compliance with the wto technical barriers to trade agreement and steps toward developing good...
TRANSCRIPT
Compliance with the WTO Technical Barriers to Trade Agreement and Steps Toward Developing Good Regulatory Practices
Bryan O’ByrneTrade Compliance CenterU.S. Department of CommerceSeptember 12, 2008
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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
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.
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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)
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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
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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
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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
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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
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Other problematic regulatory practices:
“Framework” regulations
“One-size-fits-all” regulations
Duplicative regulations
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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.
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.
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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.
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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
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/agencies14
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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).
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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
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Thank You
For questions, contact:
Bryan O’ByrneTrade Compliance CenterU.S. Department of CommerceBryan_O’[email protected]+1 (202) 482-0705