WORLD TRADE  
ORGANIZATION  TN/MA/W/126 
4 December 2009 
 (09-6213) 
Negotiating Group on Market Access Original:   English 
  
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS 
 
Compendium from the United States containing the most recent NTB's text on an Agreement 
 
on Non-Tariff Barriers Pertaining to Standard s, Technical Regulations and Conformity  
Assessment Procedures for Automotive Produc ts, as well as the history of questions  
and answers related to this proposal  
 
Communication from the United States 
 
 
 The following communication, dated 2 December 2009, 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  
 
Members,  
 
Recalling that pursuant to paragraph 16 of the Doha Ministerial Declaration, Members 
agreed to negotiations aimed at reducing or as appropriate eliminating tariffs and non-tariff 
barriers on non-agricultural products;  
Recognizing the important contribution of automotive products to global economic 
growth and development;   
Desiring to ensure that technical regulations, standards, and conformity assessment 
procedures do not create unnecessary obstacles to international trade  in automotive products;  
 
Affirming their existing rights and obligations  under the WTO Agreement, including the 
Agreement on Technical Barrier s to Trade (TBT Agreement); 
 
Recognizing  that no Member should be prevented from taking measures that are 
necessary for the protection of human, animal or plant life or health, of the environment, or for 
the prevention of deceptive practices, at the levels it considers appropriate, subject to the 
requirement that they are not a pplied in a manner which would constitute a means of arbitrary 
or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, a nd are otherwise in accordance with the provisions 
of this Agreement;  
 
Recognizing  that no country should be prevente d from taking measures necessary for 
the protection of its essential security interests; and     TN/MA/W/126 
Page 2  
 
  Seeking  to supplement and elaborate on the TBT  Agreement with respect to standards, 
technical regulations, and conformity assessme nt procedures pertaining to automotive 
products;   
Agree as follows: 
 
DEFINITIONS 
 For purposes of this Agreement: 
  Appropriate international standardizing body means a body that when preparing a 
standard applies the principles set out in the Decisions and Recommendations adopted by the 
Committee since 1 January 1995 , G/TBT/1/Rev.8, 23 May 2002, Section IX (Decision of the 
Committee on Principles for the Development of International Standards, Guides and 
Recommendations with relation to Artic les 2, 5 and Annex 3 of the Agreement ) (Committee 
Decision ) issued by the WTO Committee on Techni cal Barriers to Trade (TBT Committee), 
including paragraph 11 of the Committee Decision  as elaborated in paragraph III.A, and 
observes the principle of openness set out in paragraph 6 of the Committee Decision ;  
   Automotive product includes any product classifiable under the Harmonized System 
subheadings specified in Annex I of this Agreement;  
 Central government body means a central government body as defined in Annex 1 of 
the TBT Agreement;   Standard, technical regulation, or conformi ty assessment procedure means respectively 
a standard, technical regulation, or conformity assessment procedure as defined in Annex 1 of 
the TBT Agreement that pertains to an automotive product; and 
  Supplier means any party that supplies the product and may include a manufacturer, distributor, or importer.  II. SCOPE AND COVERAGE    
A. This Agreement shall apply with resp ect to any automotive product.   
 B. Members assume obligations under this Ag reement only with respect to standards, 
technical regulations, and conformity assessment  procedures of central government bodies. 
 
C. This Agreement shall not apply to purchas ing specifications prepared by governmental 
bodies for production or consumption requirements of governmental bodies. 
 D. Any reference in this Agreement to standard s, technical regulations, or conformity 
assessment procedures shall be construed to in clude any amendment thereto and any additions 
to product coverage or other provisions the reof, except amendments and additions of an 
insignificant nature, to the extent such amendm ent or addition pertains to an automotive 
product.   TN/MA/W/126 
 Page 3 
 
 
  III. STANDARDS, TECHNICAL REGULATIONS, AND CONFORMITY ASSESSMENT 
PROCEDURES 
International Standards 
 A. In determining whether an international st andard, guide or recommendation within the 
meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement exis ts pertaining to automotive 
products, each Member shall base its determination on the principles set out in the Committee 
Decision , including whether the standardizing body takes into account relevant regulatory or 
market needs and scientific and technological de velopments as set out in paragraph 11 of the 
Committee Decision  when preparing a standard, guide or recommendation.  “Relevant 
regulatory or market needs and scientific and technological developments” shall include the 
technical and economic feasibility of alternative approaches to the standard under development, 
the relative benefits and cost-effectiveness of alternative approaches, and the best available 
technology.  
Good Regulatory Practice  
 B. Where a Member prepares or proposes to adopt a technical regulation or conformity assessment procedure, it shall:  (1) consider, inter alia , costs of complying with the proposed technical regulation or 
conformity assessment procedure; and 
 
(2) assess the available regulatory and non-regulat ory alternatives to the proposed technical 
regulation or conformity assessment procedu re that may fulfil the Member’s legitimate 
objective, such as market incentives or other voluntary mechanisms, or considering a 
product to meet the Member’s requirements if  it conforms with a relevant alternative 
international standard. 
 
Question from Singapore:  Will the United States please elaborate on how this paragraph would 
operate, and explain in detail what “market incen tives or other voluntary mechanisms” are, and how 
they would feature in this particular context? (JOB(09)/22) 
  
• U.S. Answer:  In many instances it is pref erable to incentivize manufacturers to act 
voluntarily rather than mandate specific actions through regulation.  For example, the main 
automotive regulator in the United States, th e National Highway and Transportation Safety 
Administration (NHTSA), not only maintains crash standards (front impact, side impact, etc.), 
but it also issues “stars” to au to companies for crash test pe rformance of their vehicles.  
Market forces will push consumers who seek safer vehicles towards these models without 
actually mandating a level of performance that some other manufacturers might find 
uneconomical to meet. 
 
 The second part of the paragraph asks that a Member consider available regulatory or 
non-regulatory alternatives that may fulfill a Member ’s legitimate objective.   This could take 
several forms.  Some countries allow compliance with more than one standard to demonstrate 
conformity with the relevant requirements.  In the United States, our regulators consider 
existing regulations in other WTO Members when developing new regulations and, if they are 
found acceptable, those regulations may be incorp orated into the U.S. requirements.  An 
obligation to consider what other regulators are doing before regulating would be a useful tool 
for minimizing unnecessarily regulatory diverg ences worldwide, steering regulators towards 
regulatory approaches that have been proven e ffective, cutting costs for regulators (who may 
not have to develop new require ments from scratch), and cutting costs for manufacturers who, TN/MA/W/126 
Page 4  
 
  with fewer regulatory approaches to comply with  worldwide, will be able to recognize greater 
economies of scale.      
   Members are also encouraged to ensure that their technical regulations and conformity 
assessment procedures are based on the prin ciples of “good regulation” set out in the OECD 
Guiding Principles for Regulatory Quality and Performance  (2005).   
 
Harmonizing Technical Regulations and Conformity Assessment Procedures 
 C. With a view to harmonizing technica l regulations and conformity assessment 
procedures on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by approp riate international standardizing bodies of 
international standards, guides and recommendations pertaining to automotive products.   
 
D. Where a technical regulation or conformi ty assessment procedure is required and a 
relevant international standard, guide or recommenda tion does not exist or its completion is not 
imminent or it would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, a Member shall consider using, as a basis for its technical 
regulation or conformity assessment procedure,  another Member’s technical regulation or 
conformity assessment procedure, or the relevant pa rts of it, that is not inconsistent with the 
WTO Agreement [ Note: need to reference this agreement and other DDA agreements as well, with 
the precise name of those agreemen ts to be determined later ] and has been developed in 
accordance with paragraphs E and G.    
Transparency 
 E. Further to Articles 2.9 and 5.6 of the TBT Agreement, where a Member prepares or proposes to adopt a technical regulation or conf ormity assessment procedure that may have a 
significant effect on trade of other Members, the Member shall, with a view to providing 
meaningful opportunity for comment and withou t discrimination among Members or interested 
parties:  (1) publish, in print or electronically, the proposed technical regulation or conformity 
assessment procedure at the earliest appropriate stage, in such a manner as to enable 
interested parties to become acquainted with it and to submit written comments before 
the Member finalizes it;
 1 
 (2) to the extent applicable, identify in any no tification it makes pursuant to Article 2.9.2 or 
5.6.2 of the TBT Agreement any provisions of the proposed technical regulation or conformity assessment procedure that deviat e in substance from relevant international 
standards, guides, or recommendations; 
 (3) upon request from another Member, provide particulars with respect to the proposed 
technical regulation or conformity assessment proce dure concerning: 
 
(i) how the Member took or plans to take  into account the elements set out in 
paragraph B; 
 
                                                     
 
1 When a Member publishes a proposed technical regulation or conformity assessment procedure in 
accordance with this subparagraph, it sha ll be deemed to have satisfied the pertinent obligation in Articles 2.9.1 
and 5.6.1 of the TBT Agreement to publish a notice of the proposed technical regulation or conformity 
assessment procedure.  TN/MA/W/126 
 Page 5 
 
 
  (ii) where applicable, the Member’s reasons for determining that relevant 
international standards, guides or reco mmendations do not exist or are not 
imminent or that using relevant international standards, recommendations, or guides as a basis for its measure would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued; and 
 
(iii) any provisions of the measure that are based on another Member’s standard, 
technical regulation, or conformity a ssessment procedure and, if the Member 
based its measure on two or more Members’ standards, technical regulations, or conformity assessment procedures, the Member’s reasons therefore. 
 
(4)  upon request from an interested party, pr ovide copies of and particulars concerning the 
proposed technical regulation or conformi ty assessment procedure, including with 
respect to the elements described in subparagraph (3)(i)-(iii):  
 
(4) normally allow not less than 60 days for Members to comment in writing on the 
proposed technical regulation or conformity assessment procedure; 
 (5) (i) allow reasonable time fo r interested parties to comment in writing on the proposed 
technical regulations or conformity assessment  procedure, which normally shall not be 
less than 60 days,
2 and (ii) take into account any such comments; and 
 
(6) publish, in print or electronically, any wr itten comments it receives from Members or 
interested parties on the proposed techni cal regulation or conformity assessment 
procedure. 
 
Members shall comply with the obligations set out in this paragraph and Articles 2.9 and 5.6 of 
the TBT Agreement regardless of whether relevan t international standards, guides, or 
recommendations exist or the technical content of the proposed technical regulation or 
conformity assessment procedure is  in accordance with relevant international standards, guides, 
or recommendations.    
F. Where urgent problems of safety, health, environmental protection, or national security 
arise or threaten to arise for a Member, the Member may omit such steps enumerated in paragraph E as it finds necessary, provided that the Member shall without discrimination among Members or interested parties:  
(1) to the extent applicable, identify in any notification it makes pursuant to Article 2.10.1 
or 5.7.1 of the TBT Agreement any provisions of the technical regulation or conformity 
assessment procedure that deviate in substa nce from relevant international standards, 
guides or recommendations; 
 (2) upon request, provide other Members particulars concerning the elements described in 
paragraph E(3)(i)-(iii) with respect to the t echnical regulation or conformity assessment 
procedure; 
 (3)  upon request, provide interested parties copies of and particulars concerning the 
technical regulation or conformity assessment  procedure, including with respect to the 
elements described in paragraph E(3)(i)-(iii); 
 
                                                     
 
2 Each Member shall publish a notice, in print or  electronically, specifying the comment period and 
give favourable consideration to reasonable re quests from interested parties to extend it. TN/MA/W/126 
Page 6  
 
  (4) (i)  allow interested parties to subm it comments in writing on the technical 
regulation, or conformity assessment pr ocedure; and (ii) take these comments 
into account in deciding whether to  modify the technical regulation or 
conformity assessment procedure.  
 
G. Further to Article 4.1 and Annex 3 of the TBT Agreement, where a Member proposes to 
prepare or adopt a standard, it shall, with a view to providing meaningful opportunity for comment and without discrimination among Members or interested parties:  (1) publish, in print or electronically, the proposed standard at the earliest appropriate 
stage, in such a manner as to enable interested  parties to become acquainted with it and 
to submit written comments before the Member finalizes it; 
 (2) notify other Members through the Secretariat  of the proposed standard at the earliest 
appropriate stage, including the products the proposed standard covers, together with a 
brief indication of its objective and rati onale and, to the extent applicable, any 
provisions of the standard that deviate in substance from relevant international standards, guides, or recommendations; 
 (3) upon request from another Member or interested party, provide particulars concerning 
the proposed standard, including with respect  to the elements described in paragraph 
E(3)(ii)-(iii); 
 (4) upon request, discuss written comments it receives from Members and take the results 
of those discussions into account in finalizing the proposed standard; and 
 
(5) publish, in print or electronically, any written comments it received from Members or 
interested parties on the proposed standard. 
 Each Member shall provide for standardizing bodi es within its territory to apply paragraphs L 
and M of Annex 3 to other Members as well as to interested parties within the territory of a Member of the WTO. 
 
H. When publishing a standard, technical regul ation, or conformity assessment procedure 
that it has adopted, or if paragraph F appli es, as soon as possible after publication of the 
adopted standard, technical regulation or conformity assessment procedure, each Member shall publish, in print or electronically: 
 
(1) its responses to any significant issues raised  in comments it received from Members or 
interested parties during the comment period;
3 and  
 
Question from Singapore:  Will the US please clarif y the reference to “subparagraphs 3(i)-(iii)” 
referred to in the footnote? Are the subparagra phs referring to those under paragraph E [now 
paragraph H in the rev 2 text]? (JOB(09)/22)   
• U.S. Answer: Yes, this footnote is referring to  subparagraphs 3(i)-(iii) of paragraph E [now 
paragraph H in the rev 2 text].  
 
 
                                                     
 
3 For greater certainty, if a Member or an interested party submits comments during the comment 
period that concern the elements described in subparagra phs 3(i)-(iii), the Member shall publish its response to 
such comments.  TN/MA/W/126 
 Page 7 
 
 
  (2) the objective and rationale for preparing or  adopting the standard, technical regulation, 
or conformity assessment procedure.  
 I. Each Member shall ensure that its proposed  and final standards, technical regulations 
and conformity assessment procedures, as well as any relevant penalties, are published in a 
single official journal of national circulatio n, and shall encourage their distribution through 
additional outlets.   
 
Question from Singapore:  How frequent does the Unite d States expect the “single official journal of 
national circulation” to be published? Does the Unite d States currently have such a practice and what 
are the estimated production and distribution costs incurred for each single official journal? Would the 
objective behind such a provision be achieved th rough electronic publication?  (JOB(09)/22) 
  
• U.S. Answer: The United States accomplishes th is through daily publication of the Federal 
Register, which is available in both hard co py and electronically.  The objective of this 
section could easily be met with electronic publication – the more frequent the better.  The 
idea is to increase transparency, which in creases the potential for harmonization towards 
well-crafted regulatory approaches, and inform in terested parties of new information at the 
same time.  All parties must know where to look  and have easy access to the information.  In 
some ways, electronic publication is preferable to printed text as it can be made available 
instantly to all parties globally, and can gene rally be more readily searched and examined. 
 
J. Except in those urgent circumstances referred  to in paragraph F, Members shall allow a 
reasonable period of time between the publicat ion of a technical regulation or conformity 
assessment procedure and the date(s) on which compliance with the technical regulation or 
conformity assessment procedure becomes mandatory to allow ti me for producers in exporting 
Members, and particularly in developing country  Members, to adapt to the requirements of the 
importing Member.  Where conformity with a technical regulation would require a substantial 
change in automobile design or technology, a reaso nable period of time shall usually be not less 
than 18 months after the date of publication.   A Member shall consider reasonable requests 
from a Member or interested party to extend the period between publication and the date(s) on 
which compliance with the technical regulation or conformity assessment procedure becomes 
mandatory, particularly in circumstances where co nformity with the technical regulation would 
require a substantial change in automobile design or technology.   
Question from Canada - Transparency: Reasonable Interval  - The decision of the TBT Committee on the concept of a “ reasonable interval ” between the 
publication of a technical regulation or confor mity assessment procedure and its entry into 
force, as provided for by Articles 2.12 and 5.9 of the WTO TBT Agreement, indicates that the period of a “ reasonable interval ” should be no less than 6 months. 
- Why does the U.S. seek to provide for a period of time of 18 months between the publication 
of a technical regulation or conformity assess ment procedure that requires a substantial 
change in automobile design or tech nology and its entry into force? 
- What are the implications for the decision of the TBT Committee on the period of a 
“reasonable interval ”?  (JOB(09)/31+Corr.1) 
 
• U.S. answer:   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 regulati ons.  For this sector, we believe no less than 
18 months is a reasonable interval.  We do not  believe this has any implications for the 
decision of the TBT Committee – it is simply a clarification to reflect the realities of the 
global automotive manufacturing process and to en sure that automakers have sufficient time TN/MA/W/126 
Page 8  
 
  to incorporate into new automobiles any t echnical regulations or conformity assessment 
procedures that require a substantial change in automotive design or technology.  This 
question is a good illustration of why the Unite d States has pursued a sectoral approach to 
TBT-related NTB proposals – what is a reasona ble interval for the automotive industry may 
be different from a reasonable interval for the textile or electronics industry, where models 
and designs change much more  frequently.  (JOB(09)/157) 
 
K. Each Member shall publish, on an annual basis, a regulatory agenda which includes any standard, technical regulation, or conformity a ssessment procedure that it reasonably expects to 
issue in proposed or final form within no  less than the following 12 month period.   
 
Testing  
 L. If a Member requires test results (alone or  in conjunction with other assurances of 
conformity) or other assurances of conformity that are based on test results as an assurance that 
an automotive product conforms with a standard or technical regulation, it shall not require the 
testing to be performed in a testing facility within  its territory and shall accept the test results if 
the testing is performed in another Member’s te rritory by a facility that the importing Member 
deems competent or approves for that purpose.  Each Member shall permit a testing facility in 
another Member’s territory to demonstrate that  it meets any requirements to be deemed 
competent or otherwise approved by the Memb er.  If the importing Member requires the 
testing facility to comply with requirements co ncerning the testing of automotive products for 
conformity with the standard or technical reg ulations or requires the body that accredits the 
testing facility to comply with requirements conc erning that accreditation, it shall ensure that 
such requirements are based on: 
 
(1) a relevant international standard, guide or  recommendation that has been developed in 
accordance with the TBT Agreement and the Committee  Decision ; or  
 (2) a conformity assessment procedure that the Member has adopted and published in 
accordance with the provisions of paragraphs E and H.  
 
M. If a Member determines that: 
 (1) test results or other information that a s upplier of an automotive product has submitted 
to the Member to demonstrate that the pro duct conforms to the Member’s technical 
regulations fails to demonstrate such conformity; or 
 
(2) a testing facility in the territory of another Member does not meet the Member’s 
requirements to be deemed competent or otherwise approved, 
 it shall immediately notify, in the case of s ubparagraph (1), the supplier of the automotive 
product and, in the case of subparagraph (2), the testing facility the reasons for its 
determination and indicate the corrective acti on that if taken would remedy the deficiency. 
 
Question from Singapore:  Which testing facilities outsi de of the US have been “deemed competent or 
otherwise approved” by the US? (JOB(09)/22) 
  
• U.S. Answer: The United States operates under a self-certification system  with respect to 
automotive safety standards, so that auto ma nufacturers conduct their own tests in their own 
labs or other labs of their c hoosing all over the world.  Therefore, our regulators do not need 
to deem competent any foreign or domestic testi ng facilities.  Our intent in this section was to  TN/MA/W/126 
 Page 9 
 
 
  lay out the obligations of Members with rega rd to testing of automotive products where 
testing is required.  For example some Members use a type-approval system in which all testing is performed in government or govern ment accredited laboratories.  These Members 
should allow or accredit labs outside their own bor ders to conduct tests, if they are deemed 
competent.   
 
National Treatment of Conformity Assessment Bodies 
 
N. Each Member shall accord to conformity a ssessment bodies in the territory of any other 
Member treatment no less favourable than that it  accords to conformity assessment bodies in its 
own territory with respect to the procedures , criteria, and other conditions with which 
conformity assessment bodies must  comply in order for the Member to accredit or otherwise 
approve them as competent to test or certify that an automotive product conforms with the Member's standard or technical regulation.  
Procedures for Review  
 
O.   (1) Each Member shall establish or maintain judicial, quasi-judicial, or administrative 
tribunals and procedures for the purpose of  the prompt review and, where warranted, 
correction of its final administrative acti ons relating to technical regulations and 
conformity assessment procedu res.  Each Member shall ensure that such tribunals are 
impartial and independent of the office or authority entrusted with administrative 
enforcement and do not have any substantial interest in the outcome of the matter, and 
that proceedings before such tribunals are tr ansparent and comply with due process of 
law.   
   
(2) Each Member shall establish or mainta in procedures for it to review, at 
regularly-scheduled intervals, its techni cal regulations and conformity assessment 
procedures to determine whether such measures should be modified or eliminated so as to make the Member’s regulatory program mo re effective in achieving the legitimate 
objective(s) pursued.  In reviewing its tec hnical regulations and conformity assessment 
procedures to determine whether such measures should be modified or eliminated, 
relevant elements of consideration include  whether such technical regulations and 
conformity assessment procedures have beco me unnecessary or outdated by reason of 
changed circumstances, such as fundamental changes in technology.   
 
IV. INFORMATION  
  Nothing in this Agreement shall be constr ued to require a Member to furnish or allow 
access to confidential information the disclosur e of which would impede law enforcement or 
otherwise be contrary to the public interest or which would prejudice the legitimate commercial 
interests of particular enterprises, public or private. 
 V. MONITORING AND OVERSIGHT   A Subcommittee on Automotive Products ( Subcommittee) is hereby established as a 
subcommittee to the TBT Committee to oversee the operation and implementation of this 
Agreement and further its objectives and to provide a forum for discussions on any matter 
related to this Agreement .  The Subcommittee shall: 
 (1) comprise representatives of each Member; TN/MA/W/126 
Page 10  
 
   
(2) elect its own Chairman and apply the TBT Committee working procedures;   (3) meet to review the implementation and operati on of this Agreement (a) at least every six 
months during the first 30 months after the da te this Agreement enters into force, and 
(b) thereafter at least once every 12 months; and  
 (4) report to the TBT Committee with a view to complementing and not duplicating the 
work of that Committee, and to this end, communicate to the TBT Committee the 
results of its review conducted pursuant to subparagraph (3). 
 
VI. DISPUTE SETTLEMENT   Article 14 of the TBT Agreement shall apply mutatis mutandis to this Agreement. 
 
[Note:  need to further consider relations hip with Dispute Settlement Understanding] 
 VII. FINAL PROVISIONS  
[Note: Need to consider Afinal provisions @ to be included in this Agreement, such as entry into 
force, withdrawal, amendment, WTO Secretariat to service Agreement, deposit etc. B items 
included, for example, in the various UR WTO agreements]  
 
   TN/MA/W/126 
 Page 11 
 
 
  Annex I 
 
Harmonized System Subheadings 
Vehicles Parts Parts Parts 
870120 381900 842123 854430 
870210 382000 842131 870710 
870290 400950 842139 870790 
870322 401010 842549 870810 
870323 401110 842691 870821 
870324 401120 843110 870829 
870331 401210 848210 870831 
870332 401220 848220 870839 
870333 401310 848240 870840 
870390 401593 848250 870850 
870421 401693 848310 870860 
870422 401699 850132 870870 
870423 681310 850710 870880 
870431 681390 850730 870891 
870432 700711 850790 870892 
870490 700721 851110 870893 
870600 700910 851120 870894 
 731816 851130 870899 
 732010 851140 871690 
 732020 851150 871899 
 830120  851180 902910 
 830210 851190 902920 
 830230 851220 902990 
 840734 851230 910400 
 840820 851240 940120 
 840990 851290 940190 
 840991 851991 940340 
 840999 851993 940350 
 841330 852520 940390 
 841391 852721 980200 
 841430 852729  
 841459 853180  
 841520 853641  
 841583 853910  
 841590 853921  
 
 
__________