(a) effective enforcement by each Party of its environmental laws and regulations;
(b) compliance with those laws and regulations; and
(c) technical cooperation between the Parties.
6. The Council shall promote and, as appropriate, develop recommendations regarding:
(a) public access to information concerning the environment that is held by public authorities of each Party, including information on hazardous materials and activities in its communities, and opportunity to participate in decision-making processes related to such public access; and
(b) appropriate limits for specific pollutants, taking into account differences in ecosystems.
7. The Council shall cooperate with the CCFTA Free Trade Commission to achieve the environmental goals and objectives of the CCFTA by:
(a) acting as a point of inquiry and receipt for comments from non-governmental organizations and persons concerning those goals and objectives;
(b) providing assistance in consultations under Article G-14 of the CCFTA where a Party considers that the other Party is waiving or derogating from, or offering to waive or otherwise derogate from, an environmental measure as an encouragement to establish, acquire, expand or retain an investment of an investor, with a view to avoiding any such encouragement;
(c) contributing to the prevention or resolution of environment-related trade disputes by:
(i) seeking to avoid disputes between the Parties,
(ii) making recommendations to the Free Trade Commission with respect to the avoidance of such disputes, and
(iii) identifying experts able to provide information or technical advice to CCFTA committees, working groups and other CCFTA bodies;
(d) considering on an ongoing basis the environmental effects of the CCFTA; and
(e) otherwise assisting the Free Trade Commission in environment-related matters.
Section B: The National Secretariats
Article 11: National Secretariat
Each Party shall establish a National Secretariat and notify the other Party of its location.
Each Party shall designate an Executive Secretary for its National Secretariat, who shall be responsible for its administration and management.
The National Secretariats shall provide technical, administrative and operational support to the Council and to committees and groups established by the Council, and such other support as the Council may direct.
The National Secretariats shall jointly submit for the approval of the Council the annual program of work and budget of the Commission, including provisions for proposed cooperative activities and for the National Secretariats to respond to contingencies. The annual program of work shall identify how its implementation shall be financed and clearly define how it shall be implemented, including identification of institutions, agencies, individuals, and/or cooperative arrangements whereby it shall be implemented. In developing the annual program of work, the National Secretariats shall consider issues arising from factual records previously prepared, or under preparation, by the Commission.
The National Secretariats shall, as appropriate, provide the public information on where they may receive technical advice and expertise with respect to environmental matters.
The National Secretariats and the Joint Submission Committee shall safeguard:
(a) from disclosure information they receive that could identify a non-governmental organization or person making a submission if the person or organization so requests or the National Secretariats or the Joint Submission Committee otherwise consider it appropriate; and
(b) from public disclosure any information they receive from any non-governmental organization or person where the information is designated by that non-governmental organization or person as confidential or proprietary.
Article 12: The Joint Submission Committee
A Joint Submission Committee consisting of two members, one from each Party, shall be established within six months of the entry into force of this Agreement. The members shall be chosen by the Council for a three year term, which may be renewed by the Council for one additional three year term.
The members of the Joint Submission Committee shall be chosen in accordance with general standards to be established by the Council. The general standards shall provide that the members shall:
(a) be familiar with environmental law and its enforcement;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent of, and not be affiliated with or take instruction from, either Party; and
(d) comply with a code of conduct.
Article 13: Annual Report of the Commission
The National Secretariats shall jointly prepare an annual report of the Commission in accordance with instructions from the Council. The National Secretariats shall submit jointly a draft of the report for review by the Council. The final report shall be released publicly.
The report shall cover:
(a) activities and expenses of the Commission during the previous year;
(b) the approved program and budget of the Commission for the subsequent year;
(c) the actions taken by each Party in connection with its obligations under this Agreement, including data on the Party's environmental enforcement activities;
(d) relevant views and information submitted by non-governmental organizations and persons, including summary data regarding submissions, and any other relevant information the Council deems appropriate;
(e) recommendations made on any matter within the scope of this Agreement; and
(f) any other matter that the Council instructs the National Secretariats to include.
3. The report shall periodically address the state of the environment in the territories of the Parties.
Article 14: Submissions on Enforcement Matters
1. A submission on enforcement matters may be sent to either National Secretariat. When a National Secretariat receives a submission it will provide a copy to the other National Secretariat. The National Secretariats may consider in consultation with each other a submission from any non-governmental organization or person asserting that a Party is failing to effectively enforce its environmental law. The submission will be forwarded to the Joint Submission Committee if either National Secretariat finds that a submission:
(a) is in writing in one of the official languages of the Agreement;
(b) clearly identifies the person or organization making the submission;
(c) provides sufficient information to allow for the review of the submission, including any documentary evidence on which the submission may be based;
(d) appears to be aimed at promoting enforcement rather than at harassing industry;
(e) indicates that the matter has been communicated in writing to the relevant authorities of the Party and indicates the Party's response, if any;
(f) is filed by a person or organization residing or established in the territory of a Party; and
(g) includes, in the case of submissions sent by a person or organization residing or established in the territory of Canada, a declaration to the effect that the matter will not subsequently be submitted to the Secretariat of the Commission for Environmental Cooperation under the North American Agreement on Environmental Cooperation, with a view to avoiding duplication in the handling of submissions.
2. In deciding whether the submission merits requesting a response from the Party, the Joint Submission Committee shall be guided by whether:
(a) the submission alleges harm to the person or organization making the submission;
(b) the submission, alone or in combination with other submissions, raises matters whose further study in this process would advance the goals of this Agreement;
(c) private remedies available under the Party's law have been pursued; and
(d) the submission is drawn exclusively from mass media reports.
Where the Joint Submission Committee makes such a request, it shall forward to the Party a copy of the submission and any supporting information provided with the submission.
3. The Party shall advise the Joint Submission Committee within 30 days or, in exceptional circumstances and on notification to the Joint Submission Committee, within 60 days of delivery of the request:
(a) whether the matter is the subject of a pending judicial or administrative proceeding, or whether the matter has previously been or is presently being considered by the Secretariat of the Commission for Environmental Cooperation of the North American Agreement on Environmental Cooperation, in which case the Joint Submission Committee shall proceed no further; and
(b) of any other information that the Party wishes to submit, such as
i) whether the matter was previously the subject of a judicial or administrative proceeding, and
ii) whether private remedies in connection with the matter are available to the person or organization making the submission and whether they have been pursued.
Article 15: Factual Record
If the Joint Submission Committee considers that the submission, in light of any response provided by the Party, warrants developing a factual record, the Joint Submission Committee shall so inform the Council and provide its reasons.
A factual record shall be prepared if a Party so decides. In cases to which paragraph 2 of Annex 41 applies, a factual record shall be prepared if the Council so agrees. The National Secretariat of the Party which is not the subject of the submission shall then commission an expert in environmental matters, selected from a roster of such experts established by the Parties within 6 months following the entry into force of this Agreement, to prepare a factual record.
The preparation of a factual record pursuant to this Article shall be without prejudice to any further steps that may be taken with respect to any submission.
In preparing a factual record, the expert in environmental matters shall consider any information furnished by a Party and may consider any relevant technical, scientific or other information:
(a) that is publicly available;
(b) submitted by interested non-governmental organizations or persons;
(c) submitted by the Joint Public Advisory Committee; or
(d) developed by independent experts.
5. The expert in environmental matters shall submit a draft factual record for consideration by the Council. Any Party may provide comments on the accuracy of the draft within 45 days thereafter.
6. The expert in environmental matters shall incorporate, as appropriate, any such comments in the final factual record and submit it for the consideration of the Council.
7. At the request of either Party, the Council shall make the final factual record publicly available within 60 days following its submission.
Section C: Advisory Committees
Article 16: Joint Public Advisory Committee
The Joint Public Advisory Committee shall comprise six members, unless the Council otherwise decides. Each Party shall appoint an equal number of members.
The Council shall establish the rules of procedure for the Joint Public Advisory Committee, which shall choose its own chair.
The Joint Public Advisory Committee shall convene at least once a year at the time of the regular session of the Council and at such other times as the Council, or the Committee's chair with the consent of a majority of its members, may decide.
The Joint Public Advisory Committee may provide advice to the Council on any matter within the scope of this Agreement, including on any documents provided to it under paragraph 6, and on the implementation and further elaboration of this Agreement, and may perform such other functions as the Council may direct.
The Joint Public Advisory Committee may provide relevant technical, scientific or other information to the National Secretariats, including for purposes of developing a factual record under Article 15. The National Secretariats shall provide to the Council copies of any such information.
The National Secretariats shall provide to the Joint Public Advisory Committee at the time they are submitted to the Council copies of the proposed annual program of work and budget of the Commission and the draft annual report.
Article 17: National Advisory Committees
Each Party may convene a national advisory committee, comprising members of its public, including representatives of non-governmental organizations and persons, to advise it on the implementation and further elaboration of this Agreement.
Article 18: Governmental Committees
Each Party may convene a governmental committee, which may comprise or include representatives of national and provincial governments, to advise it on the implementation and further elaboration of this Agreement.
Section D: Official Languages
Article 19: Official Languages
The official languages of the Commission shall be English, French and Spanish. All annual reports under Article 13, factual records submitted to the Council under Article 15(6) and panel reports under Part Five shall be available in each official language at the time they are made public. The Council shall establish rules and procedures regarding interpretation and translation.
Part Four. Cooperation and Provision of Information
Article 20: Cooperation
The Parties shall at all times endeavour to agree on the interpretation and application of this Agreement, and shall make every attempt through cooperation and consultations to resolve any matter that might affect its operation.
To the maximum extent possible, each Party shall notify the other Party of any proposed or actual environmental measure that the Party considers might materially affect the operation of this Agreement or otherwise substantially affect that other Party's interests under this Agreement.
On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any such actual or proposed environmental measure, whether or not the other Party has been previously notified of that measure.
A Party may notify the other Party of, and provide to that Party, any credible information regarding possible violations of its environmental law, specific and sufficient to allow the other Party to inquire into the matter. The notified Party shall take appropriate steps in accordance with its law to so inquire and to respond to the other Party.
Article 21: Provision of Information
1. On request of the Council, a National Secretariat or the members of the Joint Submission Committee, each Party shall, in accordance with its law, provide such information as the Council, a National Secretariat or the members of the Joint Submission Committee may require, including:
(a) promptly making available any information in its possession required for the preparation of a report or factual record, including compliance and enforcement data; and
(b) taking all reasonable steps to make available any other such information requested.
2. If a Party considers that a request for information from a National Secretariat or the members of the Joint Submission Committee is excessive or otherwise unduly burdensome, it may so notify the Council. The National Secretariat or the members of a Joint Submission Committee shall revise the scope of the request to comply with any limitations established by the Council.
3. If a Party does not make available information requested by a National Secretariat, or the Joint Submission Committee, as may be limited pursuant to paragraph 2, it shall promptly advise the National Secretariat or the Joint Submission Committee, as appropriate, of its reasons in writing.
Part Five. Consultation and Resolution of Disputes
Article 22: Consultations
Either Party may request in writing consultations with the other Party regarding whether there has been a persistent pattern of failure by the other Party to effectively enforce its environmental law.
In such consultations, the Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter.
Article 23: Initiation of Procedures
If the Parties fail to resolve the matter pursuant to Article 22 within 60 days of delivery of a request for consultations, or such other period as the Parties may agree, either Party may request in writing a special session of the Council.
The requesting Party shall state in the request the matter complained of and shall deliver the request to the other Party.
Unless agreed otherwise, the Council shall convene within 20 days of the delivery of the request and shall endeavour to resolve the dispute promptly.
The Council may:
(a) call on such technical advisers or create such working groups or expert groups as it deems necessary,
(b) have recourse to good offices, conciliation, mediation or such other dispute resolution procedures, or
(c) make recommendations,
as may assist the Parties to reach a mutually satisfactory resolution of the dispute. Any such recommendations shall be made public if the Council so decides.
5. Where the Council decides that a matter is more properly covered by another agreement or arrangement to which the Parties are party, it shall refer the matter for appropriate action in accordance with such other agreement or arrangement.
Article 24: Request for an Arbitral Panel
1. If the matter has not been resolved within 60 days after the Council has convened pursuant to Article 23, the Council shall, on the written request of either Party, convene an arbitral panel to consider the matter where the alleged persistent pattern of failure by the Party complained against to effectively enforce its environmental law relates to a situation involving workplaces, firms, companies or sectors that produce goods or provide services:
(a) traded between the territories of the Parties; or
(b) that compete, in the territory of the Party complained against, with goods or services produced or provided by persons of the other Party.
2. Unless otherwise agreed by the Parties, the panel shall be established and perform its functions in a manner consistent with the provisions of this Part.
Article 25: Roster
The Council shall establish and maintain a roster of up to 30 individuals, six of whom must not be citizens of either of the Parties, who are willing and able to serve as panelists. The roster members shall be appointed by mutual agreement for terms of three years, and may be reappointed.
Roster members shall:
(a) have expertise or experience in environmental law or its enforcement, or in the resolution of disputes arising under international agreements, or other relevant scientific, technical or professional expertise or experience;
(b) be chosen strictly on the basis of objectivity, reliability and sound judgment;
(c) be independent of, and not be affiliated with or take instructions from, either Party or the Joint Public Advisory Committee; and
(d) comply with a code of conduct to be established by the Council.
Article 26: Qualifications of Panelists
All panelists shall meet the qualifications set out in Article 25(2).
Individuals may not serve as panelists for a dispute in which:
(a) they have participated pursuant to Article 23(4); or
(b) they have, or a person or organization with which they are affiliated has, an interest, as set out in the code of conduct established under Article 25(2)(d).
Article 27: Panel Selection
1. For purposes of selecting a panel, the following procedures shall apply:
(a) The panel shall comprise five members.
(b) The Parties shall endeavour to agree on the chair of the panel within 15 days after the Council decides to convene the panel. If the Parties are unable to agree on the chair within this period, the Party chosen by lot shall select within five days a chair who is not a citizen of that Party.
(c) Within 15 days of selection of the chair, each Party shall select two panelists who are citizens of the other Party.
(d) If either Party fails to select its panelists within such period, such panelists shall be selected by lot from among the roster members who are citizens of the other Party.
2. Panelists shall normally be selected from the roster. Either Party may exercise a peremptory challenge against any individual not on the roster who is proposed as a panelist by the other Party within 30 days after the individual has been proposed.
3. If either Party believes that a panelist is in violation of the code of conduct, the Parties shall consult and, if they agree, the panelist shall be removed and a new panelist shall be selected in accordance with this Article.
Article 28: Rules of Procedure
1. The Council shall establish Model Rules of Procedure. The procedures shall provide:
(a) a right to at least one hearing before the panel;
(b) the opportunity to make initial and rebuttal written submissions; and
(c) that no panel may disclose which panelists are associated with majority or minority opinions.
2. Unless the Parties otherwise agree, panels convened under this Part shall be established and conduct their proceedings in accordance with the Model Rules of Procedure.
3. Unless the Parties otherwise agree within 20 days after the Council convenes the panel, the terms of reference shall be:
"To examine, in light of the relevant provisions of the Agreement, including those contained in Part Five, whether there has been a persistent pattern of failure by the Party complained against to effectively enforce its environmental law, and to make findings, determinations and recommendations in accordance with Article 30(2)."
Article 29: Role of Experts
On request of either Party, or on its own initiative, the panel may seek information and technical advice from any person or body that it deems appropriate, provided that the Parties so agree and subject to such terms and conditions as the Parties may agree.