c) plant health, that developed under the auspices of the Secretariat of the International Plant Protection Convention; and
d) as established by other international organizations agreed upon by the Parties or developed pursuant to such organizations.
pest: among others, any living stage of any insect, mite, nematode, slug, snail, protozoan, or other invertebrate animal, bacteria, fungi, other parasitic plants or reproductive parts thereof, virus, mycoplasma, weed or any similar organism or the same associated with any of the above or any infectious substance that may directly or indirectly cause damage to plants or animals or their products or by-products.
approval procedure: any registration procedure, communication or any other mandatory administrative procedure.
control or inspection procedure: any procedure used, directly or indirectly, to determine compliance with a phytosanitary or zoosanitary measure, including sampling, testing, inspection, evaluation, assessment, verification, monitoring, auditing, evaluation of the application of phytosanitary and zoosanitary measures, accreditation, registration, certification, other procedures involving physical examination of a good, its packaging, or equipment or facilities directly related to the production, marketing or use of the good. Approval procedures are excluded from this definition.
transport: among others, the means of mobilization, the form of packaging and the mode of transport. plant: among other crops of economic, scientific, medicinal, ornamental and wild flora interest.
area: 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 5-12. Scope of Application.
1. In order to establish a framework of disciplines and rules to guide the development, adoption and enforcement of phytosanitary and zoosanitary measures, the provisions of this Section apply to any such measure, which when adopted by a Party directly or indirectly, may affect trade between the Parties.
2. This section applies to measures adopted or maintained by a Party relating to trade in agricultural goods.
3. In the event of any inconsistency between any provision of this Section and any other provision of this Agreement, the provisions of this Section shall prevail to the extent of the inconsistency.
Article 5-13. Right to Adopt Phytosanitary and Zoosanitary Measures.
Each Party may, in accordance with this Section, adopt, apply or maintain any phytosanitary or zoosanitary measure necessary for the protection of human, animal and plant life and health in its territory. The measure may be stricter than an international standard, guideline or recommendation.
Article 5-14. Right to Set the Level of Protection.
Notwithstanding any other provision of this section, each Party may, in order to protect human, animal and plant life and health, set its appropriate levels of protection, in accordance with the provisions of Article 5-22.
Article 5-15. Scientific Principles.
Each Party shall ensure that any phytosanitary or animal health measure it adopts, applies or maintains:
(a) is based on scientific principles, taking into account, where appropriate, relevant factors such as different geographical conditions;
b) is not maintained when there is no longer a scientific basis to support it; and
c) is based on a risk assessment appropriate to the circumstances that motivated it.
Article 5-16. Non-discriminatory Treatment.
Each Party shall ensure that a phytosanitary or animal health measure it adopts, applies or maintains does not arbitrarily or unjustifiably discriminate between its goods and like goods of another Party, or between goods of another Party and like goods of any other country, where identical or similar phytosanitary or animal health conditions exist.
Article 5-17. Unnecessary Obstacles.
Each importing Party shall ensure that any phytosanitary or zoosanitary measure it adopts, applies or maintains is applied only to the extent necessary to achieve its appropriate level of protection, taking into account technical and economic feasibility.
Article 5-18. Covert Restrictions.
No Party may adopt, apply or maintain any phytosanitary or zoosanitary measure that has the purpose or the effect of creating a disguised restriction on trade between the Parties.
Article 5-19. Action by Non-governmental Organizations.
Each Party shall ensure that any non-governmental body it relies on for the application of a phytosanitary or animal health measure acts in a manner consistent with this section.
Article 5-20. International Standards and International Standardization Organizations.
1. Without reducing the level of protection of human, animal and plant life and health, each Party shall use, as a basis for its phytosanitary or animal health measures, international standards, guidelines or recommendations, in order to make them equivalent or, where appropriate, identical to those of other Parties.
2. A Party's phytosanitary or animal health measure that is the same as an international standard, guideline or recommendation shall be considered consistent with Articles 5-13 through 5-19. A measure of a Party that provides a different level of phytosanitary or animal health protection than that which would be achieved by a measure based on an international standard, guideline or recommendation is not, on that basis alone, considered inconsistent with the provisions of this Section.
3. Nothing in paragraph 1 shall be construed to prevent a Party from adopting, applying or maintaining, in accordance with the other provisions of this Section, a phytosanitary or animal health measure that is more stringent than the relevant international standard, guideline or recommendation.
4. Where a Party has reason to believe that a phytosanitary or animal health measure of another 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 inform it in writing within forty days.
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 5-21. Equivalence.
1. Without reducing the level of protection of human, animal and plant life and health, the Parties shall, to the greatest extent possible and in accordance with this section, seek equivalence of their respective phytosanitary and zoosanitary measures.
2. The importing party:
(a) treat a phytosanitary or animal health measure adopted, applied or maintained by an exporting Party as equivalent to its own when the exporting Party, in cooperation with the importing Party, provides it with scientific or other information, in accordance with risk assessment methods agreed by the Parties, to demonstrate objectively, in accordance with 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 achieve the level of protection that the importing Party considers adequate; and
(c) shall provide in writing to the exporting Party, upon request, its reasons for a ruling under subparagraph (b).
3. For the purpose of establishing equivalence between measures, the exporting Party shall, at the request of the importing Party, adopt such mechanisms as may be available to it to facilitate access to its territory for inspection, testing and other relevant procedures.
4. The Parties may consider, when developing a phytosanitary or animal health measure, the relevant existing or proposed phytosanitary or animal health measures of the Parties.
Article 5-22. Risk Assessment and Adequate Level of Protection.
1. Each Party shall take into account, when carrying out a risk assessment:
a) relevant risk assessment methods and techniques developed by international standardization organizations;
b) relevant scientific information;
c) relevant production, processing, handling and packaging methods;
d) appropriate inspection, sampling and testing methods;
e) the existence of pests or diseases to be taken into account, including the existence of pest- free or disease-free areas, and areas of low pest or disease prevalence, recognized by the Parties;
f) ecological and other environmental conditions to be considered; and
g) the applicable quarantine measures and treatments that satisfy the importing Party such as quarantine, chemical, physical, destruction, re-shipment and others accepted by the Parties.
2. In addition to paragraph 1, in establishing its appropriate level of protection in relation to the risk associated with the introduction, establishment or spread of an animal or plant pest or disease, and in assessing the risk, each Party shall also take into account, where relevant, the following economic factors:
a) loss of production or sales that could be a consequence of the pest or disease; b) costs of control or eradication of the pest or disease in its territory; and c) the cost-effectiveness of other options for limiting risks. 3. Each Party, in establishing its appropriate level of protection: a) shall take into account the objective of minimizing negative effects on trade; and
b) avoid, with the objective of achieving consistency in the practical application of the concept of adequate level of protection, making arbitrary or unjustifiable distinctions, under different circumstances, that may result in arbitrary or unjustifiable discrimination against a good of another Party or constitute a disguised restriction on trade between the Parties.
4. Notwithstanding paragraphs 1 through 3 and Article 5-15(c), where in conducting a risk assessment a Party concludes that the available relevant scientific or other information is insufficient to complete the assessment, it may adopt a provisional phytosanitary or animal health measure, based on available relevant information, such as information from international standardizing organizations and the phytosanitary or animal health measures of other Parties. The Party shall complete the evaluation within sixty days of the submission of sufficient information to complete the evaluation, review the provisional measure and, where appropriate, modify it.
An importing Party may achieve its appropriate level of protection through the application of phytosanitary and zoosanitary measures immediately or gradually. When the application of the latter modality is requested by a Party, the other Party may grant such application or make specific exceptions, taking into account the export interests of the requesting Party.
Article 5-23. Adaptation to Regional Conditions.
1. Each Party shall adapt any of its phytosanitary or animal health measures related to the introduction, establishment or spread of an animal or plant pest or disease to the phytosanitary or animal health characteristics of the area where a good subject to such measure is produced and to the area in its territory for which the good is destined, taking into account relevant conditions, including those relating to transport and handling of cargo between such areas. In assessing such characteristics of an area, taking into account whether it is a pest-free or disease-free area and can be maintained as such, or is an area of low pest or disease prevalence, 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 the area; and
(c) any relevant standards, guidelines or recommendations.
2. In addition to the provisions of paragraph 1, each Party, when establishing whether an area is a pest-free or disease-free area or 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 phytosanitary or zoosanitary controls in that area.
3. Each importing Party shall recognize that an area in the territory of the exporting Party is, and may be maintained as, a pest-free or disease-free area or an area of low pest or disease prevalence, when the exporting Party provides the importing Party with sufficient scientific or other information to demonstrate this to the satisfaction of the importing Party. To this end, each exporting Party shall, upon request, allow the importing Party access to its territory for inspection, testing and other relevant procedures.
4. Each Party, taking into account any relevant conditions, including those related to the transportation and handling of the cargo, may, in accordance with this section:
a) adopting, applying or maintaining a different risk assessment procedure for a pest-free or disease-free area than for an area of low pest or disease prevalence; and
b) make a different determination for the disposition of a good produced in a pest-free or disease-free area than for one produced in an area of low pest or disease prevalence.
5. In adopting, applying or maintaining a phytosanitary or animal health measure in relation to the introduction, establishment or spread of an animal or plant pest or disease, each Party shall accord to a good obtained in a pest-free or disease-free area in the territory of another Party treatment no less favorable than that accorded to a good obtained 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 transport and cargo.
6. Each importing Party shall seek agreement with the exporting Party, upon request, on specific requirements that would allow a good obtained in an area of low pest or disease prevalence in the territory of an exporting Party to be imported into the territory of the importing Party.
Article 5-24. Control, Inspection and Approval Procedures.
1. Each Party, in connection with any control or inspection procedure it carries out:
a) initiate and conclude the proceeding 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 whoever requests it, the expected duration of the procedure;
c) ensure that the competent body:
i) upon receipt of an application, promptly examine the completeness of the documentation and inform the applicant accurately and fully of any deficiencies;
ii) as soon as possible, transmit to the applicant the results of the procedure in an accurate and complete manner, so that the applicant may take any necessary corrective action;
iii) where the application is insufficient, continue, to the extent 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 confidential or proprietary information arising out of or in connection with the conduct of the proceeding for an asset of the other Party:
i) treatment no less favorable than for a good of the Party; and
ii) in any case, treatment that protects the legitimate commercial interests of the applicant to the extent provided by the law of that Party;
f) limit any requirement in respect of individual specimens or samples of a good to what is reasonable or necessary;
g) for carrying out the procedure, shall not impose a fee that is greater for a good of another Party than is equitable in relation to any fee it charges on its goods or the goods of any other 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 procedure is to be carried out, so as not to cause inconvenience to an applicant or its representative;
i) use criteria for selecting samples of goods that do not cause unnecessary inconvenience to an applicant or his representative; and
j) in the case of a good that has been modified subsequent to the determination that it complies with the requirements of the applicable phytosanitary or animal health measure, limit the procedure to what is necessary to establish that it continues to comply with the requirements of that measure.
2. When a phytosanitary or zoosanitary measure of the importing Party requires a control or inspection procedure to be carried out at the production stage, the exporting Party shall, at the request of the importing Party, take the measures available to it to facilitate access to its territory and provide the necessary assistance to facilitate the importing Party in carrying out its control or inspection procedure.
3. The Parties shall apply, with the necessary modifications, with respect to their approval procedures, the relevant provisions of paragraph 1, subparagraphs a) to h).
4. Animporting Party that maintains an approval procedure may require that its authorization for the use of an additive, or the establishment of a tolerance level for a contaminant in a food or feedstuff, be obtained in accordance with that procedure before granting access to its domestic market for a food or feedstuff containing that additive or contaminant. Where that Party so requires, it may authorize a relevant international standard, guideline or recommendation as a basis for granting access to such goods pending completion of the procedure.
Article 5-25. Communication, Publication and Provision of Information.
1. When proposing the adoption or modification of a phytosanitary or zoosanitary measure of general application in their respective territories, each Party:
a) at least 60 days in advance, publish notice and communicate to the other Parties of its intention to adopt or modify such measure, where it is not a law, and publish and provide to the other Parties the full text of the proposed measure, in a manner that will enable interested parties to become familiar with the proposal;
b) identify in the notice and communication the property to which the measure would apply, and include a brief description of the objective and reasons for the measure;
c) provide a copy of the proposed measure to any Party or interested party 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 other Parties and interested persons to make comments in writing and, upon request, discuss them and take into account the results of such discussions.
2. Through appropriate measures, each Party shall seek to ensure, with respect to any phytosanitary or zoosanitary measure of a competent authority of a state or department, or of a municipality of that Party:
a) that notice and communication of the type required in paragraph 1(a) and (b) is given at an appropriate early stage, prior to adoption; and
b) that the provisions of paragraph 1, subparagraphs c) and d) are observed.
3. Where a Party considers it necessary to address an urgent problem related to phytosanitary or animal health protection, it may omit any of the steps set out in paragraphs 1 or 2 provided that, once a phytosanitary or animal health measure has been adopted:
a) immediately notify the other Parties, in accordance with the requirements set forth in paragraph 1, subparagraph b), including a brief description of the emergency;
b) deliver a copy of the measure to any of the Parties or interested parties that so request; and
c) allow, without discrimination, the other Parties and interested parties to make comments in writing and, upon request, discuss them and take into account the results of such discussions.
4. Each Party shall allow, except where necessary to address an urgent problem referred to in paragraph 3, a reasonable period of time to elapse between the publication of a phytosanitary or animal health measure of general application and the date of entry into force of the measure, in order to allow time for stakeholders to adapt to the measure.
5. Each Party shall designate a governmental authority responsible for the implementation, in its territory, of the communication provisions of this Article and shall communicate this to the other Parties. Where a Party designates two or more governmental authorities for this purpose, it shall provide the other Parties with complete and unambiguous information on the scope of responsibilities of those authorities.
6. When an importing Party denies entry into its territory of a good of another Party because it does not comply with a phytosanitary or animal health measure, the importing Party shall, upon request, provide a written explanation to the exporting Party, identifying the relevant measure as well as the reasons why the good does not comply with that measure.
Article 5-26. Information Centers.
1. Each Party shall ensure that there is at least one information center capable of answering all reasonable questions from other Parties and stakeholders, as well as providing relevant documentation regarding:
a) any phytosanitary or zoosanitary measure of general application, including any control or inspection or approval procedure proposed, adopted or maintained in its territory;
b) the Party's risk assessment processes and the factors it takes into consideration in carrying out the assessment and in establishing its appropriate level of protection;
c) the Party's membership and participation in international and regional phytosanitary and animal health bodies and systems, and bilateral and multilateral agreements within the scope of this Section, and the provisions of such bodies, systems, or agreements; and
d) the location of notices published pursuant to this section, or where such information may be obtained.
2. Each Party shall ensure that, in accordance with the provisions of this Section, when copies of documents are requested by another Party or an interested party, they shall be provided at a price not higher than the price at which they are sold domestically, plus the cost of postage.
Article 5-27. Technical Cooperation.
1. Each Party shall, at the request of another Party, facilitate the provision of technical advice, information and assistance, on mutually agreed terms and conditions, to strengthen phytosanitary and animal health measures and related activities of that other Party, including research, process technologies, infrastructure and the establishment of domestic regulatory bodies. Such assistance may include credits, grants and funds for the acquisition of technical skills, training and equipment that will facilitate the Party's adjustment and compliance with a Party's phytosanitary or animal health measure.
2. Each Party, at the request of another Party:
a) provide that Party with information on its technical cooperation programs concerning phytosanitary or zoosanitary measures in areas of particular interest; and
b) may consult with that Party during the development of any phytosanitary or animal health measure, or prior to the adoption of that measure or a change in its application.
Article 5-28. Limitations on the Provision of Information.
Nothing in this section shall be construed to require a Party to furnish any information the dissemination of which it considers would impede the enforcement of its laws, would be contrary to the public interest or would be detrimental to any legitimate commercial interest.
Article 5-29. Committee on Phytosanitary and Zoosanitary Measures.
1. The Parties establish a Committee on Phytosanitary and Zoosanitary Measures, composed of representatives of each Party with responsibilities in phytosanitary and zoosanitary matters.
2. Each Party, when designating its representatives, shall communicate this to the other Parties. When a Party designates more than one representative for this purpose, it shall provide the other Parties with complete and unambiguous information on the scope of responsibilities of those representatives.
3. The Committee shall facilitate and encourage:
a) expedited consultations on specific phytosanitary or zoosanitary matters;
b) the activities of the Parties in accordance with the provisions of this section, particularly as provided in articles 5-20 and 5-21;
c) technical cooperation between the Parties, including cooperation in the development, application and enforcement of phytosanitary and zoosanitary measures; and
d) the improvement of phytosanitary and zoosanitary conditions in the territory of the Parties.
4. The Committee:
a) seek, to the greatest extent possible, the assistance of the relevant international standardization organizations in order to obtain available scientific and technical advice and to minimize duplication of effort in the exercise of its functions;
b) may establish such modalities, as it deems appropriate, for the coordination and expeditious solution of matters referred to it, among others:
(i) to rely on experts and expert organizations; and
ii) establish working groups and determine their objectives and areas of action;
c) comply with the instructions of the Commission;
d) report annually to the Commission on the implementation of this section; and e) shall meet at least once a year, unless otherwise agreed.
Article 5-30. Technical Consultations
1. A Party may request consultations with another Party on any problem covered by this section.
2. Each Party may use the good offices of relevant international standardizing organizations, including those referred to in Article 5-20, for advice and assistance on phytosanitary and animal health matters within their respective mandates.
3. A Party asserting that a phytosanitary or zoosanitary measure of another Party is inconsistent with this section shall have to prove such inconsistency.
4. When the Parties involved have had recourse to consultations facilitated by the Committee, such consultations shall, if they so agree, constitute the consultations provided for in Chapter XIX.
Chapter VI. Rules of Origin
Article 6-01. Definitions
For the purposes of this chapter, the following definitions shall apply:
fungible goods: goods that are interchangeable for commercial purposes, whose properties are essentially identical and which it is impractical to differentiate by simple visual examination one from the other.
non-originating good or non-originating material: a good or material that does not qualify as originating in accordance with the provisions of this chapter.
goods wholly obtained or produced entirely in the territory of one or more Parties:
a) minerals extracted in the territory of one or more Parties;
b) products of the plant kingdom, harvested in the territory of one or more Parties;
c) live animals, born and raised in the territory of one or more Parties;
d) goods obtained from hunting or fishing in the territory of one or more Parties;