The Office of the U.S. Trade Representative (USTR) released on March 29, 2024, its annual National Trade Estimate Report on Foreign Trade Barriers (NTE Report) 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. This year’s NTE Report covers significant foreign trade barriers in 59 markets.

The NTE Report notes that trade barriers “elude fixed definitions, but may be considered government measures that unduly impede the international exchange of goods and services.” This year, the NTE Report classifies foreign trade barriers in 14 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).
  • 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).
  • Subsidies, especially 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).
  • Anticompetitive practices (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).
  • State-owned enterprises (SOEs) (e.g., requirements for SOEs to purchase domestically manufactured products whenever available; monopoly over private companies; and control of key economy sectors, such as electricity, mining, and telecommunications sectors).
  • Labor (e.g., barriers related to labor law enforcement such as prohibitions of forced labor, promotion of acceptable conditions of work, rights to freedom of association, rights to organize and bargain collectively, violence against unionists, and impunity for the perpetrators of the violence, etc.).
  • Environment (e.g., restrictions on import and use of illegal timber; and restrictions on imports of unprocessed scrap and recyclable materials); and,
  • Other barriers (barriers that encompass more than one category, e.g., bribery and corruption).

The NTE Report discusses key export markets for the United States. It states that “omission of particular countries and barriers does not imply that they are not of concern to the United States.” It contains lengthy sections pertaining to continuing trade barriers with China and Russia.

In the USTR’s press statement, the USTR Katherine Tai stated, “The NTE Report has received unprecedented attention this year because we are taking steps to return it to its stated statutory purpose. We respect that each government—including our own—has the sovereign right to govern in the public interest and to regulate for legitimate public policy reasons. Over the years, the NTE Report expanded from its statutory purpose to include measures without regard to whether they may be valid exercises of sovereign policy authority. Examples include efforts by South Africa to render its economy more equitable in the post-Apartheid era; import licensing requirements for narcotics and explosives; and restrictions on imports of endangered species. By carefully editing and returning the NTE Report to the statute’s intent, USTR is making it a more useful document that enumerates significant trade barriers that could be addressed to expand market opportunities and help our economy grow.”

William Reinsch, the Scholl Chair in International Business at the Center for Strategic and International Studies, criticized the USTR’s new approach in its NTE Report. He argues that the USTR’s decision to consider whether foreign policies are valid exercises of sovereign policy authority, rather than focusing on whether they constitute barriers to U.S. trade, deviates from the report’s statutory purpose as outlined in Section 181 of the Trade Act of 1974. Mr. Reinsch contends this shift overlooks the NTE Report’s core aim: to identify practices that significantly impede U.S. exports, foreign investment, and electronic commerce, regardless of their legitimacy in the eyes of their implementing countries. This change, he warns, could harm the U.S. economy by neglecting significant barriers to trade, especially in the digital sector, and by potentially encouraging discriminatory practices against U.S. companies and workers.