Presidential Action Triggered by Crisis in the U.S. Solar Industry

In recent months, the U.S. solar industry has been in the midst of an existential crisis, triggered by the threatened imposition of retroactive and future tariffs on a significant portion of U.S. imports. That crisis began on April 1, 2022, when the Department of Commerce (“Commerce”) initiated an inquiry to determine whether solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam are circumventing antidumping (“AD”) and countervailing duty (“CVD”) orders on solar cells from China. Solar cells from these countries generally accounted for approximately 80% of U.S. solar module imports in 2020.[1] If Commerce finds circumvention, solar cells and modules from the four target countries could not only be subject to combined AD/CVD tariffs approaching 250%, but Commerce’s regulations also allow for the agency to apply these tariffs retroactively to merchandise entering on or after April 1, 2022 (and potentially as far back as November 4, 2021). This threat of AD/CVD tariffs triggered a steep decrease in imports of solar cells and modules from Southeast Asia, and caused parts of the U.S. solar industry to come to a stand-still, furthering domestic reliance on coal.[2] Given this paralysis in the solar industry, lawmakers and others urged the President to provide relief from potential AD/CVD tariffs.[3]

The President’s Response

On June 6, 2022, President Biden issued a declaration of emergency (the “Declaration”)[4] pursuant to section 318(a) of the Tariff Act of 1930, as amended (19 U.S.C. § 1318), and issued a determination pursuant to section 303 of the Defense Production Act of 1950, as amended (50 U.S.C. § 4533) (“the DPA Determination”)[5]. The Declaration finds that an emergency exists “with respect to the threats to the availability of sufficient electricity generation capacity” and authorizes Commerce to issue a moratorium on tariffs on solar cells and modules from Cambodia, Malaysia, Thailand, and Vietnam for up to a 24-month period, while the DPA Determination aims to “expand the domestic production capability” for solar cells during this 24-month period. The Declaration itself does not prevent the imposition of tariffs on imported solar cells and modules from the Southeast Asian countries, rather it authorizes the Secretary of Commerce to “take appropriate action” to permit the duty-free importation of solar cells and modules for 24 months after the Declaration’s issue date.[6]

Continue Reading President Acts to Prevent Import Tariffs on Solar Cells and Modules from Southeast Asia

On May 3, 2022, the Office of the U.S. Trade Representative (“USTR”) announced that it is initiating a statutory four-year review of necessity for the tariffs imposed on Chinese imports under Section 301 of the Trade Act of 1974 (“Section 301 Tariffs”). USTR’s review will examine whether to extend the tariffs currently in place on over $360 billion in Chinese imports.

Background

The Section 301 Tariffs were imposed based on the U.S. Administration’s determination in March 2018 that China’s technology transfer and intellectual property policies are harming U.S. companies. Between July 2018 and September 2019, the United States imposed four tranches of escalating tariffs on imports from China.

  • USTR imposed additional tariffs of 25 percent ad valorem on $34 billion of Chinese imports, effective July 6, 2018 (“List 1”).
  • USTR imposed duties of 25 percent ad valorem on an additional $16 billion of Chinese imports, effective August 23, 2018 (“List 2”).
  • USTR subsequently “modified” these tariff actions by imposing additional duties on supplemental lists of products in September 2018 (“List 3”) and September 2019 (“List 4A”).

By statute, the Section 301 Tariffs are set to expire four years after the tariffs were imposed, absent a written request for continuation submitted during the final sixty days of the four-year period by a representative of the domestic industry that has benefited from the tariffs.[1] The List 1 tariffs are set to expire July 6, 2022, and the List 2 tariffs are set to expire August 23, 2022. If a request is filed, the statute directs USTR to conduct a “review of necessity” regarding any extension of the tariffs.

First Phase of the Four-Year Review

USTR’s four-year review will proceed in two phases. In this first phase of the review process, USTR is notifying representatives of domestic industries that have benefited from the Section 301 Tariffs of the possible termination of the tariffs and of the opportunity to request a continuation of the tariffs.

Continue Reading USTR Initiates Four-Year Review of Necessity for Section 301 Tariffs on Chinese Imports

On October 4, 2021, U.S. Trade Representative Katherine Tai announced during a speech at the Center for Strategic and International Studies in Washington, D.C., that the United States would be launching a new trade strategy toward China.  Tai’s announcement comes on the heels of a months-long, comprehensive review of the U.S. trade policy toward China,

Five years ago today, Xiyue Wang was unjustly detained in Iran while conducting research there for his Ph.D. dissertation. We and others at Covington were honored to participate in the global advocacy campaign that culminated in Mr. Wang’s release in December 2019. Here, for the first time publicly, we discuss our work on his case.

As discussed in our previous article on the topic, China’s new 14th Five-Year Plan is a vast document that outlines the country’s ambitious plans for the 2021-2025 period. Technology and the environment are two main themes of the plan, with several chapters dedicated to describing how China’s leaders hope to steer the country into an

As discussed in our previous article on the topic, China’s 14th Five-Year Plan (“FYP”) is a vast document that outlines the country’s ambitious plans for the 2021-2025 period. Technology is a core focus of the plan, with several chapters dedicated to describing how China’s leaders hope to transform the country into an innovation powerhouse. The

In coordinated action on 22 March 2021, the EU, US, Canada and the UK imposed sanctions on four Chinese officials accused of complicity in human rights violations in Xinjiang. The Chinese responded by imposing sanctions on a group of MEPs, European academics and think-tanks on 23 March and followed these announcements by imposing retaliatory sanctions

On March 13, 2021, China’s National People’s Congress (NPC) approved the outline of the country’s 14th Five-Year Plan, covering the period 2021-2025. The plan’s economic and social development targets provide critical signposts that companies—both foreign and domestic—would be wise to heed when determining their own plans for the coming months and years in the Chinese market. The full text of the plan can be accessed here in its original Chinese. This article will be updated with a link to an English translation once it becomes available.

The five-year plan is the centerpiece of the Chinese system of industrial planning and policy. Reflecting the transformation of the country over the past 70 years, the content and purpose of the five-year plan has changed substantially since the first plan was issued in Mao Zedong’s China in 1953. As the economy has evolved from a pure command economy to one in which the market plays a greater role, albeit with substantial engagement and interventions by the government, the five-year plan has evolved as well. Early plans set production targets; modern plans are a mixture of principles, guidelines, and targets designed to steer the country’s development. This evolution has not reduced the importance of the five-year plan—it remains a central feature of the Chinese economic system—but it does affect how it should be interpreted and how its guidance is implemented in practice. Ultimately, the five-year plan’s purpose is to set strategic goals, focus government work, and guide the activities of market and non-market entities in China. In developing the 14th Five-Year Plan, China’s leaders set an ambitious agenda to “promote high-quality development in all aspects, including the economy, environment, and people’s livelihood and wellbeing, and realize the rise of China’s economy in the global industrial chain and value chain.”
Continue Reading China’s 14th Five-Year Plan (2021-2025): Signposts for Doing Business in China

Public Policy

The recently concluded legislative session of China’s National People’s Congress (NPC) sheds light on the policies and programs that will affect international businesses with operations and investments in China over the coming year and beyond. This year’s meeting, which concluded on March 11, was particularly significant because the NPC reviewed and approved the country’s five-year plan for 2021 to 2025 and a document that outlined long range objectives through 2035. The annual NPC sessions are largely ceremonial events, but they are nevertheless indicative of the Chinese Government’s priorities.

Chinese officials are formally evaluated for their effectiveness implementing these plans, so whole-of-government and industry efforts will be undertaken to ensure they are met. Companies with exposure to China should understand how the year’s goals and the plan’s targets may affect their businesses. This article discusses the top lines from the legislative session. Future articles will examine in further detail policy initiatives, including in specific sectors, relevant to clients with China-related business activities.

Continue Reading Key Takeaways from China’s National People’s Congress

During the Cameron-Clegg Coalition government between 2010 and 2015, the Chancellor of the Exchequer, George Osborne, led determined efforts to create a UK-China ‘Golden Era’ of diplomatic and economic relations. This culminated in the full State Visit of the Chinese Premier to the UK in 2015.

Vote Leave viewed a closer trading relationship with China