U.S. Trade Representative’s Office Seeking Comments On Foreign Trade Barriers for National Trade Estimates Report – Will Prepare Separate Reports for First Time in 2010 Focused on Standards-Related and SPS Barriers

Kelley Drye Client Advisory

On September 24, 2009, the Office of the United States Trade Representative (USTR) published in the Federal Register a notice requesting public comments to assist it in identifying significant barriers to U.S. exports of goods, services, and U.S. foreign direct investment.  In a significant development, USTR has requested comments specifically focused on standards-related and sanitary and phytosanitary (SPS) barriers to U.S. exports.  These comments will be used by USTR in preparing the first editions of two stand-alone annual reports addressing such barriers to trade.  The new reports will be published by USTR for the first time in 2010.

USTR’s notice also solicits comments identifying other trade barriers that will be addressed in the 2010 National Trade Estimate Report of Foreign Trade Barriers (NTE) report, which is published each year in March.  The NTE report is mandated by the Trade Act of 1974 and includes both an identification of the most important foreign barriers to U.S. exports, foreign direct investment, and intellectual property protection that stifle U.S. exports, as well as information on actions taken by Executive Branch officials to eliminate those foreign policies and practices.

USTR’s decision to prepare two separate reports on standards-related and SPS measures reflects its recent increased focus on such issues.  The reports will place particular emphasis on identifying measures that are inconsistent with international trade agreements to which the United States is a party, or that are a significant barrier to U.S. exports.  Like the NTE report, the new reports will be used to highlight barriers, to draw attention to the foreign governments that are responsible for erecting them, and to focus the efforts of Executive Branch and Congressional officials on eliminating those barriers.  The opportunity to submit comments addressing such barriers provides an important means for influencing the key barriers on which USTR and the Obama Administration will focus in the years ahead.

The request for public comments presents a significant opportunity to focus the attention of senior Administration officials on eliminating barriers that are preventing your company from increasing its market access abroad.  Such barriers could include:

             (1)  Import policies (including tariffs and other import charges, quotas, license requirements, and customs barriers);

             (2)  Sanitary and Phytosanitary Measures;

             (3)  Standards-related measures (including standards, technical regulations, and conformity assessment procedures);

             (4)  Government procurement restrictions (including Buy National” policies and closed bidding);

             (5)  Export subsidies (including preferential export financing and agricultural export subsidies that affect U.S. exports in third countries);

            (6)   Inadequate intellectual property protections (including inferior patent, copyright, and trademark regimes);

            (7)  Barriers to services trade (including limits on the types of financial services that may be offered by foreign financial institutions; regulation of international data flows; and barriers to the provision of services by professionals);

            (8)   Barriers to investment  (including limits on foreign equity participation and on access to foreign government-funded R&D consortia; requirements affecting local content, technology transfer, and export performance; and restrictions on the repatriation of earnings, capital and royalties);

            (9)  Government-tolerated anticompetitive conduct of state-owned or private firms that negatively affects the sale or purchase of U.S. goods or services;

            (10) Trade restrictions affecting electronic commerce (including tariff and non-tariff measures, burdensome and discriminatory regulations and standards, and discriminatory taxation); and

             (11) Other barriers (including bribery and corruption).

The deadline for submittting comments on standards-related and SPS measures is November 4, 2009, while the deadline for comments on all other measures is November 18, 2009.

For More Information

If you are interested in further information about the opportunity to submit comments to the U.S. Trade Representatives identifying barriers to U.S. exports, please do not hesitate to contact:

John Herrmann
(202) 342-8400