Transparency Procedures in the TBT Agreement WTO, Trade and Environment Division

Transparency aids compliance Information assists industry WTO and Transparency “Its main function is to ensure that trade flows as smoothly, predictably and freely as possible” Key WTO Principle Transparency aids compliance Information assists industry

Transparency in the TBT Agreement For Technical Regulations Articles 2, 3 and 10 For Conformity Assessment Procedures Articles 5, 7, 8, 9 and 10 Article 10, Annex 3: paras. J, L, M, N, O & P For Standards

Transparency in the TBT Agreement 1. Notifications 2. Publication 3. Handling of comments 5. Maintenance of an enquiry point 4. Dissemination of information 6. The TBT Committee This afternoon...

Notifications

Four Types of Notifications Statement on the implementation and administration of the Agreement Draft technical regulations and CAPs, and adopted urgent measures Members have to notify what ? Adherence to, or withdrawal from, the Code of Good Practice and the existence of a work programme Bilateral and multilateral agreements

Statement on the implementation and administration of the Agreement

Relevant TBT Provision TBT Art. 15.2 Each Member shall, promptly after the date on which the WTO Agreement enters into force for it, inform the Committee of measures in existence or taken to ensure the implementation and administration of the Agreement

Why? Provide a quick overview of how individual Members have chosen to implement the Agreement Assist Members in meeting their obligations under the Agreement, by enabling them to take stock of their existing legislation & institutional structure

Relevant Laws and Regulations What? Relevant Laws and Regulations Publications In 1995, the TBT Committee decided that the Statements should include Time allowed for comments THE COMMITTEE AGREED ON THE FOLLOWING DECISION CONCERNING THE CONTENTS OF THE STATEMENT. 1.IT SHOULD COVER THE LEGISLATIVE, REGULATORY AND ADMINISTRATIVE ACTION TAKEN AS A RESULT OF THE NEGOTIATION OF THE AGREEMENT OR CURRENTLY IN EXISTENCE TO ENSURE THAT THE PROVISIONS OF THE AGREEMENT ARE APPLIED. IF THE AGREEMENT ITSELF HAS BEEN INCORPORATED INTO DOMESTIC LAW, THE STATEMENT SHOULD INDICATE HOW THIS HAS BEEN DONE. IN OTHER CASES, THE STATEMENT SHOULD DESCRIBE THE CONTENT OF THE RELEVANT LAWS, REGULATIONS, ADMINISTRATIVE ORDERS, ETC. ALL NECESSARY REFERENCES SHOULD ALSO BE PROVIDED. 2. IN ADDITION, THE STATEMENT SHOULD SPECIFY (A)THE NAMES OF THE PUBLICATIONS USED TO ANNOUNCE THAT WORK IS PROCEEDING ON DRAFT TECHNICAL REGULATIONS OR STANDARDS AND PROCEDURES FOR ASSESSMENT OF CONFORMITY AND THOSE IN WHICH THE TEXTS OF TECHNICAL REGULATIONS AND STANDARDS OR PROCEDURES FOR ASSESSMENT OF CONFORMITY ARE PUBLISHED UNDER ARTICLES 2.9.1, 2.11; 3.1 (IN RELATION TO 2.9.1 AND 2.11); 5.6.1, 5.8; 7.1, 8.1 AND 9.2 (IN RELATION TO 5.6.1 AND 5.8); AND PARAGRAPHS J, L AND O OF ANNEX 3 OF THE AGREEMENT; (B)THE EXPECTED LENGTH OF TIME ALLOWED FOR PRESENTATION OF COMMENTS IN WRITING ON TECHNICAL REGULATIONS, STANDARDS OR PROCEDURES FOR ASSESSMENT OF CONFORMITY UNDER ARTICLES 2.9.4 AND 2.10.3; 3.1 (IN RELATION TO 2.9.4 AND 2.10.3); 5.6.4 AND 5.7.3; 7.1, 8.1 AND 9.2 (IN RELATION TO 5.6.4 AND 5.7.3); AND PARAGRAPH L OF ANNEX 3 OF THE AGREEMENT; (C)THE NAME AND ADDRESS OF THE ENQUIRY POINT(S) FORESEEN IN ARTICLES 10.1 AND 10.3 OF THE AGREEMENT WITH AN INDICATION AS TO WHETHER IT IS/THEY ARE FULLY OPERATIONAL; IF FOR LEGAL OR ADMINISTRATIVE REASONS MORE THAN ONE ENQUIRY POINT IS ESTABLISHED, COMPLETE AND UNAMBIGUOUS INFORMATION ON THE SCOPE OF RESPONSIBILITIES OF EACH OF THEM; (D)THE NAME AND ADDRESS OF ANY OTHER AGENCIES THAT HAVE SPECIFIC FUNCTIONS UNDER THE AGREEMENT, INCLUDING THOSE FORESEEN IN ARTICLES 10.10 AND 10.11 OF THE AGREEMENT; AND (E)MEASURES AND ARRANGEMENTS TO ENSURE THAT NATIONAL AND SUB-NATIONAL AUTHORITIES PREPARING NEW TECHNICAL REGULATIONS OR PROCEDURES FOR ASSESSMENT OF CONFORMITY, OR SUBSTANTIAL AMENDMENTS TO EXISTING ONES, PROVIDE EARLY INFORMATION ON THEIR PROPOSALS IN ORDER TO ENABLE THE MEMBER IN QUESTION TO FULFIL ITS OBLIGATIONS ON NOTIFICATIONS UNDER ARTICLES 2.9, 2.10, 3.2, 5.6, 5.7 AND 7.2 OF THE AGREEMENT. Measures to ensure that national and sub-national authorities provide early information on their proposals Other national authorities and agencies Name & Address of Enquiry point(s) ,

A One-Time Notification In case of change, a revision must be provided When? A One-Time Notification In case of change, a revision must be provided

92 Members have submitted their statements under Article 15.2 Who? 92 Members have submitted their statements under Article 15.2

Notification of Draft Technical Regulations and Conformity Assessment Procedures (CAPs), and of Adopted Urgent Measures

Why to notify? Assists industry Information Aids compliance Country B drafts a technical regulation on lighters Country A exports lighters How to know the requirements in Country B? Notification to the WTO! How to comment on them? Information Aids compliance Assists industry

Relevant TBT Provisions TBT Art. 2&5 For Technical Regulations Article 2 For Conformity Assessment Procedures Article 5

What? Draft Technical Regulations TBT Articles Draft Technical Regulations 2.9.2 Draft Conformity Assessment Procedures 5.6.2 Technical Regulations already adopted for urgent reasons 2.10.1 Conformity Assessment Procedures already adopted for urgent reasons 5.7.1

What? And also ... TBT Articles Technical Regulations of Local governments on the level directly below that of the central government 3.2 Conformity Assessment Procedures of Local governments on the level directly below that of the central government 7.2 Except when a technical regulation or a conformity assessment procedure is “substantially the same” as a measure already notified by the central government body

What? 6 Types of Documents Must Be Notified... Draft Technical Regulations and Conformity Assessment Procedures Already adopted for urgent reasons Of local governments on the level directly below that of the central government

What? Where urgent problems arise or threaten to arise…. Safety, Health Environmental Protection National Security May omit such of the steps as necessary Notification is upon adoption 2 differences Notification mentions the nature of the urgent problem

Conditions? Members must notify a measure when both sets of conditions apply AND A relevant international standard does not exist The measure may have a significant effect on trade of other Members What is it? OR TBT Art. 2.9 and 5.6 The measure is not in accordance with the standard

Conditions? The measure may have a significant effect on trade of other Members... The value of imports in respect of the Members concerned When assessing the significance of the effect on trade of technical regulations, such elements should be taken into consideration: The potential growth of such imports The difficulties for producers in other Members to comply with the proposed technical regulations

How? And And TBT 2.9.2 TBT 5.6.2 A notification must contain Information on the products covered A brief indication of the objective and rationale of the proposed measure And Guidelines developed by the TBT Committee

The Format

How? 11 Sections in a Notification Form 1. Member to Agreement notifying:       If applicable, name of local government involved (Articles 3.2 and 7.2):       Who notifies? If a local government is involved in the technical regulation or the conformity assessment procedure, it has to be mentioned in this section

How? 11 Sections in a Notification Form 2. Agency responsible: Name and address (including telephone and fax numbers, e-mail and web-site addresses, if available) of agency or authority designated to handle comments regarding the notification shall be indicated if different from above:      Which agency is responsible for elaborating a proposal or promulgating a technical regulation or a conformity assessment procedure If a different agency handles comments, it must be indicated here

How? 11 Sections in a Notification Form 3. Notified under Article 2.9.2 [ ], 2.10.1 [ ], 5.6.2 [ ], 5.7.1 [ ], other:      2.9.2 Proposed TR by central body 2.10.1 Adopted TR by central body 5.6.2 Proposed CAP by central body 5 options 5.7.1 Adopted CAP by central body 3.2 Proposed/Adopted TR by local body 7.2 Proposed/Adopted CAP by local body Other 8.1 Adopted CAP by Non gov body 9.2 Adopted CAP by int’al/reg’al body

How? 11 Sections in a Notification Form Proposed Art. 2.9.2 Technical Regulation Adopted Art. 2.10.1 Central Government Body Conformity Assessment Procedure Proposed Art. 5.6.2 Adopted Art. 5.7.1 To summarize... the following may be notified...: Proposed Art. 3.2 Technical Regulation Adopted Art. 3.2 Local Government Body Conformity Assessment Procedure Proposed Art. 7.2 Adopted Art. 7.2 Non-Governmental Body Conformity Assessment Procedure Adopted Art. 8.1 Intern’al/ regional organization Conformity Assessment Procedure Adopted Art. 9.2

How? 11 Sections in a Notification Form In practice, almost all notifications are made under Articles 2.9.2 and 5.6.2: – Notifications from 1995 to 2003 (by article) –

How? 11 Sections in a Notification Form 4. Products covered (HS or CCCN where applicable, otherwise national tariff heading. ICS numbers may be provided in addition, where applicable):     Clear description of the products covered in the measure (including tariff headings)

How? 11 Sections in a Notification Form 5. Title, number of pages and language(s) of the notified document:     Under this section, the following information is also provided: the language(s) in which notified documents are available; and, if a translation of the document is planned or available.

How? 11 Sections in a Notification Form 6. Description of content:     Contains a clear description of the content of the proposed or adopted technical regulation or conformity assessment procedure

How? 11 Sections in a Notification Form 7. Objective and rationale, including the nature of urgent problems where applicable:    The “legitimate objective” of the measure may be indicated here.

How? 11 Sections in a Notification Form Protection of human health or safety Notifications in 2003 – Legitimate objectives stated

How? 11 Sections in a Notification Form 8. Relevant documents:    A reference to the following documents may be provided: the publication where a notice appears; the proposal and basic document to which the proposal refers; the publication in which the proposal will appear when adopted; whenever practicable, the reference to a relevant international standard.

How? 11 Sections in a Notification Form 9. Proposed date of adoption: Proposed date of entry into force:  

How? 11 Sections in a Notification Form 10. Final date for comments:    A specific and final date by which Members may submit comments. The Committee has recommended a normal time limit for comments on notifications of 60 days. Any Member which is able to provide a time limit beyond 60 days is encouraged to do so. Members are encouraged to advise of any extension to the final date for comments.

How? 11 Sections in a Notification Form 11. Texts available from: National enquiry point [ ] or address, telephone and fax numbers, e-mail and web-site addresses, if available of the other body:    Information on whether the text of the measure is available from the national enquiry point or from another body. Members also indicate here the exact address, where available, e-mail address, telephone and fax numbers of the body responsible for supplying the relevant documents if that body is not the enquiry point.

How? 11 Sections in a Notification Form To summarize... Item 1 - Government making the notification Item 2 - Body elaborating a proposal (TR or CAP) Item 3 - Relevant provision of the Agreement Item 4 - Clear description of the product Item 5 - Title of proposal, number of pages, language. Indicate translations or summaries

How? Guidelines of the TBT Committee To summarize... Item 6 - Abstract, main features of the proposed/adopted measure Item 7 - Legitimate objective Item 8 - Any relevant document (publications). Reference to international standards Item 9 - Adoption and entry into force Item 10 - Final date for comments - normal time-limit of 60 days! Item 11 - Where to find the text of the measure

When? TBT 2.9.2 TBT 5.6.2 And Notifications shall take place at an early appropriate stage, when Amendments can still be introduced Comments taken into account And TBT Committee: when a draft with the complete text is available

Notifications must be made immediately upon adoption When? For technical regulations and conformity assessment procedures adopted for urgent reasons…. TBT 2.10.1 TBT 5.7.1 And Notifications must be made immediately upon adoption

Total number of TBT notifications, 1995-2003 How Many? Total number of TBT notifications, 1995-2003 By 80 Members

Notifications by Region How Many? Notifications by Region

Notifications made by participating Members... How Many? Notifications made by participating Members... 49 notifications (articles 2.9 and 5.6)

Notification of Bilateral and Multilateral Agreements

Notification of bilateral and multilateral agreements TBT Art.10.7 Whenever a Member has reached an agreement With one or more countries On issues related to technical regulations, standards or CAPs That may have a significant effect on trade Must NOTIFY it through the Secretariat

The Format

TBT notifications under Article 10.7 35 in total

Geographical Repartition of Bilateral and Multilateral Agreements Notified

Notification of Acceptance of, or Withdrawal from, the Code of Good Practice and the Existence of a Work Programme

What is the Code of Good Practice? Code of Good Practice for the Preparation, Adoption and Application of Standards It lays down disciplines in respect of central government, local government, non-governmental and regional standardizing bodies developing voluntary standards

Who may accept the Code? A central government body Any standardizing body within the territory of a Member, whether A local government body A non-government body Any non-governmental regional standardizing body one or more members of which are situated within the territory of WTO Member This Code is open to Any governmental regional standardizing body one or more members of which are WTO Members

Which Provisions are contained in the Code? Take "such reasonable measures" as may be available to them to ensure that standardization bodies, which are on their territory or to which they are related, accept and comply with the Code Members must Not take measures which have the effect of requiring or encouraging such standardizing bodies to act in a manner inconsistent with the Code Standardization Bodies must Assume the general disciplines of the TBT Agreement

Notification Obligations Their acceptance of, or withdrawal from, the Code of Good Practice (Paragraph C) Standardization Bodies must notify The existence of a work programme (Paragraph J) ISO/WTO Guidelines on Notifications

Notification Under Paragraph C Standardizing bodies that have accepted or withdrawn from this Code shall notify this fact Notifications are made through the ISO/IEC Information Center in Geneva, or through the national member body of ISO/IEC, or, preferably, through the relevant national member or international affiliate of ISONET. Copies are sent by ISO/IEC to the WTO Secretariat, and are circulated to WTO Members.

Format of the Notification Under Paragraph C (Acceptance)

Format of the Notification Under Paragraph C (Withdrawal)

Standardizing bodies that have accepted the Code 74 central governmental standardizing bodies 61 non‑governmental standardizing bodies 2 statutory bodies 144 standardizing bodies from 104 Members 2 parastatal bodies 3 non-governmental regional bodies 1 central governmental/ non‑governmental body 1 autonomous body

Standardizing bodies that have accepted the Code

Notification Under Paragraph J Standardization bodies, that have accepted the Code, have to notify the existence of a work programme no later than at the time of its publication, i.e. at least twice a year Notifications are sent the ISO/IEC Information Center, or preferably, through the relevant national member or international affiliate of ISONET, as appropriate

Format of the Notification Under Paragraph J

General Notification Aspects

Who is Responsible? TBT Art. 10.10 Members shall designate a single central government authority that is responsible for the implementation on the national level of the provisions concerning notification procedures under this Agreement except those included in Annex 3 Code of Good Practice

Who is Responsible? TBT Art. 10.11 Where the responsibility for notification issues is divided among several central government authorities Members must provide complete and unambiguous information on the scope of responsibility of each authority

Notify in which language? TBT Art. 10. 9 The official languages of the WTO English Spanish or or French

Where do I send notifications? WTO Secretariat Central Registry of Notifications CRN@wto.org Fax: +41 22 739 5197 1) Statement on implementation and administration of the Agreement 2) Notifications of technical regulations and CAPs 3) Notifications of bilateral or plurilateral Agreements

And the WTO Secretariat? Mission in Geneva Circulates notifications among Members WTO Website Translates them into the three official languages Monthly lists of notifications

Notifications: symbols Statement on Implementation and Administration of the Agreement: G/TBT/2/Add.# Notifications of technical regulations and conformity assessment procedures: G/TBT/N/Country Symbol/# 3. Notifications of bilateral or plurilateral agreements: G/TBT/N/10.7/#

Notifications: symbols Notifications of acceptance of or withdrawal from the Code of Good Practice: G/TBT/CS/N/# Monthly list of notifications (prepared by the Secretariat): G/TBT/GEN/# List of Enquiry Points (prepared by the Secretariat) G/TBT/ENQ/#

Other TBT Transparency Procedures

Transparency in the TBT Agreement 1. Notifications 2. Publication 3. Handling of comments 4. Dissemination of information 5. Maintenance of an enquiry point 6. The TBT Committee

Publication

Publication Obligations of Members Pre-Adoption Stage Members must publish a notice of the measure when both sets of conditions apply AND A relevant international standard does not exist The measure may have a significant effect on trade of other Members OR TBT Art. 2.9.1 and 5.6.1 The measure is not in accordance with the standard This obligation may be waived in case of emergency

Publication Obligations of Members Post-Adoption Stage Members must publish promptly all a adopted technical regulations and conformity assessment procedures Including... those which did not have a significant effect on trade of other Members or those which were in accordance with an international standard The measure is not in accordance with the standard TBT Art. 2.11 and 5.8

Publication Obligations of Members Post-Adoption Stage Members must leave a reasonable interval between the publication of technical regulations and conformity assessment procedures and their entry into force, except in case of urgent circumstances TBT Art. 2.12 and 5.9

Definition of a “reasonable interval” TBT Art. 2.12 Not less than 6 months Publication Entry into force When this would be ineffective in fulfilling the legitimate objectives pursued Except In urgent circumstances

Publication Obligations of Standardization Bodies Related to the Work Programme Their work programme Standardization bodies must publish A notice of the existence of the work programme Code of Good Practice, Paragraph J What is contained in the work programme? The TBT Committee agreed in 1999 that the communication of the work programmes of standardizing bodies via the internet would be another possibility to fulfill Paragraph J obligations

Publication Obligations of Standardization Bodies Related to the Work Programme Standardizing bodies must publish, at least every six months, a work programme containing the following information The standards they are currently preparing The standards they have adopted in the preceding period Their name and address

Publication Obligations of Standardization Bodies Related to Standards A notice specifying the comment period of a standard Standardization bodies must publish The text of the standard Code of Good Practice, Paras. L & O

Procedures for Dissemination and Exchange of Information

Procedures for Dissemination and Exchange of Information Provision of copies Provision and sharing of translations Electronic tools Regular Meetings of Persons Responsible for Information Exchange

Members must, upon request, Provision of copies Provide copies of proposed technical regulations and conformity assessment procedures Members must, upon request, And, whenever possible, identify the parts of the measure which in substance deviate from relevant international standards Articles 2.9.3 and 5.6.3

How to handle requests for documentation? Provision of copies How to handle requests for documentation? Requests for documentation should include all the elements permitting the identification of the documents and in particular, the WTO TBT notification number (G/TBT/Notif.) All the elements permitting the identification of the documents and the notification number should also appear on the documents supplied in response to such requests Any request for documentation should be processed if possible within 5 working days If a delay in supplying the documentation is foreseen, this should be acknowledged to the requester, along with an estimate of when the documents can be provided

Standardization Bodies must, upon request, Provision of copies Provide hard copies of draft and adopted standards, and of the most recent work programme Standardization Bodies must, upon request, Afford national treatment to requests from foreign interested parties, with due adjustments to be made for differential costs of delivery Code Paras. M and P

Process them within 5 working days To summarize... Requests contain the elements permitting the identification of a document Process them within 5 working days

Provision of Translations Developed country Members must, upon request, provide in 1 of the 3 official WTO languages, translations of The documents covered by a specific notification In case of voluminous documents, summaries of such documents OR The publication of texts/the provision of details/copies of drafts other than in the language of the Member is not required (except for developed country Members) Article 10.5, 10.8

Sharing of Translations Recommendation of the TBT Committee Other Requesting Members are Encouraged to Share Existing Translations in WTO Languages Document Request Any Translated Summary in Requester’s Language or in WTO Language must be Automatically Sent Translation/ Summary Exists or planned Must be Indicated in the Notification Form

The use of electronic tools The TBT Agreement does not contain provisions relating to the use of electronic tools However, since 1999, the use of the Internet as a means to facilitate access to, and exchange of, information has been a constant theme of discussion in the TBT Committee The TBT Committee encouraged Members, whenever possible, to file notifications by downloading, filling out and returning the complete form by e-mail to the Secretariat Second Triennial Review

Electronic transmission of information Third Triennial Review Electronic circulation of notifications encouraged Feasibility of creating a central depository for notifications on the WTO website Paragraph L of the Code: electronic publication of the notice can constitute another possibility of fulfilling the transparency obligations

Regular Meetings of Persons Responsible for Information Exchange To give Members the opportunity to discuss the activities and problems relating to information exchange and to review periodically the functioning of notification procedures Why? How often? Every 2 years Persons responsible for information exchange, including persons responsible for enquiry points and notifications Who can participate? When is the next one? 2-3 November 2004

Comments on Proposed Technical Regulations and Conformity Assessment Procedures

Length of time allowed for comments Members are required prior to the adoption of a technical regulation or of a conformity assessment procedure to Allow reasonable time for other Members to make comments in writing Take these written comments and the results of these discussions into account Discuss these comments upon request Articles 2.9.4 and 5.6.4

Length of time for comments The TBT Committee decided that the normal time limit for presentation of comments on notified technical regulations and conformity assessment procedures should be 60 days Second Triennial Review

Length of time for comments Length of time for comments on notified technical regulations and CAPS 60 days or beyond  Indicated in the notification

Handling of comments Acknowledge receipt Explain How taken into account Provide additional relevant information Copy of regulation as adopted Provide Or, information of non-adoption

Results of the Third Triennial Review (2003) On Handling of comments More than 60 day comment period should be provided to developing countries Requests to Enquiry Points should be in one of the WTO languages Disseminate comments and responses by means of national websites Art. 10.5 – developed countries should provide translations of documents covered by notifications without being requested Responses to comments in writing, and possibly shared with the TBT Committee (on a voluntary basis) Electronic transmission to the Secretariat

TBT Notifications Average time allowed for comments

...Time... Entry into Force of the Measure Publication of the Measure Min. 6 months Publication of the Measure Adoption of the Measure Discussion of the Comments ...Time... Provision of Copies Notification to other Members Publication of a Notice Drafting of the Measure

Enquiry Points

Establishment of an Enquiry Point WTO Members must set up a national enquiry point Concerns institutions that are in a position to answer queries on documents issued by bodies with regulatory authority, that is central and local government bodies, and non-governmental bodies, which are entrusted with the legal power to enforce a technical regulation Article 10.1 Relates to enquiries on documents issued by other non-governmental bodies and regional bodies of which they are members Article 10.3 If more than one enquiry point is established, Members must provide “complete and unambiguous information” on the scope of responsibility of each enquiry point

Functioning of Enquiry Points Technical regulations, standards and conformity assessment procedures Art. 10.1, 10.2, 10.3 Membership and participation in international and regional standardizing bodies and conformity assessment systems / bilateral and multilateral arrangements Enquiry Points must respond to reasonable enquiries and provide relevant documents regarding: Location of other Enquiry Points Location of notices published

Enquiry Points: Related obligations Supply copies of requested documents to Members and interested parties of Members at an equitable price Provide translations or summaries of the documents related to a notification

What is a reasonable enquiry? Articles 10.1 and 10.3 An enquiry point is mandated to answer all "reasonable enquiries" When it is limited to a specific product, or group of products

Using the Enquiry Point: Beyond Obligations Collect/disseminate TBT information TBT documents TBT notifications received Inform other government agencies, private sector Coordinate comments on other countries’ notifications Submit comments – follow-up