Negotiating Objectives for a U.S.-Kenya Trade Agreement

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The U.S.-Africa Business Center of the U.S. Chamber of Commerce (“Chamber”) appreciates the opportunity to present the following comments to the Office of the U.S. Trade Representative (“USTR”) on its request for comments on “Negotiating Objectives for a U.S.-Kenya Trade Agreement” pursuant to 85 FR 16450, docket number USTR-2020-0011 (March 23, 2020). The Chamber is the world’s largest business federation, representing the interests of more than three million businesses of all sizes, sectors, and regions.

The U.S. business community is encouraged that the United States and Kenya have announced plans to negotiate a comprehensive, high-standard trade agreement. In keeping with the Chamber’s advocacy for free enterprise, competitive markets, and rules-based trade and investment, the Chamber is enthusiastic about these negotiations to remove barriers to trade and investment between the United States and Kenya. In this vein, USTR’s commitment to the negotiating objectives established in the Bipartisan Congressional Trade Priorities and Accountability Act of 2015, known as Trade Promotion Authority (TPA), is most welcome.

The upcoming negotiations are an opportunity to address a range of longstanding issues and clear a path for mutually beneficial trade and economic growth. Reducing or eliminating trade barriers would boost the long-term economic outlook for the United States and Kenya and benefit firms, workers, farmers, and consumers in both countries. Doing so will further position Kenya as a model for economic reform across Africa. The U.S.-Kenya trade negotiations will also be important in the context of the ongoing work to forge the African Continental Free Trade Agreement, an initiative that these bilateral negotiations will complement and enhance. Overall, the U.S.-Kenya Trade Agreement must be a high-standard bilateral trade agreement that sets a precedent for future U.S. trade partnerships with other sub-Saharan African economies.

To summarize the Chamber’s objectives, we urge the U.S. and Kenyan negotiators to consider the following goals:

• Single Comprehensive Deal: Conclude a single, comprehensive agreement that reflects an outcome on all issues under negotiation, as agreed by the parties, rather than seeking agreement on a subset of issues or pursuing a phased approach.
• Trade in Industrial Goods: Eliminate all tariffs on industrial goods traded between the United States and Kenya, include a high-standard chapter on Technical Barriers to Trade (TBT) to address non-tariff barriers, and expand market access for remanufactured goods exports by ensuring that they are not classified as used goods that are restricted or banned.
• Trade in Services: Secure high standard rules and open market access commitments to ensure access to Kenya’s services market, including obligations for new services.
• Trade in Agricultural Products: Address market access through tariff elimination and by resolving concerns about non-science-based restrictions on agricultural trade with a highstandard chapter on Sanitary and Phytosanitary (SPS) measures.
• Protect Intellectual Property: Address intellectual property (IP) rights and enforcement as they relate to patents, copyrights, trademarks, and trade secrets to enhance U.S. and Kenyan leadership in innovative industries.
• Protect Investment: Eliminate forced technology transfers, reduce barriers to foreign direct investment by ensuring non-discriminatory treatment, ensure a high standard of protection for U.S. investors subject to a high standard investor-state dispute settlement mechanism.
• Good Regulatory Practices: Formalize a joint commitment to follow good regulatory practices, including sufficient advance notice and comment periods and in-depth consultations that include both domestic and foreign stakeholders.
• Emerging Technologies: Promote effective regulatory cooperation to address emerging technologies and prevent unnecessary regulatory divergence.
• Digital Trade: Facilitate a mutual right to transfer and store data across borders for all sectors, prohibit data localization requirements, ban customs duties and taxes on electronic transmissions, promote risk-based approaches to cybersecurity, foster cloud use across sectors, ensure non-discriminatory and interoperable frameworks for the protection of personal information, and align any plans to tax digital services with international tax regimes.
• Government Procurement: Establish open, fair, transparent, predictable, nondiscriminatory, and value-based rules to govern government procurement.
• Procedural Fairness for Pharmaceuticals and Medical Devices: Seek standards to ensure that government regulatory reimbursement regimes are transparent, provide procedural fairness, are nondiscriminatory, and provide full market access for U.S. products.
• Section 232 Tariffs: Remove expeditiously the U.S. Section 232 tariffs on imports of steel and aluminum from Kenya.

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