The 2024 National Trade Estimates Report

Examining the USTR’s new approach to identifying trade barriers

By Rishab Bailey & Iza Camarillo

On March 29, 2024, the Office of the United States Trade Representative (USTR) released the 2024 National Trade Estimates Report. The NTE reports are published annually by the USTR to identify significant foreign barriers to U.S. exports, foreign direct investment, and electronic commerce. [1] Consumer advocates have long criticized the annual NTE because administrations of both parties have used it to parrot the demands of behemoth corporate interests, without sufficient regard to the public interest.

This year’s report has captured public attention as it is significantly different from previous versions in important respects. Rather than unthinkingly listing laws that may impact U.S. businesses, the report explicitly recognizes that countries have “a sovereign right to adopt measures in furtherance of legitimate public purposes,” and therefore adopts a more nuanced approach to identifying barriers to trade (in particular, digital trade). 

This change has been met with predictable outrage by representatives of big U.S. companies, who are accustomed to having their long list of gripes related to other countries’ regulations regurgitated in previous NTE reports.

Digital Trade

A key component of the report pertains to identifying barriers to digital trade. The report adopts an improved approach to such barriers compared to previous NTE reports. This is clear from the fact that only 22 countries are identified as having digital trade barriers, down from 37 in the previous report. Consumer, digital rights and pro-competition groups have responded more positively to the report, pointing to how the changes are consistent with the Biden’s administration’s stated “worker-centered” approach to trade, which does not privilege large corporate interests over all else, but recognizes that trade policy should complement, rather than undermine, public interest goals.

Importantly, the report does away with numerous references (found in previous reports) to domestic data protection laws that impose reasonable restrictions on cross-border data flows (for example, in the European Union and Brazil). While the 2024 report has just three subsections on data localization (Russia, El Salvador, and Pakistan, with a subsection on data restrictions for China), the previous year’s report contained 17 such subsections. Criticism of data protection laws in the 2024 report is based more on ambiguity in provisions of the domestic law, which could lead to a lack of clarity in determining obligations of relevant parties (as is the case, for example, with Vietnam and Pakistan). The report also highlights problems of domestic surveillance that could be heightened due to data localisation norms (see for instance, China, Russia, and Bangladesh). 

The Report also excludes a range of pro-competition measures that were previously identified as barriers to digital trade. This includes measures such as Europe’s Digital Markets Act, which seeks to crack down on abuse of dominance by digital gatekeepers, and South Korea’s law on app stores, which requires app store providers such as Google and Apple to allow diverse payment systems (not only their own) and to allow app developers to sell on other platforms. The Report also excludes certain other measures implemented with a view to bring greater fairness to the digital ecosystem, such as Australia’s News Media Bargaining Code and Canada’s Online News Act, both of which implement mechanisms for revenue-sharing between online platforms and news creators.

USTR’s restraint in criticizing legislation around data flows and competition makes sense given the agency’s announced rethink of certain digital trade provisions at the World Trade Organisation’s Joint Statement Initiative on E-Commerce. Nearly 90 members of Congress and dozens of civil society groups have applauded USTR’s decision to reconsider sweeping digital trade rules that may conflict with congressional and regulatory efforts to rein in Big Tech.

That said, the report identifies a number of digital trade barriers including:

• restrictions on cross-border data flows, 
• broad censorship requirements cast on intermediaries/platforms,
• restrictions on the use of encrypted products, 
• local content requirements, 
• non-transparent and non-inclusive standard- setting processes, 
• data-related regulations that enable surveillance, 
• the appointment of local representatives or establishment of local offices, 
• proposed network carriage fees, and 
• digital services taxation.

While the Report is a step in the right direction in terms of aligning the administration’s domestic tech accountability goals with its trade agenda, it does not go as far as it could in recognising valid public interest and consumer protection concerns in a number of countries. 

Countries often implement regulations requiring the appointment of a local representative of companies providing online/digital services to enable them to efficiently exert jurisdiction over entities providing services to their citizens, including by ensuring that their citizens have effective remedies against breach of their rights by foreign companies. Similarly, it is a sovereign right of a country to be able to tax enterprises operating within its jurisdiction, whether online or otherwise. In the absence of broader international tax reform, pressuring countries to forego taxes from digital services companies appears to only favor the interests of a handful of massive tech companies. Mandatory rules regarding the carriage/distribution of local content can also be vital to protect domestic cultural industries and avoid monopolization by big foreign corporations.

Non-Digital Trade 

As with the digital trade-related portions of the report, other sectors of the economy also receive mixed treatment. While the report no longer criticizes South Africa’s efforts towards economic equity post-Apartheid and excludes past criticisms of New Zealand’s popular health programs controlling medicine costs, a number of legitimate public policies continue to be listed as trade barriers in this year’s report, including:

• The EU’s regulations on pesticides, the Farm to Fork Strategy for alternative sustainable farming methods, and regulations on antimicrobial resistance and veterinary medicinal products.
• The EU’s forthcoming Carbon Border Adjustment Mechanism (CBAM) regulation, scheduled to commence in 2026, which will levy charges on imported products’ embedded emissions.
• Halal certification requirements by predominantly Muslim nations, such as Brunei, Egypt, Indonesia, Malaysia, and Qatar.
• Mexico’s decision to phase out glyphosate and glyphosate-containing products, such as Monsanto’s “Round-Up.” 
• Regulations on genetically engineered (GE) food in the EU, India, Kenya, Mexico, Peru, Russia, and Turkey.
• Thailand and other countries’ regulations concerning beef and pork products treated with beta-agonists like ractopamine.
• Indonesia’s mandate for testing heavy metals in cosmetics and Kuwait’s stipulation for health certificates disclosing the country of origin for imported cosmetics.

Conclusion

Countries across the world should be free to adopt measures to protect citizens’ fundamental rights and consumer safety — without having such measures challenged purely to enable greater corporate profit. The 2024 NTE Report takes some initial steps toward this laudable goal, particularly insofar as the digital economy is concerned. However, there is still some way to go with regard to other economic sectors covered by the report.

 

[1] United States Trade Representative, National Trade Estimate Report on Foreign Trade Barriers, Executive Office of the President of the United States, 2020, https://ustr.gov/sites/default/files/2020_National_Trade_Estimate_Report.pdf