In an earlier post, Simon mentioned that the United States has put forward a new proposal ahead of the MC-11 meeting to “strengthen notification requirements.” The proposal lists a number of Agreements where notification requirements “constitute fundamental elements,” including:
Agreement on Agriculture
Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping)
Agreement on Subsidies and Countervailing Measures
Agreement on Safeguards
Understanding on the Interpretation of Article XVII of the GATT 1994 (State Trading)
Agreement on Implementation of Article VII of the GATT 1994 (Customs Valuation)
Agreement on Import Licensing Procedures
Agreement on Rules of Origin
Agreement on Preshipment Inspection
Decision on Notification Procedures for Quantitative Restrictions (G/L/59/Rev.1)
Agreement on Trade Related Investment Measures
Agreement on the Application of Sanitary and Phytosanitary Measures
Agreement on Technical Barriers to Trade
My research focuses on the TBT and SPS Agreements, so I was curious about the contents of this proposal as it relates to these agreements. Though the document does not outline anything specific with regard to SPS, it does offer some detailed explanations on TBT (in addition to Fisheries Subsidies and Agriculture). On TBT it says the following:
Technical Barriers to Trade
15. The WTO Agreement on Technical Barriers to Trade has four main notifications requirements. Members inform the Committee of measures in existence or taken to ensure the implementation and administration of the agreement, under Article 15.2. Member 15.2 notifications include laws governing the transparent development of regulation and laws governing standardization, conformity assessment and metrology. Members also notify central government standardization bodies' acceptance and adherence to the Standards Code of Good Practice to the ISO/IEC Centre, according to Article 4.1. Members' bilateral and regional agreements are notified to the TBT Committee under Article 10.7. Last, Members notify proposed technical regulations and conformity assessment procedures, under Articles 2.9.2, 3.2 and 5.6.2 to the TBT Committee for WTO Member comment.
16. With regard to regular notifications of new laws implementing the TBT Agreement, acceptance of the Code of Good Practice, and notification of Agreements between Members, activity could be improved. While the total number of annual notifications of proposed technical regulations and conformity assessment procedures has gradually increased to over 2000 notifications and that trend is encouraging, there is still room for improvement given the disparity between those Members notifying and those that do not, with 83 Members not notifying any proposals in 2016.
First, I do agree that notification is an important element of the TBT Agreement, and improving it would likely be beneficial to addressing regulatory trade barriers, and fostering regulatory cooperation. However, I am a little puzzled as to how the specific proposal put forth by the U.S. would apply to this Agreement in particular. The annex of the proposal outlines ways in which the U.S. thinks notification can be improved. The section titled “Improvements to Specific Notification Requirements,” notes that for the TBT:
14. In order to strengthen the notification of proposed technical regulations and conformity assessment procedures, Members are strongly encouraged to use the WTO TBT Committee's recommendation on Coherent Use of Notification Formats.
The recommendation it is referring to can be found here. If this were it, I would find the proposal to be relatively uncontroversial because the U.S. has raised the issue of the format and clarification of past notifications for many years in the TBT Committee. But the rest of the proposal goes much further in laying out penalties for failure to notify. But what exactly constitutes failure to notify? I would like to highlight one point of the proposal in particular, which states the following in the Draft Ministerial Declaration annexed to the document:
5. That beginning in 2018, a Member that fails to provide a required notification under an agreement listed in paragraph 1(b) by the relevant deadline or has failed to provide any prior required notification shall submit to the relevant committee by 1 November 2018 and by 1 November of each subsequent year an explanation for the delay, the anticipated time-frame for its notification, and any elements of a partial notification that a Member can produce to limit any delay in transparency. If a Member fails to provide the complete notification within one year of the deadline, the Secretariat shall research the matter and, in consultation with the relevant delinquent Member, provide a notification on its behalf.
The problem is, in the TBT Agreement the relevant deadline is not very clear cut (and I’m interested to hear comments from those who know the other Agreements better than I do to see if it’s the same). For instance, I am particularly concerned about the proposal identifying Article 2.9.2, which states:
2.9.2 notify other Members through the Secretariat of the products to be covered by the proposed technical regulation, together with a brief indication of its objective and rationale. Such notifications shall take place at an early appropriate stage, when amendments can still be introduced and comments taken into account;
As someone who spends all her free time reading the meeting minutes of the TBT and SPS Committees, this brought up a red flag for me. What is “an early appropriate stage” in the proposal for a new technical regulation? This has certainly been a bone of contention for the U.S., which, if we remember not too long ago was pushing for the EU to adopt a similar “notice and comment” procedure in the TTIP talks. Delays or confusion in notifications is also a persistent issue raised by the U.S. as specific trade concerns in the TBT and SPS Committees. If you look at the data on notifications in just the TBT Committee for 2016, it is not surprising that the U.S. sees this as a problem as it is the clear leader in notifications.
The U.S. also pushed for enhancements in regulatory process in the TPP, but now that it’s out of that Agreement, one has to wonder whether this proposal is an attempt to salvage this agenda, and to give it broader application. I’m looking forward to seeing how other WTO Members react.
