Compliance with WTO Technical Barriers to Trade: Steps Towards Good Regulatory Practices

1. Compliance with the WTO Technical Barriers to Trade Agreement and Steps Toward Developing Good Regulatory Practices Bryan O’Byrne Trade Compliance Center U.S. Department of Commerce September 12, 2008

2. Today’s presentation: • Overview of the core TBT Agreement commitments • Review U. S. regulatory processes • Identify three problematic regulatory practices • Discus developing “good regulatory practices” • Introduce key U.S. mechanisms for regulatory coordination and review • Questions & Answers

3. The WTO Agreement on Technical Barriers to Trade (TBT) • Objective Prevent the use of technical regulations, standards, or conformity assessment as an unnecessary barrier to trade.

4. Scope of the WTO TBT Agreement • Standards (voluntary): U.S. policy supports a “market-driven approach” to standards development. • Technical Regulations (mandatory) • Conformity Assessment Procedures: (e.g., testing, inspection, registration, accreditation, and verification)

5. Core provisions of the WTO TBT Agreement • Ensure that technical regulations are not prepared, adopted, or applied with a view to or the effect of creating unnecessary obstacles to trade • Provide non-discrimination: national treatment (NT); most favored nation (MFN) • Base technical regulations on relevant international standards as much as possible • Fulfill legitimate regulatory objectives in a manner that is no more trade-restrictive than necessary

6. Core provisions of the WTO TBT Agreement (cont.) • Transparency: • Establish and maintain a national inquiry point • Publish a notice at an early appropriate stage • Notify draft regulations/amendments to the WTO • Provide copies of relevant documents (upon request) • Allow for reasonable time for comments while amendments can be still be introduced • Take written comments/discussions into account in the final regulation • Allow a reasonable interval between publication and entry into force so producers may adapt

7. WTO Committee on Technical Barriers to Trade • Monitors the implementation and administration of the TBT Agreement • Usually meets three times a year • Provides Members the opportunity to raise specific trade concerns in full-Committee or in informal bilateral meetings. • Prepares Triennial Reviews (Committee policy recommendations) concerning the Agreement • Conducts workshops

8. Common TBT compliance problems • No transparency in regulatory process • No publication of requirements/regulations • No notification of proposed regulation • Notified the day before or after implementation • More restrictive measure than necessary • An alternative standard or testing requirement will facilitate trade and meet regulatory objectives

9. Other problematic regulatory practices: • “Framework” regulations • “One-size-fits-all” regulations • Duplicative regulations

10. U.S. Regulatory Process: (a) Notice • A notice of a proposed technical regulation or conformity assessment procedure (CAP) is published in the U.S. official journal, the Federal Register. • Notices are also published for significant revisions or amendments. • The U.S. Government made 64 WTO notifications in 2006; 101 WTO notifications in 2007.

11. U.S. Regulatory Process: (b) Comments • Comments are accepted. • No restrictions on who may submit comments. • Equal treatment of all comments received. • Agency considers comments as it determines if and how to regulate.

12. U.S. Regulatory Process: (c) Final Rule • A final technical regulation or CAP is published in the Federal Register. • All significant comments received are addressed by the agency in the final regulation.

13. Steps toward “Good Regulatory Practice” (1): Specific actions • Issue appropriately constructed, reviewed, and centrally coordinated regulations and CAPs • Publish draft regulations; properly notify them to WTO • Anticipate constructive WTO member comments and be open to possible improvements to regulations and ways to facilitate international trade • When requiring mandatory 3rd-party certification, accept test results regardless of the laboratory’s national domicile (i.e., avoid mandatory in-country testing) • Fully consider the option not to regulate; reliance on consensus-based standards; incentives, or other less trade-restrictive mechanisms to meet objectives

14. Steps toward “Good Regulatory Practice” (2): Structural options • Set pre-established general laws and rules for all ministries/agencies on “how-to-regulate” • Appoint central executive body to review, coordinate, and plan regulations in compliance with the general laws and rules • Centralized coordination generally: • Adds rationality to potentially political-driven demands for action to “just do something” • Streamlines regulations to what is necessary and lawful • Prevents conflict between ministries/agencies

15. Key U.S. regulatory coordination and review mechanisms • Under Executive Order #12866, individual federal agencies are responsible for developing regulations consistent with applicable laws and policies • The Office of Management and Budget (OMB), as part of the Executive Office of the President (EOP), carries out the coordinated review of proposed and existing regulations and resolves potential inter-agency conflicts • OMB assists the President in regulatory planning • The President may be assisted by other regulatory policy advisors in the EOP, (e.g., Office of the U.S. Trade Representative-USTR).

16. Summary • Identified the core TBT Agreement commitments and common compliance problems • Reviewed U.S. regulatory processes • Discussed three problematic regulatory practices • Considered positive steps (specific and structural) toward developing “good regulatory practices” • Introduced key U.S. regulatory coordination and review mechanisms • Questions & Answers

17. Thank You For questions, contact: Bryan O’Byrne Trade Compliance Center U.S. Department of Commerce Bryan_O’Byrne@ita.doc.gov +1 (202) 482-0705