USTR Releases 2021 National Trade Estimate Report on Foreign Trade Barriers

The Office of the U.S. Trade Representative (USTR) has released its annual National Trade Estimate Report on Foreign Trade Barriers that addresses the status of foreign trade and investment barriers to U.S. exports worldwide. This is the U.S. government’s major annual report on the barriers to U.S. exports of goods and services, investment and electronic commerce that U.S. exporters and other businesses encounter globally. The report discusses the largest export markets for the United States, covering 61 countries, the European Union, Taiwan, Hong Kong and the Arab League, and includes each of the United States’ 20 free trade agreement partners and other economies and country groupings. Together, these countries and groupings account for over 99 percent of U.S. goods trade and 87 percent of U.S. services trade.

The annual report notes that trade barriers often “elude fixed definitions” but are, for the purposes of the report, “broadly defined as government laws, regulations, policies, or practices that protect domestic goods and services from foreign competition, artificially stimulate exports of particular domestic goods and services, or fail to provide adequate and effective protection of intellectual property rights.” The report continues to classify foreign trade barriers in 11 categories:

• Import policies (e.g., tariffs and other import charges, quantitative restrictions, import licensing, customs barriers and shortcomings in trade facilitation, and other market access barriers);
• Technical barriers to trade (e.g., unnecessarily trade restrictive standards, conformity assessment procedures, or technical regulations, including unnecessary or discriminatory technical regulations or standards for telecommunications products);
• Sanitary and phytosanitary measures (e.g., trade restrictions implemented through unwarranted measures not based on scientific evidence);
• Subsidies, including export subsidies (e.g., export financing on preferential terms and agricultural export subsidies that displace U.S. exports in third country markets) and local content subsidies (e.g., subsidies contingent on the purchase or use of domestic rather than imported goods);
• Government procurement (e.g., “buy national” policies and closed bidding);
• Intellectual property protection (e.g., inadequate patent, copyright, and trademark regimes and inadequate enforcement of intellectual property rights);
• Services barriers (e.g., prohibitions or restrictions on foreign participation in the market, discriminatory licensing requirements or regulatory standards, local presence requirements, and unreasonable restrictions on what services may be offered);
• Barriers to digital trade (e.g., barriers to cross-border data flows, including data localization requirements, discriminatory practices affecting trade in digital products, restrictions on the provision of internet-enabled services, and other restrictive technology requirements);
• Investment barriers (e.g., limitations on foreign equity participation and access to foreign government-funded research and development programs, local content requirements, technology transfer requirements and export performance requirements, and restrictions on repatriation of earnings, capital, fees and royalties);
• Competition (e.g., government-tolerated anticompetitive conduct of state-owned or private firms that restricts the sale or purchase of U.S. goods or services in the foreign country’s markets or abuse of competition laws to inhibit trade); and
• Other barriers (barriers that encompass more than one category, e.g., bribery and corruption, or that affect a single sector).

This year’s report notes that the USTR is “scrutinizing foreign labor practices” that may impact labor obligations in free trade agreements and that the USTR is enhancing its monitoring and enforcement of environmental commitments under those agreements. The report contains lengthy sections pertaining to continuing trade barriers with China and Russia.

In the USTR’s press statement, the new USTR, Ambassador Katherine Tai, stated, “The 2021 NTE Report identifies a range of important challenges and priorities to guide the Biden Administration’s effort to craft trade policy that reflects America’s values and builds back better.” See Update of April 3, 2020 for information on and links to USTR’s 2020 NTE Report.