USTR Seeks Input on Foreign Barriers to U.S. Exports, Including SPS and Standards-Related Measures

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September 28, 2009

To assist in its preparation of the 2010 National Trade Estimate Report on Foreign Trade Barriers (NTE), the Office of the U.S. Trade Representative (USTR) is requesting comments from interested parties identifying significant barriers to U.S. exports of goods and services, and U.S. foreign direct investment.

In 2010, USTR will be compiling three separate reports. For the first time, the NTE this year will report exclusively on barriers to U.S. exports in foreign countries created by:

• Import polices (e.g. tariffs and other import charges, quantitative restrictions, import licensing, and customs barriers).
• Government procurement restrictions (e.g. “buy national” policies and closed bidding).
• Export subsidies (e.g. export financing on preferential terms and agricultural subsidies that displace U.S. exports in third country markets).
• Lack of intellectual property protection (e.g. inadequate paten, copyright, and trademark regimes).
• Services barriers (e.g. limits on the range of financial cervices offered by foreign financial institutions, regulation of international data flows, restrictions on the use of data flows, restrictions on the use of data processing, quotas on imports of foreign films, and barriers to the provision of services by professionals).
• Investment barriers (e.g., limitations on foreign equity participation and on access to foreign government-funded R&D consortia, local content, technology transfer and export performance requirements, and restrictions on the repatriation of earnings, capital, fees, and royalties).
• 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 market.
• Trade restrictions affecting electronic commerce.
• Other barriers that encompass more than one category such as bribery and corruption.

In addition to the NTE report, USTR will be producing two separate reports on sanitary and phystosanitary (SPS) measures, and standards-related measures that create barriers to U.S. exports.   To help USTR identify SPS and standards-related measures to include in the new reports, comments concerning those measures should be submitted separately from those covered by the NTE.

The report on SPS measures will generally report on measures applied to protect the life or health of humans, animals, and plants from risks from additives, contaminants, pests, toxins, diseases, or disease-carrying and causing organisms. SPS measures can take such forms as specific product or processing standards, requirements for products to be produced in disease-free areas, quarantine regulations, certification or inspection procedures, sampling and testing requirements, health-related labeling measures, maximum permissible pesticide residue levels, and prohibitions on certain food additives.

The report on standards-related measures will focus on foreign standards, technical regulations, and conformity assessment procedures, such as mandatory, process or design standards, labeling or registration requirements, and testing or certification procedures. Standards-related measures can be applied not only to industrial products but to agricultural products as well, such as food nutrition labeling schemes and food quality or identity requirements.

USTR is requesting the particular emphasis be placed on practices that may violate U.S. trade agreements. USTR is also interested in receiving any new or updated information pertinent to the barriers covered in the 2009 report. Comments on SPS or standards-related measures should be submitted separately and are due by November 4, 2009; comments on all other issues are due November 18, 2009.

For more information and assistance in formulating comments with regard to any of the above, please contact a Barnes/Richardson attorney.