FTAA - Free Trade Area of the Americas

Draft Agreement

Chapter on Market Access

(Continuation)

3.2 Confidentiality 

[3.2.1 Each Party, pursuant to its national legislation, shall maintain the confidentiality of such information that it has obtained in accordance with this [Chapter] and shall protect it from all types of dissemination.] [that could prejudice the competitive position of those providing the information][that could prejudice the person providing the information]

[3.2.2 The confidential information obtained in accordance with this [Chapter] may only be made known to the authorities responsible for the administration and [application of the [rulings to determine][determination of] origin [ and of customs or fiscal matters, as applicable]] [origin determinations or].]

[[3.2. Each Party shall maintain, in accordance with its laws and regulations, the confidentiality of business information collected pursuant to this [Chapter] the release of which could prejudice the competitive position of the persons providing the information. Examples of such information may include but are not limited to: 

a) the terms of sale or contracts relating to importations, including information with respect to transaction prices; 

b) internal costs and prices, including manufacturing costs; 

c) manufacturing processes; and 

d) profit margins.] 

[Nothing in these articles shall preclude the parties from sharing information between governments that would enhance the enforcement of the obligations of this [Chapter]. The confidential business information collected pursuant to this [Chapter] may only be disclosed to those authorities responsible for the administration and enforcement of determinations of origin, and of customs and revenue matters.]]

3.3 Cooperation 

[3.3.1 The Parties are to cooperate and consult as deemed necessary for the effective and standard application [and interpretation]of administrative or operational provisions on matters relating to this [Chapter], and may have common understandings related with the interpretation and application of the provisions of this [Chapter]. The consulted Party shall give prompt and full consideration to any inquiries received.]

[3.3.1 Creation of an Assistance Fund for the Verification of Origin of {developing}{small} economies. The funding shall be obtained by ___% of unpaid {import} tariffs by the more developed countries to the smaller economies.]

[[3.3.1 As feasible, each Party shall notify the others of the following measures, rulings, or determinations, including those in the process of being applied. ]

[a) a determination of origin ruling issued as the result of a verification of origin visit made pursuant to Article ___, once the review and challenge rights referred to in Article ___ have been exhausted. ]

[b) a determination of origin ruling that a Party considers contrary to a ruling issued by the competent authority of another Party regarding tariff classification or the value of a good, or of materials used in the processing of a good, or the reasonable allocation of costs when calculating the net cost of a good for which a determination of origin has been made; ]

[c) a measure that establishes or significantly modifies an administrative policy that could affect future determination of origin rulings; and ]

d) an advance ruling or its amendment, pursuant to Article ___...]

[Each Party shall ensure that its laws and regulations implementing this [Chapter] are [promptly] published and made [available on the Internet]. Each Party shall ensure that advance rulings, amendments of advance rulings, or repeals of advance rulings interpreting or implementing this [Chapter] are promptly published and made [available on the Internet]. When such published rulings or their modifications are redacted in order to protect confidential business information, Parties shall make the complete determination available to competent authorities from other Administrations upon request. [With regard to other other determinations interpreting or implementing this [Chapter] (including verification procedures) each Party shall, as is practicable, make them available to competent authorities of other Parties].]

[3.3.2 Customs authorities shall cooperate:

a) to the extent possible, in the application of their respective customs regulations and laws for the enforcement of this{Agreement }{Treaty}, as well as any customs or mutual assistance agreement or other customs agreement to which they are a Party, and on statistical matters, harmonizing of documents, and exchange of customs information;]

[The Parties shall cooperate:

a) in the enforcement of their respective customs-related laws or regulations for implementing this {Agreement}{Treaty}, and any customs mutual assistance agreements or other customs-related agreement to which they are party; 

b) for purposes of facilitating the flow of trade between their territories, in such customs­related matters as the collection and exchange of statistics regarding the importation and exportation of goods, the harmonization of documentation used in trade, the standardization of data elements, the acceptance of an international data syntax and the exchange of information;

b) in the exchange of customs-related regulations;

c) in the verification of origin of a good, to which end the customs authority of the importing Party may request the customs authority of the other Party to conduct in its territory certain investigations for that purpose, sending the respective report to the customs authority of the importing Party; and

d) in the joint organization of training programs on customs-related topics, to include training of officials and users that participate directly in customs procedures.]

4. SANCTIONS

[4.4.1 Each Party shall establish or maintain criminal, civil or administrative penalties for violations [of] [under] its laws and regulations as related to the provisions of this [Chapter].] 

[Each Party shall stipulate that a false certification or declaration of origin [made by its exporter or producer], to the effect that a good to be exported to the territory of the other Party qualifies as originating, shall have the same legal consequences, with any changes required by the circumstances, as those that would be applied to its own importer making false declarations or representations in contravention of its customs regulations and laws. [It may also apply such measures as the circumstances warrant when the exporter or producer fails to meet any of the requirements in this [Chapter].]]

[4.4.1 When it has been established that a certificate of origin is not authentic or that the good does not qualify as originating, the exporting and/or importing Parties shall apply the measures and/or sanctions that correspond under their national legislation.]

[Without prejudice to the above, the exporting Party shall suspend the granting of [ certificate of origin] ["certificate of origin"][certification] to the final producer or exporter for a term of ____ [6] months. In case of repeated offense, said suspension shall be for a term of ____ [18] months.] 

[The entities authorized by each Party to issue [the certificate of origin] ["certificate of origin"][certification] shall share responsibility with the producer or exporter, in regard to the authenticity of the information given in the good’s declaration of origin.]

[The competent government [authorities][authority]of each Party shall disqualify officials of [non-governmental][the] certifying [entities] [entity][agency] who have issued certificates of origin in an improper manner. If, within a period of one year, [the][any] corresponding non-governmental certifying entity repeats such improprieties, it shall be suspended permanently from issuing certificates of origin. ]

[When governmental certifying entities are involved, the Parties[Party] shall adopt measures and [/or]sanctions provided by their [its] domestic legislation.]

[The Parties shall maintain legislation providing for penalties against persons who, in the respective Parties, furnish or cause to be furnished any document which is untrue in a material particular in support of a claim for preferential treatment under this Agreement] 

[4.4.2. No provision set forth in Articles 1.2.1(d), 1.2.2, 1.3.2, and 3.1.9 shall be construed so as to prevent a Party from applying measures as warranted by the circumstances.]

[ 5. TECHNICAL COOPERATION ]

[5.1 Each Party, at the request of another Party, may {facilitate the provision of}{provide} technical {advisory services }{advice}, information, and assistance in order to train its officials, with a view to the acquisition of technical skills and the implementation of technologies to provide improved compliance and monitoring of processes for certification of origin. ]

[5.2 Customs authorities shall cooperate, to the extent possible, in the application [and interpretation] of their respective customs regulations and laws for the enforcement of this Agreement, as well as any mutual assistance customs agreement or other customs agreement to which they are a Party, and on statistical matters, harmonizing of documents, and exchange of customs information, as well as on other issues that the customs authorities may determine.]

[5.3 To the extent possible, the customs authorities of the Parties shall provide notice of the following measures, rulings, or determinations, including those that are in the process of being approved: 

a) a ruling on determination of origin issued as a result of a procedure to verify origin carried out pursuant to Article ___, once the review and challenge procedures referred to in Article ____ have been exhausted; 

b) a ruling on determination of origin that the Party considers to be contrary to a ruling issued by the customs authority of the other Party regarding tariff classification or the value of a good or of materials used in the production of a good, 

c) a measure that establishes or significantly amends an administrative policy and that could affect future rulings on determination of origin; [and] 

d) an advance ruling or its amendment, pursuant to Article ____. ]

[6.1 INSTITUTIONAL ARRANGEMENTS]

[6.1 DEFINITIONS.]

[6.1.1. For the purposes of this Chapter, the following terms shall have the meanings indicated:

customs authority: the authority that, under the domestic law of each Party, is responsible for the
administration of customs laws and regulations; 

certifying authority: the government authority that, under the domestic law of each Party, is responsible for issuing, verifying, and controlling certificates of origin;

identical goods: goods that are the same in all respects, including physical characteristics, quality, and commercial reputation. Minor differences in appearance shall not prevent goods that in all other ways fit this definition from being considered identical;

CIF: inclusive of cost, insurance, and freight;

exporter: an exporter located in the territory of a Party from which the good is exported who, pursuant to this Chapter, is obliged to maintain, in the territory of that Party, the records referred to in Article 1.4.1(a);

importer: an importer located in the territory of a Party into which the good is imported who, pursuant to this Chapter, is obliged to maintain, in the territory of that Party, the records referred to in Article 1.4.1(a); 

producer: in addition to the stipulations of the RO Chapter (Rules of Origin), the person who is obliged to maintain, in the territory of that Party, the records referred to in Article 1.4.1(a);

ruling to determine origin: a resolution issued as a result of a verification of origin that establishes whether a good qualifies as originating, in accordance with the RO Chapter (Rules of Origin); 

preferential tariff treatment: the application of the duty rate applicable to an originating good, in accordance with the Tariff Elimination Program.

[6.1.2. Except for terms defined in this Article, the definitions set forth in Article 10 (Definitions) and the provisions of Article 9.1 (Enforcement Instruments) of the Chapter on Rules of Origin are incorporated into this Chapter.]

[Annex 1 to Article 1.1]

[The Parties establish the following common form for the “certificate of origin,” which may be modified if so agreed on by the Parties.

(Pending definition) ]

[Annex 2 to Article 1.1]

[The Parties establish the following {standard} form for the “declaration of origin,” to be filled out and signed by the producer of the good when he is not the exporter thereof. This declaration form may be modified if so agreed on by the Parties.

(Pending definition)]

[CHAPTER ON] STANDARDS AND TECHNICAL BARRIERS TO TRADE²⁰

Article 1. Scope and Coverage

Area of Application

1.1 The provisions of this [Chapter] apply to standards [-related] [measures] [activities], [[of the Parties, in other words: standards, technical regulations, conformity assessment] [authorization] procedures and metrology] [,accreditation] [[technical regulations, conformity assessment procedures,] metrology [measures] [activities] [(scientific, industrial and legal)] of the Parties,] as well as to measures related to these that could directly or indirectly affect trade in goods [or services] between the Parties. 

[1.2 The provisions of this [Chapter] [shall] apply to goods of all sectors [and services], as regards the preparation, adoption and application of [[standards, technical regulations, conformity assessment procedures,] [accreditation] and metrology][standards-related measures].]

1.3 The provisions of this [Chapter] do not apply to [services, nor to] sanitary and phytosanitary measures.

[1.4 Procurement specifications established by government institutions for the production or consumption needs of government institutions [shall][are] not [be] subject to the provisions of this [Chapter], but rather [will be][are] governed by the [Chapter] on Government Procurement.]

Extent of Obligations

1.5 Each Party shall ensure the adoption of all measures necessary for conformity with the provisions of this [Chapter] at the national or federal[,state, and [municipal levels],] [and any other level of political division that the Parties may have] [level and shall make efforts to have these measures adopted at the other levels of government] [except in cases in which this [Chapter] provides otherwise]. 

[1.6 The activities referred to in Article 1.1 may be implemented at different levels: national, subregional, regional, and international.] 

[1.7 The activities referred to in Article 1.1 [shall be][are] carried out by [various types of bodies, such as:] standardization bodies, certification bodies, testing and calibration laboratories, [metrology verification laboratories, national] metrology laboratories, inspection bodies, accreditation bodies, and regulatory organs. These entities may be organized at the national[,] [or] subregional [or regional] [, regional and international] level[s].] 

[1.8 The conclusion of this [Chapter] will be promoted through general and specific agreements, memoranda of understanding, [recognition agreements] and regional, subregional and bilateral articulation and cooperation initiatives as well as other bilateral and multilateral agreements [signed] in the various fields being considered and related to the activities described in Article 1.1. [These instruments include mechanisms such as the recognition of the equivalence of technical regulations, [and recognition of conformity assessment procedures, particularly] acceptance of calibration, [measurement,] testing and inspection reports [and certificates], acceptance of certificates of inspection of conformity, recognition of [accreditation and] certification systems and acceptance of suppliers’ declaration of conformity.]] 

[Article 2. Objectives and General Principles]

[2… X1 The objective of this [Chapter] is to promote a strengthening and full application of national standard-related, conformity assessment, accreditation and metrology systems, for the advancement of the Free Trade Zone in the Hemisphere.]

WTO Agreement on Technical Barriers to Trade (TBT)[and Other International Agreements]

[2…X2 The Parties recognize the rights and obligations contained in the World Trade Organization Agreement on Technical Barriers to Trade (hereinafter the WTO TBT Agreement), and agree to abide by the principles of transparency, most-favored-nation treatment, non-discrimination and differential treatment established therein.]

[2.1 Parties reaffirm their existing rights and obligations arising from the WTO Agreement on Technical Barriers to Trade [and other international agreements in which the Parties participate, including agreements about health, the environment and conservation, and consumer protection.]] 

[2.2 Each Party shall make every possible effort to implement and fully conform to the provisions agreed upon in the TBT Agreement, the provisions of which constitute the basis of this [Chapter].][This [Chapter] shall contribute to the complete implementation of the WTO Agreement on Technical Barriers to Trade in the region.] 

[Relationship with International Technical Fora][and Participation in International Fora]²¹ 

[2.3 This [Chapter] shall contribute to the complete implementation of the WTO Agreement on Technical Barriers to Trade in the region.] [To comply with the [present] Agreement, the Parties shall make efforts to harmonize, whenever possible, the activities referred to in 1.1, as well as the guidelines and practices established by related international technical fora.]

[Right to take Standards-Related Measures]

[2.4 Each Party may {develop,} adopt, apply and maintain any standards-related measure [technical regulations, conformity assessment procedures] [authorization] and metrology [procedures] that [allow][guarantee] the achievement of legitimate objectives[, such as the protection of human, animal or plant life or health; protection of the environment; or prevention of practices that may mislead or deceive the consumer as well as measures that ensure that such standards-related measures are applied and implemented].] 

[Right to Establish Level of Protection]

[2.5 Each Party may prepare, adopt, apply and maintain [the standards-related] measures that allow them to ensure the level of protection deemed appropriate to achieve its legitimate objectives of security, protecting human, animal and plant life and health, protecting the environment {and}{or} preventing [deceptive] practices [that might mislead or deceive consumers].]

[Nondiscrimination]

[2.6 The Parties shall ensure, with respect to [standards-related] measures [[standardization], approval procedures, and metrology], [the activities mentioned in 1.1,] [that] goods [and service providers] from other Parties [shall] receive treatment no less favourable than that given to like [products][goods] of domestic origin and to [like products][suppliers of like services] [originating in] [of] any other country.] 

[Unnecessary [Technical] Barriers to Trade]²²

[2.7 The Parties shall ensure that the application of their standardization [standards -related] measures, [technical regulations and conformity assessment procedures] [authorization procedures and metrology] shall not create unnecessary barriers to trade among them. {Each Party shall ensure that its standards-related measures do not}{ To this end, the Parties shall not} restrict trade more than necessary to achieve a legitimate objective, [taking account of the risks nonfulfillment would create].] 

[2…X3 The objective of this [Chapter] is to prevent the standards, technical regulations, conformity assessment procedures, {accreditation} and metrology measures prepared, adopted and applied from becoming unnecessary technical barriers to trade in the hemisphere.]

[2…X4 The Parties reaffirm their commitment to undertaking an ongoing process of identification and elimination of unnecessary technical barriers to hemispheric trade resulting from the application of standards-related, accreditation and metrology measures.]

[Performance Rather than Design]

[2…X5 The Parties shall ensure that standards-related measures based on product requirements are defined by the Parties on the basis of performance rather than on design, materials or descriptive characteristics.]

[Use of International Standards]²³ [and Participation in International Fora]²⁴

[2.8 Parties shall utilize existing international standards in force, or those whose {completion}{adoption} is imminent, [the guidelines or recommendations of international institutions] or pertinent elements of these, [as a basis] for [the preparation and application of] their [respective] standards [-related], [authorization procedures] [[accreditation] and metrology measures] except in cases where [international][such] standards [or recommendations] would be an inappropriate or ineffective means to fulfill the legitimate objectives being sought.] 

[2.9 [In pursuing their legitimate objectives, each Party may adopt, maintain or apply any standards-related measure resulting in a higher level of protection than that obtained from an international standard,] due to[, among others,] fundamental climatic, geographical, technological, infrastructural factors or for scientifically proven reasons.] 

[2…X6 In order to ensure that international standards are used as a reference for the adoption of national standards-related, accreditation and metrology measures, the Parties shall urge the competent agencies in their territory to participate fully and appropriately in the respective international organizations.]

[Equivalence]

[2.10 {Each Party shall give favourable consideration to accepting a technical regulation adopted by another Party as equivalent to its own when, in cooperation with the other, they are satisfied that these technical regulations fulfill the legitimate objectives of their own regulations}.{The Partiers shall give favorable consideration to granting equivalence to technical regulations of other Parties meeting the objectives of the importing country.}]²⁵

[Identification of Technical Barriers to Trade]

[2.11 The Parties [reaffirm their commitment to the ongoing identification and elimination of] [undertake to periodically identify and eliminate] unnecessary technical barriers to hemispheric trade [resulting from the application of standards, technical regulations, conformity assessment procedures, [accreditation] and metrology].]

[2.12 [In order to identify technical barriers to trade,] The Parties [shall make efforts to adopt][shall adopt] compatible methodologies for identifying, [reporting and eliminating unnecessary technical] barriers that affect [their exports as a means towards finding concrete measures to overcome these barriers][hemispheric trade].]²⁶

[2.13 These methodologies shall include international classification [and{, to the extent possible,} harmonization] of products and procedures [{to the extent}{insofar as} possible].] 

[2.14 Parties shall encourage their exporters to collaborate in identifying technical barriers to their exports.] 

[2.15 [Each Party][The Parties] shall [make efforts to] set up [and] [implement] information systems including data on [unnecessary] technical barriers that have been identified and measures that have been taken to [overcome][eliminate] them.]²⁷

[2.16 Efforts shall be made to ensure that the information systems {be}{and data banks used for the identification of technical barriers to trade are} designed in such a way that countries can use them as broadly, openly and transparently as possible, in order to fully conform to the commitments undertaken in this [Chapter].]

[Article 3. Standards]

[3…X1 The objective of international standardization activities developed by consensus in international standardization bodies is considered to be the establishment of technical standards that reflect the state of the art in applied knowledge, aimed at better organization of production and trade systems.]

[3…X2 The Parties shall support the strengthening of standardization activities and structure at the national, subregional and regional levels.]

[Conformance with the Code of Good Practice]

[3.1 The Parties shall ensure that their [government] institutions concerned with standards-related activities accept and conform to the Code of Good Practice for the Preparation, Adoption, and Application of Standards established in Annex [3][III] of the [WTO Agreement on Technical Barriers to Trade][WTO TBT Agreement.][; and shall take reasonable measures at their disposal so local, state or federal public institutions and non-governmental institutions involved in standards-related activities in their territories do the same.]] 

[3.2 Parties shall also take [reasonable] measures at their disposal to ensure that local [{nongovernmental} state or federal] {public institutions}{government agencies} and nongovernmental {institutions}{organizations} involved in standards-related activities in their territories accept and conform to the Code of Good Practice.] 

[Unnecessary Barriers to Trade]

[3.3 Parties shall prepare, adopt and apply standards for goods or related process and production methods, [or for services] or related operating methods that do not affect or create unnecessary barriers to trade.] 

[Use of International Standards]²⁸

[3.4 {Where relevant international standards exist or their completion is imminent, Parties shall make every possible effort to ensure that their standardization bodies use these international standards or, when international standards do not exist, regional or sub-regional standards or relevant parts of them as a basis for the standards they prepare, except when geographical, climate or other unique characteristics would cause such standards to be an inappropriate or ineffective means of fulfilling legitimate objectives.} {The Parties shall use international standards in effect or whose adoption is imminent, or relevant elements thereof, as the basis for their own standardization measures, except in cases where such standards represent an ineffective or inappropriate means of achieving their legitimate objectives}.] 

[3.5 In the food area, preference shall be given to the official standards of the Codex Alimentarius as the basis for preparing national standards.] 

[3.6 Parties shall encourage, to the extent possible, the adoption of international standards. In the absence of existing international standards, regional or subregional standards shall be used.] 

[3.7 Parties shall seek to align their standards with relevant international standards. Parties shall urge the standardizing bodies in their territories to participate fully {and appropriately,} within the limits of their resources, in international standardizing bodies that carry out activities related to standards {previously adopted or pending adoption}.] 

[Participation in International Standardization Fora]²⁹

[3.8 {Parties shall make efforts, in keeping with their abilities, to increase their participation in regional and international standardization fora. [In coordinating their positions on standards to present to international bodies, Parties are encouraged to make use of the hemispheric standards body, the Pan American Standards Commission (COPANT).]}{The Parties shall endeavor to step up their effective participation in international standard-setting forums [. This coordination shall make,] [as well as coordinate,] where necessary, use of the Pan American Standards Commission (COPANT), a regional standardizing body.}]³⁰

[3.9 Parties shall take reasonable measures at their disposal to ensure that the international standardizing bodies of which they or the competent institutions in their territories are members or participants have an established process designed to take account of the opinions of all of the interested Parties and to reconcile opposing arguments.] 

[Coordination of Positions in International Fora]

[3.10 Parties shall seek to coordinate [their][the] positions [they will take] in international standardizing fora.] 

[3.11 {In coordinating their positions on standards to present to international bodies,} Parties [are encouraged to][should, whenever necessary] make use of the hemispheric standards body, the Pan American Standards Commission (COPANT). {[This][As part of this coordination effort] where necessary, [they] shall make use of the Pan American Standards Commission, a regional standardizing body.]} 

[3.12 Parties shall encourage the cooperation [and coordination] of the region’s standardization bodies at the regional, subregional and national levels with bodies from other regions.] 

[3…X3 Hemispheric efforts in the area of standardization shall be coordinated by the Pan American Standards Commission (COPANT), in which the Parties agree to participate actively. COPANT shall establish a procedure for taking into account the views of all the Parties in order to propose them to international organizations.]³¹

[Performance Rather than Design]

[3.13 Parties shall ensure that, wherever appropriate, standards based on product requirements {based on performance} {are framed by standardizing bodies in terms of product performance} rather than on design or descriptive characteristics.] 

[Equivalence]

[3.14 Only in the absence of relevant international standards, Parties shall give favourable consideration to the possibility of accepting as equivalent standards of other Parties, even when they differ from their own, provided they are satisfied that those standards adequately fulfil the objectives of their own standards.]

[Reporting on Preparation of Standards][Standardization Programs]

[3.15 The Parties shall [ensure that][encourage] the standardizing bodies [in their territories][to] report at least every six months on their work program, including report on standards they are in the process of preparing and standards that have been adopted in the last period. A standard shall be understood to be in the process of being prepared as of the time the decision to prepare it is made until it has been adopted.]

[Article 4. Technical Regulations]

[Unnecessary Barriers to Trade]

[4.1 The Parties shall ensure that their technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary barriers to international trade. For this purpose, technical regulations shall not be more trade- restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create.]

[Use of International Standards]³²

[4.2 Where relevant international standards exist or their completion is imminent, Parties shall use as these international standards or, when international standards do not exist, regional or sub-regional standards or relevant parts of them as a basis for their technical regulations, {except when geographical, climate or other unique characteristics would cause such standards to be an inappropriate or ineffective means of fulfilling legitimate objectives} {except in cases of unique geographical, climatic or other factors, as established in the WTO Agreement on Technical Barriers to Trade}.]

[4.3 Parties shall play a full part, within the limits of their resources, in the preparation of international standards for products for which technical regulations have been adopted or are expected to be adopted.] 

[4.4 The Parties shall ensure that their technical regulations are aligned with relevant international standards.] 

[Compatibility and] [Equivalence]³³, ³⁴

[4.5 Without detracting from the rights conferred to them in this [Chapter][,] [and while taking into account international standards-related [and metrology] activities] to the greatest extent possible, Parties shall make their respective [standards-related [and metrology] measures][technical regulations] compatible, without lessening standards regarding safety or protecting human, animal or plant life or health, environmental issues or consumer protection.] 

[4.6 The Parties shall give favourable consideration to the possibility of accepting equivalent technical regulations of other Parties, even if these regulations differ from their own, provided they are satisfied that these regulations appropriately fulfil the objectives of their own regulations.] 

[4.7 Each Party shall accept a technical regulation adopted by another Party as equivalent to its own when the exporting Party, in cooperation with the other, demonstrates to [the satisfaction of] the importing Party that its technical regulations fulfil the others’ legitimate objectives.]

[4.8 At the request of [a[n] [the] exporting] Party, the [importing][other] Party shall inform in writing the reasons for not accepting as equivalent a [technical] regulation [of the exporting Party. [It][They] may, in addition, hold discussions to facilitate [such][its] acceptance].] 

[4…X1 The Parties shall make efforts to prepare and adopt common criteria for the region in reference to the equivalence of technical regulations[, in conformity with item 4.3].]

[Performance Rather than Design]

[4.9 [{Whenever}{Where} appropriate] {The} Parties shall ensure that, {wherever appropriate,} technical regulations based on product requirements {based on performance}{are framed by the Parties in terms of product performance} rather than on design or descriptive characteristics.] 

[Regulatory Structures]

[4.10 In order to establish technical regulations[,] according to the nature of [the activity][activities] being regulated[,][the] Parties [{shall endeavor to][}shall foster the articulation of regulatory structures and mechanisms] [promote the establishment and functioning of regulatory structures at the national levels].] 

[Structure and][Updating][Maintenance] [of Technical Regulations]

[4…X2 Technical regulations should specify the products to which they apply, classified by tariff sub-item of the Harmonized System for the Designation and Codification of Goods, identifying mandatory requirements, conformity assessment procedures; the agencies responsible, authorized or accredited to conduct said assessment; national authorities responsible for compliance; risks they intend to counteract and how the regulation achieves it.]

[4.11 Technical regulations shall not be maintained if the circumstances or objectives that led to their adoption no longer exist or if changed circumstances or objectives could be served in a less trade-restrictive manner.] 

[4…X3 The right to raise an objection to a technical regulation may not be prescribed or annulled by administrative actions; therefore, administrative silence or other similar actions shall not be included in efforts to resolve disputes.]

[Risk Assessment ]³⁵

[4.12 In seeking its legitimate objectives, each Party [shall conduct][may carry out] risk assessments. [In doing so, a Party may take into account, among other product-related factors][In doing so, it shall take into consideration]:

[a) {risk assessment procedures}{risk assessments} carried out by international [standardizing] bodies;]

[b) available scientific or technical information;]

[c) related production technology;]

[d) the intended end uses;]

[e) related production processes or methods, provided that they affect the characteristics of the goods;]

[f) operating, inspection, sampling or testing methods;]

[g) environmental conditions.]]

[4.13 Once the Party has established a level of protection appropriate towards achieving its legitimate objectives, while conducting the risk assessment, the Party shall avoid arbitrary or unjustifiable distinctions between similar products [or services], if these distinctions:

[a) result in arbitrary or unjustifiable discrimination against goods [or service providers] of another Party;]

[b) constitute a hidden restriction on trade between the Parties;]

[c) discriminate between similar goods [or services] for the same use under the same conditions that pose the same level of risk and provide similar results.]]

[4.14 A Party shall, upon request, provide to the other Parties, the relevant documentation regarding its risk assessment procedures as well as the factors considered in carrying out the assessment {[and establishing the levels of protection it considers appropriate [, in accordance with Article 2] }{[and establishing protection levels, in accordance with Article 2]}.]] 

[Article 5. Conformity Assessment]

[5…X1 The purpose of the conformity assessment activities shall be to verify and demonstrate the conformity of products, processes, systems and other results of productive activities to specific technical requirements. The Parties shall endeavor to ensure the consistency and transparency of conformity assessment activities, as a means of avoiding unnecessary barriers to trade in this [Chapter]’s field of application.]

[Nondiscrimination and Avoidance of Unnecessary Barriers to Trade]

[5.1 Parties shall ensure that, in cases where [a positive][an] assurance of conformity with technical regulations [or standards] is required, their{central government}{domestic} bodies apply the following provisions to products originating in the territories of other Parties.]

[5.1.1 Conformity assessment procedures are prepared, adopted and applied so as to grant access for suppliers of like products originating in the territories of other Parties under conditions no less favourable than those accorded to suppliers of like products of national origin or originating in any other country, in a comparable situation; access entails suppliers’ rights to an assessment of conformity under the rules of the procedure, including, when foreseen by this procedure, the possibility to have conformity assessment activities undertaken at the site of facilities and to receive the mark of the system.]

[5.1.2 Conformity assessment procedures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. [This means, inter alia, that conformity assessment procedures shall not be more strict or applied more strictly than is necessary to give the importing Party adequate confidence that products conform with the applicable technical regulations or standards, taking account of the risks nonconformity would create.]] 

[5.2 Each Party shall make an effort to ensure consistency and transparency in conformity assessment activities as a means of preventing unnecessary barriers to trade.]

[5.3 Recognizing that it should be to the mutual advantage of the Parties concerned, each Party shall accredit, [approve, {licence}][authorize] or otherwise recognize conformity assessment bodies in the territory of another Party on terms no less favourable than those accorded to conformity assessment bodies in its territory.]

[Use of International Guides and Recommendations]

[5.4 When relevant [guidelines] [guides, guidelines, documents] or recommendations from international institutions involved in standards-related activities exist or where their completion is imminent, the Parties shall ensure that central government bodies utilize those [guidelines]{guides, guidelines, documents} or recommendations or relevant parts thereof, as a basis for their conformity assessment procedures, except when, as duly explained upon request, such [guidelines] [guides, [guidelines, documents]] or recommendations or relevant parts are inappropriate for the Parties concerned for, inter alia, such reasons as national security requirements, the prevention of deceptive practices, protection of human health or safety, animal or plant life or health, or the environment; {fundamental climatic or other geographical factors; [fundamental] technological or infrastructural problems}{climatic or other basic geographical or [basic] infrastructure-related factors or technological problems}.]

[5.5 The Parties shall make efforts to assure that the [mechanisms][procedures] used in accreditation[, as well as in other [legal and de facto administrative][authorization] procedures,] [be][are] consistent with international provisions accepted in corresponding technical fora.] 

[5.6 The Parties shall, to the extent possible, adopt the ISO/IEC Guidelines and standards for conformity assessment procedures.] 

[5…X2 For purposes of this [Chapter], the following fields of conformity assessment shall be taken into account: a) obligatory conformity assessment; b) voluntary conformity assessment.]

[Obligatory Conformity Assessment]

[5…X3 The Parties shall, to the extent possible, adopt the ISO/IEC guidelines and standards for obligatory conformity assessment procedures.]

[Voluntary Conformity Assessment]

[5….X4 The Parties shall encourage the adoption of ISO/IEC guidelines and standards for voluntary conformity assessment.]

[Conformity Assessment Procedures]

[5…X5 In relation to its conformity assessment procedures, each Party shall be obligated to :

[a) not adopt or maintain conformity assessment procedures that are more strict or are applied more strictly than necessary to be certain that the good [or service] conforms to the technical regulations or applicable standards, taking into account the risks that failure to conform could pose;]

[b) initiate and complement this procedure in the most expeditious manner possible; and]

[c) establish a nondiscriminatory system for processing applications.] ]

 

Continuation: [Participation in International Fora]

Return to the Index

20 Square brackets [ ] indicate that different points of view do exist on the text included between them. Wiggly brackets { } indicate that differences in translation may exist on texts included between them.

21 It was proposed to place paragraphs 3.8, 3…X3 and 5.9 under this subheading.

22 It was proposed that paragraph 2.12 be placed under this subheading.

23 It was proposed to keep the section on “Use of International Standards” under Article 2. 

24 It was proposed to include “Participation in International Fora” here. It was also proposed to create a separate subheading of “Participation in International Fora” under Article 2. 

25 It was proposed to place this text under Article 4 “Technical Regulations” rather than under Article 2 “Objectives and General Principles”. 

26 It was proposed that this paragraph be placed under the subheading “Unnecessary Barriers to Trade” of Article 2.

27 It was proposed that this paragraph be moved to Article 7, under the subheading “Enquiry Points”.

28 It was proposed to {place} {keep }the section on “Use of International Standards” under Article 2. 

29 It was proposed that this subheading be placed under Article 2. 

30 It was proposed this paragraph be moved to Article 2 under the section “[Relationship with International Technical Fora][ and Participation in International Fora]”. 

31 It was proposed this paragraph be moved to Article 2 under the section “[Relationship with International Technical Fora][and Participation in International Fora]”. 

32 It was proposed to {place} {keep} the section on “Use of International Standards” under Article 2. 

33 It was proposed that the subheading “Compatibility and Equivalence” be placed as a separate article.

34 It was proposed that paragraph 2.10 be placed under this subheading.

35 It was proposed that “Risk Assessment” be placed as a separate article.