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CHAPTER 5 SANITARY AND PHYTOSANITARY MEASURES.pdf

CHAPTER 5

SANITARY AND PHYTOSANITARY MEASURES

Article 5.1: Definitions

For the purposes of this Chapter:

(a)the definitions provided in Annex A of the SPS Agreement shall apply;

(b)relevant definitions developed by Codex Alimentarius Commission, the World Organisation for Animal Health, and the International Plant Protection Convention shall be taken into account;

(c)competent authorities means those authorities within each Party recognised by the national government as responsible for developing and administering the sanitary and phytosanitary measures within that Party; and

(d)emergency measure means a sanitary or phytosanitary measure that is applied by an importing Party to a relevant exporting Party to address an urgent problem of human, animal or plant life or health protection that arises or threatens to arise in the Party applying the measure.

Article 5.2: Objectives

The objectives of this Chapter are to:

(a)protect human, animal or plant life or health in the Parties through the development, adoption, and application of sanitary and phytosanitary measures, while facilitating trade by minimising the negative effects on trade among the Parties;

(b)enhance the practical implementation of the SPS Agreement;

(c)enhance the transparency and understanding of the development and application of sanitary and phytosanitary measures of the Parties;

(d)strengthen cooperation, communication, and consultation among the Parties in the field of sanitary and phytosanitary measures; and

(e)encourage the Parties’ participation in the development and adoption of international standards, guidelines, and recommendations.

Article 5.3: Scope

This Chapter shall apply to all sanitary and phytosanitary measures of the Parties, which may, directly or indirectly, affect trade among the Parties.

Article 5.4: General Provision

Each Party affirms its rights and obligations with respect to each other Party under the SPS Agreement.

Article 5.5: Equivalence

1.The Parties shall strengthen cooperation on equivalence in accordance with the SPS Agreement while taking into account the relevant decisions of the WTO Committee on Sanitary and Phytosanitary Measures (hereinafter referred to as “WTO SPS Committee” in this Chapter) and international standards, guidelines, and recommendations.

2.An importing Party shall recognise the equivalence of a sanitary or phytosanitary measure if an exporting Party objectively demonstrates to the importing Party that the exporting Party’s measure achieves the same level of protection as the importing Party’s measure, or that the exporting Party’s measure has the same effect in achieving the objective as the importing Party’s measure.

3.In determining the equivalence of a sanitary or phytosanitary measure, the importing Party shall take into account available knowledge, information, and experience, as well as the regulatory competence, of the exporting Party.

4.A Party shall, upon request, enter into consultation with the aim of achieving bilateral recognition arrangements on the equivalence of specified sanitary or phytosanitary measures. The recognition of equivalence under such bilateral recognition arrangements may be with respect to a single measure, a group of measures, or on a systems-wide basis. For this purpose, reasonable access shall be given by the exporting Party, upon request, to the importing Party for inspection, testing, and other relevant procedures.

5.As part of the consultation for equivalence recognition, on request of the exporting Party, the importing Party shall explain and provide:

(a)the rationale and objective of its measures; and

(b)the specific risks its measures are intended to address.

6.The exporting Party shall provide necessary information in order for the importing Party to commence an equivalence assessment. Once the assessment commences, the importing Party shall, upon request, and without undue delay, explain the process and plan for making an equivalence determination.

7.The consideration by a Party of a request from another Party for recognition of the equivalence of its measures with regard to a specific product, or group of products, shall not be in itself a reason to disrupt or suspend ongoing imports from the Party of the product or products in question.

8.When an importing Party recognises the equivalence of an exporting Party’s specific sanitary or phytosanitary measure, group of measures, or measures on a systems-wide basis, the importing Party shall communicate the decision in writing to the exporting Party and implement the measure within a reasonable period of time. The rationale shall be provided in writing by the importing Party in the event that the decision is negative.

9.The Parties involved in a positive determination of equivalence are encouraged, where mutually agreed, to share information and experiences at the Committee on Goods.

Article 5.6: Adaptation to Regional Conditions, including Pest- or Disease-Free Areas and Areas of Low Pest or Disease Prevalence

1.The Parties recognise the concepts of regional conditions, including pest- or disease-free areas and areas of low pest or disease prevalence. The Parties shall take into account the relevant decisions of the WTO SPS Committee and international standards, guidelines, and recommendations.

2.The Parties may cooperate on the recognition of regional conditions with the objective of acquiring confidence in the procedures followed by each Party for such recognition.

3.On request of an exporting Party, an importing Party shall, without undue delay, explain its process and plan for making a determination of regional conditions.

4.When an importing Party has received a request for a determination of regional conditions from an exporting Party and has determined that the information provided by the exporting Party is sufficient, it shall initiate the assessment within a reasonable period of time.

5.For such an assessment, reasonable access shall be given by the exporting Party, upon request, to the importing Party for inspection, testing, and other relevant procedures.

6.On request of the exporting Party, the importing Party shall inform the exporting Party of the status of the assessment.

7.When an importing Party recognises specific regional conditions of an exporting Party, the importing Party shall communicate that decision to the exporting Party in writing and implement the measures within a reasonable period of time.

8.If the evaluation of the evidence provided by the exporting Party does not result in a decision by the importing Party to recognise the regional conditions, the importing Party shall provide the exporting Party with the rationale for its decision in writing within a reasonable period of time.

9.The Parties involved in a determination recognising regional conditions are encouraged, where mutually agreed, to report the outcome to the Committee on Goods.

Article 5.7: Risk Analysis

1.The Parties shall strengthen their cooperation on risk analysis in accordance with the SPS Agreement while taking into account the

relevant decisions of the WTO SPS Committee and international standards, guidelines, and recommendations.

2.When conducting a risk analysis, an importing Party shall:

(a)ensure that the risk analysis is documented and that it provides the relevant exporting Party or Parties with an opportunity to comment, in a manner to be determined by the importing Party;

(b)consider risk management options that are not more trade restrictive than required1 to achieve its appropriate level of sanitary or phytosanitary protection; and

(c)select a risk management option that is not more trade restrictive than required to achieve its appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.

3.On request of an exporting Party, an importing Party shall inform the exporting Party of the progress of a specific risk analysis request, and of any delay that may occur during the process.

4.Without prejudice to emergency measures, no Party shall stop the importation of a good of another Party solely for the reason that the importing Party is undertaking a review of a sanitary or phytosanitary measure, if the importing Party permitted importation of the good of the other Party at the time of the initiation of the review.

Article 5.8: Audit2

1.In undertaking an audit, each Party shall take into account the relevant decisions of the WTO SPS Committee and international standards, guidelines, and recommendations.

1 For the purpose of subparagraphs (b) and (c), a risk management option is not more trade restrictive than required unless there is another option reasonably available, taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade.

2 For greater certainty, without affecting the implementation of this Article, nothing in this Article prevents a Party from adopting or maintaining halal requirements for food and food products in accordance with Islamic law.

2.An audit shall be systems-based and conducted to assess the effectiveness of the regulatory controls of the competent authorities of the exporting Party to provide the required assurances and meet the sanitary and phytosanitary measures of the importing Party.3

3.Prior to the commencement of an audit, the importing Party and exporting Party involved shall exchange information on the objectives and scope of the audit and other matters related specifically to the commencement of an audit.

4.The importing Party shall provide the exporting Party with an opportunity to comment on the finding of an audit and take any such comments into account before making its conclusions and taking any action. The importing Party shall provide a report or its summary, setting out its conclusions in writing to the exporting Party within a reasonable period of time. The importing Party shall inform the exporting Party if a request is required to provide such report or summary.

Article 5.9: Certification

1.In applying certification requirements, each Party shall take into account the relevant decisions of the WTO SPS Committee and international standards, guidelines, and recommendations.

2.An exporting Party shall ensure that the documents, including certificates, that are required by an importing Party and provided by the competent authorities of the exporting Party, to demonstrate the fulfilment of the sanitary and phytosanitary requirements of the importing Party, are in the English language, unless the importing Party and exporting Party agree otherwise.4 When the importing Party requires such documents, the importing Party shall endeavour to provide the requirements for such documents in the English language. Upon request, the importing Party shall provide a summary or explanation of such requirements.

3 For greater certainty, nothing in this paragraph prevents an importing Party from performing an inspection of a facility for the purposes of determining if the facility conforms with the importing Party’s sanitary or phytosanitary requirements or conforms with sanitary or phytosanitary requirements that the importing Party has determined to be equivalent to its sanitary or phytosanitary requirements.

4 For greater certainty, this provision does not prevent the Parties from including information for certification in other languages in addition to the English language.

3.The Parties recognise that an importing Party may, as appropriate, allow assurances with respect to sanitary or phytosanitary requirements to be provided through means other than certificates, and that different systems may be capable of meeting the same sanitary and phytosanitary objectives.

4.Where certification is required for trade in a good, the importing Party shall ensure that such certification requirements are applied only to the extent necessary to protect human, animal or plant life or health.

5.Without prejudice to each Party’s right to import controls, the importing Party shall accept certificates issued by the competent authorities of the exporting Party that are in compliance with the regulatory requirements of the importing Party.

Article 5.10: Import Checks

1.In applying import checks, each Party shall take into account the relevant decisions of the WTO SPS Committee and international standards, guidelines, and recommendations.

2.Import checks, conducted in accordance with the importing Party’s laws, regulations, and sanitary and phytosanitary requirements, shall be based on the sanitary and phytosanitary risk associated with importations. In the event that import checks reveal a non- compliance, the final decision or action taken by the importing Party shall be appropriate to the sanitary and phytosanitary risk associated with the importation of the non-compliant product.

3.If an importing Party prohibits or restricts the importation of a good of an exporting Party on the basis of non-compliance of that good found during an import check, the importing Party shall notify the importer or its representatives and, if the importing Party considers necessary, the exporting Party of such non-compliance.

4.When significant or recurring sanitary or phytosanitary non- compliance associated with exported consignments is identified by the importing Party, the Parties concerned shall, on request of either Party, discuss the non-compliance to ensure that appropriate remedial actions are taken to reduce such non- compliance.

Article 5.11: Emergency Measures

1.If a Party adopts an emergency measure that is necessary for the protection of human, animal or plant life or health and that may have an effect on trade, that Party shall immediately notify the relevant exporting Parties in writing through the contact point or contact points designated under Article 5.15 (Contact Points and Competent Authorities) or already established communication channels of the Parties.

2.The relevant exporting Parties may request discussions with the Party adopting an emergency measure referred to in paragraph

1.Such discussions shall be held as soon as practicable. Each Party participating in the discussions shall endeavour to provide relevant information, and shall take due account of any information provided through the discussions.

3.If a Party adopts an emergency measure, it shall review that measure within a reasonable period of time or on request of the exporting Party. The importing Party may, if necessary, request relevant information and the exporting Party shall endeavour to provide the relevant information to assist the importing Party in its review of the adopted emergency measure. The importing Party shall provide the result of the review to the exporting Party upon request. If the emergency measure is maintained after the review, the importing Party should review the measure periodically based on the most recent available information, and upon request, shall explain the reason for the continuation of the emergency measure.

Article 5.12: Transparency

1.The Parties recognise the importance of transparency as set out in Annex B of the SPS Agreement.

2.The Parties recognise the importance of the exchange of information on the development, adoption, and application of sanitary and phytosanitary measures that may have significant effects on trade among the Parties.

3.In implementing this Article, the Parties shall take into account the relevant decisions of the WTO SPS Committee and international standards, guidelines, and recommendations.

4.Each Party shall notify proposed measures or changes to sanitary or phytosanitary measures that may have a significant effect on the trade of other Parties through the online WTO Sanitary and Phytosanitary Measures Notification Submission System, the contact points designated under Article 5.15 (Contact Points and Competent Authorities), or already established communication channels of the Parties.

5.Unless urgent problems of health protection arise or threaten to arise, or the measure is of a trade facilitating nature, a Party shall normally allow a period of at least 60 days for other Parties to provide written comments after it makes a notification pursuant to paragraph 4. A Party shall consider reasonable requests from another Party to extend the comment period.

6.As part of the comment period referred to in paragraph 5, on request of another Party and if appropriate and feasible, the notifying Party shall consider any scientific or trade concerns and the availability of alternatives that the other Party may raise regarding the proposed measure.

7.Upon request, a Party shall, within 30 days of the request, provide the requesting Party with the documents or a summary of the documents describing the requirements of draft sanitary or phytosanitary measures notified to the WTO pursuant to paragraph 4, in the English language.

8.Following the notification of sanitary or phytosanitary measures to the WTO, upon request, a Party shall provide the requesting Party with the documents or a summary of the documents describing the requirements of the adopted sanitary or phytosanitary measures, within a reasonable period of time as agreed by the relevant Parties, in the English language.

9.A Party, on reasonable request of another Party, shall provide relevant information and clarification regarding any sanitary or phytosanitary measure to the requesting Party, within a reasonable period of time, including:

(a)the sanitary or phytosanitary requirements that apply to the import of specific products;

(b)the status of the requesting Party’s application; and

(c)procedures for authorising the import of specific products.

10.An exporting Party shall provide timely and appropriate information to relevant Parties through the contact points designated under Article 5.15 (Contact Points and Competent Authorities) or already established communication channels of the Parties, where there is a significant change in animal or plant health status or food safety issues in that exporting Party that may affect trade.

11.An importing Party shall provide timely and appropriate information to relevant Parties through the contact points designated under Article 5.15 (Contact Points and Competent Authorities) or already established communication channels of the Parties, where there is:

(a)significant or recurring sanitary or phytosanitary non- compliance associated with exported consignments identified by the importing Party; or

(b)a sanitary or phytosanitary measure adopted provisionally against or affecting the export of another Party considered necessary to protect human, animal or plant life or health within the importing Party.

12. An exporting Party shall, to the extent possible and as promptly as possible, provide information to the importing Party if the exporting Party identifies that an export consignment that may be associated with a significant sanitary or phytosanitary risk has been exported.

Article 5.13: Cooperation and Capacity Building

1.The Parties shall explore opportunities for further cooperation among the Parties, including capacity building, technical assistance, collaboration, and information exchange, on sanitary and phytosanitary matters of mutual interest, consistent with this Chapter, subject to the availability of appropriate resources.

2.Any two or more Parties may cooperate on any matter, including sector specific proposals, of mutual interest under this Chapter.

3.In undertaking cooperation activities, the Parties shall endeavour to coordinate with bilateral, regional, or multilateral work programmes, with the objective of avoiding unnecessary duplication and maximising the use of resources.

4.The Parties are encouraged to share information and the experiences of their cooperation activities with other Parties at the Committee on Goods.

Article 5.14: Technical Consultation

1.Where a Party considers that a sanitary or phytosanitary measure is affecting its trade with another Party, it may, through the contact points designated under Article 5.15 (Contact Points and Competent Authorities) or already established communication channels, request a detailed explanation of the sanitary or phytosanitary measure. The other Party shall respond promptly to any request for such explanation.

2.A Party may request to hold technical consultations with another Party in an attempt to resolve any concerns on specific issues arising from the application of the sanitary or phytosanitary measure. The requested Party shall respond promptly to any reasonable request for such consultation. The consulting Parties shall make every effort to reach a mutually satisfactory resolution.

3.Where a Party requests technical consultations, these shall take place within 30 days of the receipt of the request, unless otherwise agreed. Such consultation should aim to resolve the matter within 180 days of the date of the request, or a time frame agreed by the consulting Parties.

4.The technical consultations may be conducted via teleconference, videoconference, or through any other means agreed by the consulting Parties.

Article 5.15: Contact Points and Competent Authorities

1.Each Party shall, within 30 days of the date of entry into force of this Agreement for that Party:

(a) designate  one or  more   contact    points to  facilitate communication on matters covered under this Chapter;

(b) notify the other Parties of the contact details of that contact point or those contact points; and

(c) when more than one contact point is designated, specify a contact point that serves as the focal point to respond to

enquiries from another Party on the appropriate contact point with which to communicate.

2.  Each Party shall provide the other Parties, through the contact points, a description of its competent authorities and the division of their functions and responsibilities.

3.  Each Party shall notify the other Parties of any change to the contact points and significant changes in the structure, organisation, and division of responsibility within its competent authorities. Each Party shall keep this information up to date.

4.  The Parties recognise the importance of the competent authorities in the implementation of this Chapter. Accordingly, the competent authorities of the Parties may cooperate with each other on matters covered by this Chapter in a manner to be agreed. The Parties are encouraged to share information and experiences of such cooperation of their competent authorities with the Committee on Goods where the Parties agree to do so.

Article 5.16: Implementation

The Parties may, where mutually agreed, develop bilateral or plurilateral arrangements to set out mutually determined understandings and details for applying this Chapter. The Parties that have adopted such arrangements under this Chapter are encouraged, where mutually agreed, to report such arrangements to the Committee on Goods.

Article 5.17: Dispute Settlement

1.  Chapter 19 (Dispute Settlement) shall not apply to this Chapter at the entry into force of this Agreement.

2.  The non-application of Chapter 19 (Dispute Settlement) shall be subject to review two years after the date of entry into force of this Agreement. In the course of the review, Parties shall give due consideration to the application of Chapter 19 (Dispute Settlement) to either the whole or parts of this Chapter. Such a review shall be completed within three years from the date of entry into force of this Agreement. After which those Parties that are ready shall proceed to apply Chapter 19 (Dispute Settlement) to this Chapter as between one another. A Party that is not ready will consult other Parties and may apply Chapter 19 (Dispute Settlement) to this Chapter when it becomes party to any future

free trade agreement or economic agreement in which it takes on a similar obligation.