Trade barriers

Government authorities

What government office handles complaints from domestic exporters against foreign trade barriers at the WTO or under other agreements?

Generally, complaints related to foreign trade barriers are taken to the USTR. However, depending on the issue, other agencies may be involved. For example, if the dispute includes an agricultural product, then the US Department of Agriculture will be involved. However, the USTR always has the lead on WTO disputes.

Complaint filing procedure

What is the procedure for filing a complaint against a foreign trade barrier?

Generally, complaints against foreign trade barriers are handled informally with the USTR and other agencies as appropriate. However, in 2007, the administration created the Interagency Trade Enforcement Center (ITEC). ITEC is an USTR-led body with 22 trade analysts with expertise in a wide range of areas needed for successful enforcement. This is the group tasked with investigating cases and working with domestic industries in collecting data to support possible cases.

However, there is a formal process under which petitions can be filed under section 301 of the Trade Act of 1974, which provides the authority and procedures to commence dispute settlement proceedings and if necessary impose trade sanctions. Any party may file a petition requesting that the USTR initiate an investigation of an act, policy or practice that violates a trade agreement or is unjustifiable and burdens and restricts US commerce. The USTR has 45 days in which to decide whether to initiate an investigation.

Grounds for investigation

What will the authority consider when deciding whether to begin an investigation?

First, the legal merits of the case will be considered. If the USTR does not consider the foreign action to be a violation, the case will not be brought. Moreover, the weaker the case, the less likely it is that it will be brought. Assuming that the legal merits are strong, the USTR will consider the US economic interest in the case. For example, is a trade barrier having a significant impact on US exports? The greater the volume of exports impacted, the greater the chance that the case will be brought. Finally, the political relations with the target country will be taken into consideration.

Measures against foreign trade barriers

What measures outside the WTO may the authority unilaterally take against a foreign trade barrier? Are any such measures currently in force?

Section 301 provides for unilateral action, but only when the alleged violation is not covered by the WTO Agreements, NAFTA or certain other FTAs. If the alleged violation is not covered by a trade agreement and the action is deemed to be ‘unjustifiable, unreasonable, or discriminatory, and burdens and restricts US commerce’ then the USTR is authorised to take unilateral action to remedy the trade barrier.

Section 232 also authorises the President to impose tariffs or quotas to address imports that negatively impact the national security of the US. For the purposes of section 232, the economic security of the US is considered part of its national security.

The US has used Section 301 to apply duties of up to 25 per cent on a wide variety of Chinese goods as part of the ongoing dispute with certain Chinese practices with respect to forced technology transfers and lack of adequate protection of intellectual property rights.

Private-sector support

What support does the government expect from the private sector to bring a WTO case?

Formally none. The USTR has a group of lawyers and professionals that will prepare the written statements, conduct negotiations and participate in hearings. However, the resources of the USTR are very thin and if an industry wants to increase the chances of having a case brought and winning the case, it will offer legal and other support for the case. This support could, and often does, include collecting data, drafting portions of the written submission, conducting research and providing technical support. This support is paid for by the private parties and not the USTR.

Notable non-tariff barriers

What notable trade barriers other than retaliatory measures does your country impose on imports?

If asked, the US government generally and the USTR in particular would say none. However, in fact there are a number of explicit trade restrictions. For national security reasons, trade with certain countries - including North Korea, Cuba, Iran and Syria - is restricted or largely prohibited. Under the guise of its export control laws, the US has also restricted certain commercial dealings with certain Russian entities.

Outside of the national security area, restrictions are in place for phytosanitary reasons. For example, the US maintains restrictions on poultry imports from various countries due to health concerns. Additionally, importation of endangered species and items from endangered species is restricted under the Convention on International Trade in Endangered Species of Wild Fauna and Flora regime. The US also maintains quotas on such products as sugar, peanuts, peanut butter and cheese. A list of the commodities subject to quotas can be found at www.cbp.gov/trade/quota/guide-import-goods/commodities.