Understanding the WTO Agreement on Technical Barriers to Trade :Understanding the WTO Agreement on Technical Barriers to Trade Jeff Weiss Senior Director, Technical Barriers to Trade Office of WTO and Multilateral Affairs Office of the United States Trade Representative


What is TBT? :2 What is TBT? TBT = technical barrier to trade The WTO TBT Agreement provides disciplines on technical regulations, standards, and conformity assessment procedures to ensure that they do not create unnecessary TBTs Current issues: China mobile phone batteries, Brazil spirits, EC REACH


Why is TBT important? :3 Why is TBT important? Private sector standards and government technical regulations directly affect at least 80 percent of world trade (OECD, 1999) Standards and technical regulations directly affect at least $7 trillion in world trade (U.S. Congress, 2005)


What products/issues are covered by TBT? :4 What products/issues are covered by TBT? Lawnmowers Cosmetics Chemicals Wine/distilled spirits Beef/grapes/cheese Climate change Mobile phone batteries Autos/tires Medical devices Toys/product safety Blood and blood derivatives Nickel/borates Baby food containers Nutritional supplements Snack foods Infant formula Biofuels Fertilizers Info technology products Building codes Plugs and sockets Clothing, footwear Cigarette lighters Notebook computers


Checklist for Analyzing a Measure Under the TBT Agreement :5 Checklist for Analyzing a Measure Under the TBT Agreement 1. Is the measure covered by the TBT Agreement?


Coverage of the TBT Agreement :6 Coverage of the TBT Agreement (a) Is the measure a technical regulation, standard, or conformity assessment procedure? Technical regulation (TR): a document setting out product characteristics or their related processes and production methods with which compliance is mandatory (includes labeling, packaging, symbols, etc.) Standard: a document approved by a recognized body that provides for common and repeated use, rules, guidelines, or characteristics for products or related processes and production methods, with which compliance is voluntary. Conformity assessment procedure (CAPs): a procedure used to determine that requirements in TRs and standards are met (includes sampling, testing, inspection, evaluation, registration, etc.) Note: Agreement only covers TRs and CAPs of governments


Coverage of the TBT Agreement (continued) :7 Coverage of the TBT Agreement (continued) Covers all products (industrial and agricultural), excluding products specs covered by the Agreement on Government Procurement and measures covered by the SPS Agreement (b) Is the measure covered by the TBT Agreement or the SPS Agreement (or both)?


Coverage of the TBT Agreement (continued) :8 Coverage of the TBT Agreement (continued) SPS Agreement (Annex A) covers measures to protect life or health from risks arising from: Pests and diseases Additives, contaminants, toxins or disease-causing organisms in foods, beverages, feedstuffs In other words, SPS deals with food safety. There is nothing in Annex A about quality, product description, diet/nutrition, conformity assessment, and labeling and packaging issues not directly related to food safety – this is where TBT comes in.


Coverage of the TBT Agreement (continued) :9 Coverage of the TBT Agreement (continued) Not every measure covered by the TBT Agreement is an unnecessary TBT Agreement Objective: ensuring that technical regulations and standards do not create unnecessary obstacles to trade. Members still have the right to regulate at levels they deem appropriate to achieve legitimate objectives, provided that they do not discriminate in an arbitrary or unjustified manner


Non-Discrimination :10 Non-Discrimination 2. Does the measure appear to treat imported products less favorably than like domestic like products (national treatment) or like products from another Member (MFN)?


Good Regulatory Practice :11 Good Regulatory Practice 3. Is the technical regulation “not more trade-restrictive than necessary to fulfil a legitimate objective”?


Good Regulatory Practice (continued) :12 Good Regulatory Practice (continued) (a) Does the measure state (or at least imply) its objective? Legitimate Objectives under the TBT Agreement include : National security requirements Prevention of deceptive practices (e.g., misleading labeling) Protection of human health/safety, animal, plant life/health, environment Etc.


Good Regulatory Practice (continued) :13 Good Regulatory Practice (continued) (b) Key questions for probing whether a measure may be more trade restrictive than necessary: Are the requirements clear? Does the proposed measure appear to address the stated or implied objective? What available scientific/technical information did the regulator consider? (Did they miss anything?) Is there potential overlap/duplication with another regulation/regulator? Is there a less trade restrictive alternative we can identify? What’s happening on the ground (e.g., costs, delays, burdens, trade disruption/substitution)? Did the regulator take into account the intended end uses of the product?


Good Regulatory Practice (continued) :14 Good Regulatory Practice (continued) (c) For conformity assessment procedures, are they “more strict or applied more strictly than necessary to give the importing country adequate confidence that products conform with the applicable requirements”? A few additional issues to look for: How long do the procedures take? Are the procedures clear and easy to follow? Information requirements: do they go beyond what is necessary to assess conformity and determine fees? Is confidential information respected in the same way as for domestic products and so that legitimate commercial interests are protected? Are fees equitable? Does the placement of facilities and selection of samples cause unnecessary inconvenience?


Transparency :15 Transparency 4. Have the TBT transparency provisions been followed? Was the measure notified to the WTO? If so was it notified at a stage where amendments can still be introduced and taken into account in finalizing the measure? How long was provided for comments (minimum of 60 days is recommended)? Is the measure (and any related documents necessary to understand the measure) published or otherwise available so that stakeholders can become acquainted with it? When does/did the measure enter into force? Does it allow suppliers a reasonable interval to adapt to new requirements between publication and entry into force (minimum of 6 months is recommended)?


Use of International Standards :16 Use of International Standards 5. Are there relevant int’l standards? If so, did the regulator use one of them as a basis for its measure? Relevance is key There could be more than one “International standard,” “international standards body” undefined in the text Presumption of compliance


Venues for Raising TBT Issues :17 Venues for Raising TBT Issues WTO TBT Committee Monitors implementation and administration of the TBT Agreement Provides Members the opportunity to raise specific trade concerns Bilaterally TBT at Home


USG Organizational Structure :18 USG Organizational Structure USTR has statutory lead on trade policy, including on technical barriers to trade (TBTs) Trade Policy Staff Committee (TPSC) Subcommittee on TBT


Trade Policy Staff Committee (TPSC) Subcommittee on TBT :19 Trade Policy Staff Committee (TPSC) Subcommittee on TBT Interagency mechanism for developing, coordinating, and implementing U.S. trade policy with respect to TBT/standards Determines whether to raise trade concerns about particular foreign regulatory measures and what arguments to make (as well as how to respond to foreign concerns about U.S. measures) USTR chairs the Subcommittee and coordinates the policy development process Regulators actively participate in the TPSC Decisions are taken by consensus


USG Organizational Structure (continued) :20 USG Organizational Structure (continued) Relationship with Congress ITAC-16 (Technical Barriers to Trade) and other stakeholders States


USTR’s Role in Implementing the TBT Agreement :21 USTR’s Role in Implementing the TBT Agreement Participation in OMB process for significant rulemakings Statement of Administration Policy (SAP)/letters Informal means (e.g., direct contact with regulators, legislators, stakeholders)


THANK YOU FOR YOUR ATTENTION! :22 THANK YOU FOR YOUR ATTENTION! Jeff Weiss Senior Director, Technical Barriers to Trade Office of the United States Trade Representative 1-202-395-4498 Jeff_Weiss@ustr.eop.gov