It has been publicly reported that discussions are underway within the Trump Administration for a coordinated interagency initiative to remove key industrial supply chain dependencies from overseas, especially China, and redouble efforts to secure such supply chains in the United States. While this initiative proceeds alongside ongoing efforts to secure supply chains in sectors such as semiconductor manufacturing, rare earth minerals processing, and more recently, medical supply manufacturing, the new initiative is expected to extend beyond such sectors in an effort to reduce import dependencies in a range of industries, such as advanced manufacturing. Further, the Administration’s effort is expected to involve expanded government action, including both affirmative and punitive measures, to encourage the reshoring of production. This report addresses what is currently known, and, importantly, what is still uncertain, regarding the new initiative.

  1. What is the current status of this initiative?

The initiative is under active discussion within the U.S. government. Recent public reporting, as well as recently announced administrative actions, have signaled this broader initiative. For example, Keith Krach, the U.S. Department of State Undersecretary for Economic Growth, Energy, and the Environment, recently stated that the Administration is “turbo-charging” its efforts to reduce reliance on supply chains in China. Robert Lighthizer, the U.S. Trade Representative, also recently published an op-ed criticizing the “overreliance” on other countries for critical products as a strategic vulnerability.

Our understanding is that the U.S. Departments of Commerce, State, Treasury, and Defense, as well as the Office of the U.S. Trade Representative, are involved in interagency discussions. Further, the Administration’s initiative appears to be bolstered by the broad support of lawmakers, who are discussing legislative measures to secure medical and other supply chains in the United States. 

  1. What has the Administration done so far and what is different with this initiative?

The Administration has been engaged in ongoing efforts to reduce supply chain dependencies regarding key defense and strategic products, such as advanced semiconductor manufacturing and rare earth minerals processing. On semiconductors, the Administration recently negotiated the construction of a new Taiwan Semiconductor Manufacturing Co. semiconductor production plant in Arizona after expressing growing concern about the United States’ reliance on Taiwan for advanced semiconductors, and is reportedly in similar negotiations with Intel for a domestic plant. On rare earth minerals processing, the Department of Defense is contemplating funding for rare earth processors to build separation facilities in the United States with the explicit goal of reducing the United States’ dependence on China, and has increasingly made rare earth minerals projects a focus of the National Defense Authorization Act (NDAA).

Finally, in light of critical supply shortages during the COVID-19 pandemic, the Administration has recently focused on the medical supply chain, with Administration officials reportedly discussing a proposed executive order to streamline regulatory approvals for U.S.-made products and encourage the U.S. government to only buy U.S.-made medical products.

While reducing supply chain dependencies in sectors such as semiconductors and rare earth minerals has been a focus of the Administration for some years, the new interagency initiative reportedly will look beyond these traditional sectors–all industrial sectors where there may be a supply chain dependency are now in play.

  1. What are the new sectors under focus?

This remains under discussion. It is our understanding that U.S. government agencies are still deliberating as to which new industrial sectors should be the target of new measures based on the United States’ import dependencies, especially in relation to China. However, we expect information communications technology (ICT) products to be a focus, as well as other areas of advanced manufacturing in which China is pursuing a dominant market share globally, such as electric vehicle technology. We also expect sectors related to critical infrastructure to be an additional area of focus, as evidenced by the recent executive order on “Securing the United States Bulk-Power System,” which, as we explain in this alert, declares a national emergency with respect to “the unrestricted foreign supply of bulk-power system electric equipment” and delegates to the Department of Energy the authority to prohibit or require mitigation measures in connection with purchases of certain equipment.

  1. What are the new or expanded measures that may be utilized?

We expect the Administration to utilize both affirmative and punitive measures to encourage the reshoring of production. Possible affirmative measures under discussion include tax incentives for companies that shift operations back to the United States, or even government-backed loans or direct assistance, including a possible $25 billion fund to encourage U.S. companies to exit China. Administration officials have also discussed the possibility of reimbursing the moving costs for U.S. companies in Hong Kong or mainland China seeking to move back to the United States. Further, the Administration is reportedly contemplating deregulation to facilitate companies in certain sectors to operate in the United States.

Punitive measures may include increased use of the Administration’s investigative, trade remedies, and sanctions powers. The Commerce Department recently announced two new investigations under Section 232–one which examines whether certain transformer-related items are being imported into the United States in a way to threaten national security, and another which investigates whether the present imports of vanadium, a mineral with national defense and critical infrastructure applications, pose a national security risk. Such Section 232 investigations may become more commonplace as part of the initiative. Further, we expect the Administration to continue to utilize executive orders to exert pressure in particularly sensitive sectors, as exemplified by the issuance of the executive orders on “Securing the Information and Communications Technology and Services Supply Chain” and “Securing the United States Bulk-Power System.”

Finally, we also expect increased utilization of NDAA provisions to shore up U.S. production of key strategic goods through a combination of affirmative and punitive measures. On the one hand, the NDAA may be used to allocate funds to support domestic manufacturing of items critical to the defense supply chain. On the other hand, the NDAA may also be used to impose further broad restrictions on the procurement of products or services from non-domestic sources, such as the Fiscal Year 2019 Section 889 provisions which will become effective on August 13, 2020, prohibiting the U.S. government from contracting with any entity that uses Huawei and other specified Chinese ICT.

The interagency initiative remains a fluid development, and the exact focus and implementation of the initiative are still to be crystallized. We understand that the Administration is also in discussions with industry leaders to gauge their reactions on the interagency initiative and to encourage attention to reducing supply chain dependencies. We will continue to monitor and report on these developments.

  1. What is motivating this supply chain push and will it sustain past the 2020 election?

There are at least four primary motivations for the focus on supply chain. First, there has been a growing concern in the U.S. national security community in both the executive branch and Congress on the U.S. dependency on supply from Asia, and in particular China, on items that are critical to economic and national security. As noted above, the semiconductor and rare earth sectors are central to this particular concern. Intensifying concerns around economic competition with China, especially in high-technology and advanced manufacturing, is now broadening this focus to other sectors.

Second, as the executive orders focused on supply chain security in ICT products and services and bulk power systems reflect, the U.S. government has specific concerns about the vulnerabilities in critical infrastructure systems. Our understanding is that these concerns are based on continued evidence of threat actors seeking to exploit such systems.

Third, our judgment is that these developments also reflect a negative reaction to the word “foreign.” The politics around globalization has fueled a politics of protectionism–not only in the United States but more broadly–and while that is certainly not the sole driver, we should also recognize that the sprouting of these preferences for domestic supply is occurring within political environments in which there is pressure to look inward or a belief that doing so will be politically expedient.

Fourth, the COVID-19 pandemic has been an accelerant–not only in the area of medical supplies where the pandemic focused new attention on the ability of the United States to produce and mobilize critical resources from protective gear to medical equipment to drugs–but more broadly because it gave momentum to the insular views and tendencies reflected in the third point above.

Collectively, these factors are manifesting in various ways–formal executive actions and potential legislative actions, as outlined above, but also through domestic preferences that are arising in individual procurements. That is, bureaucracies are naturally responding to these trends on a daily basis in ways that are not necessarily politically directed or driven but that nonetheless reflect the overall concerns about dependencies on foreign supply.

We believe the first two factors identified above–which are grounded in the concerns of the U.S. national security community and the view that China is a long-term economic and technological competitor that started becoming more animated towards the end of the Obama Administration–are, to a degree, apolitical or at least are so deeply bipartisan that they will sustain regardless of who wins the 2020 election. That, in turn, means that there will continue to be a focus on supply chain security and shoring up domestic supply in critical areas even if the anticipated nominee from the Democratic Party, Joe Biden, wins the election. However, preferences around particular policy approaches and the degree to which the United States continues to turn more insular–and how these manifest in supply chain rules–may be impacted by the 2020 election, as well as by how long the pandemic persists and constrains global travel and supply.

Photo of Christopher Adams Christopher Adams

Christopher Adams advises clients on matters involving China and the region. A non-lawyer, Mr. Adams recently served as the Senior Coordinator for China Affairs at the Treasury Department. He coordinated China policy issues across the U.S. government, led negotiations with China on a…

Christopher Adams advises clients on matters involving China and the region. A non-lawyer, Mr. Adams recently served as the Senior Coordinator for China Affairs at the Treasury Department. He coordinated China policy issues across the U.S. government, led negotiations with China on a broad range of trade and investment issues, managed the highest level U.S.-China economic policy dialogues for the Obama and Trump administrations, and advised the Treasury Secretary and other cabinet officials.

Photo of Susan B. Cassidy Susan B. Cassidy

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government…

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government contractors and represents her clients before the Defense Contract Audit Agency (DCAA), Inspectors General (IG), and the Department of Justice with regard to those investigations.  From 2008 to 2012, Ms. Cassidy served as in-house counsel at Northrop Grumman Corporation, one of the world’s largest defense contractors, supporting both defense and intelligence programs. Previously, Ms. Cassidy held an in-house position with Motorola Inc., leading a team of lawyers supporting sales of commercial communications products and services to US government defense and civilian agencies. Prior to going in-house, Ms. Cassidy was a litigation and government contracts partner in an international law firm headquartered in Washington, DC.

Photo of David Fagan David Fagan

David Fagan co-chairs the firm’s top ranked practices on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and data privacy and cybersecurity.

Mr. Fagan has been recognized by Chambers USA and…

David Fagan co-chairs the firm’s top ranked practices on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and data privacy and cybersecurity.

Mr. Fagan has been recognized by Chambers USA and Chambers Global for his leading expertise on bet-the-company CFIUS matters and has received multiple accolades for his work in this area, including twice being named Dealmaker of the Year by The American Lawyer for 2016 and 2019. Clients laud him for providing “excellent advice,” “know[ing] everything there is to know about CFIUS” and being “extremely well regarded” by key regulators. (Chambers USA)

In the foreign investment and national security area, Mr. Fagan is known for his work on matters requiring the mitigation of foreign ownership, control or influence (FOCI) under applicable national industrial security regulations, including for many of the world’s leading aerospace and defense firms, private equity firms, and sovereign investors, as well as telecommunications transactions that undergo a public safety, law enforcement, and national security review by the group of agencies known as “Team Telecom.”

Mr. Fagan’s practice covers representations of both foreign and domestic companies before CFIUS and related national security regulators. The representations encompass matters in which the principal assets are in the United States, as well as those in which there is a smaller U.S. nexus but where solving for the CFIUS issues – including through proactive mitigation and carve-outs – is a critical path for the transaction. Mr. Fagan is also routinely called upon to rescue transactions that have run into challenges in CFIUS, and to negotiate solutions with the U.S. government that protect national security interests, while preserving shareholder and U.S. business interests.

Reflecting his work on U.S.-China investment issues and his experience on complex U.S. national security matters intersecting with China, Mr. Fagan is regularly engaged by multi-national companies, including the world’s leading technology companies, to advise on strategic legal projects, including supply chain matters, related to their positioning in the emerging competition between the U.S. and China. Mr. Fagan also has testified before a congressional commission regarding U.S. national security, trade, and investment matters with China.

In the privacy and data security area, Mr. Fagan has counseled companies on responding to some of the most sophisticated documented cyber-based attacks on their networks and information, including the largest documented infrastructure attacks, as well as data security incidents involving millions of affected consumers. He has been engaged by boards of directors of Fortune 500 companies to counsel them on cyber risk and to lead investigations into cyber attacks, and he has responded to investigations and enforcement actions from the Federal Trade Commission (FTC) and state attorneys general. Mr. Fagan has also helped clients respond to ransomware attacks, insider theft, vendor breaches, hacktivists, state-sponsored attacks affecting personal data and trade secrets, and criminal organization attacks directed at stealing personal data, among other matters.

In addition, he routinely counsels clients on preparing for and responding to cyber-based attacks on their networks and information, enhancing their supply chain and product development practices, assessing their security controls and practices for the protection of data, developing and implementing information security programs, and complying with federal and state regulatory requirements. He also frequently advises clients on transactional matters involving the transfer of personal data.

Photo of John K. Veroneau John K. Veroneau

John Veroneau is a Chambers-ranked international trade lawyer and co-chairs the firm’s International Trade Practice Group. Having served in senior positions in both Executive and Legislative branches, he provides legal and strategic advice to clients on a broad range of international trade…

John Veroneau is a Chambers-ranked international trade lawyer and co-chairs the firm’s International Trade Practice Group. Having served in senior positions in both Executive and Legislative branches, he provides legal and strategic advice to clients on a broad range of international trade and other public policy matters.

Photo of Jonathan Wakely Jonathan Wakely

Jonathan Wakely practices at the intersection of national security and the private sector, advising clients on a range of significant international trade, cross-border investment, national security, supply chain security, and public policy matters.

Mr. Wakely has been recognized by Chambers USA for his…

Jonathan Wakely practices at the intersection of national security and the private sector, advising clients on a range of significant international trade, cross-border investment, national security, supply chain security, and public policy matters.

Mr. Wakely has been recognized by Chambers USA for his leading expertise in securing national security-related regulatory approvals for foreign investments. He regularly represents clients before the Committee on Foreign Investment in the United States (CFIUS), the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (better known as “Team Telecom”), and the Defense Counterintelligence and Security Agency (DCSA) in proceedings related to the mitigation of foreign ownership, control, or influence (FOCI). He was deeply involved on behalf of clients in the development of the Foreign Investment Review Modernization Act of 2018 (“FIRRMA”), which reformed CFIUS’s authorities, and its implementing regulations.

Mr. Wakely has advised on transactions with an aggregate value in excess of $250 billion across virtually all sectors, including semiconductors, telecommunications, financial services, software, IT services, energy, and real estate. His recent representations include successfully defending Qualcomm against the attempted hostile takeover by Broadcom, securing approval for the acquisition of Genworth Financial by China Oceanwide, and representing Ford Motor Company in connection with a $2.6 billion investment by Volkswagen in Ford’s autonomous driving subsidiary, Argo AI. He has negotiated and advised companies on compliance with many of the most significant, complex, and sensitive national security agreements of the past decade.

Mr. Wakely also regularly advises clients on public policy and government relations matters involving international trade, cross-border investment, and national security. He has represented trade associations, Fortune 100 companies, and sovereign states before Congress and the executive branch, including by designing and executing government relations campaigns to achieve policy, regulatory, and legislative goals.

Mr. Wakely is an adjunct professor at the Georgetown University Law Center, where he teaches a course on national security and the private sector. He has also published extensively on matters related to the regulation of foreign investment; his articles have appeared in the Harvard National Security Journal, The International Lawyer, and the Global Trade and Customs Journal. Before joining Covington, he served as a political analyst with the Central Intelligence Agency (CIA), where he provided strategic analysis to the President and other senior policymakers.