(f) for a Party to share information, as appropriate, on a sanitary or phytosanitary matter that has arisen between it and another Party or Parties.
3. The SPS Committee may serve as a forum:
(a) if appropriate, to identify and develop technical assistance and cooperation projects between the Parties on sanitary and phytosanitary measures;
(b) to consult on matters and positions for meetings of the WTO SPS Committee, and meetings held under the auspices of the Codex Alimentarius Commission, the World Organisation for Animal Health, the International Plant Protection Convention, and other international organizations as appropriate;
(c) to identify, prioritize, manage, and resolve bilateral or trilateral issues;
(d) to review progress on addressing specific trade concerns related to the application of a sanitary or phytosanitary measure, with a view to facilitating mutually acceptable solution;
(e) to establish and, as appropriate, determine the scope and mandate of technical working groups in areas such as, animal health, plant health, food safety, or pesticides, taking into account existing mechanisms, to undertake work related to the implementation of this Chapter;
(f) to provide guidance to technical working groups, as needed and appropriate, for the identification, prioritization, and management of sanitary or phytosanitary matters;
(g) to request updates and discuss the work of the technical working groups;
(h) to review the recommendation from a technical working group regarding whether it should be continued, suspended, or dissolved;
(i) to seek, to the extent practicable, the assistance of relevant international or regional organizations, such as the North American Plant Protection Organization, to obtain available scientific and technical advice and minimize duplication of effort; and
(j) to facilitate the development, as appropriate, of common principles, guidelines and approaches on matters covered by this Chapter.
4. The SPS Committee shall establish its terms of reference at its first meeting and may revise those terms of reference as needed.
5. The SPS Committee shall meet within one year of the date of entry into force of this Agreement and once a year thereafter unless the Parties decide otherwise.
6. The SPS Committee shall report annually to the Commission on the implementation of this Chapter.
Article 9.18. Technical Working Groups
1. A Technical Working Group may function on an on-going or ad hoc basis.
2. Any on-going technical working group shall meet on an annual basis unless otherwise decided by the Parties participating in the technical working group. Any ad hoc technical working group shall meet as frequently as decided by the Parties participating in the technical working group.
3. At the first meeting of a technical working group, the participating Parties shall establish the working group's terms of reference, unless the Parties decide otherwise.
4. Any technical working group established under Article 9.17.3(e) (Committee on Sanitary and Phytosanitary Measures) may:
(a) engage, at the earliest appropriate stage, in scientific or technical exchange and cooperation regarding sanitary or phytosanitary matters;
(b) consider any sanitary or phytosanitary measure or set of measures identified by any Party that are likely to affect, directly or indirectly, trade, and provide technical advice with a view to facilitating the resolution of specific trade concerns relating to those measures;
(c) serve as a forum to facilitate discussion and consideration of specific risk assessments and possible risk management options;
(d) provide an opportunity for Parties to discuss developments relevant to the work of the technical working group;
(e) discuss other issues related to this Chapter; and
(f) report to the SPS Committee on progress of work, as appropriate.
5. A technical working group may provide the SPS Committee with the recommendation that it be continued, suspended, or dissolved.
6. Each technical working group shall be co-chaired by representatives of the participating Parties.
7. The Parties may seek to resolve any specific trade concern through the relevant technical working group.
Article 9.19. Technical Consultations
1. Recognizing that trade matters arising under this Chapter are best resolved by the appropriate competent authority, if a Party has concerns regarding any matter arising under this Chapter with respect to another Party, the Party shall endeavor to resolve the matter through available administrative procedures of the relevant competent authority or through a relevant technical working group established by the SPS Committee, if it considers that it is appropriate to do so. A Party may have recourse to technical consultations set out in paragraph 2 at any time it considers that the use of the relevant administrative procedures, the relevant technical working group, or other mechanisms would not resolve the matter.
2. A Party (requesting Party) may initiate technical consultations with another Party (responding Party) to discuss any matter arising under this Chapter that may adversely affect its trade by delivering a written request to the Contact Point of the responding Party. The request shall identify the reason for the request, including a description of the requesting Party's concerns about the matter.
3. The requesting and responding Parties shall meet within 30 days of the responding Party's receipt of the request, with the aim of resolving the matter cooperatively within 180 days of the request if possible.
4. The requesting and responding Parties shall ensure the appropriate involvement of relevant trade representatives and competent authorities in meetings held pursuant to this Article.
5. Recognizing that Parties may decide to engage in consultations pursuant to this Article for any length of time, the requesting Party may cease technical consultations under this Article and have recourse to dispute settlement under Chapter 31 (Dispute Settlement) following the meeting referred to in paragraph 3 or if the meeting is not held within 30 days as specified in paragraph 3.
6. No Party shall have recourse to dispute settlement under Chapter 31 (Dispute Settlement) for a matter arising under this Chapter without first seeking to resolve the matter through technical consultations in accordance with this Article.
Article 9.20. Dispute Settlement
In a dispute under this Chapter that involves scientific or technical issues, a panel should seek advice from experts chosen by the panel in consultation with the disputing Parties. To this end, the panel may, if it deems appropriate, establish an advisory technical experts group, or consult the relevant international standard setting organizations, at the request of a disputing Party or on its own initiative.
Chapter 10. TRADE REMEDIES
Section A. Safeguards
Article 10.1. Definitions
For the purposes of this Section:
competent investigating authority means:
(a) for Canada, the Canadian International Trade Tribunal, or its successor;
(b) for Mexico, the International Trade Practices Unit of the Secretaria de Economia, or its successor; and
(c) for the United States, the United States International Trade Commission, or its successor;
Article 10.2. Rights and Obligations
1. Each Party retains its rights and obligations under Article XIX of the GATT 1994 and the Safeguards Agreement except those regarding compensation or retaliation and exclusion from an action to the extent that such rights or obligations are inconsistent with this Article. Any Party taking an emergency action under Article XIX and the Safeguards Agreement shall exclude imports of a good from each other Party from the action unless:
(a) imports from a Party, considered individually, account for a substantial share of total imports; and
(b) imports from a Party considered individually, or in exceptional circumstances imports from Parties considered collectively, contribute importantly to the serious injury, or threat thereof, caused by imports.
2. In determining whether:
(a) imports from a Party, considered individually, account for a substantial share of total imports, those imports normally shall not be considered to account for a substantial share of total imports if that Party is not among the top five suppliers of the good subject to the proceeding, measured in terms of import share during the most recent three-year period; and
(b) imports from a Party or Parties contribute importantly to the serious injury, or threat thereof, the competent investigating authority shall consider such factors as the change in the import share of each Party, and the level and change in the level of imports of each Party. In this regard, imports from a Party normally shall not be deemed to contribute importantly to serious injury, or the threat thereof, if the growth rate of imports from a Party during the period in which the injurious surge in imports occurred is appreciably lower than the growth rate of total imports from all sources over the same period.
3. A Party taking such action, from which a good from another Party or Parties is initially excluded pursuant to paragraph 1, shall have the right subsequently to include that good from the other Party or Parties in the action in the event that the competent investigating authority determines that a surge in imports of such good from the other Party or Parties undermines the effectiveness of the action.
4. A Party shall, without delay, deliver written notice to the other Parties of the institution of a proceeding that may result in emergency action under paragraph 1 or 3.
5. No Party may impose restrictions on a good in an action under paragraph 1 or 3:
(a) without delivery of prior written notice to the Commission, and without adequate opportunity for consultation with the Party or Parties against whose good the action is proposed to be taken, as far in advance of taking the action as practicable; and
(b) that would have the effect of reducing imports of such good from a Party below the trend of imports of the good from that Party over a recent representative base period with allowance for reasonable growth.
6. The Party taking an action pursuant to this Article shall provide to the Party or Parties against whose good the action is taken mutually agreed trade liberalizing compensation in the form of concessions having substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the action. If the Parties concerned are unable to agree on compensation, the Party against whose good the action is taken may take action having trade effects substantially equivalent to the action taken under paragraph 1 or 3.
Article 10.3. Administration of Emergency Action Proceedings
Each Party shall entrust determinations of serious injury, or threat thereof, in emergency action proceedings to a competent investigating authority, subject to review by judicial or administrative tribunals, to the extent provided by domestic law. Negative injury determinations shall not be subject to modification, except by such review. The competent investigating authority empowered under domestic law to conduct such proceedings should be provided with the necessary resources to enable it to fulfill its duties.
Section B. Antidumping and Countervailing Duties
Article 10.4. Definitions
For purposes of this Section and Annex 10-A (Practices Relating to Antidumping and Countervailing Duty Proceedings):
confidential information means information that is provided to an investigating authority on a confidential basis and that is by its nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), whether in its original form or in a form other than the one in which it was originally provided;
interested party (1) means:
(a) an exporter, foreign producer, or importer of a product subject to a proceeding, or a trade or business association a majority of the members of which are producers, exporters, or importers of such product;
(b) the government of the exporting Party;
(c) a producer of the like product in the territory of the importing Party, or a trade and business association a majority of the members of which produce the like product in the territory of the importing Party; or
(d) any other person treated as an interested party by the investigating authority of the importing Party;
investigating authority means any authority of a Party that conducts antidumping or countervailing duty proceedings;
proceeding means:
(a) for Mexico, an antidumping or countervailing duty investigation, review, or other relevant set of formalities and acts provided by the legal system which precede the issuance of the administrative act conducted by an investigating authority; and
(b) for Canada and the United States, all segments of a proceeding, and begins on the date of the formal filing of an antidumping or countervailing duty application, or the publication of a notice of initiation in a self-initiated investigation, and ends with the conclusion of all administrative action pertaining to the product under consideration. For Canada, the formal filing of an antidumping or countervailing duty application corresponds to the determination that a complaint is properly documented;
responding party means:
(a) for Canada and Mexico, a person or entity that an investigating authority of a Party requires to respond to an antidumping or countervailing duty questionnaire or any other request; and
(b) for the United States, a producer, manufacturer, exporter, importer, or, where appropriate, a government or government entity, that an investigating authority of a Party requires to respond to an antidumping or countervailing duty questionnaire; and
segment of a proceeding means for Canada and the United States, (2) an antidumping or countervailing duty investigation, review, or other relevant action conducted by an investigating authority. For Canada, relevant actions conducted by an investigating authority do not cover duty assessment and related procedures.
Article 10.5. Rights and Obligations
1. Each Party retains its rights and obligations under Article VI of GATT 1994, the AD Agreement, and the SCM Agreement.
2. Except as provided in Annex 10-A (Practices Relating to Antidumping and Countervailing Duty Proceedings), nothing in this Agreement shall be construed to confer any rights or impose any obligations on the Parties with respect to antidumping or countervailing duty proceedings or measures taken pursuant to Article VI of GATT 1994, the AD Agreement, or the SCM Agreement.
3. No Party shall have recourse to dispute settlement under this Agreement for any matter arising under this Section or Annex 10-A (Practices Relating to Antidumping and Countervailing Duty Proceedings).
Section C. Cooperation on Preventing Duty Evasion of Trade Remedy Laws
Article 10.6. General
1. The Parties recognize their shared concerns regarding duty evasion (3) of antidumping, countervailing, and safeguard duties, and the importance of cooperation, including through information sharing, to combat duty evasion.
2. The Parties agree to strengthen and expand their customs and trade enforcement efforts in matters related to duty evasion, and to strengthen their cooperation as set out in the Article 10.7 (Duty Evasion Cooperation).
Article 10.7. Duty Evasion Cooperation
1. Each Party shall, in accordance with its law cooperate with the other Parties for the purposes of enforcing or assisting in the enforcement of their respective measures concerning duty evasion.
2. Each Party shall, subject to its law, share customs information with the other Parties pertaining to imports, exports, and transit transactions, to help enable the Parties to combat duty evasion and conduct joint or coordinated analysis and investigations of suspected duty evasion. In addition, each Party shall maintain a mechanism through which it can share information with the other Parties regarding entries that may involve evasion of antidumping, countervailing, or safeguard duties, including the information described in paragraph 3. The information referred to in this paragraph may be trader-specific or it may include an industry sector or group of traders.
3. Each Party shall, subject to its law and on the request of another Party, provide the requesting Party with information collected in connection with the imports, exports and transit, and other relevant information that it has or can reasonably obtain, that will help enable the requesting Party to determine whether an entry into its territory is subject to antidumping, countervailing, or safeguard duties imposed by the requesting Party. (4)
4. A request for information described in paragraph 3 shall be made in writing, by the customs administration of the requesting Party to the customs authority of the requested Party, by electronic means or any other acceptable method, and shall include sufficient information for the requested Party to respond.
5. A Party may request in writing that another Party conduct a duty evasion verification (5) in the requested Party's territory for the purposes of obtaining information, including documents, from an exporter or producer, to enable the requesting Party to determine whether a particular entry into the requesting Party's territory is subject to antidumping, countervailing, or safeguard duties imposed by the requesting Party. The requested Party shall respond to the request promptly and in any case no later than 30 days after the date it receives the request. The response must include whether it will conduct the duty evasion verification. If the Party does not intend to conduct the duty evasion verification, the response must indicate the basis for refusal. If a Party will conduct the duty evasion verification, the response must indicate the intended timing and other relevant details.
6. If the requested Party conducts a duty evasion verification under paragraph 5 it shall provide the requesting Party promptly on completing the duty evasion verification a report containing the relevant information including data and documents, obtained during its duty evasion verification.
7. Regardless of whether a request to conduct a verification was made under paragraph 5, a duty evasion verification may be conducted in the relevant facilities located in the territory of the requested Party, as a result of a request. The requested Party normally shall grant the other Party access to its territory to participate in the duty evasion verification, absent extraordinary circumstances, provided that:
(a) the duty evasion verification is subject to mutually agreed conditions and procedures between the Parties; (6)
(b) the requesting Party gives reasonable advance notice to the requested Party before the proposed date of the duty evasion verification; and
(c) the parties to be verified in the requested Party consent to the duty evasion verification.
8. Each Party shall maintain procedures that permit the sharing of confidential information with the other Parties, as a result of a request under paragraph 3 or a duty evasion verification report under paragraph 6, for the limited purpose of determining if duty evasion exists. If a Party, or a verified party, provides information to another Party in accordance with this Section and designates the information as confidential or is confidential under the receiving Party's law, such receiving Party shall keep the information confidential in accordance with its law. If the receiving Party has not kept the information confidential in accordance with its law, a Party may decline to provide information requested by another Party in future requests for confidential information. The receiving Party may use or disclose confidential information received from the other Party under this Section but only for the purposes of administration or enforcement of its customs laws or as otherwise provided under the Party's law, including in an administrative, quasi-judicial, or judicial proceeding.
Section D. REVIEW AND DISPUTE SETTLEMENT IN ANTIDUMPING AND COUNTERVAILING DUTY MATTERS
Article 10.8. Definitions
For purposes of this Section and Annex 10-B.1 (Establishment of Binational Panels), Annex 10-B.2 (Panel Procedures under Article 10.11), Annex 10-B.3 (Extraordinary Challenge Procedure), Annex 10-B.4 (Special Committee Procedures), and Annex 10-B.5 (Amendments to Domestic Laws):
administrative record means, unless otherwise agreed by the Parties and the other persons appearing before a panel:
(a) all documentary or other information presented to or obtained by the competent investigating authority in the course of the administrative proceeding, including any governmental memoranda pertaining to the case, and including any record of ex parte meetings as may be required to be kept;
(b) acopy of the final determination of the competent investigating authority, including reasons for the determination;
(c) all transcripts or records of conferences or hearings before the competent investigating authority; and
(d) all notices published in the official journal of the importing Party in connection with the administrative proceeding;
antidumping statute means:
(a) in the case of Canada, the relevant provisions of the Special Import Measures Act, as amended, and any successor statutes;
(b) in the case of Mexico, the relevant provisions of the Foreign Trade Act (Ley de Comercio Exterior), as amended, and any successor statutes;
(c) in the case of the United States, the relevant provisions of Title VII of the Tariff Act of 1930, as amended, and any successor statutes ; and
(d) the provisions of any other statute that provides for judicial review of final determinations under subparagraph (a), (b), or (c), or indicates the standard of review to be applied to such determinations;
competent investigating authority means:
(a) in the case of Canada:
(i) the President of the Canada Border Services Agency as defined in the Special Import Measures Act, as amended, or the President's successor; or
(ii) the Canadian International Trade Tribunal, or its successor;
(b) in the case of Mexico, the designated authority within the Secretariat of Economy (Secretaria de Economia), or its successor; and
(c) in the case of the United States:
(i) the International Trade Administration of the United States Department of Commerce, or its successor, of
(ii) the United States International Trade Commission, or its successor;
countervailing duty statute means:
(a) in the case of Canada, the relevant provisions of the Special Import Measures Act, as amended, and any successor statutes;
(b) in the case of Mexico, the relevant provisions of the Foreign Trade Act (Ley de Comercio Exterior), as amended, and any successor statutes;
(c) in the case of the United States, section 303 and the relevant provisions of Title VII of the Tariff Act of 1930, as amended, and any successor statutes; and
(d) the provisions of any other statute that provides for judicial review of final determinations under subparagraph (a), (b), or (c), or indicates the standard of review to be applied to such determinations;
domestic law for purposes of Article 10.13.1 (Safeguarding the Panel Review System) means a Party's constitution, statutes, regulations and judicial decisions to the extent they are relevant to the antidumping and countervailing duty laws;
final determination means:
(a) in the case of Canada:
(i) an order or finding of the Canadian International Trade Tribunal under subsection 43(1) of the Special Import Measures Act,
(ii) an order by the Canadian International Trade Tribunal under subsection 76(4) of the Special Import Measures Act, as amended, continuing an order or finding made under subsection 43(1) of the Act with or without amendment,
(iii) a determination by the President of the Canada Border Services Agency pursuant to section 41 of the Special Import Measures Act, as amended,
(iv) a redetermination by the President pursuant to section 59 of the Special Import Measures Act, as amended,
(v) a decision by the Canadian International Trade Tribunal pursuant to subsection 76(3) of the Special Import Measures Act, as amended, not to initiate a review,
(vi) a reconsideration by the Canadian International Trade Tribunal pursuant to subsection 91(3) of the Special Import Measures Act, as amended, and
(vii) a review by the President of an undertaking pursuant to subsection 53(1) of the Special Import Measures Act, as amended; and
(b) in the case of Mexico:
(i) a final resolution regarding antidumping or countervailing duties investigations by the Secretariat of Economy (Secretaria de Economia), pursuant to Article 59 of the Foreign Trade Act (Ley de Comercio Exterior), as amended,
(ii) final resolution regarding an annual administrative review of antidumping or countervailing duties by the Secretariat of Economy (Secretaria de Economia), as described in subparagraph (0) of its Schedule to Annex 10- B.5 (Amendments to Domestic Laws), and
(iii) a final resolution by the Secretariat of Economy (Secretaria de Economia), as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing antidumping or countervailing duty resolution; and
(c) in the case of the United States:
(i) a final affirmative determination by the International Trade Administration of the United States Department of Commerce or by the United States International Trade Commission under section 705 or 735 of the Tariff Act of 1930, as amended, including any negative part of such a determination,
(ii) a final negative determination by the International Trade Administration of the United States Department of Commerce or by the United States International Trade Commission under section 705 or 735 of the Tariff Act of 1930, as amended, including any affirmative part of such a determination,
(ii) a final determination, other than a determination in (iv), under section 751 of the Tariff Act of 1930, as amended,
(iv) adetermination by the United States International Trade Commission under section 751(b) of the Tariff Act of 1930, as amended, not to review a determination based on changed circumstances, and (v) a final determination by the International Trade Administration of the United States Department of Commerce as to whether a particular type of merchandise is within the class or kind of merchandise described in an existing finding of dumping or antidumping or countervailing duty order; foreign interests includes exporters or producers of the Party whose goods are the subject of the proceeding or, in the case of a countervailing duty proceeding, the government of the Party whose goods are the subject of the proceeding;
general legal principles includes principles such as standing, due process, rules of statutory construction, mootness and exhaustion of administrative remedies;