(b) consider risk management options that are not more trade restrictive than required, including the option of facilitating trade by not taking any measure to achieve the level of protection that the Party has determined to be appropriate; and
(c) select a risk management option that is not more trade restrictive than required to achieve the sanitary or phytosanitary objective, taking into account technical and economic feasibility.
6. On request of the exporting Party, the 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.
7. If the importing Party, as a result of a risk analysis, adopts a sanitary or phytosanitary measure that allows trade to commence or resume, the importing Party shall implement the measure within a reasonable period of time.
8. Without prejudice to Article 5.13, 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 its sanitary or phytosanitary measure, if the importing Party permitted the importation of that good of the other Party when the review was initiated.
5.9. Verification
1. In order to maintain confidence in the effective implementation of the provisions of this Chapter, each Party shall have the right to carry out audit and verification of the procedures of the exporting Party, which may include an assessment of all or part of the competent authoritiesâ total control programme, including, if appropriate:
(a) reviews of the inspection and audit programmes; and
(b) on-site checks.
2. An audit shall be systems-based and designed to check the effectiveness of the regulatory controls of the competent authorities of the exporting Party.
3. Each Party shall also have the right to carry out import checks for the purposes of implementing sanitary and phytosanitary measures on consignments on importation, consistent with Article 5.10, the results of which form part of the verification process.
4. In undertaking an audit, a Party shall take into account relevant guidance of the WTO SPS Committee and international standards, guidelines and recommendations.
5. Prior to the commencement of an audit, the importing Party and exporting Party involved shall discuss the rationale and decide: the objectives and scope of the audit; the criteria or requirements against which the exporting Party will be assessed; and the itinerary and procedures for conducting the audit.
6. The auditing Party shall provide the audited Party the opportunity to comment on the findings of the audit and take any such comments into account before the auditing Party makes its conclusions and takes any action. The auditing Party shall provide a report setting out its conclusions in writing to the audited Party within a reasonable period of time.
7. A decision or action taken by the auditing Party as a result of the audit shall be supported by objective evidence and data that can be verified, taking into account the auditing Party's knowledge of, relevant experience with, and confidence in, the audited Party. This objective evidence and data shall be provided to the audited Party on request.
8. The costs incurred by the auditing Party shall be borne by the auditing Party, unless the Parties agree otherwise.
9. The auditing Party and audited Party shall each ensure that procedures are in place to prevent the disclosure of confidential information that is acquired during the audit process.
10. With the consent of the other Party, a Party may:
(a) share the results and conclusions of its audit and verification procedures and checks with non-Parties; or
(b) use the results and conclusions of the audit and verification procedures and checks of non-Parties.
5.10. Import Checks
1. The import checks applied to imported animals and animal products, plants and plant products, or other related goods shall be based on the risk associated with such importations. They shall be carried out without undue delay and with a minimum effect on trade between the Parties.
2. The basis for determining the nature and frequency of import checks, including the factors it considers to determine the risks associated with importations, shall be made available on request. The Parties may amend the frequencies, within their responsibilities, as appropriate, as a result of experience gained through import checks, or as a result of other actions or consultations provided for in this Chapter.
3. The importing Party shall notify the other Party in a timely manner of any amendment to the frequency of import checks in the event of change in the import risk. On request, an explanation regarding amendments shall be given or consultations shall be undertaken.
4. The importing Party shall provide to the other Party, on request, information regarding the analytical methods, quality controls, sampling procedures and facilities that the importing Party uses to test a good. The importing Party shall ensure that any testing is conducted using appropriate and validated methods in a facility that operates under a quality assurance programme that is consistent with international laboratory standards. The importing Party shall maintain physical or electronic documentation regarding the identification, collection, sampling, transportation and storage of the test sample, and the analytical methods used on the test sample.
5. In the event that the import checks reveal non-conformity with the relevant standards or requirements, the action taken by the importing Party should be based on an assessment of the risk involved. For example, except as otherwise provided in this Chapter, an importing Party shall not suspend trade between it and another Party on the basis of a single consignment. Wherever possible, the importer or their representative shall be given access to the consignment and the opportunity to contribute any relevant information to assist the importing Party in taking a final decision.
6. An importing Party shall ensure that its final decision in response to a finding of non- conformity with the importing Party's sanitary or phytosanitary measure, is limited to what is reasonable and necessary, and is rationally related to the available science.
7. If an importing Party prohibits or restricts the importation of a good of another Party on the basis of an adverse result of an import check, the importing Party shall provide a notification about the adverse result to at least one of the following: the importer or its agent; the exporter; or the manufacturer; as well as the exporting Party if appropriate.
8. When the importing Party provides a notification pursuant to paragraph 7, it shall:
(a) include:
(i) the reason for the prohibition or restriction;
(ii) the legal basis or authorisation for the action; and
(iii) information on the status of the affected goods and, if appropriate, on their disposition;
(b) do so in a manner consistent with its laws, regulations and requirements as soon as possible and no later than seven working days after the date of the decision to prohibit or restrict, unless the good is seized by a customs administration; and
(c) if the notification has not already been provided through another channel, transmit the notification by electronic means, if practicable.
9. An importing Party that prohibits or restricts the importation of a good of another Party on the basis of an adverse result of an import check shall provide an opportunity for a review of the decision and consider any relevant information submitted to assist in the review. The review request and information should be submitted to the importing Party within a reasonable period of time.
10. Unless there is a clearly identified risk in holding that consignment, the consignment shall not be destroyed without affording an opportunity to the exporter or their representative to take back the consignment.
11. If an importing Party determines that there is a significant, sustained or recurring pattern of non-conformity with a sanitary or phytosanitary measure, the importing Party shall notify the exporting Party of the non-conformity.
12. On request, an importing Party shall provide to the exporting Party available information on goods from the exporting Party that were found not to conform to a sanitary or phytosanitary measure of the importing Party, and, on request, make itself available for discussions within a reasonable period of time in order to resolve the matter.
5.11. Certification
1. The Parties recognise that assurances with respect to sanitary or phytosanitary requirements may be provided through means other than certificates and that different systems may be capable of meeting the same sanitary or phytosanitary objective.
2. If an importing Party requires certification for trade in a good, the Party shall ensure that the certification requirement is applied, in meeting the Party's sanitary or phytosanitary objectives, only to the extent necessary to protect human, animal or plant life or health.
3. In applying certification requirements, an importing Party shall take into account relevant guidance of the WTO SPS Committee and international standards, guidelines and recommendations.
4. An importing Party shall limit attestations and information it requires on the certificates to essential information that is related to the sanitary or phytosanitary objectives of the importing Party.
5. An importing Party should provide to another Party, on request, the rationale for any attestations or information that the importing Party requires to be included on a certificate.
6. The Parties may agree to work cooperatively to develop model certificates to accompany specific goods traded between the Parties, including where equivalence has been recognised.
7. The Parties shall work together cooperatively to facilitate the implementation of electronic certification and other technologies to facilitate trade.
8. The Parties shall cooperate to facilitate the onward certification of goods exported for storage or further processing in each otherâs territory prior to re-export.
5.12. Transparency
1. The Parties shall notify each other in writing, through the contacts points set out in Implementing Arrangement 1, of:
(a) significant changes in animal or plant health status including the presence and evolution of diseases or pests covered by Implementing Arrangement 2, in a timely and appropriate manner so as to ensure continued confidence in the competence of the Party with respect to the management of any risks of transmission to the other Party which may arise as a consequence;
(b) scientific findings of importance with respect to food safety, diseases or pests which have not been discussed between the Parties without delay; and
(c) any additional measures beyond the basic requirements of their respective sanitary or phytosanitary measures taken to control or eradicate diseases or pests or to protect public health, and any changes in preventive policies, including vaccination policies.
2. The Parties shall notify proposed sanitary or phytosanitary measures or changes to existing measures that may have an effect on the trade of the other Party, including any that conform to international standards, guidelines or recommendations, by using the notification system in Annex B of the SPS Agreement.
3. 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 the other Party to provide written comments after it makes a notification under paragraph 2. A Party shall consider reasonable requests from the other Party to extend the comment period. In cases of serious and immediate concern with respect to human, animal or plant life or health, immediate oral notification shall be made to the contact points and written confirmation should follow within 24 hours.
4. The Party shall make available to the public, for example on a website, the proposed sanitary or phytosanitary measure notified under paragraph 3, the legal basis for the measure, and the written comments or a summary of the written comments that the Party has received from the public on the measure.
5. When a Party proposes to adopt a sanitary or phytosanitary measure it shall, on request by the other Party, discuss any scientific or trade concerns that the other Party may raise regarding the proposed measure and the availability of alternative, less trade-restrictive approaches for achieving the measure's objectives.
6. Each Party shall publish notices of final sanitary or phytosanitary measures, for example on a website.
7. When a Party has serious concerns regarding a risk to human, animal or plant life or health, consultations regarding the situation shall, on request, take place as soon as possible, and in any case within 10 working days of the request unless the Parties agree otherwise. Each Party shall endeavour in such situations to provide all the information necessary to avoid a disruption in trade, and to reach a mutually acceptable solution.
8. When an exporting Party identifies that an export consignment which may be associated with a significant sanitary or phytosanitary risk has been exported, it should, to the extent possible, provide information to the importing Party.
5.13. Provisional Measures
1. Without prejudice to Article 5.12, and in particular Article 5.12(7), any Party may, on serious human, animal or plant life or health grounds, adopt provisional measures necessary for the protection of human, animal or plant life or health. These measures shall be notified within 24 hours to the other Parties and, on request, consultations regarding the situation shall be held within 10 working days unless the Parties agree otherwise. The Parties shall take due account of any information provided through such consultations.
2. If a Party adopts an emergency measure, it shall review the scientific basis of that measure within six months and make available the results of the review to the other Party on request. If the emergency measure is maintained after the review because the reason for its adoption remains, the Party should review the measure periodically.
5.14. Exchange of Information
1. The Parties, through the contacts points set out in Implementing Arrangement 1, shall exchange information relevant to the implementation of this Chapter on a uniform and systematic basis, to provide assurance, engender mutual confidence and demonstrate the efficacy of the programmes controlled. Where appropriate, achievements of these objectives may be enhanced by exchanges of officials.
2. The information exchange on changes in the respective sanitary or phytosanitary measures, and other relevant information, shall include:
(a) opportunity to consider proposals for changes in regulatory standards or requirements which may affect this Chapter in advance of their finalisation;
(b) briefing on current developments affecting trade; and
(c) information on the results of the verification procedures provided for in Article 5.9.
3. The Parties may provide for the sharing of scientific papers or data to relevant scientific forums on sanitary or phytosanitary measures and related matters.
5.15. Technical Consultation
1. A Party may initiate consultations with the other Party with the aim of resolving issues on the application of measures covered in this Chapter or interpretation of the provisions of this Chapter.
2. When a Party requests consultations, these consultations shall take place as soon as practicable.
3. Such consultations are without prejudice to the rights and obligations of the Parties under Chapter 14 (Dispute Settlement).
5.16. Cooperation
1. The Parties shall explore opportunities for further cooperation and collaboration on sanitary or phytosanitary matters of mutual interest consistent with the provisions of this Chapter.
2. The Parties agree to cooperate to facilitate the implementation of this Chapter, and in particular to develop implementing arrangements under this Chapter.
Chapter 6. TECHNICAL BARRIERS TO TRADE
6.1. Definitions
1. For the purposes of this Chapter, unless a more specific meaning is given in an Annex:
equivalence of technical regulations means that one Party accepts that the technical regulations of the other Party fulfil the legitimate objectives of its own regulations;
regulatory authority means the authority that is responsible for preparing or adopting technical regulations and conformity assessment procedures applicable to goods;
TBT Agreement means the Agreement on Technical Barriers to Trade, set out in Annex 1A to the WTO Agreement; and
technical regulations also include standards that regulatory authorities recognise as meeting the mandatory requirements related to performance based regulation.
2. The definitions in Annex I of the TBT Agreement are incorporated into this Chapter and shall form part of this Chapter, mutatis mutandis.
6.2. Objectives
The objectives of this Chapter are to increase and facilitate trade through furthering the implementation of the TBT Agreement and building on the work of APEC on standards and conformance. Wherever possible, the Parties shall aim to reduce compliance costs by:
(a) eliminating unnecessary technical barriers to trade in goods between the Parties;
(b) enhancing cooperation among the Parties' regulatory agencies responsible for standards, technical regulations and conformity assessment procedures applicable to goods; and
(c) providing a framework to address the impact of technical barriers to trade.
6.3. Scope
1. This Chapter applies to all standards, technical regulations and conformity assessment procedures that may, directly or indirectly, affect the trade in goods between the Parties, except as provided in paragraph 2 and paragraph 3.
2. This Chapter shall not apply to technical specifications prepared by governmental entities for production or consumption requirements of such entities which are covered by Chapter 10 (Government Procurement).
3. This Chapter shall not apply to sanitary and phytosanitary measures which are covered by Chapter 5 (Sanitary and Phytosanitary Measures).
4. For greater certainty, nothing in this Chapter shall prevent a Party from adopting or maintaining technical regulations, standards or conformity assessment procedures in accordance with its rights and obligations under this Agreement, the TBT Agreement and any other relevant international agreement.
6.4. Incorporation of Certain Parts of the TBT Agreement
The following provisions of the TBT Agreement are incorporated into and made part of this Agreement, mutatis mutandis:
(a) Article 2.1, Article 2.2, Article 2.4, Article 2.5, Article 2.9, Article 2.10, Article 2.11, Article 2.12;
(b) Article 5.1, Article 5.2, Article 5.3, Article 5.4, Article 5.6, Article 5.7, Article 5.8, Article 5.9; and
(c) Paragraph D, Paragraph E and Paragraph F of Annex 3.
6.5. Origin
This Chapter applies to all goods traded between the Parties, regardless of the origin of those goods.
6.6. Trade Facilitation
1. The Parties shall intensify their joint work in the field of standards, technical regulations, and conformity assessment procedures with a view to facilitating access to each other's market. In particular, the Parties shall seek to identify initiatives between them that are appropriate for particular issues or sectors. Such initiatives may include cooperation on regulatory issues, such as harmonisation or equivalence of technical regulations and standards, alignment with international standards, reliance on a supplier's declaration of conformity, and use of accreditation to qualify conformity assessment bodies, as well as cooperation through mutual recognition.
2. Initiatives identified by the Parties shall be focused on the promotion of the use of international standards, transparency, exchange of information and reducing compliance costs.
6.7. International Standards, Guides and Recommendations
1. The Parties recognise the important role that international standards, guides and recommendations can play in supporting greater regulatory alignment, good regulatory ptactice and reducing unnecessary barriers to trade.
2. In this respect, and further to Article 2.4, Article 5.4 and Annex 3 of the TBT Agreement, to determine whether there is an international standard, guide or recommendation within the meaning of Article 2, Article 5 and Annex 3 of the TBT Agreement, each Party shall apply the Decisions and Recommendations adopted by the WIO Committee on Technical Barriers to Trade Since 1 January 1995 (G/TBT/1/Rev.12), as may be revised, issued by the WTO Committee on Technical Barriers to Trade.
3. The Parties shall cooperate with each other, when feasible and appropriate, to ensure that international standards, guides and recommendations that are likely to become a basis for technical regulations and conformity assessment procedures do not create unnecessary obstacles to international trade.
6.8. Equivalency of Technical Regulations
1. Each Party shall give positive consideration to accepting as equivalent, technical regulations of the other Party, even if these regulations differ from its own, provided that those technical regulations produce outcomes that are equivalent to those produced by its own technical regulations in meeting its legitimate objectives and achieving the same level of protection.
2. A Party shall, on the request of the other Party, explain the reasons why it has not accepted a technical regulation of the other Party as equivalent.
6.9. Mutual Recognition of Equivalence of Standards
1. If regulatory compliance is required and if there is equivalence of outcomes, each Party shall give positive consideration to accepting the standards of the other Party as equivalent to its own corresponding standards.
2. A Party shall, on the request of the other Party, explain the reasons why it has not accepted a standard of the other Party as equivalent.
6.10. Conformity Assessment Procedures
1. The Parties recognise that a broad range of mechanisms exist to facilitate the acceptance of conformity assessment results, including:
(a) the importing Party's reliance on a supplier's declaration of conformity;
(b) unilateral recognition by one Party of the results of conformity assessments performed in the other Party's territory;
(c) cooperative arrangements among conformity assessment bodies from each other's territory;
(d) mutual recognition of conformity assessment procedures conducted by bodies located in the territory of the other Party;
(e) accreditation procedures for qualifying conformity assessment bodies;
(f) government designation of conformity assessment bodies; and
(g) devising solutions to increase administrative efficiency, that avoid duplication and are cost effective.
2. The Parties shall intensify their exchange of information on the range of mechanisms to facilitate the acceptance of conformity assessment results.
3. The Parties shall seek to ensure that conformity assessment procedures applied between them facilitate trade by ensuring that they are no more restrictive than is necessary to provide an importing Party with confidence that products conform with the applicable technical regulations, taking into account the risk that non-conformity would create.
4. Before accepting the results of a conformity assessment procedure, and to enhance confidence in the continued reliability of each other's conformity assessment results, the Parties may consult on matters such as the technical competence of the conformity assessment bodies involved, as appropriate.
5. A Party shall, on the request of the other Party, explain its reasons for not accepting the results of a conformity assessment procedure performed in the territory of the other Party.
6. Each Party shall accredit, approve, license, or otherwise recognise conformity assessment bodies in the territory of the other Party on terms no less favourable than those it accords to conformity assessment bodies in its territory. If a Party accredits, approves, licenses or otherwise recognises a body assessing conformity with a particular technical regulation or standard in its territory and it refuses to accredit, approve, license, or otherwise recognise a body assessing conformity with that technical regulation or standard in the territory of the other Party, it shall, on request, explain the reasons for its refusal.
7. If a Party declines a request from the other Party to enter into negotiations on facilitating recognition in its territory of the results of conformity assessment procedures conducted by bodies in the territory of the other Party, it shall, on request, explain its reasons.
8. Further to Article 9.1 of the TBT Agreement, a Party shall consider adopting measures to approve conformity assessment bodies that have accreditation for the technical regulations or standards of the importing Party, by an accreditation body that is a signatory to an international or regional mutual recognition arrangement. The Parties recognise that these arrangements can address the key considerations in approving conformity assessment bodies, including technical competence, independence, and the avoidance of conflicts of interest.
9. Further to Article 5.2.5 of the TBT Agreement any conformity assessment fees imposed by a Party shall be limited to the approximate cost of services rendered.
6.11. Transparency
1. In order to enhance the opportunity for persons to provide meaningful comments, a Party publishing a notice under Article 2.9 or Article 5.6 of the TBT Agreement shall:
(a) include in the notice a statement describing the objective of the proposal and the rationale for the approach the Party is proposing; and
(b) transmit the proposal electronically to the other Party through the enquiry point established under Article 10 of the TBT Agreement at the same time as it notifies WTO members of the proposal pursuant to the TBT Agreement.
2. Each Party should allow at least 60 days from the transmission under Paragraph 1(b) for persons and the other Party to make comments in writing on the proposal.
3. When a Party makes a notification under Article 2.10 or Article 5.7 of the TBT Agreement, it shall at the same time transmit the notification to the other Party, electronically, through the enquiry point referred to in Paragraph 1(b).
6.12. Confidentiality
1. A Party shall not be required to disclose confidential proprietary information to the other Party except where such disclosure would be necessary for the other Party to demonstrate the technical competence of its designated conformity assessment bodies and conformity with the relevant stipulated requirements.
2. A Party shall, in accordance with its applicable laws and regulations, protect the confidentiality of any proprietary information disclosed to it in connection with conformity assessment activities or designation procedures.
6.13. Contact Points
1. Each Party shall designate and notify a contact point for matters arising under this Chapter.
2. A Party shall promptly notify the other Parties of any change of its contact point or the details of the relevant officials.
3. The responsibilities of each contact point shall include:
(a) communicating with the other Party's contact points, including facilitating discussions, requests and the timely exchange of information on matters arising under this Chapter;
(b) communicating with and coordinating the involvement of relevant government agencies, including regulatory authorities, in its territory on relevant matters pertaining to this Chapter;
(c) consulting and if appropriate, coordinating with interested persons in its territory on relevant matters pertaining to this Chapter.
6.14. Technical Consultations
1. A Party may initiate technical consultations with the other Party through their respective contact points with the aim of resolving any matter arising under this Chapter.