WORLD TRADE  
ORGANIZATION  TN/MA/W/133 
22 January 2010 
 (10-0335) 
Negotiating Group on Market Access Original:   English 
 
 
 
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS 
 
U.S. answers to Japan’s questions on Rev.1 of  
the U.S. Electronics NTBs Negotiating Text  
 
Communication from the United States 
 
 
 The following communication, dated 21 January 2 010, is being circulated at the request of the 
delegation of the United States. 
 
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Agreement on Non-Tariff Barriers Pertaining to the Electrical Safety  
and Electromagnetic Compatibility(EMC) of Electronic Goods  
 
 
1. General Question 
- What is the background and the need for the proposal? 
 
U.S. answer: The objective of the proposal is to facilitate trade in electronic goods by helping to 
ensure that technical regulations, standards and conformity assessment procedures do not create 
unnecessary obstacles to international trade in electronic goods. The electronics sector is one of the most dynamic in terms of export growth, as count ries develop global producti on networks to meet 
international demand for these products.  Total trade in electronics products was over $5 trillion 
(exports + imports) in 2006-2008 and accounted for 22% of global non-agricultural trade in that 
period.  From 2006 to 2007 total exports of electronics increased by almost $533 billion and from 
2007 to 2008 by almost $179 billion. Both develope d and developing countries are important players 
in the global supply chain for electronics.  In 2006 – 2008, developing countries accounted for 44% of 
electronics exports.   Exports of electronics from developing countries grew by 43% between 2003 
and 2007, compared to a growth rate of 10% in exports from developed countries.  The global 
IT/electronics industry is truly global - in r esearch and development, design, manufacturing, 
supply-chain and in marketing.  This industry is characterized by rapid innovation and extremely short 
times to market.  Economies that effectively depl oy information technology can realize benefits in 
productivity and competitiveness not only in the electronics sector but also in other downstream 
industries that utilize information technology.  Certainl y, there has been an explosion of growth in the 
IT sector in the past 10 years since many tariffs were liberalized through the Information Technology 
Agreement.  Industry has pointed out, however, that  non-tariff barriers in the areas of standards, 
technical regulations and conformity assessment can increase costs, delay getting products to market, 
and in some cases prevent products from getting to market at all.   
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   Our proposal, therefore, contains provisions that build upon the TBT Agreement and seek to 
address barriers in these areas by improving transpar ency and good regulatory practice and further 
promoting the use of international standards with respect to electrical safety and EMC for electronic 
goods.  The proposal creates a framewo rk for Members to move to mo re trade-facilit ative forms of 
conformity assessment over time, consistent with market development and regulatory capacity, while 
ensuring that legitimate objectives such as protec ting human health and safety and preventing harmful 
interference continue to be met.  Together, we belie ve disciplines that, for example, ensure interested 
parties have an opportunity to comment on proposed  technical regulations and permit required testing 
to be done outside the territory of the impor ting Member in approved facilities, would reduce 
obstacles to trade in electronic goods and facilita te trade in these products.  The United States 
submitted a room document at the March 2009 NAMA NTB week that detailed the proposal’s 
objectives, negotiating history, and documents tabled  in support of the proposal.  The room document 
highlights the initial efforts of several delegations  (specifically/including the Republic of Korea, the 
European Communities, and the United States) to promote a substantive outcome in this area.  
 
- What is the definition of that "electrical safety"? What specific kinds of contents the 
proponent is assuming in this regard?  
 
U.S. answer:  The U.S. proposal does not define the te rm "electrical safety."  Generally, we 
understand electrical safety to refer to relative freedom  from risk due to electrical hazards or hazards 
associated with electrical products.  Electrical hazards  are any conditions that pose a risk of injury 
from the presence of electricity.  These hazards include,  but may not be limited to: electric shock, fire, 
burns, hazards associated with flying objects, noi se, and electromagnetic radiation. If Japan has a 
specific definition in mind, we are happy to discuss it.   
 
- Doesn’t this proposal permit national certific ation schemes? We are asking this because the 
proposal refers to only three options; conformity assessment, SDoC, and third party 
certification systems. 
 
U.S. answer:  The intent of the U.S proposal is that Members would use one of two  forms of 
conformity assessment schemes – either third-party certification or supplier’s declaration of conformity – in situations where a Member requi res a positive assurance that a product conforms to 
electrical safety or electromagnetic compatibility (EMC) requirements.      
 
2. Scope and Coverage  
(Para II.D) 
 -  What is the US’s intention to newly adding  the sentence "to the extent such amendment or 
addition pertains to electrical safety or EMC for electronic goods", which does not exist in 
Article 1.6 of the TBT Agreement, into this proposal?  
 
U.S. answer:   The scope of the U.S. proposal is lim ited to standards, technical regulations, and 
conformity assessment procedures that pertain to electrical safety or EMC of electronic goods.  
Therefore, the paragraph referring to amendments and additions similarly needs to be limited to 
measures that pertain to electrical safety or EMC of electronic goods.  
 
3. Standards, Technical Regulations, an d Conformity Assessment Procedure 
(Para III.A)  
 
- What is the background of inserting this requirement?  
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  U.S. answer:  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 procedures 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, assessing 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 they adopt are no more trade-restrictive or  stricter than necessary in accordance with their 
obligations under Articles 2.2 and 5.1.2..  The United States believ es that assessing compliance costs 
is a key aspect of Good Regulatory Practice (GRP ) and, therefore, it is no surprise that many 
regulators in WTO Members already assess compliance cost s in some manner.  We believe that if the 
assessment of costs were a wi despread practice among the WTO membership, over time regulators 
would produce better technical regulations and c onformity assessment procedures that are less 
trade-restrictive while still fulfilling Members’ legitimate objectives.  Additionally, please see our 
answer to question 5 from Thailand regarding this is sue in JOB(09)37 (which is also contained on pg. 
4 of our compendium of questions and an swers on this proposal in TN/MA/W/125).  
 
- Whose and what "cost" is implied in the sente nce, "costs of complying with the proposed 
technical regulation or conformity assessment procedure," subject to? 
 U.S. answer:  The U.S. proposal does not define the term  "costs of complying" and affords Members 
flexibility to determine what it considers costs and ho w best to take those costs into account.  In terms 
of "whose" costs, this provision concerns the costs of those entities or individuals that would seek to 
comply with the proposed technical regulatio n or conformity assessment procedure (e.g. 
manufacturers).   
 
(Para III.B) 
 - Is it correct to understand that each Member has sole discretion on determining whether an 
international standard, guide or recommenda tion within the meaning of TBT Agreement 
exists?  
 
U.S. answer:   The U.S. proposal requires each Member to base its determinations of whether a 
relevant international standard, guide or reco mmendation exists on the TBT Committee Decision 
principles.  Thus, the determination must be sup ported by a Member’s analysis of whether the six 
principles set out in the Decision were observed by  a standardizing body when it was elaborating a 
particular standard, guide, or recommendation.   
 
4. Transparency  
(Para III.C and others) 
 - What is the background of the reinforcem ent of the transparency procedures?   
 
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 TN/MA/W/133 
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  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 ad option of the final measure.  We have had positive experiences in 
including such disciplines in our free trade agreemen ts 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. 
 
(Para III.E (1)) 
 - Is it correct to understand that each Member  has a discretionary power on determining 
whether comments from Members or interested parties are "significant and relevant"?   
 
U.S. answer:  The U.S. proposal (in paragraph III.F(1) in TN/MA/W/105/Rev.2) would require each 
Member to publish its responses to significant and re levant issues raised in comments it receives.  The 
U.S. proposal does not limit the discretion Members would have to determine in the first instance 
which issues are relevant and significant, although it is certainly possible that a Member may disagree 
with a regulating Member’s assessment of what issues  are relevant and significant and decide to raise 
it as a concern with the regulating Member.  See al so the U.S. response to Thailand’s question 6 in 
JOB(09)/37 .   
 
(Paragraph III.H) 
 
- What is the meaning of the provision "If a Member requires a positive assurance that a 
product listed for electrical safety, EMC or both in its schedule to Annex III conforms to a 
standard or technical regulation, it shall accep t as such assurance a supplier's declaration of 
conformity (SDoC)."  
 
U.S. answer:  This provision (paragraph III.I in TN/MA/W/105/Rev.2) would require a Member to 
accept SDoC for products listed in its schedule to Annex III.  A Member could specify in its schedule 
to Annex III whether, for a particular product, it accepts SDoC for EMC or for electrical safety, or for 
both.  If a Member does not list a particular product in Annex III for either EMC or electrical safety, then it does not have to accept SDoC for that product.   
 
- Also, we understand the above provision means that the proposal accepts notification to the 
government and other requirements as integrals of the SDoC system.  Is this understanding 
correct? 
 
U.S. answer:  The U.S. proposal would not preclude a Member from imposing requirements 
associated with implementation of an SDoC system .  However, a key element of this paragraph 
(III.I in TN/MA/W/105/Rev.2) is that a Member shall base any requirements for an SDoC on a 
relevant international standard, guide or recomme ndation that has been developed in accordance with 
the TBT Agreement and the TBT Committee Deci sion on Principles for the Development of 
International Standards or a conformity assessme nt procedure established in accordance with the 
proposal’s transparency provisions.   
 
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