For Sending A Letter, Vt. Lawmaker Says China Overstepped Its Bounds
5 WPTZ.comBURLINGTON, Vt. -- A state senator from Chittenden County said a letter received from a Chinese official criticizing legislation she has pending in Montpelier "flies in the face of state sovereignty and democratic principles."
http://www.wptz.com/video/17173558/index.html
Sen. Virginia Lyons of Chittenden County chairs the Natural Resources and Energy Committee. Lyons held a news conference Tuesday to discuss the implications of the undated letter she said she received in April.
The three-page communication, in both English and Chinese, was signed by "Wang Ni Ni" who identified himself as director general for the "China WTO/TBT National Notification & Enquiry Center" and listed an address in "Hai Dian District, Beijing."
The letter opened by saying "we appreciate the opportunity to submit comments on the regulation under the notification proposed by the State of Vermont."
Wang then outlined objections to Lyons' bill that would impose fees on manufacturers of electronic goods sold in Vermont. The fees, which would be calculated based on the weight of an item, would establish a fund for eventual recycling of e-waste. Wang suggests the mechanism would affect manufacturers unevenly and amount to an "unfair restriction of trade."
Lyons said her bill would effectively reduce the volume of electronic waste now winding up in Vermont landfills. Her proposal has yet to see debate at the state capital. But most of her ire focused on what she considers an unwelcome intrusion.
"It's simply not OK for other governments, foreign national governments, to feel they have a right to intervene in our state legislative process in the way China has," Lyons said.
[MAY WE SUGGEST THAT SENATOR LYONS TAKE A WTO COURSE FROM THE USTR?? HOW ABOUT A REFRESHER COURSE IN THE U.S. CONSTITUTION FROM NONE OTHER THAN THE FACULTY OF VERMONT LAW SCHOOL??]
She said Maryland and Missouri legislators have also felt "push back" from the Chinese over proposals they don't like. Lyons said she recently sent a complaint to the U.S. Department of Commerce. A spokeswoman there - and at the Office of the U.S. Trade Representative - both declined comment.
Lyons said she worries Vermont lawmakers would feel a "chilling effect" from the Chinese official's letter. She said she was "a little unnerved" the communication listed her home phone and address.
[WE SUGGEST THAT VERMONT STATE SENATOR LYONS WAKE UP FROM HER DEEP SLEEP OR SELF-IMPOSED STUPOR AND LOOK OUT OVER THE GLOBAL HORIZON TO SEE A BRAVE NEW WORLD OF INTERNATIONAL TRADE, THE INTERNATIONAL LEGAL FRAMEWORK OF WHICH HAS CONTINUED TO EVOLVE SINCE 1947. WITH THE CONCLUSION OF THE URUGUAY ROUND OF TRADE NEGOTIATIONS DURING 1994, AND THE CREATION OF THE WORLD TRADE ORGANIZATION AND ITS BINDING DISPUTE SETTLEMENT MECHANISM, AS WELL AS, THE EXECUTION OF NEW MULTILATERAL TRADE AGREEMENTS, INCLUDING THE TECHNICAL BARRIERS TO TRADE (TBT)AGREEMENT, THE FEDERAL, STATE & LOCAL GOVERNMENT TECHNICAL REGULATIONS OF ALL WTO NATIONAL MEMBERS, AND EVEN THE PRODUCT & PROCESS STANDARDS OF RECOGNIZED PRIVATE STANDARDS BODIES OPERATING WITHIN THE JURISDICTIONS OF WTO MEMBERS, ARE NOW SUBJECT TO INTERNATIONALLY AGREED UPON RULES.]
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115 STATE STREET STATE OF VERMONT PHONE: (802) 828-2228
SENATE CHAMBER
For Immediate Release Contact: Katie Manaras
August 12, 2008 (802) 828-3806
Senator Virginia Lyons Statement on Chinese Objection
to Proposed Environmental Legislation in Vermont
Vermont State Senator Virginia Lyons held a press conference on Tuesday, August 12, 2008 at 2:30 p.m. at Main Street Landing in Burlington, Vermont to make a statement regarding a letter she received from a foreign nation, asking her to "cancel" or "revise" a bill she had introduced during the legislative session. The subject of the bill is control and disposal of electronic waste. The nation complaining about the Vermont bill is the People's Republic of China.
In an official communication-which was sent to the home address of this citizen-legislator- China asserted that Senator Lyons' bill (S.256) presents an obstacle to international trade. In its letter, China cited an existing U.S. commitment under World Trade Organization (WTO) rules as a reason why Senator Lyons should withdraw her bill.
This wasn’t the first such occasion in which the People's Republic of China has 'pushed back' on state legislation they didn't like. China earlier had complained about state bills dealing with lead, phthalates, and other toxic materials found in children's toys. On that occasion, federal trade negotiators in Washington told the state legislator who introduced the bill that the communication from China was a 'mistake' and wouldn't be repeated.
However, the 'mistake' was repeated-this time in relation to a proposed Vermont law on electronic waste-and Senator Lyons felt it was extremely important to address this problem now.
According to Senator Lyons, "The People's Republic of China questions the authority of the Vermont legislature to enact legislation to protect human life and the environment. This attempted interference by the People's Republic of China in the democratic process in Vermont is alarming and threatens basic principles of our system of government. Common sense solutions to health issues at the state and local level should not be subject to international pressure."
She stresses that, "This is part of a disturbing trend toward undermining state's rights. Its simply not OK for other governments to feel that they have a right to intervene in our state legislative process in this way. It wouldn't matter whether the bill addressed by the Chinese government was about health care, workers benefits, land use permitting, or in this case, electronic waste recycling, the underlying principle is the same: respect for democratic decisionmaking. And so, we have to let folks in Washington DC and in Beijing know that this an unacceptable intrusion."
Senator Lyons was taken aback by how quickly China obtained the information about an introduced bill. "It appears that the Bush Administration alerted the Chinese," Lyons said. In a letter to Bryan O'Byrne, at the Department of Commerce's Trade Compliance Center, Senator Lyons asked about how-and why-this notification took place. See attached letter.
"Electronic products, such as computers and televisions, contain lead, mercury, cadmium, and similar hazardous materials," Lyons explained. "My bill simply provides a system for the recycling of electronic products as a means of limiting the release of these dangerous heavy metals from landfills and thereby protecting the environment and public health in Vermont."
"After S256 was introduced and was under consideration in committee, I received an e-mail from Beijing. The e-mail included a World Trade Organization document indicating that the U.S. federal government had notified a WTO Committee that S256 could be in violation of international trade law. Also attached was a cover letter from Wang Ni Ni, Director General of the China WTO Notification and Enquiry Center, and official comments by the Peoples Republic in response to the U.S. notification to the WTO regarding S. 256."
"And right on the front of that mailing from China was my home address and telephone," Lyons added, "which wasn't exactly what I would expect from an official communication regarding a WTO matter. It was a bit unnerving."
Two weeks ago, at the Annual Meeting of the National Conference of State Legislatures, Senator Lyons introduced a resolution deploring China's action, and alerting other state legislators to this new pushback. [The text of this Resolution can be found at
http://www.ncsLorg/printlstandcommlsclaborecon/ChinaLyons.pdf ] The resolution passed unanimously from the initial committee of jurisdiction and is now pending in a second committee.
"This was an important step to educate legislators about what's at stake here. I understand that the global trade rules mean that the United States is supposed to notify the WTO about major regulatory changes. How the Chinese concluded from this that they had a right to intervene in a state legislative process, long before new regulations are written, is quite beyond me.
"I just hope the Chinese weren't being encouraged to file complaints against state legislation by our own federal trade officials in Washington," concluded Senator Lyons.
WTO/TBT
China WTO/TBT National Notification & Enquiry Center
No.7, Ma Dian Dong Ac, Uai Dian District, Beijing, China, TeL 86 10 8226 0618 Fax: 86 0 8226 2448
FAX
TO.
National Center for Standards and
Certification Information (NCSCI)
National Institute of Standards and
Technology (NIST)
100 Bureau Drive
MS-2 160 Gaithersburg, MD USA
20899-2160
Tel:-i-(1301)975 4040
Fax ±(1 301)9261559
E-mail: ncsci@nist.gov
Website:http:/!ts.nist.gov/ncsci
Senator Virginia Lyons
241 White Birch Lane
Williston,VT 05495 USA
Tel: +(802) 863 6129
Email: vlyons@leg.state.vt.us
url: http://www. legstate.vt.us
Date: , 2008
Number of pages: 2+3
Copies:
Department for WTO Affairs, Ministry
of Commerce of P.R.China
Fax: +86 10 65 197726;65 128304
E-mail: wtonoti@mofcom.rnv.cn
liuna@mofcom.gov.cn
Permanent Mission of P.R. of China to WTO
Fax: +41-22-9097699/9097688
E-mail: guoxueyan9999@gmail.com
WTO Affairs Office, General,
Administration for Quality, Supervision, Inspection and Quarantine, PR.C.
Fax: +86 10 82260553
E-mail: jo@atsig.gov.ca
xuj @aqsiq.gov.cn
Department for Supervision on Inspection, AQSIQ of P.R.China
Fax: +86 10 82261949
E-mail: ijusy@agsig,gov.cn
From:
China WTO/TBT National Notification & Enquiry Center, Standard and Regulation Researching Center, AQSIQ, P.R,China
Tel: 86-10-82260618
Fax: 86-10-82262448
E-mail: tbtP aqsiq.gov.c n
Subject:
Comments on USA Notification G,TBT/N/USAJ34O
An Act Relating to the Disposal of Electronic Waste. S256
An Act Relating to the Disposal of Electronic Waste, S256
We appreciate the opportunity to submit comments on the regulation under the notification proposed by State of Vermont.
Enclosed please find comments in English and Chinese.
Please acknowledge receipt of the comments by e-mail to tbt@agsig.gov.cn. Thank you very much in advance for State of Vermont consideration of our comments.
Formal reply from State of Vermont will be appreciated.
Best regards
Wang NiNi
Director General
China WTO/TBT National Notification & Enquiry Center
No. 9 Ma Dian Dong Lu, Hai Dian District, Beijing
Post Code: 100088
Tel: 86-10-82260611/0619
Fax:86- I 0-82262448
E-mail: 4kt@aqsiq.gov.cn
Comments from China on USA Notification
G/TBTIN/USA/340
An Act Relating to the Disposal of Electronic Waste, S256
China appreciates U.S. for fulfilling WTO transparency obligation, to notify Notification G/TBT/N/USA/340. After careful study, we hereby put forward the following comments on the notified regulation.
I. China thinks the registration fee referred in Article 7303-(a) of the notified regulation lacks science, which is likely to result in unfairness, and will create unnecessary obstacles to the trade. The article is not in consistency with Article 2.2 of TBT Agreement, "Members should ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade." Therefore, China suggests canceling or revising the article of the regulation. Specific reasons are as follows:
a) In Article 7303(a) (2) of the notified regulation, "The registration fee for the initial program year during which a manufacturer's video display devices are sold is $5,000.00. Each year thereafter, the registration fee is equal to a base of $2,500.00, plus a variable recycling fee calculated according to the formula in subdivision (3) of this subsection."; as wet! as in Article 7303-(a) (6) of the notified regulation, "The registration fee for the initial program year and the base registration fee thereafter for a manufacturer who produces fewer than 100 video display devices for sale annually to households is $1,250.00."
b) The manufacturer pays the "variable recycling fee" according to provisions of the proposal, and both registration fee for the initial program year and the base registration fee thereafter added based on this are unreasonable. Difference in the market sales amounts results in difference in unit cost increase of the manufacturer. which is obviously unfair. Therefore, we don't think it is scientific for the determination of above registration fees. b) What's more, similar proposals involved in the notifications of US confederation member states Missouri and Virginia, G/TBTINIUSAI332, G/TBT/N/USA1333, G/TBTINIUSAI342, all don't provide for payment of registration fee.
c) In Article 7303-(a)-(3)(E) of the notified draft, E (the estimated per pound cost of recycling used to calculate the variable recycling fee) is set at 0.5 dollar per pound. which may obviously increase the cost of the video display devices sold to households. Take CRT display devices as an example, it is estimated that the cost will increase by IO3O%. Please provide detailed scientific basis for such determination of the value, taking account of reducing the value as much as possible.
d) d) In Article 73O3(a)(3) (C) of the notified regulation, it is provided that, "C = the number of pounds of recovered electronic devices recycled by a manufacturer from households during the previous program year, as reported to the agency under section 7305 of this title", it is lack of science and operability to determine the data, which is likely to create unfairness. Reasons are in below:
i For small manufactures newly entering into the market of the state, compared with large and local manufactures in the terms of recovery and collection channels or recovery technology control and use, they are obviously in an inferior position, which may likely result in more cost for them to obtain pounds for equivalent recovery designated electronic devices.
ii. The value relies on statistics and feedback of the recycler, while there isn't any provision relating to obligation of the recycler to provide true and comprehensive recovery data in the regulation, which is likely to result in incorrect value statistics as well as bad operability.
2. Effective date and approval time limit
a) It is stipulated in Article 73O2(b)-(5) that, "A registration is effective upon receipt by the agency and is valid until July 1 of each year". We think it is inappropriate to fix the effective date of registration to a fixed date, and it is suggested for U.S. to revise this article.
b) It is suggested to clearly define the acceptance and approval time limit of the agency of natural resources after the manufacturer applies for registration with the agency,
3. It is suggested to consider adding in Article 73O5(b): the recycler should cooperate with the manufacturer in the inspection and tracking, and provide the evidence indicating the recycling and disposal of covered products by the manufacturer and whether the product of the manufacturer is recycled without permission or sold after simple repair.
4. The responsibility of the collector throughout the recycling link is not stated in the regulation. It is suggested that the responsibility of the collector be added in the article.
Comments in Chinese are as follows…
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Preliminary Analysis of Allegations by the Peoples Republic of China (PRC) Regarding S.256 (2008) Introduced by Senator Virginia Lyons
Introduction
International trade agreements are negotiated by the United States Trade Representatives (USTR). Individual states are not involved in the negotiations, although trade agreements are presented to Congress. The 1974 Trade Act gives states very little policy input on trade, despite the fact that economic decisions regarding trade have powerful consequences for cities and states. There is only one advisory group to USTR that includes representatives from states.
States have not found this limited input to be sufficient to protect state interests. As a result, several states, including Vermont, Maine and New Hampshire, have created special Commissions to explore the impacts of international trade agreements on state sovereignty and to communicate state interests with USTR, other states, and Congress.
Analysis of Objections
The United States sent a notice to the World Trade Organization (WTO) about Senator Lyons bill, S,256. Based on a notification document issued by the WTO Committee on Technical Barriers to Trade, it appears that the PRC allegations are a response to a U.S. notification filed with the WTO related to Senator Lyons' bill.
The WTO Agreement on Technical Barriers to Trade contains various rules governing "technical regulations." The term "technical regulation" is defined as a "document which lays down product characteristics or their related processes and production methods...." (TBT Agreement, Annex 1). The proposed Vermont legislation, it might be argued, constitutes a "technical regulation" because it is related to product characteristics - i.e. specified types of electronic products containing heavy metals and other dangerous substances. At the same time, it might be argued that the essential thrust of the bill, to establish and finance a system of electronic product recycling, is not "technical regulation." Furthermore, it is not even clear that Chinese manufacturers are covered by the definition of "manufacturers" in S25, although any additional regulatory and financial burdens carried by their U.S. distributors as a result of the legislation might have some impact on the volume of sales in Vermont that could indirectly reduce the profits of Chinese firms. Nonetheless, the PRC, the U.S. federal government, and the WTO are treating it as a technical regulation subject to WTO jurisdiction.
Under Article 3.2 of the TBT Agreement, WTO member nations, including the United States, are required to notify other members whenever a state or provincial government such as Vermont proposes to enact a "technical regulation" that is not based on international standards and that will have a "significant effect on trade of other IWTOI Members." See Articles 3.2 and 2.9.2.
The notification is required to be made "at an early appropriate stage, when amendments can still be introduced, and comments taken into account." It seems that the U.S. federal government notified the WTO of the Lyons legislation pursuant to Article 3.2 of the TBT.
The WTO notification on S256 cites the "protection of human life and health" as the 'objective and rationale' of the legislation. Unlike several other WTO agreements, the TBT does not have a 'general exception' regarding the "protection of human life and health." A country might attempt to challenge such a legislative measure by claiming that the regulation will not be implemented in the 'least trade restrictive' way possible; is discriminatory against foreign commerce; does not follow international standards; gives too much discretion to regulators; etc.
These are the kinds of complaints that might be made by the PRC.
The PRC alleges that the Lyons bill violates WTO law, Without much explanation, the Peoples Republic declares that Senator Lyons' bill is inconsistent with Article 2.2 of the TBT Agreement, which states that "Members should ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade." Under this strict "necessity test," trade values arguably trump other public policy values unless there is no conceivable alternative policy that is less burdensome on trade. The PRC asserts, also without much factual or legal explanation:
• That registration fees and recycling fees paid by manufacturers under S256 are unfair and not determined on a scientific basis;
• That similar regulatory proposals in Missouri and Virginia do not require payment of a registration fee by manufacturers (perhaps suggesting that a registration fee is an "unnecessary obstacle" to international trade?);
• That the variable recycling fee may increase the cost of video display devices by 10 to 30 percent;
• That the annual administrative process for calculating the pounds of electronic devices recycled by a manufacturer from households has no scientific basis, is unfair to small manufacturers entering the Vermont market, and relies on statistics and feedback from recyclers who are under no obligation to furnish reliable data; and
• That revisions are needed in the bill related to the effective date for registration by manufacturers, a more clearly defined time schedule for agency acceptance and approval of a registration, and greater specification of the responsibilities of collectors and recyclers.
Conclusion
As illustrated by this event, other countries could and are beginning to use the trade system to apply pressure to state legislatures and to impact the state legislative process. Since trade promotion authority has expired, states see an opportunity to evaluate the process for providing input on trade issues and to improve federal-state communication. A new system for improving communication between states, USTR, and Congress should be a strong priority for the next Congress and President to ensure that out democratic system of government is protected.
For more information, contact Peter Riggs, dggs@forumdemocracy.net or William Waren, wtw2@law.georgetown.edu
[APPARENTLY, FORUM FOR DEMOCRACY, A POLITICALLY MOTIVATED DEMOCRATIC PARTY NON-GOVERNMENTAL ORGANIZATION, IS ADVOCATING U.S. TRADE POLICIES THAT CLOSELY RESEMBLE A BILL THAT WAS PROPOSED DURING SPRING-SUMMER 2008 IN CONGRESS, WHICH WOULD HAVE CAUSED GREAT HARM TO U.S. INTERNATIONAL TRADE AND FOREIGN RELATIONS. See OBAMA-BROWN-MICHAUD Non-Tariff Trade Barrier Act Likely to Devastate US Economy, Trigger a Global Trade War & Endanger World Peace, ITSSD Journal on Disguised Trade Barriers, at: http://itssddisguisedtradebarriers.blogspot.com/2008/06/us-trading-partners-beware-obama.html ].
115 STATE STREET STATE OF VERMONT PHONE: (802) 828-2228
MONTPELIER, VT 05633-5201 SENATE CHAMBER FAX: (802) 828-2424
7 August 2008
Bryan O'Byrne
Trade Compliance Center
International Trade Administration
Deartment of Commerce
14 Street and Constitution Avenue NW
Washington, D.C. 20230
Dear Mr. O'Byrne,
During the 2008 Vermont legislative session, I put forward a bill designed to regulate the movement and handling of toxic materials from used electronics, a so-called se-waste bill.' Imagine my surprise when several weeks later I received a threatening notice [???] from the People's Republic of China's WTO Compliance Center in Beijing, attempting to dissuade me from pursuing this bill in the Vermont Senate. Given your role in the Department of Commerce's Trade Compliance Center I am wondering if you could shed some light on this turn of events.
I chair the Vermont's Senate Natural Resources Committee. I have a Master's Degree in Nutritional Biochemistry (Rutgers) and a Doctorate from the University of Vermont in Planning and Administration, and consequently am very familiar with both the science and legislative politics of electronic waste disposal debates. As a board member of Parent to Parent Vermont and mother of two daughters, I am also deeply concerned about the impact of toxics in our environment. The e-waste bill (S. 256) was designed to address those concerns in a manner that in no way discriminates against foreign electronics manufacturers, or impacts negatively on international trade in any way.
[MS. LYONS - YOU WOULD NEED TO PROVE IT, IF YOU CAN.]
The bill was published in committee on January 7. It notes that "the establishment of a system to provide for the collection and recycling of electronic devices in Vermont is consistent with the state's duty to protect the health, safety, and welfare of its citizens; maintain and enhance the quality of the environment; conserve natural resources; prevent pollution of air, water, and land; and stimulate economic growth." The bill did not pass during this legislative session-due to limited time available during the legislative session, rather than any local opposition.
Opposition, it seems, has come from a very different quarter. By following the 'paper trail' back from China, we have found that the Department of Commerce, and/or the Office of the United States Trade Representative (USTR), notified Beijing of the August 7th 2008 existence of this bill by January 10th -just a couple days after the bill would have been published on a state website. The China WTO-TBT Compliance Center sent a letter challenging provisions of my bill in early April of this year. Most disturbingly for me, China referenced my home address in making their complaint.
I would very much appreciate it if you could respond to these questions and concerns:
a) Is your office designated the national inquiry point' for the WTO-TBT agreement? How do you and your staff interact with other 'national inquiry points', such as the one that wrote me from China?
b) Do you prepare a listing of proposed state laws with any new regulations potential impacts on international trade to notify other countries? Does the Trade Compliance Center have dedicated staff working to review state laws and proposed technical standards?
c) How do you interpret the phrase, "draft regulations"? We understand that the United States has an obligation to notify other WTO member states if the U.S. has proposed changes in regulations that could impact on international commerce. Is it standard procedure to notify trading partners before such laws are passed-that is, well in advance of the actual drafting of regulations?
d) How does the Department of Commerce interpret the provision in the TBT that allows for a comment period before the publication of new technical standards and regulations? Is it Commerce's position that foreign trading partners should be allowed to comment on proposed state laws prior to their debate on the floor of the legislature?
e) Does the Department of Commerce have resources available to assist state legislatures, executive agencies, and offices of attorney general to respond to comments submitted by U.S. trading partners?
The Commerce Department website indicates that the United States previously raised concerns about China's regulatory environment regarding toxic chemicals. Could you briefly state what those concerns were? Do you feel that China's action against Vermont's law-making powers could be a form of retaliation against the US inquiry?
Knowing that China pushed back' on the 2003 European Union-Directive on Waste Electrical and Electronics Equipment-and that most of the action in addressing c-waste concerns within the U.S. is happening at the state level-I am concerned that China's TBT notification to Vermont was an attempt to weaken emerging global standards on e-waste and on cradle-to-cradle' manufacturing standards. A weakening of these standards may very well provide international competitive advantage to Chinese firms, given that they do not have strict c-waste standards to adhere to in their home markets.
Let me close by stating how much we appreciate the work that you do on behalf of American exporters. As a percentage of total exports by value, Vermont is more dependent on 'high-tech' exports than any state in the nation. The Department of Commerce's support of marketing opening efforts, and its 'US Notify' website, are important tools in expanding opportunities for U.S. companies. We are concerned about the competitiveness of our own electronics firms; we wish to maintain the high standards of environment and public health which are a key part of Vermont's market 'brand' and its attractiveness as a business destination; and at the same time, we intend to take every democratic measure necessary to keep e-waste out of our landfills and to protect our environment and the health of Vermont's children.
Thank you very much for your kind attention to these matters, I look forward to hearing from you in writing via my legislative office:
Sincerely yours,
Senator Virginia Lyons
cc: Dana Eidsness, Vermont International Trade Director, USTR State Point of Contact
Kay Wilkie, Chair, InterGovernmental Policy Advisory Committee (IGPAC)
Tiffany Moore, Director, Public Liaison Office, USTR
Peter Shumlin, Senate ProTem, Vermont Legislature
Hon. Peter Welch, Representative
Hon. Bernie Sanders, Senator
Hon. Patrick Leahy, Senator
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