2. The Parties waive their rights under Article X1:2(c) of the GATT and those rights embodied in Article 3-07 (Import and Export Restrictions) with respect to any measure adopted or maintained on the importation of agricultural goods.
3. On or after the date of entry into force of this Agreement, no Party may refund the amount of customs duties paid, or waive, suspend or reduce the amount of customs duties owed, on any agricultural good imported into its territory that is:
(a) substituted by an identical or similar agricultural good subsequently exported to the territory of the other Party; or
(b) replaced by an identical or similar agricultural good used as a material in the production of another good subsequently exported to the territory of the other Party.
4. Notwithstanding any other provision of this Agreement, with respect to the agricultural goods listed in the Annex to this Article, any Party may maintain or adopt a prohibition or restriction, or a customs duty on the importation of such goods, in accordance with its rights and obligations under the GATT. Once a year after the entry into force of this Agreement, the Parties shall examine, through the Working Group on Agricultural Trade established under Article 4-08, the possibility of incorporating into a trade liberalization program the agricultural goods contained in that Annex.
5. Once the Parties have adopted the resolutions of the Working Group formulated under the terms of paragraph 4 for an originating agricultural good set out in the Annex to this Article, in accordance with their applicable legal procedures, that resolution shall prevail over the provisions of this Agreement for that good.
6. Where a Party applies a rate of duty to an agricultural good described in the Tariff Break Schedule that is higher than the rate specified for that good in its GATT Schedule of Tariff Concessions as of January 1, 1994, the other Party shall waive its rights under the GATT and its interpretative notes with respect to the application of the rate of duty set out in that schedule.
7. Where, under an agreement resulting from multilateral negotiations on agricultural trade under the GATT, a Party agrees to convert a prohibition or restriction on its imports of an agricultural good into a tariff rate or a customs duty, that Party may not apply to the other Party on that good, a tariff rate that is higher than the lesser of the over-quota tariff rate or the customs duty rate established in that agreement under the GATT and the tariff rate set out in its schedule contained in the Tariff Discharge Schedule.
Article 4-05. Domestic Support.
1. The Parties recognize that domestic support measures may be of vital importance to their agricultural sectors, but that they may also distort trade and affect production. In this regard, the Parties shall apply domestic support as provided for in the multilateral agricultural negotiations under the GATT and, where a Party decides to support its agricultural producers, it shall endeavor to move towards domestic support policies that:
(a) have minimal or no trade or production distorting effects; or
(b) are exempt from any domestic support reduction commitments that may be negotiated under the GATT.
2. The Parties also recognize that either Party may modify at its discretion its domestic support measures, including those that may be subject to reduction commitments, in accordance with its rights and obligations under the GATT.
Article 4-06. Export Subsidies.
1. The Parties share the objective of achieving the multilateral elimination of export subsidies on agricultural goods. In this regard, they shall cooperate in the effort to reach an agreement within the framework of the GATT.
2. No Party may maintain or introduce export subsidies on agricultural goods in its reciprocal trade after the entry into force of this Agreement. Likewise, the Parties waive their rights under the GATT to use export subsidies and any rights with respect to the use of such subsidies that may result from multilateral negotiations on agricultural trade under the GATT in their reciprocal trade.
3. Notwithstanding the provisions of paragraph 2, if at the request of the importing Party, the Parties agree on an export subsidy on an agricultural good to the territory of the importing Party, the exporting Party may adopt or maintain such subsidy.
Article 4-07. Agricultural Technical and Marketing Standards.
1. Without prejudice to the provisions of Chapter XIII (Standardization Measures), the Parties establish the Subworking Group on Agricultural Technical and Marketing Standards, composed of representatives of each Party, which shall meet annually or as otherwise agreed. This Subgroup shall review the operation of agricultural grading and quality standards affecting trade between the Parties and resolve issues that may arise in connection with the operation of such standards. The Subgroup shall report its activities to the Agricultural Trade Working Group established under Article 4-08.
2. Where a Party applies a technical or marketing standard with respect to the packaging, grade, quality and size of an agricultural good, that Party shall accord to an identical agricultural good originating in the other Party treatment no less favorable than that accorded to its identical agricultural goods with respect to the application of those standards.
Article 4-08. Agricultural Trade Working Group.
1. The Parties establish the Agricultural Trade Working Group, composed of representatives of each Party, which shall meet at least once a year and as agreed.
2. The functions of the Working Group include:
(a) monitoring and promoting cooperation to implement and administer this Section;
(b) establishing a forum for the Parties to consult on matters related to this Section; and
(c) submitting an annual report to the Commission on the implementation of this section.
Section B. Animal and Phytosanitary and Phytosanitary Measures
Article 4-09. Definitions.
For the purposes of this section, the following definitions shall apply:
animal: any animal, including fish and wildlife;
contaminant: any pollutant, including residues of pesticides, fertilizers and chemicals used in agriculture, as well as veterinary drugs and other foreign substances;
risk assessment: assessment of:
(a) the probability of entry, establishment and spread of a pest or disease and the potential biological, agronomic and economic consequences; or
(b) the likelihood of adverse effects on human, animal or plant life or health arising from the presence of an additive, contaminant, toxin, or disease-causing organism in a commodity;
scientific information: data or information derived from the use of scientific principles or methods;
animal or phytosanitary measure: a measure, including an end-product criterion; a process or production method directly related to the product; a test, inspection, certification or approval procedure; a relevant statistical method; a sampling procedure; a risk assessment method; a packaging and labeling requirement directly related to food safety; and a quarantine regime, such as a relevant requirement associated with the transport of animals or plants, or with material necessary for their survival during transport; that a Party adopts, maintains or applies in its territory to:
(a) protect animal or plant life or health from risks arising from the introduction, establishment or spread of a pest or disease;
(b) protect human, animal or plant life or health from risks arising from the presence of an additive, contaminant, toxin or pathogenic organism in a good;
(c) to protect human life or health from risks arising from a disease-causing organism, or from a pest carried by a good; or
(d) prevent or limit other damage from the introduction, establishment and spread of a pest or disease;
appropriate level of animal or plant health protection: the level of protection of human, animal or plant life or health that a Party considers appropriate;
international standard, guideline or recommendation: any of these established:
(a) in relation to food safety, by the Codex Alimentarius Commission, including that established by the Codex Alimentarius Committee on Fish and Fishery Products, relating to product decomposition, additives, contaminants, hygienic practices, and methods of analysis and sampling; (b) in relation to animal health, by the Codex Alimentarius Commission, including that established by the Codex Alimentarius Committee on Fish and Fishery Products, relating to product decomposition, additives, contaminants, hygienic practices, and methods of analysis and sampling;
(b) in relation to animal health and zoonoses, under the auspices of the Office International des Epizooties;
(c) in relation to plant health, under the auspices of the Secretariat of the International Plant Protection Convention; or
(d) by other international organizations to which the Parties are parties;
pest: any pest including weeds or any infectious substance that may directly or indirectly injure or cause disease to terminal plants or parts thereof and other processed or manufactured goods;
approval procedure: any registration, notification or other mandatory administrative procedure for:
(a) to approve the use of an additive for a defined purpose or under defined conditions; or
(b) establish a tolerance for a contaminant for a defined purpose or under defined conditions;
in a food, beverage or feedstuff, prior to permitting its use or marketing when any of these contain the additive or contaminant;
control or inspection procedure: any procedure used, directly or indirectly, to determine compliance with an animal or plant health measure, including sampling, testing, inspection, verification, monitoring, auditing, conformity assessment, accreditation, registration, certification, or other procedures involving the physical examination of a good, its packaging, or equipment or facilities directly related to the production, marketing, or use of a good, but does not mean an approval procedure;
good: an animal, plant or its products and by-products;
plant: any plant, including wild flora;
zone: a country, part of a country, parts of several countries or all parts of several countries;
area of low pest or disease prevalence: an area in which a specific pest or disease occurs at low levels; pest or disease free area: an area in which a specific pest or disease is not present.
Article 4-10. Scope of Application.
In order to establish a framework of rules and disciplines to guide the development, adoption and enforcement of animal and plant health measures, the provisions of this Section apply to any such measures that may directly or indirectly affect trade between the Parties.
Article 4-11. Principal Rights and Obligations.
Right to Adopt Animal and Plant Health Measures
1. Each Party may, in accordance with this Section, adopt, maintain or apply any animal or plant health or sanitary measure necessary for the protection of human, animal or plant life or health in its territory, even if it is stricter than an international standard, guideline or recommendation.
Right to Set the Level of Protection
2. Notwithstanding any other provision of this Section, each Party may set its appropriate levels of protection, in accordance with Article 4-14, to protect human, animal or plant life or health.
Scientific Principles
3. Each Party shall ensure that any animal or plant health measure it adopts, maintains or applies:
(a) is based on scientific principles, taking into account, where appropriate, relevant factors, such as different geographical conditions;
(b) is maintained only when there is a scientific basis to support it; and
(c) is based on a risk assessment appropriate to the circumstances. Non-discriminatory treatment
4. Each Party shall ensure that where identical or similar conditions exist, an animal or plant health measure it adopts, maintains or applies does not arbitrarily or unjustifiably discriminate between its goods and like goods of the other Party, or between goods of the other Party and like goods of any other country.
Unnecessary Obstacles
5. No Party shall adopt, maintain or apply animal health or phytosanitary measures that have the purpose or effect of creating unnecessary obstacles to trade between the Parties. In this regard, animal and phytosanitary measures shall not be more trade-restrictive than necessary to achieve the appropriate level of protection, taking into account technical and economic feasibility.
Disguised Restrictions
6. No Party may adopt, maintain or apply any animal health or phytosanitary measure that has the purpose or the effect of creating a disguised restriction on trade between the Parties.
Support in non-governmental bodies
7. Each Party shall ensure that any non-governmental body on which it relies for the application of an animal or plant health measure acts in a manner consistent with this Section.
Article 4-12. International Standards and Standardizing Bodies.
1. Without reducing the appropriate level of animal and plant health protection, each Party shall use, as a basis for its animal or plant health measures, relevant international standards, guidelines or recommendations in order, inter alia, to make its animal or plant health measures equivalent or, where appropriate, identical to those of the other Party.
2. An animal or plant health measure of a Party that conforms to an international standard, guideline or recommendation shall be presumed to be consistent with paragraphs 4 and 5 of Article 4-10. An animal or plant health measure that provides a different level of protection from that which would be achieved by a measure based on an international standard, guideline or recommendation shall not, on that basis alone, be considered inconsistent with the provisions of this Section.
3. Nothing in paragraph 1 shall be construed to prevent a Party from adopting, maintaining or applying, in accordance with the other provisions of this Section, an animal or plant health measure that is more stringent than the relevant international standard, guideline or recommendation.
4. Where a Party has reason to believe that an animal or plant health measure of the other Party adversely affects or may adversely affect its exports and the measure is not based on relevant international standards, guidelines or recommendations, it may request to be informed of the reasons for the measure and the other Party shall do so in writing.
5. Each Party shall participate, to the fullest extent possible, in relevant international standardizing organizations, including the Codex Alimentarius Commission, the Office International des Epizooties and the International Plant Protection Convention, with a view to promoting the development and periodic review of international standards, guidelines and recommendations.
Article 4-13. Equivalence.
1. Without reducing the appropriate level of animal or plant health protection, the Parties shall, to the greatest extent possible and in accordance with this Section, seek equivalence of their respective measures.
2. The importing Party shall:
(a) shall treat an animal or plant health measure adopted or maintained by the exporting Party as equivalent to one of its own, where the exporting Party, in cooperation with the importing Party, provides it with scientific or other information, in accordance with risk assessment methods agreed by them, to demonstrate objectively, subject to subparagraph (b), that the exporting Party's measure achieves the importing Party's appropriate level of protection;
(b) may, where it has a scientific basis for doing so, determine that the exporting Party's measure does not meet the importing Party's appropriate level of protection; and
(c) shall provide in writing to the exporting Party, upon request, its reasons for a finding under subparagraph (b).
3. For the purpose of establishing equivalence between animal and plant health measures, the exporting Party shall, at the request of the importing Party, adopt such reasonable procedures as may be available to it to facilitate access to its territory for inspection, testing and other relevant resources.
4. In developing an animal or plant health measure, each Party shall consider the relevant existing or proposed animal or plant health measures of the other Party.
Article 4-14. Risk Assessment and Appropriate Level of Animal and Plant Health Protection.
In conducting a risk assessment, each Party shall take into account:
(a) relevant risk assessment methods and techniques developed by international standardizing organizations;
(b) available scientific and technical information;
(c) relevant process and production methods;
(d) relevant inspection, sampling and testing methods;
(e) the existence of pests or diseases to be taken into account, including the existence of pest or disease free areas and areas of low pest or disease prevalence;
(f) ecological and other environmental conditions to be considered; or (g) relevant applicable treatments to the satisfaction of the importing Party, such as quarantines.
2. In addition to paragraph 1, in establishing its appropriate level of animal and plant health protection in relation to the risk associated with the introduction, establishment or spread of a pest or disease, and in assessing the risk, each Party shall also take into account, where relevant, the following economic factors:
(a) the loss of production or sales that could result from the pest or disease;
(b) the costs of controlling or eradicating the pest or disease in its territory; and
(c) the cost-effectiveness of other options to limit the risks.
3. Each Party shall, in establishing its appropriate levels of animal and plant health protection:
(a) take into account the objective of minimizing negative effects on trade; and
(b) avoid making distinctions, under different circumstances, that may result in arbitrary or unjustifiable discrimination against a good of the other Party or constitute a disguised restriction on trade between the Parties, with the objective of achieving consistency in those levels of protection.
4. Notwithstanding paragraphs 1 through 3 and paragraph 3(c) of Article 4-10, where a Party conducts a risk assessment and concludes that the available information, including scientific information, is insufficient to complete the assessment, it may adopt a provisional animal or plant health measure, based on available relevant information, including information from international standardizing organizations and the other Party's animal or plant health measures. Once it has sufficient information to complete the risk assessment, the Party shall, within a reasonable period of time, review and, where appropriate, modify the provisional animal or phytosanitary measure in the light of that assessment.
5. Where a Party is able to achieve its appropriate level of protection through the gradual application of an animal or plant health measure, it may, on request of the other Party and in accordance with this Section, allow such gradual application or grant specific exemptions for the measure, for limited periods, taking into account the export interests of the requesting Party.
Article 4-15. Adaptation to Regional Conditions.
1. Each Party shall adapt any of its animal or plant health measures related to the introduction, establishment or spread of a pest or disease to the animal or plant health characteristics of the area where a good subject to that measure is produced and the area in its territory to which the good is destined, taking into account any relevant conditions, including those relating to transport and loading between those areas. In assessing the animal and plant health characteristics of an area, taking into account whether it is a pest-free or disease-free area, or is an area of low pest or disease prevalence, and may be retained as such, as the case may be, each Party shall take into account, among other factors:
(a) the prevalence of pests or diseases in that area;
(b) the existence of eradication or control programs in that area; and
(c) any relevant standards, guidelines or recommendations.
2. In addition to paragraph 1, each Party, when establishing whether an area is a pest-free or disease-free area, or is an area of low pest or disease prevalence, shall base its judgement on factors such as geographical conditions, ecosystems, epidemiological surveillance and the effectiveness of animal or plant health controls in that area.
3. An area in the territory of the exporting Party shall be recognized by the importing Party as a pest-free or disease-free area, or an area of low pest or disease prevalence, and may be retained as such, as the case may be, when the exporting Party provides the importing Party with sufficient scientific or other information to demonstrate this to the satisfaction of the importing Party. For this purpose, the exporting Party shall, upon request, provide the importing Party with reasonable access in its territory for inspection, testing and other relevant procedures.
4. Each Party may, in accordance with this Section:
(a) adopt, maintain or apply a different risk assessment procedure for a pest-free or disease-free area than for an area of low pest or disease prevalence; or
(b) determine a different final destination for the disposal of a good produced in a pest-free or disease-free area than for a good produced in an area of low pest or disease prevalence;
taking into account any relevant conditions, including those related to transportation and loading.
5. In adopting, maintaining or applying an animal or plant health measure in relation to the introduction, establishment or spread of a pest or disease, each Party shall accord to a good produced in a pest-free or disease-free area in the territory of the other Party treatment no less favorable than that accorded to a good produced in a pest-free or disease-free area in another country presenting the same level of risk. The Party shall use equivalent risk assessment techniques to evaluate the relevant conditions and controls in the pest-free or disease-free area and in the area adjacent to that area, and shall take into account any relevant conditions, including those related to transportation and cargo.
6. The importing Party shall seek agreement with the exporting Party, upon request, on specific requirements, compliance with which would allow a good produced in an area of low pest or disease prevalence in the territory of the exporting Party to be imported into the territory of the importing Party if it achieves the level of protection required by the importing Party.
Article 4-16. Control, Inspection and Approval Procedures.
1. Each Party shall, in relation to any control or inspection procedure it carries out:
(a) initiate and conclude the procedure as expeditiously as possible and in a manner no less favorable to a good of the other Party than to a like good of the Party or of any other country;
(b) publish the normal duration of the procedure or communicate to any person requesting it the expected duration of the procedure;
(c) ensure that the competent body:
(i) upon receipt of an application, promptly examines the completeness of the documentation and informs the applicant accurately and fully of any deficiencies;
(ii) as soon as possible, transmits to the applicant the results of the procedure in an accurate and complete manner, so that any necessary corrective action can be taken;
(iii) where the application is deficient, continue, as far as possible, with the procedure if the applicant so requests; and
(iv) report, at the request of the applicant, on the status of the application and the reasons for any delay;
(d) limit the information to be submitted by the applicant to that necessary to carry out the procedure;
(e) grant to confidential or proprietary information arising from the conduct of the proceeding for an asset of the other Party, or submitted in connection with such information:
(i) treatment no less favorable than that accorded to an asset of the Party; and
(ii) treatment that protects the legitimate commercial interests of the applicant in accordance with the law of that Party;
(f) limit any requirement with respect to individual specimens or samples of a good to what is reasonable or necessary;
(g) shall not charge a higher fee for carrying out the procedure on a good of the other Party than on its goods or the goods of another country, taking into account the costs of communication, transportation and other related costs;
(h) use criteria for selecting the location of the facilities where the proceeding is conducted so as not to cause unnecessary inconvenience to an applicant or its representative;
(i) provide a mechanism for reviewing complaints related to the operation of the procedure and for taking corrective action when a complaint is substantiated;
(j) use criteria for selecting samples of goods that do not cause unnecessary inconvenience to an applicant or its representative; and
(k) in the case of a good that has been modified subsequent to the determination that it complies with the requirements of the applicable animal or plant health measure, limit the procedure to what is necessary to establish that it continues to comply with the requirements of that measure.
2. Each Party shall apply to its approval procedures the relevant provisions of subparagraphs (a) through (i) of paragraph 1, with the necessary modifications.
3. When, at the stage of production of a good, the importing Party requires to carry out a control or inspection procedure, the exporting Party shall, at the request of the importing Party, take such reasonable measures as may be available to it to provide the importing Party with access to its territory in order to carry out its control or inspection procedure. The exporting Party shall also provide the importing Party with the assistance necessary for this purpose.
4. A Party maintaining an approval procedure may establish an authorization requirement for the use of an additive, or set a tolerance level for a contaminant in a food, beverage or feedstuff, in accordance with that procedure, prior to granting access to its domestic market for that food, beverage or feedstuff containing that additive or contaminant. Where that Party so requires, it may adopt a relevant international standard, guideline or recommendation as a basis for granting access to such goods, pending completion of the procedure.
Article 4-17. Notification, Publication and Provision of Information.
1. In addition to the provisions of Articles 17-02 (Publication) and 17-03 (Notification and Provision of Information), when proposing the adoption or modification of an animal or plant health measure of general application, each Party shall:
(a) at least 60 days in advance, publish a notice and notify the other Party in writing of its intention to adopt or modify that measure, other than a law, and publish and provide to the other Party the full text of the proposed measure in a manner that will enable interested persons to become familiar with the proposal;
(b) identify in the notice and notification the good to which the measure would apply, and include a brief description of the objective of, and the reasons for, the measure;
(c) provide a copy of the proposed measure to the other Party or interested person that so requests and, where possible, identify any provision that departs in substance from relevant international standards, guidelines or recommendations; and
(d) without discrimination, allow the other Party and interested persons to make comments in writing and, upon request, discuss them and take into account the results of those discussions.
2. Each Party shall, through appropriate measures, seek to ensure, with respect to an animal or plant health measure that a competent authority other than a central or federal government authority, as the case may be, intends to adopt or modify:
(a) that notice and notification of the type required in subparagraphs (a) and (b) of paragraph 1 is made at an appropriate initial stage prior to its adoption; and
(b) compliance with subparagraphs (c) and (d) of paragraph 1.