WORLD TRADE  
ORGANIZATION  TN/MA/W/131 
22 January 2010 
 (10-0333) 
Negotiating Group on Market Access Original:   English 
 
 
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS 
 
U.S. answers to Japan’s questions on the U. S. Automotive Products NTBs negotiating text  
 
Communication from the United States 
  
 The following communication, dated 20 January 2 010, is being circulated at the request of the 
delegation of the United States. 
_______________ 
 
 
Agreement on Non-Tariff Barriers Pertaining to Standards, Technical Regulations, 
 
and Conformity Assessment Procedures for Automotive Products  
 
 1. General Questions (For entire parts of the proposal) 
- What is the background and the need for the proposal?   
 
U.S. answer:  This proposal has its roots in the Global Automotive Industry Dialogue (GAID)
1 work 
on NTBs.  Technical Barriers to Trade was one area on which the GAID requested that Members 
focus their efforts.  Additionally, the United Stat es believes that automotive products is a sector that 
would benefit greatly from enhanced transparency, good regulatory practices, and other provisions in 
the U.S. proposal, given that this sector is one of the most highly regulated sectors around the world 
and one where there is a substantial amount of globa l trade.  Developing countries are key players in 
the global automotive trade so thei r suppliers and workers would have  much to gain by efforts to 
reduce NTBs in this sector.    
 
                                                      
1 The Global Automotive Industry Dialogue (GAID) is a working group composed of seven major 
national auto and auto parts manufacturing associations that jointly represent 85% of global motor vehicle 
production These include:  Brazil - Associaçao Nacional dos Fabricantes de Veiculos Automotores 
(ANFAVEA); Canada  - Canadian Vehicle Manufacturers Association (CVMA); - European Union : 
Association of European Motor Vehicle Manufacturers  (ACEA); India  - Society of Indian Automotive 
Manufacturers (SIAM); Japan  - Japan Automobile Manufacturers Association (JAMA); Korea -  Korean 
Automobile Manufacturer s Association (KAMA); Mexico  - Association Mexicana de la Industria 
Automotriz;  Turkey  - Turkey Automotive Manufa cturers Associ ation (OSD); United States   -  
Automotive Trade Policy Council (ATPC). TN/MA/W/131 
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  - What does the proponent think the impact the proposal have on the existing framework to 
address international regulation or standards as UNECE/WP.29 or ISO?  
 U.S. answer:  The U.S. proposal seeks to support international harmonization efforts for automotive 
products, for example, by promoting application of the TBT Committee Decision on Principles for the 
Development of International Sta ndards, enhancing transparency and good regulatory practices, and 
encouraging Members to participate in internationa l standardizing bodies.  Currently, a key forum for 
harmonizing automotive regulations and creating "G lobal Technical Regulations" is UNECE WP-29 
under the 1998 Agreement.  Other bodies that curre ntly develop automotive standards and contend 
that they observe the TBT Committee Decision on Pr inciples for the Development of International 
Standards when elaborating them include the Soci ety of Automotive Engineers International (SAE) 
(121,000 members in more than 97 countries), the Institute of Electrical and Electronics Engineers 
(IEEE) (375,000 members in more than 160 countries ), ISO (members in 163 countries), and ASTM 
International (30,000 members in more than 120 countries).  Standards developed by these bodies are 
frequently used by regulators around the world in designing their automotive technical regulations.  
Given that automotive materials, design, technologies, and regulations continue to evolve at a rapid 
rate, however, the bodies that develop automotive standa rds are changing and will continue to change.  
Thus, the United States believes that the wisest a pproach would be to maintain the TBT Committee’s 
focus on the principles for development of intern ational standards (recently re-affirmed by WTO 
Members as part of the Fifth Triennial Review),  rather than focusing on particular bodies.  Any 
attempt to try to "lock in" particular bodies as the sole or "main" standardizing body has the potential 
to distort the marketplace and make it more di fficult for Members to achieve their legitimate 
objectives by essentially compelling them to use st andards that may be outdated or otherwise 
sub-optimal.    2. Scope and Coverage 
- The proposal only targets at central government bodies, however, it is likely there would be 
inconsistency between standards of central gove rnment bodies and those of local government 
bodies if it only includes central government bodies.  What is the US’s view on that?  
 
U.S. answer:  The U.S. proposal focuses on central gove rnment bodies because, for the automotive 
sector, while some sub-federal measures exist, the v ast majority of standards, technical regulations 
and conformity assessment procedures adopted or main tained by the United States are at the federal 
level.  3. International Standards 
(Paragraph A) 
 - Do the "international standards, guide or recommendation" include t echnical regulations 
annexed to the 1958 Agreement and the 1998 Agreement administered by UNECE/WP.29? 
 
U.S. answer:  Paragraph III.A of the U.S. autos propo sal would commit Members to base their 
determination of whether an inte rnational standard, guide or recommendation exists on the principles 
set out in the 2001 TBT Committee Decision on Prin ciples for the Development of International 
Standards.  Thus, under the U.S. proposal, if a standard were developed under UNECE/WP.29 or in 
some other forum in accordance with the TBT Committee decision principles, a Member could 
consider that standard "international."     TN/MA/W/131 
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  4. Good Regulatory Practice 
(Paragraph B(1)) 
 
- What is the background of this requirement?  
 
U.S. answer:   This provision requires Members when preparing or proposing to adopt a technical 
regulation or conformity assessment procedure to c onsider the cost of complying with the proposed 
technical regulation or conformity assessment procedur e.  One of the elements of Article 2.2 of the 
TBT Agreement is that technical regulations must achieve the regulator’s legitimate objective in a 
way that is no more trade-restrictive than necessary.  Similarly, one of the elements of Article 5.1.2 of 
the TBT Agreement is that conformity assessment pr ocedures must be no stricter than is necessary to 
give the importing Member adequate confidence that  products conform to the applicable technical 
regulations or standards.  In the U.S. view, ass essing costs of compliance with proposed technical 
regulations or conformity assessment procedures can inform the regulatory analysis and help 
Members ensure that the regulations and procedures th ey adopt or no more trade-restrictive or stricter 
than necessary in accordance with thei r obligations under Articles 2.2 and 5.1.2.  The United States 
believes that assessing compliance costs is a key as pect of Good Regulatory Practice (GRP) and, 
therefore, it is no surprise that many regulator s in WTO Members already assess compliance costs in 
some manner.  We believe that if the assessment of costs were a widespread practice among the WTO 
membership, over time regulators would produce better technical regula tions and conformity 
assessment procedures that are less trade-rest rictive while still fulfilling Members’ legitimate 
objectives.  Additionally, please see our answer to question 5 from Thailand re garding this issue in 
JOB(09)37 (which is also contained on pg. 4 of ou r compendium of questions and answers on this 
proposal in TN/MA/W/125). 
 
(Paragraph B(2)) 
 - Why does the US add this requirement especially in this proposal while there is no equivalent 
provision in the "Agreement on Non-Tariff Barri ers Pertaining to the Electrical Safety and 
Electromagnetic Compatibility (EMC) of Electronic Goods"?   
 
U.S. answer:  Assessing the availability of regulatory a nd non-regulatory alternatives when preparing 
or proposing to adopt a technical regulation or c onformity assessment procedure can help avoid the 
creation of unnecessary obstacles to trade.   This  provision reflects work on Good Regulatory Practice 
(GRP) undertaken in the TBT Committee and other in ternational and regional fora, such as the Asia 
Pacific Economic Cooperation (APEC) and the Organization for Economic Cooperation and 
Development (OECD).  Specifically, in the recently-released report of the Fifth Triennial Review of the Operation and Implementation of the TBT Ag reement, the TBT Committee indicated that the 
determination of the need to regulate was "one aspect of GRP," and noted that Regulatory Impact 
Assessments were beneficial because "they can induce governments to better assess whether or not 
government intervention is necessary" and "facilitate the identification of the need for regulation."  
The Committee also "stresse[d] the importance of cons idering alternatives – and, in some cases, even 
reconsidering the need for regulation in the first place ."  See paras. 12-13 of the report.    We are open 
to discussing Members’ views on whether this provision may be appropriate for the electronics sector.   
 
5. Harmonizing Technical Regulations and Conformity Assessment Procedures 
(Paragraph D) 
 
- This paragraph has an assumption that a Memb er shall consider using another Member's 
regulation in some case.  We understand th at the Member can use another Member's TN/MA/W/131 
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  regulation on the basis that its knowledge about th is regulation is correct and does not have to 
make any further research.  Is that correct? 
 U.S. answer:  Paragraph III.D of the U.S. proposal do es not address when a Member can or cannot 
use another Member’ technical regulation or conformity assessment procedures as the basis for its 
own.  Instead, paragraph III.D would commit Members to consider  using, as a basis for its own 
technical regulation or conformity assessment proce dure, another Member’s technical regulation or 
conformity assessment procedure, where a relevant international standard does not exist or use of 
relevant international standards would be ineff ective or inappropriate in fulfilling the Member’s 
legitimate objective.  Our intent is that a Memb er would consider the technical regulations or 
conformity assessment procedures of other Members that are brought to its attention (e.g., by interested parties) or of which it is otherwise aware.  The provision does not set out how Members 
should undertake this consideration or the factors or criteria they should take into account.  Instead, it 
leaves these decisions to Members,  with the exception that Members should only consider technical 
regulations and conformity assessment procedures that are not inconsistent with the WTO Agreement.  
Although this latter criterion should be self-evident, we thought it was im portant to make it explicit in 
the text.  We do not believe that incentivizing globa l harmonization to regulatory approaches that are 
non-transparent, unworkable, not based on science, di scriminatory, etc. would be a desirable outcome 
of this exercise.     
 
6. Transparency 
(For all the paragraphs in this part) 
 
- What is the need for strengthening the requi rements stipulated in the TBT Agreement? 
 
U.S. answer:  The report of the Fifth Triennial Review of the Operation and Implementation of the 
TBT Agreement (G/TBT/26, 13 November 2009) emph asizes that "transparency is a fundamental 
pillar in the implementation of the TBT Agreement and a key element of Good Regulatory Practice."  See para. 29 of the report.  In paragraph 8 of the report, the Committee also "stresses the importance 
of transparency in processes and procedures used in  the development and a pplication of technical 
regulations and conformity assessment procedures.  Pa rticipation by interested  parties helps ensure 
legitimacy to what a government does, and the measur es it chooses to implement.  It also enhances the 
outcome of the regulatory process by contributing to the creation of higher quality technical 
regulations and conformity assessment procedures and helps to increase awareness about government 
actions and avoid unnecessary obstacles to trade."  The United States believes that enhanced 
transparency TBT disciplines for large, globalized  sectors such as electronics and automotive products 
will help prevent NTBs from arising in the first place,  for example, by ensuring  that parties affected 
by proposed standards, technical regulati ons, and conformity assessment procedures (e.g., 
manufacturers, importers, and testing facilities) have  the opportunity to presen t their views and have 
their concerns heard prior to adoption of the final measure.  We also believe that transparency is 
critical to another important goal of the U.S. auto s proposal, which is promoting greater alignment of 
regulatory approaches.  The more open and tran sparent that Members’ regulatory development 
processes are, the more likely that regulators w ill develop aligned approaches that meet their 
legitimate objectives.  For example, when  regulators ensure that interested parties in the territory of 
any Member have a meaningful opportunity to comment on proposed measures (including by submitting data, arguments, and othe r information and analysis), take  this information into account, 
and explain the basis for their conclusions, including how they took comments received into account, 
it helps ensure that regulators across WTO Members receive and are accountable to the same type of 
information and concerns when regulating to meet  common objectives.  This in turn makes it more 
likely that, when seeking to achieve common objec tives, regulators will reach similar conclusions, 
such as on the risks associated with a particular product and appropriate measures to mitigate those 
risks. We have had positive experiences in incl uding enhanced transparency disciplines in our free  TN/MA/W/131 
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  trade agreements and believe that introducing them  at the WTO would have long-term systemic and 
practical benefits for all Members.  See also the U. S. response to Thailand’s question 6 on this issue in 
JOB(09)/37. 
 
- Can a Member implement the requirements in this part in its national language? 
  
U.S. answer:  The notification itself must be in a WTO language, as is already required under the TBT 
Agreement.  However, publication of the propo sed or final technical regulation, conformity 
assessment procedure, or standard, and any respon ses to significant comments can be in a Member’s 
national language(s).   
 
(Paragraph E) 
 - What is the need for applying the paragraph regardless of whether relevant international 
standards, guides or recommendations exist? 
 
U.S. answer:   In our view, greater transparency and enhanced opportunities for input from Members 
and interested parties can facilitate greater ali gnment of standards, technical regulations, and 
conformity assessment procedures and help prevent the creation of unnecessary barriers to trade.  We 
believe this is true even in instances where a Member believes its proposed measure is based on 
relevant international standards.  For exampl e, our proposal would ensure that Members and 
interested parties have the opportunity to comment on elements of the measure that may differ from or 
go beyond relevant international standards; or to  offer differing views as to whether the proposed 
measure is in fact based on relevant internationa l standards or whether the measure should be based 
on an alternative standard (inter national or otherwise) that, for example, may better fulfill the 
Member’s objective (e.g., because an alternative standa rd is more relevant, e ffective, or appropriate 
due to factors such as climate, geography, technology, etc.).   
 
(Paragraph E(1), (2) and (3)) 
 - What is the difference among the three: "pr oposed standard, ..." in the paragraph (1), 
"provisions of standard, ..." in the paragra ph (2), and "particulars concerning the proposed 
standard, ..." in the paragraph (3)? 
 U.S. answer:  Our answer pertains to paragraph G of the revised U.S. negotiating text 
(TN/MA/W/120).  "Provisions of the standard" in  subparagraph (2) mean the provisions of the 
"proposed standard" as referenced throughout paragra ph G.  We can consider changing the phrase to 
"provisions of the proposed standard" if that will eliminate any confusion among Members.  The 
"particulars concerning the proposed standard" is not defined, but, as stated in subparagraph (3) of the 
text, could include "the elements described in paragraph E(3)(ii)-(iii)".  Generally, we intend 
"particulars" to refer to informati on or details about the proposed standard.  We note that "particulars" 
is used in Articles 2.9.3, 5.6.3, and 10.8.2 of the TBT Agreement, as well as paragraphs E and F (3) of 
the proposal. 
 
(Paragraph E(6)) 
 
- Is it deemed as fulfilling the requirement in the paragraph to publish summarized comments a 
Member received from other Members or interested parties? 
 
U.S. answer: No.  This provision (paragraph E(7) in the revised U.S. proposal TN/MA/W/120) 
requires Members to publish all comments received fro m other Members or interested parties, not just 
summaries of those comments.  The United States is willing to discuss any concerns this provision TN/MA/W/131 
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  may raise for Japan or other Members.  We w ould note that U.S. regulators publish all comments 
received (except where confidential), usually doing so  on their own websites or at regulations.gov.  
 
 (Paragraph G(2)) 
 - What is the difference between "objective and ra tionale" in this paragraph and the same words 
in the paragraph E(2)? 
 U.S. answer:  The words "objective and rationale" appear in paragraphs G(2) and H of the revised 
U.S. proposal (TN/MA/W/120).  These words also appear in Articles 2.9 and 5.6 of the TBT 
Agreement in the same phrasing and context.  In our view, the word "objective" refers to the goal the 
Member wishes to pursue in adopting or proposi ng to adopt the measure (e.g., protecting the 
environment from harmful vehicle emissions) and the wo rd "rationale" refers to the reason or reasons 
it is adopting or proposing to adopt the particular measure (e.g., why the Member chose this particular 
approach as a means to achieve its objective).     (Paragraph I and J) 
 - The proposal says in paragraph I that "a r easonable period of time shall usually be not less 
than 18 months after the date of publication." and in paragraph J that "within no less than the 
following 12 month period."  Could the propone nt instruct us the basis of these "18 months" 
and "12 months" as reasonable periods of time? 
 
U.S. answer:  Japan’s question and our answer pertain to  paragraphs J and K of the revised U.S. 
proposal (TN/MA/W/120).  Paragraph J states that Members must provide no less than 18 months 
between the date on which the measure is publis hed and the date on which compliance becomes 
mandatory.  Paragraph K provides that Members must publish a regulatory agenda on an annual basis 
that includes the standards, technical regulations , and conformity assessment procedures it reasonably 
expects to issue in proposed or final form in at least the next 12 month period.  With respect 
paragraph J, in the auto sector where models genera lly change no more frequently than once a year, it 
takes manufacturers a significant amount of time – and longer than six months – to retool and redesign vehicles to meet new regulations, especia lly if conformance would require a substantial 
change in automobile design or technology.  For th is sector, we believe that no less than 18 months is 
a reasonable interval in situations involving such a change.  In fact, we understand that in many cases 
regulators have provided intervals of significantly longer than 18 months for compliance.  We have 
qualified the time period with the term "usually,"  because there could be situations where due to 
urgency or some other unforeseen factors that a re gulator will need to require compliance within a 
shorter time period.  With respect to paragraph K, we would note that U.S. regulators are required by 
Executive Order 12866 to prepare a plan of the most important significant regulatory actions that they 
reasonably expect to issue in proposed or final form  within the next fiscal year or thereafter.  We 
believe that this requirement is beneficial for GRP and the process for developing technical 
regulations, standards, and conformity assessment procedures for several reasons.  Advance planning 
provides notice to other regulators in the same Memb er (and in other Members) that a regulator is 
thinking about developing a measure.  This k nowledge helps to maximize consultations between 
regulators, whether in the form of, inter alia , information sharing; coordination on scope, 
methodology, and/or regulatory approach; or ensu ring that there are no overlaps or duplications 
between measures.  If there are potential conflicts between measures, the a dvance notice provided by 
this requirement will allow sufficient time to resolve such conflicts at an early stage.  Advance notice 
also allows regulators to involve interested stak eholders, both foreign and domestic, in regulatory 
planning and to understand potential concerns even be fore a proposal has been drafted and is notified 
for comment to the WTO.  All of these consultati ons make it less likely that any eventual measure 
will create unnecessary obstacles to trade.  Advan ce notice will also aid in the harmonization of 
automotive measures worldwide as regulators will have more time to consider what other regulators  TN/MA/W/131 
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  are doing in response to common problems, avoid unnecessary regulatory divergences which could 
disrupt trade flows, and possibly collaborate on potential joint solutions, which could have positive 
effects both for trade and for achieving legitimate regulatory objectives.    (Paragraph I)  
- What is the difference between the "dates on wh ich compliance with the technical regulation" 
in this paragraph and the date for "entry into force" provided in the TBT Agreement? 
 
U.S. answer : Japan’s question and our answer pertain to  paragraph J of the revised U.S. proposal 
(TN/MA/W/120).  In some cases it may be possible for a measure to enter into force (i.e., have legal 
effect) before compliance with the measure or provisions of the measure becomes mandatory.  
 
- Exactly what extent of change in automobile  design is deemed as the "substantial change"? 
 
U.S. answer:  Japan’s question and our answer pertain to paragraph J of the revised U.S. proposal 
(TN/MA/W/120).  A "substantial change" is one in which the form or function of the automobile 
undergo significant alterations, e.g. if the engine is  modified to emit less particulate matter, or if 
onboard electronics are modified to facilitate grea ter energy efficiencies in the operation of the 
automobile.   
 
7. Testing 
(For all the paragraphs in this part) 
 
- Please instruct us the background and the needs for the requirements in this part. What is the 
difference from the already existing fram ework under the 1958 Agreement where they 
recognize testing facilities each other in addition to  conformity of products with regulations, 
etc? 
 
U.S. answer:  Japan’s question and our answer pertain to paragraph L of the revised U.S. proposal 
(TN/MA/W/120).  Paragraph L would prohibit Me mbers from requiring testing to be performed 
within its territory and require them to allow tes ting facilities located in other Members’ territories to 
be deemed competent or otherwise approved.  We  are interested in hearing from Japan and other 
Members who participate in the 1958 Agreement (t he United States does not) about the differences 
they see in this proposal and the regime established under the 1958 Agreement.   
 
8. National Treatment of Conformity Assessment Bodies 
(Paragraph M) 
 - What is the difference between requireme nts in this paragraph and those in the 
paragraph K(2)? 
 
U.S. answer:   Japan’s question and our answer pertain to pa ragraphs L(2) and N of the revised U.S. 
proposal (TN/MA/W/120).  Paragraph L requires Me mbers to ensure that any requirements it 
maintains concerning testing or accreditation be b ased either on relevant international standards 
(paragraph L(1)) or a measure adopted in accordan ce with paragraphs E and H of the proposal 
(paragraph L(2)). (Paragraphs E and H contain transp arency disciplines with r espect to the preparation 
and adoption of technical regulations and confor mity assessment procedures.)  Paragraph L also 
requires each Member to allow testing to be perform ed in competent facilities outside its territory and 
to allow facilities in other Memb ers’ territories to demonstrate that they meet the Member’s 
requirements to be deemed competent or otherw ise approved.  Paragraph N requires Members to TN/MA/W/131 
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  accord conformity assessment bodies in the territory of any other Member national treatment with 
respect to approving or otherwise recognizing conformity assessment bodies as competent to test or 
certify.  Paragraphs L and N work together to ensu re that competent testing facilities are permitted to 
test products outside the importing Member’s territory (paragraph L) and that any criteria, procedures, 
or other conditions for approving or otherwise rec ognizing such facilities as  competent are no less 
favorable than those applicable to testing facilities in  the importing Member’s territory (paragraph N).    
 
9. Procedures for Review 
(Paragraph N) 
 - What are "tribunals" in this paragraph like?  And could you give some examples for the 
bodies and procedures required in this paragraph if  there is any Member that has such bodies 
and procedures? 
 U.S. answer:  Japan’s question and our answer pertain to paragraph O of the revised U.S. proposal 
(TN/MA/W/120).  Paragraph O refers to judicial and quasi-judicial tribunals and is meant to refer to 
entities such as courts and administrative review boards.   10. Annex I 
- Are motorcycle and four-wheel buggy excluded from the scope of this proposal? 
 
U.S. answer: Yes, but we are open to exploring ideas on e xpanding the product scope if there is an 
interest.  
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