adjusted to a 10% baseline for a 90‑day period to encourage trade negotiations, with the temporary relief expiring on August 1. In parallel, the administration pursued a separate Canadian tariff regime under Executive Orders 14193, 14197, and 14231 (collectively with the Canadian Order, the Canadian Tariffs), which imposed additional duties on certain Canadian goods (i.e., 25% tariff on non-USMCA-compliant goods and 10% tariff on Canadian “energy and energy resources” and potash). The Canadian Order builds on these prior actions, layering in new duties and enforcement measures linked to drug trafficking and border security while maintaining the broader Reciprocal Tariff framework for other trading partners.

Increased Canadian Tariffs

The Canadian Order amends duties on Canadian goods that do not qualify as originating under the USMCA, increasing the additional ad valorem rate from 25% to 35%, except for energy or energy resources, or potash that are products of Canada (which remain subject to a 10% tariff). The increased 35% Canadian Tariff is “effective with respect to goods entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. ET on August 1, 2025.”

Goods transshipped to evade the 35% Canadian Tariff will be subject, instead, to a transshipment tariff of 40%, plus “any other applicable or appropriate fine or penalty including those assessed under 19 U.S.C. 1592.”

90-Day Tariff Pause for Mexico

President Trump announced that the current 25 % tariff on all goods from Mexico not subject to preferential treatment under the USMCA will remain as is for a period of 90-days to allow for further trade negotiations. That rate had been set to rise to 30% on August 1.

Amended Reciprocal Tariffs

The RT Order sets new Reciprocal Tariff rates effective “with respect to goods entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time” on August 8, 2025, “except that goods loaded onto a vessel at the port of loading and in transit on the final mode of transit before 12:01 a.m. eastern daylight time” on August 8, 2025, “and entered for consumption, or withdrawn from warehouse for consumption, before 12:01 a.m. eastern daylight time on October 5, 2025,” will be subject to prior Reciprocal Tariff rates previously imposed in Executive Order 14257, as amended.

Tariff Rates for Countries With Trade Deals

Below are the current tariff rates, including Reciprocal Tariffs, for countries with announced trade deals, incorporating updates from the RT Order. Note that many agreements await formalization, and details may evolve.

Philippines: On April 22, President Trump announced a trade deal setting a 19% Reciprocal Tariff on Philippine imports, as confirmed in Annex I of the RT Order. This rate, slightly reduced from a threatened 20% but higher than the initial 15% proposed on “Liberation Day” in April. In exchange, the Philippines would grant duty-free access for U.S. goods. Although this announcement has been made, no additional details have been released and specifics around market access remain unclear.

UK: On June 16, President Trump signed Executive Order 14309, which implemented certain provisions of the U.S.-UK Economic Prosperity Deal (EPD) that was announced on May 8. The U.S. will maintain its 10% Reciprocal Tariff on nearly all UK imports. Under the deal, the U.S. will reduce its car tariff to 10% from 27.5%, but only for the first 100,000 vehicles annually, while UK steel and aluminum imported into the U.S. currently continue to face a 25% tariff, rather than the 50% rate imposed on most other countries. The agreement envisions a potential tariff‑rate quota (TRQ) or alternative arrangement that could eventually lower these tariffs to zero, subject to UK compliance with supply‑chain security and “melted and poured” origin requirements, but no immediate relief has been implemented. The Secretary of Commerce has been tasked with establishing TRQs for UK-origin steel and aluminum articles and their derivatives. On the agricultural side, both countries agreed to reciprocal beef market access of 13,000 metric tons duty‑free, and the UK will remove its tariff on up to 1.4 billion liters of U.S. ethanol; any imports beyond those quotas will remain subject to existing duties The UK also pledged to reduce its average tariff on U.S. goods to 1.8% — a $200 million duty cut — lowering import taxes on roughly 2,500 products, and to reduce or eliminate certain non‑tariff barriers. The EPD also grants tariff‑free entry of UK aerospace parts (e.g., jet engines) into the U.S. While the EPD is the start to opening specific trade channels between the two countries, key provisions — most notably, preferential‑tariff treatment for UK pharmaceuticals — remain contingent on future negotiations.

Vietnam: President Trump announced via social media on July 2, that the U.S. and Vietnam had reached a framework trade agreement, under which the U.S. will impose a 20% Reciprocal Tariff on most Vietnamese-origin exports and a 40% duty on goods transshipped through Vietnam from third countries. In return, Vietnam agreed to grant zero‑tariff access to U.S. imports, including preferential treatment for certain American goods like large-engine vehicles. While seen as a significant improvement over the initially proposed 46% tariff, key implementation details remain unresolved and await formal finalization.

Japan: On July 22, the U.S. and Japan announced a trade deal setting a 15% Reciprocal Tariff on Japanese goods imported into the U.S., reduced from a threatened 25%. Japan committed to investing $550 billion in the U.S., spanning from energy infrastructure and production, semiconductor manufacturing and research, critical minerals mining, processing, and refining, pharmaceuticals and medical production, and commercial and defense, with the U.S. retaining 90% of the profits, and agreed to purchase $8 billion in U.S. agricultural goods, including corn and soybeans, and to increase U.S. rice imports to Japan by 75%, with a major expansion of import quotas. The deal helps open additional areas of Japan’s market to U.S. industrial and consumer goods, notably by removing restrictions on U.S. car and truck imports.

Indonesia: On July 22, the Trump administration unveiled the framework for a trade agreement with Indonesia, under which Indonesia will pay a 19% Reciprocal Tariff on its exports to the U.S. — a significant reduction from the previously threatened 32 % — while committing to eliminate tariff barriers on approximately 99% of U.S. exports to Indonesia across the agriculture, industrial, digital, and health sectors. Indonesia also agreed to dismantle numerous non‑tariff barriers — such as local content requirements, restrictive certification regimes, and restrictions on remanufactured goods — and to accept U.S. federal vehicle safety and FDA regulatory standards, “accepting FDA certificates and prior marketing authorizations for medical devices and pharmaceuticals,” and remove export restrictions on critical minerals. Additionally, Indonesia has pledged to purchase $15 billion in U.S. energy products, $4.5 billion in agricultural products, and 50 U.S.-made aircraft, among other commercial commitments, while also joining global initiatives on labor rights and steel capacity transparency.

EU: The U.S.-EU trade deal, announced on July 27, establishes a 15% Reciprocal Tariff on most EU goods imported into the U.S., a reduction from the previously threatened 30% rate. This baseline applies to a broad range of products, including but not limited to “autos and auto parts, pharmaceuticals, and semiconductors.” “However, the sectoral tariffs on steel, aluminum, and copper will remain unchanged — the EU will continue to pay 50% and the parties will discuss securing supply chains for these products.” The EU will purchase $750 billion in U.S. energy products and invest an additional $600 billion in the U.S. by 2028, and “will work to address a range of U.S. concerns related to various EU requirements that are burdensome to U.S. exporters, particularly small and medium-sized businesses, including through efforts to eliminate the red tape that U.S. exporters face when doing business in the European Union.”

South Korea: On July 30, President Trump announced a U.S.-South Korea trade deal, establishing a 15% Reciprocal Tariff on most South Korean imports, down from the previously threatened 25%, including a 15% tariff rate on autos. In return, South Korea pledged to invest $350 billion in the U.S., with roughly $150 billion dedicated to a shipbuilding initiative and the remainder targeting semiconductors, batteries, biotech, nuclear, and clean energy, while also agreeing to purchase $100 billion of U.S. energy products, including LNG, over three and a half years. The deal keeps U.S. tariffs on South Korean steel, aluminum, and copper at 50%. It is unclear whether the trade deal includes new concessions on U.S. rice or beef imports into South Korea, as South Korean officials have explicitly ruled out any new opening in its rice or beef markets as part of the recent deal, refuting the administration’s claim on this issue. leaves sensitive agricultural sectors, such as rice and beef, largely closed, though South Korea granted duty‑free access for U.S. autos and various goods subject to ongoing negotiations over non‑tariff barriers. The Secretary of Commerce said “semiconductor and pharmaceutical exports [to the U.S.] would not be treated more harshly than those from other countries.”

Cambodia: On July 30, Secretary of Commerce Howard Lutnick announced a trade deal with Cambodia, establishing a 19% Reciprocal Tariff on Cambodian-origin goods. Specific terms of the trade agreement have not yet been disclosed.

Pakistan: On July 30, the U.S. and Pakistan reached a trade agreement expected to facilitate U.S. involvement in developing Pakistan’s largely untapped oil reserves while lowering tariffs on Pakistani exports to the U.S. The deal includes a 19% Reciprocal Tariff on Pakistani-origin goods. Further details of the trade agreement have yet to be announced.

Reciprocal Tariff Rates for Countries Without Deals

Below are the Reciprocal Tariff rates established pursuant to the RT Order for each country with no announced trade deal:

Country	Reciprocal Tariff Rate
Afghanistan, Angola, Botswana, Cameroon, Chad, Costa Rica, Côte d’Ivoire, Democratic Republic of the Congo, Ecuador, Equatorial Guinea, Fiji, Ghana, Guyana, Iceland, Israel, Jordan, Lesotho, Liechtenstein, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Nauru, New Zealand, Nigeria, North Macedonia, Norway, Papua New Guinea, Trinidad and Tobago, Turkey, Uganda, Vanuatu, Venezuela, Zambia, Zimbabwe	15%
Bangladesh, Sri Lanka, Taiwan	20%
Brunei, Kazakhstan, Moldova, Tunisia	25%
Algeria, Bosnia and Herzegovina, Libya, South Africa	30%
Iraq, Serbia	35%
Laos, Myanmar	40%
Syria	41%
Switzerland	39%
Brazil, Falkland Islands	10%
India	25%, with an unspecified additional penalty for Russian oil and military purchases
Malaysia, Nicaragua, Thailand	19%
China	Remains at 10% under a 90-day truce (pursuant to Executive Order 14257, as amended by Executive Order 14259 and further amended by Executive Order 14266), with a 20% across-the-board tariff on all Chinese imports (pursuant to Executive Order 14195, as amended by Executive Order 14228). No deal has been announced, risking tariff increases if negotiations falter.

Transshipment Penalties

Goods transshipped from any country to evade duties face a 40% tariff, plus fines and penalties under 19 U.S.C. 1592, with no mitigation allowed. The Secretaries of Commerce and Homeland Security will publish biannual lists of countries and facilities involved in circumvention schemes.

Conclusion

The tariff wave is here — preparation is critical. Companies should closely monitor evolving country-specific obligations, evaluate supply chain exposure, and consider tariff mitigation strategies. While several countries have reached framework agreements, many remain in negotiations, and tariff rates could continue to change if talks stall or enforcement benchmarks are not met.

This alert is intended only as a high-level summary of recent developments and is not a substitute for specific legal or tax advice. Things are rapidly evolving, and our Tariff Task Force will do its best to provide timely and relevant updates as things progress. Please don’t hesitate to reach out to us with questions.

On July 30, President Trump took two actions that represent a significant escalation in the administration’s evolving trade strategy: (1) a presidential proclamation (the proclamation) imposing a 50% ad valorem tariff on certain copper products under Section 232 of the Trade Expansion Act of 1962 (the Copper Tariff), and (2) an executive order (the Order) eliminating the longstanding de minimis duty exemption under 19 U.S.C. § 1321(a)(2)(C) for low-value non-postal imports.

At the same time, the administration continues to pursue trade deals with key partners that impose tariff levels unprecedented in recent decades. Taken together, these actions mark a dramatic escalation in the use of tariffs as tools of economic and national security policy.

While the copper and de minimis actions have immediate effects, they also signal the administration’s willingness to take unilateral action across a broad spectrum of industries and countries. Businesses with global supply chains — especially those importing from countries facing pending tariff announcements — should prepare now. The rules are changing quickly, reshaping global trade.

Section 232 Copper Tariffs

The announcement imposing the Copper Tariff follows a U.S. Commerce Department (Commerce) investigation that was finalized on June 30, 2025, which concluded that the United States’ growing reliance on foreign copper producers jeopardizes national security. Citing copper’s essential role in defense systems and infrastructure, the proclamation imposes a 50% ad valorem tariff on a range of copper products — including semi-finished products like pipes, wires, rods, sheets, and tubes, and copper-intensive derivatives, such as pipe fittings, cables, connectors, and electrical components. The Copper Tariff applies to goods entered or withdrawn from a warehouse for consumption beginning at 12:01 a.m. EDT on August 1, 2025.

Exemptions:

Products already subject to Section 232 automobile and automotive part tariffs under Presidential Proclamation 10908 are excluded from the Copper Tariff.
Similar to the goods subject to Section 232 steel and aluminum tariffs imposed pursuant to Proclamations 10896 and 10895, the copper content of an imported good is subject to the Copper Tariff only and not reciprocal tariffs established pursuant to Executive Order 14257, as amended by Executive Order 14266, and further amended under Executive Order 14316 and Executive Order of July 31, 2025 (collectively, Reciprocal Tariffs). However, the non-copper content remains subject to applicable Reciprocal Tariffs.
Duty drawback is prohibited under the Copper Tariff. Importers may not claim refunds under drawback programs for duties paid on copper articles.
Foreign trade zones must admit covered copper articles in privileged foreign status, meaning they will be dutiable at the 50% rate when entered into U.S. commerce.
Copper in its raw and refined forms — including copper ores, concentrates, refined cathodes, anodes, copper scrap, and other derivative material — is exempt from the Copper Tariff.

Within 90 days of the proclamation, the Secretary of Commerce is required to establish a formal process for interested parties to request that additional derivative copper articles become subject to the Copper Tariff. Moreover, the proclamation directs the Secretary of Commerce to deliver to President Trump by June 30, 2026, a comprehensive update on domestic copper markets, including refining capacity and supply dynamics, and a recommendation on whether to implement phased universal tariffs on refined copper — specifically, 15% starting January 1, 2027, rising to 30% on January 1, 2028.

Executive Order Ending De Minimis Exemption

Also on July 30, President Trump issued the Order, eliminating the de minimis exemption for non-postal shipments, effective August 29, 2025. The de minimis exemption is a longstanding cornerstone of e-commerce and global retail fulfillment strategies, and its elimination will have profound effects on international trade flows.

Scope and Exemptions:

Non-postal shipments will no longer be eligible for the $800 de minimis duty exemption, regardless of value, country of origin, or shipping method.
Postal shipments will retain de minimis treatment temporarily, but this exemption will expire upon implementation of a new process to be announced by U.S. Customs and Border Protection (CBP).
Once CPB’s new postal rules take effect, importers will be required to select one of two methodologies on a monthly basis:
1. 1. An ad valorem duty equal to the effective International Emergency Economic Powers Act (IEEPA) tariff rate applicable to the country of origin of the product, assessed on the value of each dutiable postal item (package) containing goods entered for consumption; or
  2. A specific duty per item, available for the first six months only, and applied as follows:
    - Countries with an effective IEEPA tariff rate of less than 16%: $80 per item;
    - Countries with an effective IEEPA tariff rate between 16 and 25% (inclusive): $160 per item; and
    - Countries with an effective IEEPA tariff above 25%: $200 per item.

After the six-month transitional period, all postal shipments will be required to use the ad valorem method.

These rules are evolving rapidly, and our Tariff Task Force will provide timely and relevant updates as things progress. Please don’t hesitate to reach out to us with questions.

Maximizing the value and avoiding the piecemeal whittling away of a bankruptcy estate’s assets lies at the heart of the automatic stay—a temporary mechanism which shields the debtor from collection efforts arising from pre-petition liabilities. In a recent U.S. Court of Appeals for the Eleventh Circuit case (In re Patel (Case No. 23-12847, 11th Cir. Jul. 8, 2025)), the court considered whether a bankruptcy court had the authority to retroactively annul the automatic stay under circumstances where the debtor affirmatively participated in an arbitration but subsequently argued that enforcement of the arbitration award against him should be subject to the automatic stay when he did not like the outcome.

Click here to read the full article in The Legal Intelligencer.

State attorneys general increasingly impact businesses in all industries. Our nationally recognized state AG team has been trusted by clients for more than 20 years to navigate their most complicated state AG investigations and enforcement actions.

State Attorneys General Monitor analyzes regulatory actions by state AGs and other state administrative agencies throughout the nation. Contributors to this newsletter and related blog include attorneys experienced in regulatory enforcement, litigation, and compliance. Also visit our State Attorneys General Monitor microsite.

Contact our State AG Team at StateAG@troutman.com.

Troutman Pepper Locke Spotlight

2025 Mid-Year Review: State AGs in a New Era

By Troutman Pepper Locke State Attorneys General Team

The United States is navigating a new era of regulatory oversight and the balance of power between federal and state regulators following the 2024 election cycle. As federal agencies retreat from and/or realign their regulatory enforcement priorities, state attorneys general (AGs) are increasingly taking the lead in policing companies — especially those that are consumer-facing — bridging perceived gaps left by shifting federal priorities, and in some cases, emboldened to expand regulatory enforcement into relatively new arenas.

Understanding BBB Ratings: Building Trust and Mitigating Risks

By Stephen Piepgrass, Mike Yaghi, and Dan Waltz

In this episode of Regulatory Oversight, we kick off a two-part series on the Better Business Bureau (BBB). Stephen Piepgrass, Michael Yaghi, and Dan Waltz explore the significance of the BBB for businesses, particularly in relation to regulatory scrutiny and consumer trust. The conversation begins with an overview of the BBB as a quasi-governmental agency, emphasizing its role in consumer complaints and how these are perceived by regulators, including state attorneys general.

State AG News

Healthline Proposed Settlement Informs Businesses of What Not to Do

By Troutman Pepper Locke State Attorneys General Team, David Navetta, Bianca Nalaschi, and Dan Waltz

On July 1, California Attorney General (AG) Rob Bonta announced a significant proposed settlement with Healthline Media LLC (Healthline) — a prominent website publisher of health information and wellness articles. The proposed settlement follows allegations that Healthline’s use of online tracking technology violated the California Consumer Privacy Act (CCPA). This is the third action under the CCPA announced by Bonta this year.

AG of the Week

Dana Nessel, Michigan

Dana Nessel, Michigan’s 54th AG, was sworn in on January 1, 2019. She began her legal career as an assistant prosecutor in Wayne County, where she handled complex cases in units such as Child & Family Abuse and Police Conduct Review. In 2005, she founded her own legal firm, focusing on defending indigent defendants and pursuing civil rights actions against police departments and government agencies.

Nessel is widely recognized for her advocacy on LGBTQ issues. She founded the Fair Michigan Foundation and co-created the Fair Michigan Justice Project with Wayne County Prosecutor Kym L. Worthy, focusing on investigating and prosecuting hate crimes against the LGBTQ community.

Her dedication to civil rights has earned her numerous accolades, including the “Champion of Justice” award from the Michigan State Bar Association, “Woman of the Year” from Michigan Lawyers Weekly, and the “Treasure of Detroit” award from Wayne State University Law School. Nessel is a graduate of the University of Michigan and Wayne State University Law School. She resides in southeast Michigan with her family.

Michigan AG in the News:

As part of a coalition of 21 AGs, Nessel announced a lawsuit challenging the U.S. Department of Agriculture’s attempt to gain access to personal and sensitive information about Supplemental Nutrition Assistance Program (SNAP) recipients.
Nessel expressed gratitude for the swift response of local authorities and community members following a violent incident at a Walmart in Grand Traverse County, offered support to the prosecutor handling the case, and encouraged affected residents to utilize available counseling services.
Nessel announced the arraignment of a Harper Woods man and Southfield woman related to allegations of defrauding the COVID Emergency Rental Assistance (CERA) program.

Upcoming AG Events

August: AGA | Chair’s Initiative | Alaska
September: RAGA | Fall National Meeting | Miami, FL
September: DAGA | Denver Policy Conference | Denver, CO

For more on upcoming AG Events, click here.

Cal Stein, a litigation partner at Troutman Pepper Locke, discusses the DOJ Criminal Division’s updates to its compliance monitor policies and outlines how these updates will impact companies negotiating settlements in criminal enforcement actions.

On May 12, the DOJ Criminal Division (Division) issued a memorandum revising its policies on the imposition and selection of independent compliance monitors in connection with corporate resolutions. These changes aim to reduce unnecessary financial burdens on companies and decrease the likelihood of a recurrence of criminal conduct. Going forward, companies can expect to see this approach during negotiations of plea agreements, deferred prosecution agreements, and non-prosecution agreements.

Key aspects of the policy include:

Factors to Evaluate Need for Monitor: The revised policy outlines specific factors that prosecutors must consider when determining whether a compliance monitor is needed. These factors include the risk of recurrence of criminal conduct that significantly impacts US interests, the availability of other governmental or regulatory oversight, the efficacy of the company’s compliance program, and the maturity of the company’s controls.
Tailoring of Monitorships: The Division emphasizes that any imposed monitorship should be appropriately tailored to address the specific issues that necessitated the monitor, while minimizing costs and interference with business operations. This may include setting a cap on the monitor’s hourly rates and requiring a detailed budget to be submitted and approved before the monitorship begins.
Enhanced Collaboration: The revised policy mandates biannual tri-partite meetings among the company, the monitor, and the government to promote ongoing communication regarding the state and progress of the monitorship. This is to ensure alignment and the company’s cooperation, as well as to mitigate the risk of monitor overreach.

In May 2025, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) published a review, titled “Potential Cost Savings HHS Programs – HHS Actions,” which provided some insight into the OIG’s direction to accomplish the Trump administration’s stated goal of cutting federal spending. This review spans 35 reports, adding up to $50 billion in potential cost savings — including a reported $6.6 billion in potential savings by preventing Medicare payments for nonhospice items or services furnished to active hospice beneficiaries (nonhospice payments).

Hospice is palliative end-of-life care for individuals with incurable illnesses and can be provided in an individual’s home, at a nursing facility, hospital, or in an inpatient hospice facility. When a beneficiary qualifies for and elects hospice benefits, the beneficiary signs a statement choosing hospice care over other Medicare-covered treatments for their terminal illness, and the hospice provider is paid a daily, per diem rate to provide these comprehensive services.

With nonhospice payments accounting for a significant portion of HHS’s potential savings, providers across the health care industry — including nursing and long-term care facilities, hospice and home health agencies, hospitals, individual providers, pharmacies, and medical equipment distributors — will need to be ready for the OIG’s possible next steps.

Overview of the OIG’s Report

In February 2022, the OIG issued its report, “Medicare Payments of $6.6 Billion to Nonhospice Providers Over 10 Years for Items and Services Provided to Hospice Beneficiaries Suggest the Need for Increased Oversight.” The report concluded there was an increase in nonhospice providers billing for items or services that should otherwise be provided and covered by the hospice benefit, with the majority of these payments occurring for Part B items or services.

Medicare Part A accounted for 35% of the nonhospice payments, with the majority resulting from inpatient hospital stays. Part A — otherwise known as hospital insurance — covers inpatient hospital stays, skilled nursing facility services, and home health services. Payments are generally based on a prospective payment system (PPS), and payment covers all services related to the beneficiary’s treatment during a stay. However, when a beneficiary qualifies for hospice, the hospice provider takes over responsibility for providing necessary items and services for the beneficiary and is paid the daily, per diem rate (once again, under Part A). Inappropriate payments most often occurred due to provider’s billing for inpatient services that were already covered by the per diem.

Medicare Part B accounted for the vast majority of nonhospice payments, at 65%. Part B generally covers items and services, including physician services, outpatient services, and durable medical equipment (DME). The largest category of improper payments under Part B was reported for items and services, including evaluation and management visits, ambulance services, and collection of blood samples.

The OIG specifically highlighted the use of the GW modifier for the majority of these Part B nonhospice payments. Providers use the GW modifier to identify services provided to a hospice patient that are unrelated to the terminal illness and fall outside the hospice benefit. Despite the prevalent use of the modifier, the Centers for Medicare and Medicaid Services (CMS) “has long taken the position that services provided to a hospice beneficiary that are unrelated to the beneficiary’s terminal illness and related conditions should be exceptional, unusual, and rare given the comprehensive nature of the services covered under the Medicare hospice benefit.”[1] This suggests that CMS believes providers should use the GW modifier sparingly, if at all.

Part C (Medicare Advantage) and Part D (covering prescription drugs and some DME) were not included within the scope of the report. However, the OIG acknowledged that it believes duplicative payments are also occurring under Part D based on its prior work.

Key Takeaways

There will likely be an increase in CMS and OIG audits/investigations regarding payments to nonhospice providers for items and services. CMS and OIG will likely increase their auditing and investigating efforts to determine whether providers have submitted improper nonhospice claims. There is likely to be significant focus on billings under Medicare Part A and Part B in particular. In anticipation of increased enforcement, providers should consider proactively conducting self-audits of their billing policies and practices, including developing mechanisms to identify when a patient is currently a Medicare hospice beneficiary and/or eligible for nonhospice items or services.
Providers should exercise caution when using the GW modifier and/or billing for nonhospice services to hospice beneficiaries. Nonhospice services should only be billed when the items or services are unrelated to a beneficiary’s terminal illness or related conditions. The OIG has reiterated its position that only rare circumstances would call for a hospice patient to receive services outside the hospice benefit. If a provider decides that certain services are unrelated to the beneficiary’s terminal illness, they should be sure that this determination is supported by relevant medical records and preserve all such documentation.
While not included in the report, the OIG is aware that similar nonhospice billing practices are occurring under Part D, which could likewise result in scrutiny. Pharmacies and other Part D providers and suppliers should not consider themselves exempt from the OIG’s scrutiny of nonhospice billing practices. While the OIG is likely to focus its cost-saving efforts on providers billing under Part A and Part B, providers should also take this opportunity to reevaluate their Part D billing practices with respect to Medicare hospice patients before the OIG potentially shifts focus to Part D.

[1] OIG Final Data Brief: Medicare Payments of $6.6 Billion to Nonhospice Providers Over 10 Years for Items and Services Provided to Hospice Beneficiaries Suggest the Need for Increased Oversight, A-09-20-03015; see also 84 Fed. Reg. 38484, 38506 (Aug. 6, 2019) (“In the FY 2020 hospice proposed rule, we reiterated our long-standing position that services unrelated to the terminal illness and related conditions should be exceptional, unusual and rare given the comprehensive nature of the services covered under the Medicare hospice benefit as articulated upon the implementation of the benefit.”).

This article was republished in IP Litigator on September 1, 2025.

Two California district court judges recently issued competing rulings pertaining to fair use as a defense against the alleged improper use of copyrighted works to train large language models (LLMs). The two orders,[1] issued within days of each other, decided in the LLM owners’ favor, finding the LLM owners met their burden of establishing “fair use” in connection with certain copyright claims brought by the plaintiffs. However, that is where the similarities end. The courts disagreed on the “most important” factor in fair-use analysis — the effect of the infringing use on the market for the copyrighted work.

The Meta court adopted a unique approach to this factor, looking at market dilution as opposed to direct market substitution. This approach was recently discussed in the Copyright Office’s pre-publication of its “Copyright and Artificial Intelligence, Part 3: Generative AI” training report. The argument, however, was rejected by the Anthropic court, which also distinguished between copies used for training and non-training purposes, the latter category being further segregated between pirated and purchased data. (This note deals with copies for training purposes, unless noted otherwise.) However, because the defendant in Meta did not raise the “market dilution” argument, the court found, as in Anthropic, against the plaintiffs and for fair use.

The opinions, from the same federal district, will undoubtedly be reconciled and revised as the cases proceed and appeals play out, but they provide the first fulsome discussions concerning generative AI and fair use. They therefore provide initial indications of how courts will handle this novel and precedent-stretching technology and a potential roadmap for future cases and decisions.

Background

Both cases involve an LLM that was trained on copious amounts of data, including the plaintiffs’ copyrighted works. Plaintiffs’ central claim is that the LLM owners’ copying of their works for the use of training the LLMs violated their copyright. Neither order substantively deals with alleged copyright violations for outputs — i.e., chat responses — of the LLMs, as both courts acknowledge that neither set of plaintiffs claim substantial similarity of outputs to plaintiffs’ works.

Defendants in both cases moved for summary judgment, arguing, inter alia, there were no issues of material fact concerning their respective fair use defenses.

Fair use is an affirmative defense to an otherwise valid copyright claim. The factors used to determine fair use are:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
The nature of the copyrighted work.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use upon the potential market for or value of the copyrighted work.

Both orders largely focus on the first and fourth factors.

Transformative Use vs. Market Effect

The judges both found in the LLM owners’ favor regarding the first factor — holding that their use of copyrighted works to train LLMs was “transformative.” The first factor looks at whether the new use “has a further purpose or different character,” and, if so, whether this use is “transformative” and more likely to be “fair.” Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 510 (2023). The Anthropic court found this use “transformative” in no uncertain terms: “the purpose and character of using copyrighted works to train LLMs to generate new text was quintessentially transformative.” Anthropic at 13. The Meta court similarly found there was “no serious question that Meta’s use” had a “further purpose” and “different character,” in other words that the use was “highly transformative.” Meta at 16.

The courts, however, disagreed on how to weigh this “transformative purpose” in their fair use analysis. The Meta court fastidiously argues the first factor is trumped by the fourth — market effect. As the court says: “Harm to the market for the copyrighted work is more important than the purpose for which the copies are made.” Meta at 3 citing Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,566 (1985). While the Meta court is correct that the fourth factor is frequently referred to as the “most important element of fair use,” the court’s analysis is admittedly more expansive than previous decisions.

The necessary premise of the Meta court’s fourth-factor argument is that “indirect substitution is still substitution.” Meta at 31. By widening this definition, the Meta court can presumably comply with the Supreme Court’s dictate that the “only harm” that matters under this factor is “the harm of market substitution.”[2] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 593 (1994). The alleged harm, according to the Meta court, is the LLM’s ability to “enable the rapid generation of countless works that compete with the originals, even if those works aren’t themselves competing.” Meta at 28. In other words, the LLM is making it easier to produce “competing” works, and “by flooding stores and online marketplaces so that some of [the copyrighted] books don’t get noticed and purchased, those outputs would reduce the incentive for authors to create.” Id. at 31.

But the “indirect substitution” or “market dilution” argument, as the Meta court alternatively calls it, does not have much precedential backing. Indeed, the Meta court appeared to raise this argument on its own, as the defendants “barely g[a]ve this issue lip service.” Meta at 4. In such a scenario, one would expect a court to remain silent or only raise the issue if it were to rely on black-letter precedent. Instead, the court rejected Meta’s argument that such harm and the “market dilution” theory has “never made a difference in a case before,” not by providing some precedent concerning market dilution, but by relying on a policy argument that fair use should take “account of ‘significant changes in technology.'” Meta at 32.

The Meta court appears guided by (but did not cite to) the U.S. Copyright Office’s recent guidance on the topic. The Copyright Office report endorsed this “market dilution” analysis concerning the fourth factor. While acknowledging the “uncharted territory” that generative AI occupies, the office — as echoed by the Meta court — found that “speed and scale at which AI systems generate content pose a serious risk of diluting markets for works of the same kind as in their training data.” Copyright and Artificial Intelligence Part 3: Generative AI Training, United States Copyright Office at 65 (May 2025).[3]

This rationale is indicative of the Meta court’s focus on the radical and unprecedented technology before it. Generative AI and LLMs should be treated as a change in kind, not degree, and the Meta court rightly recognizes this change.

The Anthropic court, however, reached the opposite conclusion concerning the fourth factor (at least for the training copies).[4] There, the court analogized training an LLM to training a schoolchild to read and write on copyrighted books, which is “not the kind of competition or creative displacement that concerns the Copyright Act.” Anthropic at 28. The Meta court takes direct aim at this “inapt analogy,” arguing that “using books to teach children to write is not remotely like using books to create a product that a single individual could employ to generate countless competing works with a miniscule fraction of the time and creativity it would otherwise take.” Meta at 3.

But how is it dissimilar? Is it the storage of the copyrighted material that is the difference? While an LLM owner must, almost out of necessity, store what an LLM is trained on, human memory is fickle and doesn’t lend itself to such comparisons. If not storage, is it the sheer processing power of LLMs, i.e., the “miniscule fraction” of the time it takes to teach an AI rather than a human that is the difference? The latter is certainly a compelling rhetorical point, although perhaps not as legally compelling. The former seems stronger legally but raises questions about human and artificial memory that would be difficult for any court to untangle. Thus, while at first blush it appears self-evident that “using books to teach children to write is not remotely like using books to create [an LLM],” closer scrutiny should be applied to this comparison — a scrutiny the Meta court did not provide.

Conclusion

These two rulings leave the fair-use landscape split between two incompatible rules of law. Meta emphasizes the market effects of the improper use, adopting a novel (and certainly persuasive) approach that rests on market dilution. This contrasts with Anthropic, which views LLM training as nothing more than giving a book to a schoolchild and teaching them to write — an approach that treats market dilution as irrelevant. These rulings will ripple through other industries beyond books, as parallel suits concerning music, images, and code are queued up in this space. Until further guidance is given — either by appeals courts or Congress — the takeaway from these rulings is a cautionary one for all involved: courts are willing to treat AI training as “fair use,” but only on a fact-rich record. Litigants should be prepared to muster these facts and address the myriad of policy arguments that will be made.

We will continue to monitor this space, and please reach out if you or your company have any questions about these issues.

[1] The two cases are Kadrey et al., v. Meta Platforms, Inc., 23-cv-03417 (ND Cal.) and Bartz et al., v. Anthropic PBC, 24-cv-05417 (ND Cal.); the two summary judgment orders are ECF nos. 598 and 231, respectively. We will refer to these cases and orders as “Meta” and “Anthropic,” as appropriate.

[2] This is consistent with the Supreme Court’s recent ruling, where the concurrence distinguishes between “whether consumers treat a challenged use ‘as a market replacement’ for a copyrighted work or ‎a market complement that does not impair demand for the original.‎” Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 555 (2023) (Gorsuch, J. concurring).

[3] The Office continues, in an argument that would be perfectly at place in the Meta decision: “That means more competition for sales of an author’s works and more difficulty for audiences in finding them. If thousands of AI-generated romance novels are put on the market, fewer of the human-authored romance novels that the AI was trained on are likely to be sold.” Id. at 65.

[4] In fact — unlike the Meta court — the court in Anthropic was presented with this argument. See Anthropic at 28 (“Authors contend generically that training LLMs will result in an explosion of” competing works).

Tariffs may not be the only tool at the federal government’s disposal to promote U.S. manufacturing of pharmaceuticals and medical devices. As the new administration continues to push for the onshore manufacturing of these products, the Bayh-Dole Act (the “Act”) could be another enforcement mechanism to bring life sciences manufacturing operations to the U.S., particularly for those products that relied on federal funding during research and development.

Read the full article on ABA Health Law Today.

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