In bilateral safeguard investigations, the accredited interested parties shall be given the opportunity to participate in a public hearing convened by the competent investigating authority for the purpose of allowing them to present the arguments they deem pertinent. The date of the public hearing shall be notified to the interested accredited parties at least 14 days in advance.
Article 6.9. Provisional Bilateral Safeguard Measures
1. In critical circumstances, where any delay would cause injury which would be difficult to repair, the Parties may adopt a provisional bilateral safeguard measure pursuant to a duly grounded and motivated preliminary determination of the existence of clear evidence that increased imports subject to tariff preference have caused or threaten to cause serious injury to the domestic industry of the other Party.
2. The duration of the provisional bilateral safeguard measure shall not exceed 180 days. 3. Upon notification of the resolution imposing a provisional bilateral safeguard measure, at the request of the exporting Party, the Parties shall meet within a period of no more than 30 days following the issuance of the notification for consultations. The main purpose of such consultations shall be to exchange information on the measure in question and to seek to resolve the clarifications raised.
Article 6.10. Consultations and Offsets In Bilateral Safeguards
1. The Party applying or extending a definitive bilateral safeguard measure shall grant to the other Party mutually agreed compensation in the form of concessions having trade effects equivalent to the impact of the safeguard measure. For such purposes, consultations may be held to determine compensation having equivalent trade effects to the measures concerned.
2. If within 30 days following the initiation of consultations under paragraph 1 no agreement on trade liberalization compensation is reached, the exporting Party may suspend the application of concessions having equivalent trade effects to the measure imposed by the other Party. The exporting Party shall notify the other Party at least 30 days in advance of the suspension of concessions.
Article 6.11. Reinstatement of Benefits and/or Refund of Fees
1. Where a provisional bilateral safeguard measure has been imposed and the final determination is not to impose a definitive bilateral safeguard measure, any cash payments or deposits shall be promptly refunded with interest and/or any security lodged shall be released upon request.
2. When the final determination is to impose a measure to be imposed if the final bilateral safeguard tariff is lower than the provisional tariff, any excess customs duties collected shall be reimbursed, at the request of the party, with interest or the excess guarantees shall be released, as appropriate.
3. When a bilateral safeguard measure is eliminated pursuant to the decision of a national challenge mechanism, it shall proceed in accordance with the national legislation of each Party, prompily, at the request of a party, to refund with interest any payment or cash deposit and/or to release any security lodged.
4. When the bilateral safeguard measure is decreased in compliance with the decision of a national challenge mechanism, any excess duties paid or deposited shall be refunded with interest and/or the guarantees presented shall be released, upon request of the party.
Chapter VII. SANITARY AND PHYTOSANITARY MEASURES
Article 7.1. Objectives
The objectives of this Chapter are:
a) define the mechanisms so that, within the framework of free trade between the Parties, the life and health of people, animals and plants in their territories are protected;
b) strengthening the implementation of the SPS Agreement; and
c) to promote, through the Committee foreseen in Article 7.10, the constant improvement of the sanitary and phytosanitary situation of the Parties, as well as to attend to and resolve sanitary and phytosanitary problems arising in trade between the Parties.
Article 7.2. Definitions
1. For the purposes of this Chapter, the definitions in Annex A of the SPS Agreement, definitions in the glossary of terms of the competent international organizations and definitions adopted by the Commission in accordance with paragraph 7(e) of Article 7.10 shall be used.
2. For the purposes of this Chapter, the following definitions shall apply:
SPS Agreement: the WTO Agreement on the Application of Sanitary and Phytosanitary Measures; and
international organizations: the organizations mentioned in paragraph 3 of Annex A of the SPS Agreement.
Article 7.3. General Provisions
1. The Parties undertake to facilitate trade in agricultural, aquaculture, fishery and forestry goods and their products, beverages and foodstuffs for human consumption, originating in the Parties, and therefore establish provisions based on the principles and disciplines of the SPS Agreement.
2. The Parties incorporate their rights and obligations established in the SPS Agreement, without prejudice to the provisions of this Chapter.
Article 7.4. Rights and Obligations of the Parties
1. The Parties shall adopt, maintain or apply their sanitary and phytosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection based on scientific principles.
2. Parties may apply or maintain sanitary or phytosanitary measures that provide a higher level of protection than would be achieved by a measure based on an international standard, guideline or recommendation, provided that there is scientific justification for doing so.
3. Sanitary or phytosanitary measures shall not constitute a disguised restriction on trade or have the purpose or effect of creating unnecessary barriers to trade between the Parties.
Article 7.5. Equivalence
1. The Parties shall hold consultations for the recognition of equivalence of sanitary and phytosanitary measures, considering the standards, guidelines and recommendations established by the competent international organizations and the decisions adopted by the Committee on Sanitary and Phytosanitary Measures of the WTO on the matter.
2. Each Party shall accept as equivalent the sanitary or phytosanitary measures of the other Party, even if they differ from its own, provided that it is demonstrated that they achieve and do not diminish the importing Party's appropriate level of protection.
3. The Parties shall define the mechanisms for evaluating and, _ if necessary, accepting the equivalence of sanitary and phytosanitary measures.
Article 7.6. Risk Assessment
1. Sanitary and phytosanitary measures shall be based on a scientific assessment appropriate to the circumstances of the risks to human, animal or plant life and health, including forest products and by-products, taking into account relevant standards, guidelines and recommendations developed by relevant international organizations.
2. In establishing their appropriate level of protection, the Parties shall take into account the objective of minimizing negative effects on trade and shall avoid making arbitrary or unjustifiable distinctions in the levels they consider appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on trade.
Article 7.7. Recognition of Zones or Areas, or Compartments, Free or of Low Pest or Disease Prevalence
The Parties shall establish, in accordance with paragraph 7(d) of Article 7.10, a procedure for the recognition of zones or areas, or compartments, free or of low pest or disease prevalence in animal health, plant health and forest health. For this purpose, the Parties shall take into consideration the certifications issued by the competent international organizations, in particular those issued by the World Organization for Animal Health (OIE).
Article 7.8. Control, Inspection and Approval
The Parties shall establish, in accordance with paragraph 7(d) of Article 7.10, control, inspection and approval procedures, taking into consideration Article 8 and Annex C of the SPS Agreement.
Article 7.9. Transparency
1. The Parties shall notify each other, through the contact points they designate, of the adoption or application of sanitary and phytosanitary measures in accordance with the procedure provided for in Annex B of the SPS Agreement.
2. The Parties shall notify each other immediately:
a) changes occurring in the field of animal health, such as the emergence of exotic diseases and those Diseases on the OIE List;
b) the occurrence of an outbreak or spread of plant pests that may constitute an immediate or potential risk to trade between the Parties; and
c) emergency situations regarding the control of food traded between the Parties, in which a risk of serious adverse effects on human health associated with the consumption of certain foods is detected and clearly identified even though the agents causing such effects have not been identified, in accordance with the corresponding standard of the Codex Alimentarius Commission in force, and the causes for which a product of the exporting Party is rejected by the importing Party.
3. Additionally, the Parties shall notify each other:
a) scientific findings of epidemiological importance and significant changes in relation to pests and diseases not included in the paragraph 2(a) and 2(b) that may affect trade between the Parties, within a period to be agreed by the Committee;
b) the periodic recording of rejections of shipments by the importing Party, giving as much information as is available;
c) cases of suspected exotic pests or diseases or unusual occurrence when applicable;
d) the status of the processes and measures in process with respect to requests for access to products of interest between both Parties in an agile and timely manner;
e) non-compliance with measures detected in the certification of animal, plant and forestry products by the exporting Party; and
f) information on authorized firms authorized to issue certificates, import and export permits and details of authorized points of entry.
4. In order to comply with the provisions of this Article, the Parties may establish an information system whose development, structure and deadlines for its initiation and completion shall be agreed upon by the Committee.
5. A Party may adopt an emergency measure by promptly notifying the other Party, together with the reasons giving rise to the adoption of such measure, in accordance with paragraph 6 of Annex B of the SPS Agreement.
6. When a Party is affected by a measure adopted by the other Party, the latter shall provide information on the progress of new scientific evidence available or under investigation, in order to obtain further elements that will allow it to eliminate the provisional measure or adopt a definitive measure on a concrete and conclusive risk basis, which shall be notified to the other Party.
Article 7.10. Committee on Sanitary and Phytosanitary Measures
1. The Parties establish the Committee on Sanitary and Phytosanitary Measures to Implement this Chapter, as well as to contribute to the fulfillment of its objectives and provisions.
2. The Committee shall be composed of the authorities of both Parties with responsibilities in this area.
3. The Committee shall meet at least once a year in person or by teleconference, videoconference or other technological means.
4. The Parties shall assume the chairmanship of the meetings on an alternating basis. The Committee shall hold its first meeting no later than 6 months after the entry into force of the Agreement. Likewise, the Committee may determine those cases in which extraordinary meetings shall be held.
5. The Committee shall submit to the Commission such reports as it deems pertinent or as may be required by the Commission.
6. The Committee shall be of a permanent nature and may establish such technical working groups on sanitary and phytosanitary matters as it deems appropriate.
7. The Committee shall have the following functions:
a) serve as a forum for the Parties to consult and resolve issues and problems related to this Chapter that may affect trade between the Parties in a timely manner;
b) promote cooperation, technical assistance, training and exchange of information on sanitary and phytosanitary measures;
c) to follow up on the agreements adopted within the Committee and in the technical working groups;
d) agree on actions, procedures and deadlines for the recognition of equivalencies; the streamlining of the risk assessment process; the recognition of zones or areas, or compartments, free or of low prevalence of pests or diseases; control, inspection and approval; as well as the mechanism for transparency and exchange of information;
e) agree on definitions that are not contemplated in Article 7.2 or clarify existing ones, and recommend their adoption to the Commission;
f) work on the design and implementation of electronic systems for the issuance of sanitary and phytosanitary certificates; and
g) review this Chapter in the light of any developments in the work of the WTO Committee on Sanitary and Phytosanitary Measures and make any necessary recommendations to the Commission.
Article 7.11. Settlement of Disputes
Once the consultation procedure has been exhausted in accordance with paragraph 7(a) of Article 7.10, any Party that considers the outcome of such consultations to be unsatisfactory may have recourse to the dispute settlement mechanism of this Agreement.
Chapter VIII. TECHNICAL BARRIERS TO TRADE
Article 8.1. Objective
The objective of this Chapter is to increase and facilitate bilateral trade by preventing standards, technical regulations and conformity assessment procedures from constituting unnecessary barriers to trade, as well as to increase cooperation and technical assistance between the Parties.
Article 8.2. Definitions
1. For the purposes of this Chapter, the provisions of Annex 1 of the TBT Agreement shall apply, as well as the general terms referring to standards and conformity assessment agreed upon by the Parties, contained in the standards, guides or recommendations adopted by the international standardization organizations.
2. For the purposes of this Chapter, the following definitions shall apply:
TBT Agreement: the WTO Agreement on Technical Barriers to Trade;
legitimate objective: objective related to national security; prevention of practices that may mislead consumers; protection of human life, health or safety, animal or plant life or health, or the environment, among others;
standardizing body: a body whose standardization activities are recognized by the governments of the Parties; and
international standardizing bodies: standardizing bodies open to participation by the relevant bodies of at least all WTO Members, including the International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC), the Codex Alimentarius Commission, the International Telecommunication Union (ITU), the International Organization of Legal Metrology (OIML), or any other body designated by the Parties.
Article 8.3. Confirmation of International Rights and Obligations
The Parties incorporate their rights and obligations established in the WTO TBT Agreement, without prejudice to the provisions of this Chapter.
Article 8.4. Basic Rights and Obligations
1. Each Party may set the level of protection it considers appropriate to achieve its legitimate objectives. Likewise, it may develop, adopt or maintain the necessary measures to ensure compliance with its standards, technical regulations and conformity assessment procedures, in accordance with the provisions of the TBT Agreement.
2. The Parties shall use as a basis for the elaboration, adoption and application of their standards, technical regulations and conformity assessment procedures, international standards, guidelines and recommendations or those of imminent formulation, except where these do not constitute an effective or adequate means to achieve their legitimate objectives, as set forth in the TBT Agreement.
3. Standards, technical regulations and conformity assessment procedures shall be prepared, adopted and applied so as to accord to products imported from the other Party treatment no less favorable than that accorded to like products of national origin and to like products imported from any other country.
4. The Parties shall ensure that standards, technical regulations or conformity assessment procedures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. To this end, standards, technical regulations or conformity assessment procedures shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking into account the risks non-fulfilment would create.
Article 8.5. Scope of Application
1. The provisions of this Chapter apply to the elaboration, adoption and application of all standards, technical regulations and conformity assessment procedures of the Parties (1), including those of the central government level and local public institutions, which may directly or indirectly affect trade in goods between the Parties.
2. The provisions of this Chapter do not apply to sanitary and phytosanitary measures, nor to purchase specifications established by governmental institutions for the production or consumption needs of such institutions.
Article 8.6. Technical Regulations
1. In pursuing its legitimate objectives, each Party may assess the risks that failure to achieve them would create. In assessing such risks, consideration shall be given, inter alia, to available scientific and technical information, related processing technology, or end uses for which the products are intended.
2. The Parties shall favorably consider accepting as equivalent their technical regulations, even if they differ from their own, provided they are satisfied that they adequately fulfill the legitimate objectives of their own technical regulations.
3. When the technical regulation of a Party allows the legitimate objective established in the technical regulation of the other Party to be achieved, it shall be considered as equivalent by means of a common declaration of the Parties formalized by a decision of the Commission.
4. When a Party does not accept as equivalent a technical regulation of the other Party, it shall state the reasons for its decision so that the other Party may take appropriate action.
Article 8.7. Conformity Assessment
1. The Parties shall promote the acceptance of the results of conformity assessment procedures with respect to standards and technical regulations conducted by bodies located in the territory of the other Party.
2. The Parties may enter into negotiations for the conclusion of mutual recognitionagreements between competent bodies in areas of conformity assessment following the principles of the TBT Agreement.
3. If a Party rejects a request from the other Party to enter into or conclude negotiations to reach a mutual recognition agreement to facilitate the acceptance in its territory of the results of conformity assessment procedures carried out by bodies in the territory of the other Party, it shall provide reasons for its decision so that appropriate action can be taken.
4. The Parties shall encourage that the activities developed within the framework of technical cooperation and assistance serve as a reference in a process of recognition of conformity assessments.
5. If one of the Parties does not accept the results of a conformity assessment procedure carried out in the territory of the other Party, it shall provide the reasons for its decision so that appropriate action can be taken.
6. Each Party shall accredit, license or otherwise recognize conformity assessment bodies in the territory of the other Party on terms no less favorable than those accorded to conformity assessment bodies in its territory. If a Party accredits, authorizes or otherwise recognizes a conformity assessment body for a specific standard or technical regulation in its territory and refuses to accredit, authorize or otherwise recognize a conformity assessment body for that standard or technical regulation in the territory of the other Party, it shall, at the request of the other Party, provide reasons for its decision so that appropriate action may be taken.
Article 8.8. Transparency
1. The Parties shall ensure that standardizing bodies comply with the Code of Good Practice in Annex 3 of the TBT Agreement.
2. The Parties shall transmit electronically, through the contact point established for each Party under Article 10 of the TBT Agreement, the notifications of draft technical regulations and conformity assessment procedures referred to in Articles 2.9, 3.2, 5.6 or 7.2 of the TBT Agreement, at the same time that the Party notifies the countries with which it has free trade agreements.
3. Parties shall notify even those draft technical regulations or conformity assessment procedures that are consistent with the technical content of relevant international standards, guidelines or recommendations.
4. Each Party shall allow at least 60 days for interested parties of the other Party to have the opportunity to provide comments and consultations on the notified draft technical regulation or conformity assessment procedure, and to take such comments and consultations into consideration. To the extent possible, a Party shall give favorable consideration to requests to extend the time period established for comments.
5. In cases of urgency, when a Party notifies a technical regulation or conformity assessment procedure adopted under Articles 2.10, 3.2, 5.7 or 7.2 of the TBT Agreement, it shall transmit it electronically to the other Party, through the established contact point, at the same time that the Party notifies the countries with which it has free trade agreements. The Parties shall notify even those technical regulations or conformity assessment procedures that are consistent with the technical content of relevant international standards, guidelines or recommendations.
6. Each Party shall publish or make available to the public, in printed or electronic form, its responses to comments received no later than the date on which the final version of the technical regulation or conformity assessment procedure is published.
7. Each Party shall, upon request of the other Party, provide information on the objective and justification of a technical regulation or conformity assessment procedure that the Party has adopted or proposes to adopt.
8. The Parties shall ensure reciprocal transparency of their technical regulations and conformity assessment procedures, publishing the drafts thereof, as well as those adopted on official and publicly accessible Internet pages, free of charge, to the extent that they exist or are implemented.
9. Each Party shall comply with this Article as soon as practicable and in no case later than 2 years after the entry into force of this Agreement.
Article 8.9. Cooperation and Technical Assistance
The Parties agree to provide reciprocal cooperation and technical assistance, under mutually agreed terms and conditions, for the purpose of:
a) to promote the application of this Chapter;
b) to promote the implementation of the TBT Agreement;
c) strengthen their respective standardization bodies, technical regulations, conformity assessment, metrology, and information and notification systems within the scope of the TBT Agreement, including the training and education of human resources;
d) assist in the establishment of mutual recognition agreements of interest to the Parties;
e) facilitate the acceptance of the equivalence of technical regulations;
f) collaborate in the development and implementation of international standards, guidelines or recommendations;
g) exchange information on their technical cooperation activities related to standards, technical regulations and conformity assessment procedures;
h) sharing information of a non-confidential nature that served as a basis for a Party in the development of a technical regulation; and
i) other cooperation and technical assistance activities agreed upon by the Parties.
Article 8.10. Committee on Technical Barriers to Trade
1. The Parties establish the Committee on Technical Barriers to Trade, composed of representatives of each Party, in accordance with the Annex to Article
2. The functions of the Committee shall include:
(a) to follow up on the implementation and administration of this Chapter;
(b) to deal promptly with matters raised by a Party with respect to the development, adoption or application of standards, technical regulations or conformity assessment procedures;
(c) increase cooperation in the development of standards, technical regulations and conformity assessment procedures;
(d) facilitate, as appropriate, sectoral cooperation between governmental and non-governmental conformity assessment bodies in the territories of the Parties;
(e) exchange information about the work being carried out in non-governmental, regional and multilateral fora involved in activities related to standards, technical regulations and conformity assessment procedures;
(f) mutually facilitate access to information on standardization activities, technical regulations, conformity assessment procedures, especially those affecting trade between the Parties;
(g) to consult on any matter arising under this Chapter at the request of a Party;
(h) review this Chapter in light of any developments in the work of the WTO Committee on Technical Barriers to Trade and make any necessary recommendations to the Commission;
(i) take any other action that the Parties consider will assist them in the implementation of this Chapter and the TBT Agreement;
(j) report to the Agreement Commission on the implementation of this Chapter;
(k) establish, if necessary, working groups to deal with specific issues related to technical barriers to trade;
(l) facilitate the process of negotiating mutual recognition agreements; and
(m) discuss any other matier related to this Chapter.
3. The Committee shall meet at least once a year in person or by teleconference, videoconference or other technological means. At the request of either Party, additional meetings shall be held.
Article 8.11. Technical Consultations
1. The Parties may conduct technical consultations before the Committee on Technical Barriers to Trade, or alternatively resort to the consultations provided for in Article 15.4 (Consultations), on the application, interpretation or obligations under this Chapter. The Parties may not use both channels simultaneously.
2. Technical consultations will have the following procedure:
a) the Party concerned shall communicate its request in writing to the other Party for consideration of the matter. The Parties may submit the matter to experts for the purpose of obtaining non-binding technical advice or recommendations;
b) the Parties shall meet, in person or by teleconference, videoconference or other technological means, within a period not to exceed 30 days, unless they agree on a different period; and