How the WTO TBT and Free Trade Agreements Support Standards
How the World Trade Organization’s Agreement on Technical Barriers to Trade (WTO TBT) and U.S. Free Trade Agreements support the promotion and use of national and international standards in foreign markets.
On November 12, 2020, the Women in Standards welcomed Jennifer A. Stradtman, Director, Technical Barriers to Trade, EOP/USTR and MaryAnn Hogan, WTO TBT Inquiry Point of the United States as our November webinar presenters. Jennifer and MaryAnn provided an overview of the World Trade Organization (WTO), the WTO Technical Barriers to Trade (TBT) Agreement, and how the WTO TBT Agreement and US Free Trade Agreements support standards setting.
Jennifer kicked off the presentation by providing an overview of US trade policy and the role of the U.S. Trade Representative (USTR). She highlighted that American trade policy works toward opening markets throughout the world to create new opportunities and higher living standards for families, farmers, manufacturers, workers, consumers, and businesses.
And that the USTR is responsible for developing and coordinating U.S. international trade, commodity, and direct investment policy, and overseeing negotiations with other countries.
In their role as a member of the World Trade Organization Technical Barriers to Trade committee, USTR meetings three times a year in March, June, and November to provide the principles for the development of international standards and a “Code of Good Practice” for the development of standards. Before each meeting, the USTR in coordination with other agencies prepare for weeks to develop suggestions on what specific trade concerns must be taken to the committee. Every three years, the committee also performs a review of the Technical Barriers to Trade agreement.
With the Technical Barriers to Trade agreement, Jennifer highlighted the following important principles:
- National Treatment – Foreign products should not be treated differently than domestic products.
- Most Favored Nation – Foreign products should not be treated differently than any other WTO Member (with exceptions).
- Member countries must consider alternatives when developing a technical regulation.
- There is a presumption of compliance if international standards are used.
- Members have a right to protect their “legitimate objectives” of a technical regulation and there is nothing in the TBTA that prevents the Member from having its own conformity assessment procedures.
Jennifer also discussed the use of international standards within the WTO TBT. The TBT does not specify any specific SDO as ‘International’ and as such, the TBT articles 2, 5 and annex 3 are used to determine if a standard is international. In the United States, a standards developing organization that can show that they meet articles 2, 5 and annex 3 could then argue that their standards should be recognized and applied as international standards. Jennifer reviewed the requirements of articles 2, 5 and annex 3 and discussed what the TBT looks for in evaluating whether a standard meets those requirements.
In her presentation, MaryAnn provided an overview of the Notify Us system and the role of the US Inquiry Point. This is in accordance with the WTO TBT which requires that its members
- Establish and maintain a national enquiry (inquiry) point
- Publish draft regulation at an appropriately early stage
- Notify draft regulations/amendments to the WTO
‘Notify’ meaning to alert other affected parties of all U.S. technical regulations and conformity assessment procedures. The US Inquiry Point is responsible for identifying and notifying potential TBT measures, processing and handling comments on notifications, and facilitating communications.
MaryAnn walked attendees through the process of registering for email alerts from the Notify Us portal (www.nist.gov/notifyus), reviewing those postings, and submitting a comment. She also suggested that attendees monitor the ePing Alert system, with is a free online system for notifications submitted by WTO members (http://www.epingalert.org/en#)
The Notify Us portal is a benefit to standards developing organizations as it provides transparency on what the US and other countries are working on and providing a mechanism for organizations to submit comments and influence revisions to those draft documents. Organization might monitory the system to identify when a standard is added or removed from a technical regulation or opportunities to identify their standard as being available and meeting the proposed need. Organizations can also reach out to connect with trade agencies such USTR and make them aware of US intellectual property and businesses that might be affected by those draft proposals.
The Notify Us website also provide guidance on “How to Comment.” It is accessible via the Notify U.S. web site without logging in or being registered for the service at https://tsapps.nist.gov/notifyus/data/guidance/guidance.cfm. MaryAnn noted that they are working to develop further guidance so check back later for additional resources.
The Inquiry Point is available to support standards developers. Organizations are encouraged to reach out when:
- They are not sure if a member has notified a technical regulation or new or changing Conformity Assessment Procedure (CAP) under the TBT agreement.
- They want to request notification of non-notified TBT measure (proposed technical regulation or CAP).
- They need more time to comment.
- They are working to finalize a comment for submission but have questions not answered in the guidance (see https://tsapps.nist.gov/notifyus/data/guidance/guidance.cfm).
- They have general questions about Technical Barriers to Trade.
The Women in Standards sends our thanks to Jennifer and MaryAnn for a very informative presentation and look forward to learning more about Notify Us and the WTO TBT.