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OFAC Sanctions CEIEC for Its Support to Venezuela Regime

Venezuela

OFAC Sanctions CEIEC for Its Support to Venezuela Regime

The U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) has sanctioned CEIEC (China National Electronic Import-Export Company), a Chinese technology exporter, for its alleged support to the Maduro government in Venezuela. As a result of CEIEC’s addition to OFAC’s Specially Designated Nationals List, all property and interests belonging to CEIEC, or any entity in which it owns a 50% or greater interest—and which are in the United States or in the possession or control of U.S. persons—must be blocked and reported to OFAC.

According to OFAC, CEIEC has provided software, training, and technical expertise to the government of Venezuela since 2017, which has been used to oppress the Venezuelan people. OFAC specified CEIEC’s support to Venezuela National Telephone Company (CANTV), the state-owned telecoms company which provides 70% of internet service in Venezuela, and described CEIEC’s suite of software and hardware that it provided to CANTV as a “commercialized version” of China’s “Great Firewall” system of internet censorship. “The illegitimate Maduro regime’s reliance on entities like CEIEC to advance its authoritarian agenda further illustrates the regime’s prioritization of power over democratic values and processes,” said Treasury Secretary Mnuchin.

OFAC issued Venezuela-related General License 38 (GL 38) on November 30, 2020, authorizing the wind-down of transactions involving CEIEC. According to the related Frequently Asked Question 854 (FAQ 854), GL 38 authorizes U.S. persons to engage in transactions and activities prohibited by Executive Order 13692 (E.O. 13692) that are ordinarily incident and necessary to the wind-down of transactions and activities involving CEIEC, or any entity in which CEIEC owns a 50% or greater interest, until January 14, 2021.

Non-U.S. persons may also wind down transactions and activities with CEIEC without being sanctioned under E.O. 13692, provided that such wind-down activity is consistent with GL 38 and is completed prior to January 14, 2021.

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Cortney O’Toole Morgan is a Washington D.C.-based partner with the law firm Husch Blackwell LLP. She leads the firm’s International Trade & Supply Chain group.

Grant Leach is an Omaha-based partner with the law firm Husch Blackwell LLP focusing on international trade, export controls, trade sanctions and anti-corruption compliance.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

export

BIS Amends EAR to Implement Export Enforcement Provisions of Export Control Reform Act

The U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) recently issued a final rule, effective November 18, 2020, which revises certain provisions of the Export Administration Regulations (“EAR”) to implement enforcement provisions pursuant to the Export Control Reform Act of 2018 (“ECRA”), which expanded the export control authorities available to the Secretary of Commerce. BIS also amended the EAR with respect to the issuance of licenses and denial orders and the payment of civil penalties, not directly related to the implementation of ECRA.

The final rule affirms BIS’ authority to conduct investigations, pre-license checks, and post-shipment verifications outside of the United States, as well as the production of books and other information required to be kept as specified in ECRA Section 1761(a)(2) which may be requested of persons located outside the United States.

The enforcement and protective measures in Part 764 of the EAR include violations and sanctions outlined in sections 764.2 and 764.3. Sanctions for violations of the EAR outlined in Section 764.2 include civil monetary penalties, the denial of export privileges, or the exclusion from practice for persons who act as attorneys, accountants, consultants, freight forwarders, or “in any other representative capacity for any license application or other matter before BIS…”  Criminal violations may result in a maximum fine of $1,000,000 and a prison sentence of up to twenty years.

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Cortney O’Toole Morgan is a Washington D.C.-based partner with the law firm Husch Blackwell LLP. She leads the firm’s International Trade & Supply Chain group.

Grant Leach is an Omaha-based partner with the law firm Husch Blackwell LLP focusing on international trade, export controls, trade sanctions and anti-corruption compliance.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

voters

NEW POLL: TRADE WAS A TOP ISSUE FOR MANY 2020 VOTERS

Nearly Half of U.S. Voters Identified Trade as a Top Issue in Presidential Election

In a likely reflection of the front-and-center emphasis President Donald Trump has put on trade policy in his Administration, nearly half of U.S. voters identified trade as a top issue influencing their vote for president in 2020, according to TradeVistas’ latest survey.

Our poll also found that over the next four years, Americans want to prioritize policies supporting the U.S. production of goods and services, such as increasing U.S. exports abroad and promoting “Buy American” at home.

In our post-election survey of 1009 American adults, conducted by Lincoln Park Strategies, 22 percent of respondents said trade was “the most important issue to me” in determining their 2020 vote, while 27 percent said it was “one of the most important issues” to them. Of the rest, 32 percent said while trade was important, it didn’t affect their vote, and 20 percent said they were not sure or that it’s “not an issue I really care about.”

Importance of Trade in Vote for President

Over 60 Percent of Republicans Said Trade Was “Most” or “One of Most” Important Issues

Republicans were more likely to see trade as a top concern, with 61 percent saying it was the most important or one of the most important issues to their vote (versus 45 percent of Democrats. Independents, on the other hand, were the most likely to say it did not influence their vote (43 percent). Men were more likely to say trade was “the most important” issue to them (31 percent), while women were more likely to say a candidate’s position on trade did not affect their vote (39 percent).

Importance of Trade to Vote by Party

Trade as a Proxy for the General Economy

While the salience of trade as an election issue might seem surprising to some, there are a couple of potential explanations for our results. First, many voters may see trade policy as a proxy for their concern about the economy more generally. (In national exit polls, 37 percent of U.S. voters – including 83 percent of those voting for President Trump – said the economy was the issue that mattered most to their vote.) Moreover, Trump has made trade policy a centerpiece of his economic agenda, particularly with his trade war against China, the renegotiation of NAFTA as USMCA, and his promises to bring back jobs lost to offshoring. The President’s advocacy of policies like “Buy American” also explicitly linked the creation of U.S. jobs to U.S. production, which has arguably led to the conflation of trade and economic policy in the public mind.

Buy American to Remain a Top Priority

As our September survey found, Buy American enjoys immense bipartisan support, and respondents in our post-election poll indicated that this policy is their top priority among the options we tested. In our survey, 33 percent of respondents said policies like Buy American are “extremely important” to pursue over the next four years, compared to 26 percent who believed it extremely important to negotiate new trade agreements with other countries and 24 percent who said the same of increasing the export of U.S. goods and services. Consistent with our September survey, men and Republicans were somewhat more likely to consider Buy American to be “extremely important” (40 percent and 43 percent respectively). Overall, 61 percent of Americans said Buy American was “extremely important” or “very important,” while 59 percent said the same of new trade deals and more exports.

Tariff Fatigue Could Go Either Way

One policy that did not enjoy as strong support was the idea of imposing new tariffs. Just 20 percent said imposing new tariffs on foreign goods was “extremely important,” while an almost equal number – 19 percent – said new tariffs were not important (13 percent) or were opposed to the idea (6 percent).

On the other hand, low rates of opposition to new tariffs could indicate newfound acceptance of tariffs as a tool (or cudgel) in future trade policy.

Importance of Different Trade Policies

The Next Four Years

What all this means for the next four years is that Americans want to see and will support trade policies that aggressively promote American economic interests abroad and will create new jobs at home.

Methodology: Lincoln Park Strategies conducted 1009 interviews among adults age 18+ were from November 9-10, 2020 using an online survey. The results were weighted to ensure proportional responses. The Bayesian confidence interval for 1,000 interviews is 3.5, which is roughly equivalent to a margin of error of ±3.1 at the 95% confidence level.

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Anne Kim

Anne Kim is a contributing editor to Washington Monthly and the author of Abandoned: America’s Lost Youth and the Crisis of Disconnection, forthcoming in 2020 from the New Press. Her writings on economic opportunity, social policy, and higher education have appeared in numerous national outlets, including the Washington Monthly, the Washington Post, Governing and Atlantic.com, among others. She is a veteran of the think tanks the Progressive Policy Institute and Third Way as well as of Capitol Hill, where she worked for Rep. Jim Cooper (D-TN). Anne has a law degree from Duke University and a bachelor’s in journalism from the University of Missouri-Columbia.

made in china

40% OF AMERICANS SAY THEY WON’T BUY “MADE IN CHINA,” DO THEY MEAN IT?

In a survey back in May, more than 1,000 American adults, 40 percent said, “I will not purchase products made in China.” And for the first time since 2002, China is no longer consistently our top source of imports. Are we putting our money where our mouths are?

China purchase decision poll

Here’s a thought experiment.

Imports are approximately 15 percent of total U.S. consumption. China’s share of U.S. imports is about 21 percent, so our imports from China represent 3.15 percent of GDP. Forty percent of that is 1.26 percent. In a straight calculation, if 40 percent of our imports from China disappeared, then 1.26 percent of GDP would also disappear.

Of course, it’s not so straightforward. More realistically, those American consumers and producers who are trying to stop buying from China have some decisions to make. Do I buy imported items from another country or can they instead be made here at home, albeit likely at greater expense? Am I willing to pay more?

Willing to pay more question

Ripple Effect of U.S. Imports From China

There are also indirect effects. Data from the Organization for Economic Cooperation and Development show that 15.5 percent of our exports are produced or manufactured using foreign components. Of course some of that is from China and would have to be sourced differently, possibly at greater expense.

And in other potential knock-on effects, what if China, in turn, stopped buying from us overnight? China’s share of U.S. exports is 7.2 percent and the U.S. export share of GDP is 12.2 percent. Such a sea change could affect close to one percent of our GDP. American exporters would have to find buyers in other export markets (albeit potentially at a lower price because if buyers in other countries were willing to pay more than China, we’d be selling there already instead).

Labeling Q

So the question is, can we believe those 1,000 adults in the survey who say they won’t buy “Made in China”? There is a well-known response bias in surveys that occurs when survey respondents are emotive about the subject. In other words, people often say one thing but do another.

American views on China have been steadily declining for a few years and have further deteriorated with the backlash over the COVID-19 pandemic. But if history is our guide, we should not expect people to pay much extra to shun Chinese-made goods. Shoppers are price sensitive, especially lower-income consumers. And as we climb out of our pandemic-induced economic hole, Americans will be shopping for deals.

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ChristineMcDaniel

Christine McDaniel a former senior economist with the White House Council of Economic Advisers and deputy assistant Treasury secretary for economic policy, is a senior research fellow with the Mercatus Center at George Mason University.

This article originally appeared on TradeVistas.org. Republished with permission.

refunds

How Your Business can Take Advantage of Section 301 Tariff Refunds

If you’re a U.S. company importing from China, you may have tens of thousands or even millions in tariff refunds waiting for you. With two-thirds of Chinese origin goods subject to Section 301 tariffs, companies large and small have been impacted since they were implemented in 2018 amid a U.S.-China trade war. Currently, 301 tariffs are extremely broad, covering industries from food and beverage, industrial supplies, transport equipment, consumption goods, and fuels and lubricants, to name a few. And now is your chance to get a refund on some of those extra duty payments via 301 exclusions before a vast majority of them expire on Dec. 31. These exclusions offer just the kind of cost-savings so many companies are looking for as we face a volatile economy and pandemic.

Taking advantage of duty recovery

If you’re not familiar, the Office of the United States Trade Representative (USTR) implemented the exclusion process for 301 tariffs when they were first enacted in 2018. This opportunity provided businesses the chance to request an exclusion and/or submit for duty recovery on exclusions that were already available.

Looking across our own customers, we identified a potential duty recovery refund of roughly $980 million. However, we found the timeliness and complexities of navigating the amount of exclusions can be overwhelming for small and large companies alike. And we get it, without the right data, technology, and expertise the process to compare your HTS codes against hundreds of exclusions can take hours, and that’s without considering that over 96% are product-specific which requires an even deeper level of analysis. With C.H. Robinson’s technology built by and for supply chains and a global suite of services, we’re able to decrease the amount of time needed in the complex and lengthy refund recovery process. Through our global trade experts and single, multimodal, global technology platform Navisphere®, we utilize data comparison and analysis tools to quickly reveal your refund potential.

We have already helped hundreds of companies take advantage of the refunds for which they qualify. One of the companies we assisted was Wheel Pros, a large wheel design, and distribution company, in submitting for a substantial refund. Keep in mind, large refunds are not only for large companies, our global trade experts have helped multiple small and mid-sized businesses uncover and submit for large refunds.

Keeping up with global trade changes

While the majority of current exclusions are set to expire on Dec. 31, we’ve been around long enough to know the only constant in global trade is change. So, we also created a Trade & Tariffs Insights webpage to help you keep up with it. It’s like having your very own global trade concierge service with weekly updates on the changing global trade marketplace along with custom insights and commentary from our leading global trade experts to help you make sense of it all. Trade and Tariff Insights cover topics like tariffs, exclusions and any other trade or compliance issues you need to know about. That way, you can focus on operating your business.

To learn more, visit Trade & Tariffs Insights. You can also reach out to one of our trade experts to explore your refund potential for 301 tariffs before time runs out.

complaint system

EU Releases New Complaint System to Address Trade Deal Violations and Market Barriers

On November 16, 2020, the European Commission (“EC”) debuted their new complaints system for stakeholders to report harmful trade barriers and violations to European Union (“EU”) trade agreements. The “Single Entry Point” complaints system allows member states, companies, trade associations, civil society groups and EU citizens to report any market access barriers and non-compliance of Trade and Sustainable Development (“TSD”) commitments which are part of EU trade agreements or under the Generalised Scheme of Preferences (“GSP”).

Executive Vice-President and Commissioner for Trade Valdis Dombrovskis said that the EC “has made enforcement a top priority” and that, notably, under the new system, complaints related to “sustainable development commitments” will receive the same level of attention as complaints related to market access barriers.

As outlined in the published operating guidelines, received complaints will be prioritized based on three criteria:

1. The likelihood of success for resolving the issue;

2. The legal basis for the complaint;

3. The seriousness or degree of economic/systemic impact of the alleged market access barriers or violations of TSD/GSP commitments.

The new system has two separate complaint forms, one for market access barriers and another for non-compliance with TSD/GSP commitments. Both of the forms require that the complainant provide the legal basis and a full description of the issue being reported. Additionally, if the commission finds that enforcement action is necessary, they will inform the complainant and issue an enforcement action plan tailored to the specific violation or trade barrier.

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Nithya Nagarajan is a Washington-based partner with the law firm Husch Blackwell LLP. She practices in the International Trade & Supply Chain group of the firm’s Technology, Manufacturing & Transportation industry team.

Turner Kim is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington, D.C. office.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

North America

Out of Asia: Promise from Pandemic of a Manufacturing Renaissance in North America (Part 3)

In their first two installments (which you can view here and here), George Y. Gonzalez and Jesus Alcocer respond to the gaps exposed in the supply chain by the pandemic by proposing a shift away from overreliance on China and a shift towards reshoring manufacturing closer to home. In their final installment, they will explore how the potential cost of reshoring out of Asia to North America could be lessened if capacity is relocated to Mexico, a natural alternative. Wrapping up their discussion, they will also examine how Houston may serve as a central hub for cross-national manufacturing and trade.

Mexico Has Also Been a Beneficiary of This Shift Out of China

Mexico has benefited from this rearrangement almost as much as Vietnam. According to A.T. Kearney, manufacturing imports from Mexico rose $13 billion to $20 billion in 2019. Thanks to this climb, the U.S. now imports 42 cents from Mexico for every dollar it purchased from LCAs, up from 37 cents during the past seven years. This pattern has also extended into 2020. In the first quarter of this year, imports in maintenance and repair, construction, and insurance sectors all grew in the triple digits, while imports of information and communications technology products (“ICT”) grew 20% year-on-year.

The trade relationship between the two North American countries has developed in spite of political obstacles. The Trump Administration imposed tariffs on Mexico-produced steel in 2018 but removed those barriers in May 2019. Likewise, Andres Manuel Lopez Obrador, Mexico’s president since 2018, was widely regarded as a nationalist suspicious of international trade. According to the Congressional Research Service, “in the area of foreign policy, President-elect López Obrador generally has maintained that the best foreign policy is a strong domestic policy.… Some observers feared that López Obrador might roll back Mexico’s market-friendly reforms and adopt a more isolationist foreign policy.” Against these inauspicious circumstances, bilateral trade has grown steadily since 2016. Mexico surpassed Canada as the U.S.’s largest trade partner in 2019. In 2013, Canada exported 8.3% more to the United States than Mexico. Now the order has reversed, with Mexico exporting .5% more than Canada into the U.S.

Growing imports can be partly explained by a hike in U.S. FDI in Mexico, which grew approximately 5.2% between 2018 and 2019 to $100.89 billion. Investment in primary and prefabricated metals manufacturing close to doubled from 2015 to 2019 to close to $2.27 billion, while FDI in machinery manufacturing grew about 25% during that same period. These are some of the industries where U.S. FDI in China has dropped most sharply, as explained above. Rising FDI stock was driven by waves of U.S. companies establishing a base or increasing their footprint in Mexico, following the market-oriented reforms in that country in the last decade. According to A.T. Kearney, by 2016 more than half of U.S. companies with manufacturing operations in Mexico had relocated production therefrom places such as China to supply the U.S. market.

Moreover, according to the Boston Consulting Group, some major Chinese consumer electronics manufactures have been adding capacity in Mexico to serve demand in Latin America. This broadly corresponds to the Chamber survey referenced above, which indicates that while LACs are still the top relocation choice for U.S. firms, North America is an increasingly popular option. Close to 17% of the firms dislocating their operations from China in 2020 indicated they would move that capacity to Mexico or Canada, up from 10% in 2019. An additional 22% reported they would move it to the U.S., up from 17% in 2019.

Mexico as a Natural Alternative

Mexico is already the U.S.’s largest trading partner, as well as the manufacturing base for a substantial part of its products. Last year, Mexico traded $614 billion with the U.S. – surpassing Canada ($612 billion) and China ($558 billion). “Merchandise trade between the two countries in 2018 was six times higher (in nominal terms) than in 1993, the year NAFTA entered into force,” according to the Congressional Research Service. Among the leading U.S. exports to Mexico are “petroleum and coal products ($28.8 billion or 11% of exports to Mexico), motor vehicle parts ($20.2 billion or 8% of exports), computer equipment ($17.4 billion or 7% of exports), and semiconductors and other electronic components ($13.1 billion or 5% of exports).” On the other hand, the top U.S. imports from Mexico in 2018 included “motor vehicles ($64.5 billion or 19% of imports from Mexico), motor vehicle parts ($49.8 billion or 14% of imports), computer equipment ($26.6 billion or 8% of imports), oil and gas ($14.5 billion or 4% of imports), and electrical equipment ($11.9 billion or 3% of imports).”

Increasing the cross-border manufacturing prompted by NAFTA may be the most practical way for the U.S. to eliminate its cost gap with China. “Many economists credit NAFTA with helping U.S. manufacturing industries, especially the U.S. auto industry, become more globally competitive through the development of supply chains in North America. A significant portion of merchandise trade between the U.S. and Mexico occurs in the context of production sharing as manufacturers in each country work together to create goods.” Mexico’s wage growth is on par with Vietnam’s, but Mexico’s productivity is about 5.2 times higher. Mexico’s combination of low labor costs and relatively high productivity result in production costs that are 20-30% lower than in the U.S. (including transportation and associated fees).

Mexico also has an important advantage vis-à-vis China with respect to transportation costs, which account for a significant portion of costs in industries like metals and automotive parts. Shipping a 40-foot container loaded with automotive parts from Shanghai to Los Angeles cost an average of $1,374.03 – $1,518.66 (before taxes and duties) in July 2020. Shipping that same container from Veracruz, in the Gulf of Mexico, to New York, cost $1,102.24 – $1,218.27. Sending that same container by truck from northern Tamaulipas, where a large portion of the country’s manufacturing base is located, to Houston cost an average of $304.11 – $336.12 – four to five times less than shipping it from China. Mexico also maintains a clear edge in delivery time. It takes 75% less time to transport goods to the customer from Mexico than from Asia. Proximity is an essential advantage in industries that are shifting towards highly personalized products, including electronics, automotive, and clothing. The short distance can also be exploited to combine the countries’ supply chains across the border, one of the main drivers of economic growth under NAFTA.

According to the Center for Car Research, between 80 and 90% of U.S. automotive trade is intra-industry, and parts produced in Mexico and the U.S. cross the border up to eight times along the manufacturing process before they are delivered to consumers. In fact, on average, close to 40% of the content of a vehicle produced in Mexico was initially imported from the United States. This tight integration was only achieved after the NAFTA, which allowed producers to spread their supply chain across the border. Before 1993, for example, the vehicles produced in Mexico contained only 5% of parts produced in the U.S

The Effect of the USMCA

NAFTA completely changed the landscape of North America by driving unprecedented integration in the region and generating a dramatic increase in trade and cross-border investment. NAFTA also had an essential role in promoting Mexico’s privatization, where state-owned enterprises represented a substantial part of production until at least 1988. Between 1988 and 1994, 390 Mexican businesses were privatized – close to 63% of large corporations in the country. Telling of Mexico’s explosive development in this era is that before 1988 there was only one billionaire family in Mexico: Monterrey’s Garza Sada, who made their fortune selling beer and steel. In 1994, however, Forbes’s ranks included 24 Mexican billionaires. Between 1993 and 1994 alone, the number of multimillionaires in the country rose by 85%.

The USMCA, which consists of 34 chapters, four annexes, and 14 side letters, will further encourage growth by maintaining the most important aspects of NAFTA: a legal framework with protections for foreign investors and a free-market zone between the three nations. It will also maintain investor-state dispute settlement (ISDS) “between the United States and Mexico for claimants regarding government contracts in the oil, natural gas, power generation, infrastructure, and telecommunications sectors; and maintains U.S.-Mexico ISDS in other sectors provided the claimant exhausts national remedies first.” According to the Congressional Research Service, ratification of the treaty was expected to remove some investors’ unease about domestic policy uncertainty and the international economy. “Longer-term prospects for export-oriented manufacturing, as well as oil production, appear positive,” according to that report. After the elimination of steel tariffs on Mexico and Canada in May of last year,  the International Monetary Fund (IMF) estimates that the USMCA will increase trade between the three North American countries by approximately $15 billion.

Among the most significant achievements of the USMCA is that it will accelerate the integration of energy [utilization] on both sides of the U.S.-Mexico border. The treaty maintains NAFTA’s zero tariffs for energy products,   which have made Mexico “the No. 1 export market for U.S. natural gas and refined products and the No. 4 export market for upstream oil and gas equipment.” It also locked in Mexico’s historic 2013 energy reform, which allowed foreign investment in oil and gas.  Previously, state-owned Pemex was the only company allowed to invest in Mexico’s energy sector, a state of affairs that NAFTA explicitly acknowledged. The USMCA also facilitates the transport of energy products. For example, it allows “hydrocarbons transported through pipelines to qualify as originating, provided that any diluent, regardless of origin, does not constitute more than 40% of the volume of the good.”  Lastly, it maintains the automatic export approvals for U.S. liquified natural gas (LNG) that is exported to Mexico or Canada.

Another key feature of the treaty is the customs administration chapter. This section mandates streamlined procedures that lower the time, complexity, and cost of exporting and importing many goods. According to the IMG, “most of the benefits of USMCA would come from trade facilitation measures that modernize and integrate customs procedures to reduce trade costs and border inefficiencies further.” The international organizations indicate these new procedures could lead to “one-tenth of a percent reduction in regional merchandise trade cost.” This section will also boost the trade of low-value products because it raises the value-thresholds for products eligible for tax-free, duty-free, streamlined customs, treatment. Mexico’s $50 limit for tax-free entry has remained the same, but products up to US $117 can now enter duty-free entry through a simplified customs processes. The IMF expects these modifications to benefit small and medium businesses, as well as online retailers.  They may also have an impact on manufacturing processes where the value of parts that cross the border is low.

The treaty also strengthens IP protections. Intellectual property is one of the U.S.’s most significant exports, and IP-intensive industries generate 45 million jobs in the U.S., as well as close to $6 trillion dollars per year (38% of the GDP). This is also one of the sectors where the U.S. has enjoyed a significant and consistent trade surplus. According to the Congressional Research Service, “IP-intensive goods and services are an important part of U.S. trade with Canada and Mexico.” Chapter 20 of the USMCA established a committee on IP rights, which will deal with concerns related to trade secrets and patent litigation, as well as a mediator in some IP disputes. The USMCA also extended minimum copyright protection to 70 years, up from 50 years under NAFTA, and retains a minimum of 20 years for patent protections. Moreover, it empowers copyright possessors to “expeditiously” enforce their rights in online settings. Law enforcement officers are also entitled  to “stop suspected counterfeit or pirated goods at every phase of entering, exiting, and transiting through the territory of any Party.” Lastly, many violations of copyright and trade secrets, now carry criminal sanctions under the treaty, including cyber theft — even if the perpetrator is a state-owned entity.

The USMCA’s strong IP protection contrasts with the perceived weaknesses of China’s IP regime. In 2018, a U.S. Trade Representative’s investigation indicated that the U.S. government would take actions to curve China’s “forced technology transfer requirements, cyber-theft of U.S. trade secrets, discriminatory licensing requirements, and attempts to acquire U.S. technology to advance its industrial policies.”  For instance, U.S. Customs and Border Protection reported stopped $1.2 billion of IP-infringing goods at coming into the U.S., with China being the largest source.

The onset of the COVID-19 pandemic has revamped reported IP violations of Chinese entities in the pharmaceutical industry. The Wuhan Institute of Virology recently applied for a patent of a compound based on Gilead Sciences -produced Remdesivir, which has been hailed as a potential medication for COVID-19 patients. China-based BrightGene Bio-Medical Technology Co. is also in the process of manufacturing a Remdesivir generic. It is worth noting “that Gilead’s patent application in China for Remdesivir use in coronaviruses has been pending since 2016.” The Chinese government has also found a potent tool to promote technology transfer through its antitrust law. “China has required technology transfer in antitrust reviews of foreign firms in China 2025 sectors,” according to the Congressional Research Service.

Finally, the treaty includes new rules that will require Mexico to increase the wages of some of its workers in the automotive industry and to source a larger part of its manufacturing materials within North America. Vehicles must now contain at least 75% of content sourced in North America to be eligible for tariff exemptions. Likewise, it dictates that at least 70% of a producer’s steel and aluminum purchases must originate in North America to be eligible for exemptions and eliminates several loopholes that allowed for transshipments under NAFTA. These sections were aimed in part at encouraging member states to displace Asia as the source of steel, aluminum, and electronic components, according to a professor at the business school of the Tecnológico de Monterrey.

The Mexican government has been in talks with a host of Asian steel producers, including South Korea’s POSCO, Japan’s Nippon Steel Corp, and Mitsubishi Corp, about the possibility of manufacturing steel for the auto sector in Mexico, in order to take advantage of the local content rule, according to Reuters. The news agency also reported that Andres Manuel Lopez Obrador’s administration is enticing Apple to set up manufacturing bases in the country. “These phones don’t have to be produced in China … there is an enormous opportunity to produce them” in Mexico, Economy Minister Graciela Marquez told Reuters.

The  Mexico Texas Relationship

The relationship of Mexico with Texas is historical and current. The Lone Star State was part of Mexico until 1836. Today, people of Mexican ancestry account for close to 36.6% of Texas’s residents, and Spanish is spoken in the homes of close to 30% of Texans, according to data from the U.S. Census Bureau. Their economic ties are as strong as their cultural and ethnic ones. Texas accounts for 44.41% of the U.S.’s trade with Mexico, followed by California – which accounts for 11.6%. Mexico is also Texas’s largest foreign trading partner, representing 43.79% of its exports and 35.15% of its imports. China, in contrast, makes up for 8.7% of Texas’s exports, and 14.6% of its imports  Texas also carries approximately 72% of all imports by value coming from Mexico to the U.S. Laredo, which received $132 billion in imports from Mexico by truck last year, itself accounts for about 40% of all truck cargo from Mexico into the U.S., according to data from the Department of Transportation.

Mexico and Texas’s heavy trade in oil products and vehicles underscore the robustness of their trade relationship. Oil and bitumen substances corresponded to 21.8% of Texas’s total exports to Mexico in 2017. Texas also accounted for 61.5% of propane and 40.9% natural gas Mexico purchased from the U.S. Likewise, oil represented close to 10% of Mexico’s exports to Texas, which is about 69% of all oil Mexico exports to the U.S. The USMCA, by maintaining zero tariffs in energy products and reinforcing Mexico’s energy reform, will potentiate trade in this area. Mexico exported approximately $5.3 billion worth of vehicles to Texas in 2018, close to 23% of the total value of the vehicles it exported to the U.S. that year. An important part of this trade takes place within the automotive manufacturing process, where energy cost is a critical component.

Can Houston Become North America’s Hong Kong?

Houston is well-positioned to serve as a hub for the growing trade cross-national manufacturing base in the U.S.-Mexico border. Houston serves as a gateway for a substantial portion of foreign trade in the U.S. and is ranked as one of the easiest places to do business in North America. Texas’s ports receive more cargo than any other state at 573 million tons – which accounted for approximately 23% of all waterborne cargo in the U.S. in 2018. Neighboring Louisiana is the second largest with 569 million tons. California, in contrast, carried 249 million tonnes – less than half of Texas’s amount, according to data from the U.S. Army Corps of Engineers.

Houston itself was the largest carrier of international cargo in 2018, at 191 million tons (up 10% year on year). The port of Houston, however, is not the only one in the metropolitan area. The ports of Texas City, Beaumont, Port Artur, and Lake Charles (Louisiana) together account for approximately 508 million tons of water cargo, including 336 million in foreign cargo. This is equivalent to about 20% of the total tonnage of the largest 150 ports of the U.S., as well as 22% of foreign cargo.

In terms of shipping, the city of Houston plays a similar role as Hong Kong does within the China ecosystem. Hong Kong’s port handled 19.6 million TEU in 2018, while China processed approximately 245.6 million TEU, according to the World Bank. Based on this data, Hong Kong accounted for about 8% of container shipping by TEU in China, while the port of Houston accounted for about 10% of U.S. sea cargo by weight. Similarly, when conflated with the nearby ports of Shenzhen and Guangzhou, Hong Kong constitutes about 28% of container trade in China. Houston, along with nearby ports and the Port of Southern Louisiana, accounted for close to 31% of the total cargo by weight in the U.S.

Houston’s role in the U.S.’s overall economy is also similar to Hong Kong’s role in China. The Houston metro area generated approximately $478 billion in 2018 or close to 2.2% of the country’s total. This is analogous to the proportion that Hong Kong contributed to China in 2019. Last year, China’s GDP by purchasing power parity (PPP) was approximately $21.4 trillion ($14.3 trillion in current dollars), while Hong Kong’s stood at $467 billion that same year  ($366 billion in current dollars). Hong Kong, therefore, accounted for approximately 2.5% of China’s GDP.

ITC

LATEST: Commerce Initiates Antidumping and Countervailing Duty Investigations on Utility Scale Wind Towers from India, Malaysia, and Spain

On November 10, 2020, the U.S. Department of Commerce (“Commerce”) announced the initiation of antidumping (“AD”) and countervailing duty (“CVD”) investigations on Utility-Scale Wind Towers from India, Malaysia, and Spain (Spain is AD only). The petitioners in this case are the Wind Tower Trade Coalition.

The International Trade Commission (“ITC”) is currently scheduled to make its preliminary determinations on or before December 4, 2020. If the ITC determines that there is a reasonable indication that imports of utility-scale wind towers materially injure or threaten the U.S. domestic industry, the investigation will continue and Commerce will be scheduled to announce its preliminary CVD determination on January 13, 2021, and its preliminary AD determination on March 29, 2021.

If the ITC’s determinations are negative—finding that imports of utility-scale wind towers do not pose a risk of injury to the domestic industry—the investigations will be terminated.

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Julia Banegas is an attorney in Husch Blackwell LLP’s Washington, D.C. office.

Camron Greer is an Assistant Trade Analyst in Husch Blackwell LLP’s Washington D.C. office.

lobsters

LOBSTERS ARE A PRAWN IN THE TRADE WARS

Lobster Trap

TradeVistas has named the lobster the “2020 person of the year” in international trade. It’s a well-deserved honor. The lobster is at the center of a trade war that will go down as one of the most compelling cases of the futility of tariff politics.

American lobster and lobster fishers got caught in a trade war being fought on multiple fronts. The United States is battling China on one major front and the European Union (EU) on another, but – as is typical in trade wars – it’s lobster production in another country that’s winning the war. In this case, Canada.

If that weren’t enough, tariffs are the root cause of the trade war, but not in the way you might think. China’s tariffs on U.S. lobsters are in retaliation for President Trump’s China tariffs over intellectual property. The EU didn’t raise its tariffs on U.S. lobster, but rather lowered them on Canadian ones as part of their free trade agreement. In other words, U.S. lobsters were never meant to be the target of either Chinese or EU protectionism.

Trade Person of the Year

Just a Prawn in the Trade Game

How the lobster trade war started isn’t nearly as interesting as the efforts to stop it. The Trump administration has tried to restore market access for American lobster but were outmaneuvered in part through a trade liberalizing measure by China.

Start with China, which hit American lobsters with a 25 percent tariff when President Trump rolled out his China tariffs under Section 301. This tariff hike hurt, but then China moved to lower its lobster tariff at the World Trade Organization (WTO), and this hurt even more. In particular, China slashed its most-favored-nation (MFN) tariff to 7 percent while imposing retaliatory tariffs on U.S. lobster of as much as 40 percent. American lobsters were effectively priced out of the market.

President Trump responded with an Executive order instructing the United States Trade Representative to monitor Chinese imports of lobsters. China’s Phase 1 purchase commitments in the US-China trade deal were to be tracked and “appropriate action” to be taken if China fell short. But these purchase commitments are hard for China to deliver on given the extra import duties on American lobsters. The data speak for themselves: since 2018, U.S. lobster exports to China have fallen by nearly two-thirds.

The irony is that things would be worse were it not for China’s rising trade tensions with Australia, another key supplier of lobsters. Australian lobsters have enjoyed the benefits of zero tariffs under the China-Australia free trade agreement since 2015.

Lobster X to China

Shellfish Trade Liberalization

Then there’s Europe. This front of the lobster trade war is especially interesting because it defies convention. The EU didn’t wage a protectionist campaign against the United States. Instead, since 2017, it has had free trade with Canada. The Comprehensive Economic and Trade Agreement (CETA) zeroed out tariffs on Canadian lobsters, leaving their American seafood brethren 8 percent more costly, since U.S. exporters must pay Europe’s MFN rate. In other words, the penalty in the marketplace isn’t because Europe is cheating, but because the United States is falling behind in the race to sign preferential trade agreements.

Back in 2019, Washington had asked Brussels for a deal to offset Canada’s advantage in lobster tariffs. The EU said no, insisting this would violate MFN. Then, this past summer, the EU agreed to zero out it’s lobster tariffs on an MFN basis, retroactive to August 1, in exchange for the United States reducing its tariffs on certain items by 50 percent. This ad hoc approach to trade liberalization, touted as the first tariff cuts in US-EU trade in 20 years, looked like it had plugged the hole. But then came decisions in a longstanding WTO dispute between Boeing and Airbus.

Out of the Blue Sky into the Sea

After more than a decade of WTO litigation, the United States and Europe were both authorized to retaliate. The United States struck first, imposing 15-25 percent tariffs on European food and drink, among other items, up to a maximum of $US7.5 billion. Europe’s authorization was postponed due to COVID-19, but came through this fall, up to a maximum of $US4 billion.

The EU’s original hit list, drawn up to $US25 billion, had included six tariff lines covering frozen and live lobsters. But this week, to the surprise of many, Europe’s revised hit list, redrawn to $US4 billion, spared lobsters entirely. Other seafood was hit, including salmon. But the August deal to walk back the tariff differential caused by CETA had ironically shielded American exporters from WTO-authorized retaliation on civil aircraft. If that doesn’t say it all.

Lobster X to EU

Clawing Back to Normal?

Things may change. A failure to negotiate a US-EU deal on Boeing-Airbus could see Europe yet impose tariffs on American lobsters. But even if that doesn’t happen, the impact of the original 8 percent tariff differential, CETA versus MFN, has been shocking enough.

In 2016, a year before the debut of CETA, U.S. exports of lobsters to Europe were valued at US$152.2 million. In 2019, they stood at US$57.8 million. Through the first nine months of 2020, U.S. exports were valued at US$14.3 million. With these figures in mind, imagine what a 15-25 percent retaliatory tariff would do.

U.S. trade policy has punished the lobster industry for years. Lobster fishermen should be included in the agricultural relief programs enacted by Congress. The takeaway for politicians is that no one set out to wage the lobster trade wars and no one can solve them with more tariffs.

The lobster, as the “person of the year” for 2020, reminds us that freer trade always puts the lie to tariff politics.

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marc busch

Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service, Georgetown University, a nonresident Senior Fellow at the Atlantic Council, and host of the podcast TradeCraft.

manufacturing

Out of Asia: Promise from Pandemic of a Manufacturing Renaissance in North America (Part 2)

In their first installment (which you can view here), George Gonzalez and Jesus Alcocer examined the current supply chain against the backdrop of the COVID-19 pandemic, highlighting the need for restructuring and underscoring the challenges presented by our overreliance on Chinese manufacturing. The following will focus on how to reshore manufacturing in North America through domestic policy and government support.

Potential Governmental Role in Accelerating Reshoring

Some U.S. firms are already reshoring without any government support. A large-scale reshoring, however, may require the government to subsidize part of the capital expenditure (“capex”) of relocating, as well as the higher cost of manufacturing in the U.S. Other nations have put in place efforts to reshore and reduce their reliance on China for strategically important products. Japan provides a recent example.

Earlier this year, Prime Minister Shinzo Abe announced a ¥240 billion yen ($2.2 billion) plan to help companies reshore to Japan. The subsidies cover up to two-thirds of investments for major companies, and three quarters for small and medium-sized companies, according to the Economy, Trade and Industry Ministry. Abe stated that the plan is targeted at high value-added products for which Japan relies heavily on a single country. The government will also encourage firms to diversify their low value-added production bases to Southeast Asia. The government set apart an additional ¥23.5 billion ($220 million) for this last initiative, as well as ¥3 billion to repatriate active pharmaceutical ingredients. As of early June, only one company, consumer products manufacturer Iris Ohyama, announced it was taking advantage of the program. The company expects the government to supply 75% of its ¥3 billion ($28 million)investment in a factory that will drastically ramp up its production of protective masks in Japan. Once the project is complete, Iris Ohyama calculates its output will increase from 60 to 150 million masks.

Japan has attempted to reduce its dependence on China for close to a decade. Since the early 2000s, Japanese companies have been implementing a “China plus one strategy,” through which they aim to establish manufacturing bases in at least one location outside of China. The supply chain vulnerabilities exposed by the COVID-19 pandemic, however, have made officials more explicit advocates of reshoring. Japanese Economy Minister Yasutoshi Nishimura, for example, told reporters in June that the country had become too reliant on China, after Japanese factories in the auto sectors were forced to temporarily suspend operations in February, following the closure of a substantial portion of Chinese suppliers. Imports into Japan from China nearly halved in February, resulting in a supply shock that affected everything from personal computers to the handover of homes — which were left without toilets and bathtubs.

According to Nikkei, Japan relies on China for about 20% of its parts and materials needs. In 2018, 80% of face masks in Japan were imported, mainly from China, according to the Japan Hygiene Products Industry Association. Likewise, “car parts from China accounted for 36.9% of Japan’s total imports in 2019, while phone handsets from the Asian neighbor accounted for 85.5% of the total import value,” according to the Japanese Finance Ministry. However, data from the World Bank, indicate that Japan may be less vulnerable than the U.S. to a supply shock, especially in regard to electronic products and industrial machinery. In 2018, the U.S. maintained a more significant trade deficit than Japan with China in all sectors, except raw materials, fuels, vegetables, food, minerals, and animal products.

U.S. Reshoring Policy in Process

Similar federal support for U.S. reshoring out of China has been discussed in Washington D.C., but legislation has yet to be drafted. Among the most widely reported ideas is a $25 billion reshoring fund similar to the Japan initiative above. On relative terms, the U.S. initiative would be 10 times larger than the Japanese plan, even though the U.S.’s FDI stock in China is slightly lower than Japan’s ($116.5 billion, and $126 billion,  respectively).

The Wall Street Journal and Reuters reported earlier this month that there was “widespread discussion underway”  for a reshoring fund aimed to “drastically revamp their [(the U.S.’s)] relationship with China,” according to two anonymous administration officials cited by Reuters. The details of the plan are not public yet, but these officials indicated states could be in charge of managing the funds.

While several congressional aides have acknowledged the existence of this plan, no U.S. lawmaker embraced it publicly. In particular, Reuters indicated the issue is unlikely to be addressed in the next COVID-19 fiscal stimulus. Still, other sources suggested that lawmakers hope to include reshoring provisions in the National Defense Authorization Act (“NDAA”) – a $740 billion bill setting policy for the Pentagon that Congress passes every year. The plan reportedly faces stiff opposition within the administration. One of the sources cited mentioned that pure subsidies are not an option. “Internally, some are questioning why we should be providing funds to companies that have left [the U.S.] in recent years,” the source indicated.

Even if the reported fund does not come to fruition, the government is already taking some steps to promote reshoring. For example, President Donald Trump signed an executive order that gave the U.S.  overseas investment agency new powers to help manufacturers in the U. S. The president indicated the order would help “produce everything America needs for ourselves and then export to the world, and that includes medicines.” Others within the administration are considering attracting investment to the U.S. through tax incentives. Larry Kudlow, the Director of the United States National Economic Council, has publicly spoken about using such incentives. Several members of Congress have backed similar proposals. Senator Marco Rubio (R-FL) introduced a bill on May 10 that would “bar the sale of some sensitive goods to China, and raise taxes on U.S. companies’ income from China.”

Other plans have focused on the healthcare sector. Peter Navarro, the NDAA policy coordinator, indicated an order would soon require federal agencies to purchase U.S.-made medical products, and the administration would work to make it easier for pharmaceuticals to operate in the U.S. by deregulating the industry. Similar recommendations have been put forward by lawmakers. Senator Josh Hawley (R-MO) proposed stringent local content rules for medical products, and subsidies to encourage domestic production of related components. Senator Tom Cotton (R-AR) and Congressman Mike Gallagher (R-WI) also introduced legislation calculated to decrease the U.S. dependence on Chinese pharmaceuticals.

Surveys suggest that the public may be more receptive to measures like this in the wake of the pandemic. An analogy may be drawn to the public’s reaction to the recent $32 billion rescue deal for the airline industry. The bailout initially faced stiff opposition because the airline industry experienced unusually high profits over the five years leading to 2020 but failed to build a war chest to confront eventualities. Voters, however, became increasingly supportive of the measure as the effects of the pandemic propagated. For example, in a poll conducted by Morning Consult between March 17-20, only 31% of people surveyed approved of the bailout, but close to 51% did so during a poll conducted on March 27-29. Moreover, closer to 86% of voters approved of the $2 trillion COVID-19 rescue package in late March.

Why is Government Support Critical?

The U.S. should consider seeking to reshore critical and advanced manufacturing in the short term for at least four reasons. First, China will likely retain a labor cost advantage for many years. According to Goldman Sachs, the average manufacturing wage in China was close to $750 per month in 2015, while that in the U.S. was slightly higher than $4,000 per month. This computes to a six-seven-fold differential. Wages are not an accurate metric of labor cost, however. How much a worker produces in an hour is as important as how much he or she gets paid during that time. The productivity adjusted wage of a U.S. worker (and a Japanese worker) is close to $40 per hour, while that of a Chinese worker is closer to $20. This gap has been declining at about 1% per year since 2012, driven not by increasing U.S. productivity, but by an upsurge of wages in China.

However, relying on further wage Chinese growth to reduce this labor cost gap is not likely to be a successful strategy. Additionally, the U.S. is also losing ground against other countries, including France and Germany, which reduced their labor cost by 5% and 4% per year with respect to the U.S. Second, while wages are rising in the affluent areas of coastal China, labor is cheaper in the inner provinces. Manufacturers, faced with high costs in Guangzhou and Shanghai, can shift inland to retain a competitive edge.

Third, maintaining manufacturing capacity abroad may prevent the U.S. from developing a robust base of skilled labor. China employed about 113 million people in manufacturing in 2013, while the U.S. employed only 12 million in manufacturing. In addition, China purchased about three times as many robots for production as the U.S. in 2015, further deepening this productive capacity gap. These differences may keep growing, as manufacturing processes become more skill-intensive. Chinese universities have awarded close to 1.2 million engineering degrees per year since 2013, and the number is steadily growing. The U.S., in contrast, has awarded close to 180,000 per year since 2013. Without an appropriate pool of trained workers, lower production costs will not necessarily improve the U.S. productive capacity.

According to consulting and accounting firm Deloitte, 50% of open positions for skilled workers in the U.S. manufacturing industry were unfilled due to a skills gap in 2018. These positions include skilled production workers, supply chain talent, digital talent, engineers, researchers, scientists, software engineers, and operational managers. This shortage is expected to widen from 488,000 jobs left open today to up to 2.4 million in 2028, resulting in a potential opportunity loss of $2.5 trillion in the next 10 years.

Fourth, the longer the U.S. takes to reshore, the more challenging it will be to match China’s manufacturing. A student who practices math problems every day will become more efficient at solving them relative to a student who only practices once a week. If their studying rates remain constant, the gap between them may become so wide that it will be nearly impossible for the second student to catch up. The same concept applies to manufacturing. Because Chinese producers are manufacturing at a higher rate than their U.S. counterparts, they have more opportunities to identify cost-cutting measures and revenue-generating innovations. China’s manufacturing prowess is already hard to replace. It is the sole producer of many electronic components and sits at the center of the supply chain for many others. Moreover, China is becoming a more integral part of the world’s manufacturing machinery, as rising foreign investments in R&D and advanced manufacturing make it difficult for companies to exit the country altogether.

In a now-classic paper, Bruce Henderson described this phenomenon as the experience curve. Based on company data, Henderson concluded that every time a company’s accumulated production doubles, its production cost drops by 20% to 30%. The manufacturer with the highest share, therefore, should be expected to increase its productivity at a faster pace. In the long term, he predicted, only the competitors with the three highest market shares can survive.

If Henderson is correct, then the U.S. should focus on industries where it still retains the upper hand. In particular, the U.S. retains three key potentially durable competitive advantages: the potential to stay at the cutting edge of automation, low energy cost, and the capacity to innovate. Additionally, as explained below, the U.S. also has nearly unfettered access to the manufacturing base of Mexico, where wages are already lower than in China. McKinsey predicts automation will decrease global trade of goods by 10% in 2030. According to McKinsey, only about 18% of global goods trade is now driven by labor-cost differences – a number the firm expects to decrease further since half of the tasks that workers are paid to complete across industries could technically be automated. The company predicts automation will decrease global trade of goods by 10% in 2030. Amid Abe’s reshoring program, some Japanese firms are predicting they could relocate home thanks to shifts in automation.

The U.S. has a sizable advantage with respect to energy costs. The price of natural gas dramatically dropped in North America following an explosion of shale gas production in 2004. Thanks to “hydraulic fracturing and horizontal drilling…imports of crude oil by the U.S. decreased from 9,213 barrels per day (Kb/d) in 2010 to 7,969 Kb/d in 2017. By 2012, natural gas in North America was six times cheaper than in Asia and three-four times cheaper than in Europe. Continuing to develop North America’s durable competitive advantage with respect to energy cost may be a more efficient and realistic way for the U.S. to bridge its manufacturing cost with China. The contribution of gas and electricity cost to overall cost is 60% as large as the contribution of labor cost to overall cost across industries in China, based on data compiled by BCG. In other words, the U.S. may be able to offset a 10% decline in labor costs in China by decreasing energy prices by less than 20%.

Lastly, the U.S. might seek to enlist its capacity for innovation, ingrained in its world-leading universities, and top-notch corporate research departments. Clay Christiansen, former dean of Harvard Business School, observed that the top companies of one generation rarely retain their leading role in the next generation. His theory of radical innovation explains that newcomers can capture market share in one of two ways. First, they might start by focusing on the needs of less profitable consumers, who are ignored by large players, and use that capital to eventually challenge the incumbent’s dominance of the high-end market. Secondly, companies can aim to focus on markets that are currently not on the radars of incumbents, who are focused on serving and predicting the needs of their current markets. In the same manner, the U.S. can focus on manufacturing emerging technologies, where it can build an advantage from early on while others focus on serving current needs.