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ORGANIZATION OF AMERICAN STATES - TRADE UNIT

PROVISIONS ON STANDARDS AND CONFORMITY ASSESSMENT IN TRADE AND INTEGRATION ARRANGEMENTS OF THE WESTERN HEMISPHERE

SG/TU/WG.STBT/DOC.6/96/Rev.3
9 February 1998
Original: English
Limited Distribution


Part I

PROVISIONS ON STANDARDS AND TECHNICAL BARRIERS TO TRADE
IN SUBREGIONAL TRADE AND INTEGRATION ARRANGEMENTS


VII. TRANSPARENCY REQUIREMENTS

A. Notification

WTO Article 2.9: Whenever a relevant international standard does not exist or the technical content of a proposed technical regulation is not in accordance with the technical content of relevant international standards, and if the technical regulation may have a significant effect on trade of other Members, Members shall:
  1. publish a notice in a publication at an early appropriate stage, in such a manner as to enable interested parties in other Members to become acquainted with it, that they propose to introduce a particular technical regulation;
  2. notify other Members through the Secretariat of the products to be covered by the proposed technical regulation, together with a brief indication of its objective and rationale. Such notifications shall take place at an early appropriate stage, when amendments can still be introduced and comments taken into account;
  3. upon request, provide to other Members particulars or copies of the proposed technical regulation and, whenever possible, identify the proposed parts which in substance deviate from relevant international standards; and
  4. without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request and take these written comments and the results of these discussions into account.

Article 2.10: Subject to the provisions in the lead-in to paragraph 9, where urgent problems of safety, health, environmental protection or national security arise or threaten to arise for a Member, that Members may omit such of the steps enumerated in paragraph 9 as it finds necessary, provided that the Member, upon adoption of a technical regulation, shall:

  1. notify immediately other Members through the Secretariat of the particular technical regulation and the products covered, with a brief indication of the objective and the rationale of the technical regulation, including the nature of the urgent problems;
  2. upon request, provide other Members with copies of the technical regulation; and
  3. without discrimination, allow other Members to present their comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

Article 5.6: Whenever a relevant guide or recommendation issued by an international standardizing body does not exist or the technical content of a proposed conformity assessment procedure is not in accordance with relevant guides and recommendations issued by international standardizing bodies, and if the conformity assessment procedure may have a significant effect on trade of other Members, Members shall:

  1. publish a notice in a publication at an early appropriate stage, in such a manner as to enable interested parties in other Members to become acquainted with it, that they propose to introduce a particular conformity assessment procedure;
  2. notify other Members through the Secretariat of the products to be covered by the proposed conformity assessment procedure, together with a brief indication of its objective and rationale. Such notifications shall take place at an early appropriate stage, when amendments can still be introduced and comments taken into account;
  3. upon request, provide to other Members particulars or copies of the proposed procedure and, whenever possible, identify the proposed parts which in substance deviate from relevant guides or recommendations issued by international standardizing bodies; and
  4. without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

Article 5.7: Subject to the provisions in the lead-in to 5.9, where urgent problems of safety, health, environmental protection or national security arise or threaten to arise for a Member, that Members may omit such of the steps enumerated in 5.9 as it finds necessary, provided that the Member, upon adoption of a technical regulation, shall:

  1. notify immediately other Members through the Secretariat of the particular technical regulation and the products covered, with a brief indication of the objective and the rationale of the technical regulation, including the nature of the urgent problems;
  2. upon request, provide other Members with copies of the technical regulation; and
  3. without discrimination, allow other Members to present their comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

Article 10.3: Each Member shall take such reasonable measures as may be available to it to ensure that one or more enquiry points exist which are able to answer all reasonable enquiries from other Members and interested parties in other Members as well as to provide the relevant documents or information as to where they can be obtained regarding:

  1. any standards adopted or proposed within its territory by non-governmental standardizing bodies, or by regional standardizing bodies of which such bodies are members or participants;
  2. any conformity assessment procedures, or proposed conformity assessment procedures, which are operated within its territory by non-governmental bodies, or by regional bodies of which such bodies are members or participants; and
  3. the membership and participation of relevant non-governmental bodies within its territory in international and regional standardizing bodies and conformity assessment systems, as well as in bilateral and multilateral arrangements within the scope of this Agreement; they shall also be able to provide reasonable information on the provisions of such systems and arrangements.

Article 10.6: The Secretariate shall, when it receives notifications in accordance with the provisions of this Agreement, circulate copies of the notifications to all Members and interested international standardizing and conformity assessment bodies, and draw the attention of developing country Members to any notifications relating to products of particular interest to them.

Article 10.7: Whenever a Member has reached an agreement with any other country or countries on issues related to technical regulations, standards or conformity assessment procedures which may have a significant effect on trade, at least one Member party to the agreement shall notify other Members through the Secretariat of the products to be covered by the agreement and include a brief description of the agreement. Members concerned are encouraged to enter, upon request, into consultations with other Members for the purposes of concluding similar agreements or of arranging for their participation in such agreements.

Article 10.8: Nothing in this Agreement shall be construed as requiring:

  1. the publication of texts other than in the language of the Member;
  2. the provision of particulars or copies of drafts other than in the language of the Member except as stated in paragraph 5; or
  3. Members to furnish any information, the disclosure of which they consider contrary to their essential security interests.

Article 10.9: Notifications to the Secretariate shall be in English, French or Spanish.

Article 10.10: Members shall designate a single central government authority that is responsible for the implementation on the national level of the provisions concerning notification procedures under this Agreement except those included in Annex 3.

Article 10.11: If, however, for legal or administrative reasons the responsibility for notification procedures is divided among two or more central government authorities, the Member concerned shall provide to the other Members complete and unambiguous information on the scope of responsibility of each of these authorities.

NAFTA Article 909.1: Further to Article 1802 (Publication) and 1803 (Notification and Provision of Information), each Party proposing to adopt or modify a technical regulation shall:
  1. at least 60 days prior to the adoption or modification of the measure, other than a law, publish a notice and notify in writing the other Parties of the proposed measure in such a manner as to enable interested persons to become acquainted with the proposed measure, except that in the case of any such measure relating to perishable goods, each Party shall, to the greatest extent practicable, publish the notice and provide the notification at least 30 days prior to the adoption or modification of the measure, but no later than when notification is provided to domestic producers;
  2. identify in the notice and notification the good or service to which the measure would apply, and shall provide a brief description of the objective of, and reasons for the measure;
  3. provide a copy of the proposed measure to any Party or interested person that so requests, and shall, wherever possible, identify any provision that deviates in substance from relevant international standards; and
  4. without discrimination, allow other Parties and interested persons to make comments in writing and shall, on request, discuss the comments and take the comments and the results of the discussions into account.

Article 909.2: Each Party proposing to adopt or modify a standard or any conformity assessment procedure not otherwise considered to be a technical regulation shall, where an international standard relevant to the proposed measure does not exist or such measure is not substantially the same as an international standard, and where the measure may have a significant effect on the trade of the other Parties:

  1. at an early appropriate stage, publish a notice and provide a notification of the type required in paragraph 909.1(a) and (b); and
  2. observe paragraph 1(c) and (d).

Article 909.3: Each Party shall seek, through appropriate measures, to ensure, with respect to a technical regulation of a state or provincial government other than a local government:

  1. that, at an early appropriate stage, a notice and notification of the type required under 909.1(a) and (b) are made prior to their adoption; and
  2. observance of 909.1(c) and (d).

Article 909.4: Where a Party considers it necessary to address an urgent problem relating to safety or to protection of human, animal or plant life or health, the environment or consumers, it may omit any step set out in 909.1 or 909.3, provided that on adoption of a standards-related measure it shall:

  1. immediately provide to the other Parties a notification of the type required under paragraph 1(b), including a brief description of the urgent problem;
  2. provide a copy of the measure to any Party or interested person that so requests; and

Article 909.5: Each Party shall, except where necessary to address an urgent problem referred to in paragraph 4, allow a reasonable period between the publication of a standards-related measure and the date that it becomes effective to allow time for interested persons to adapt to the measure.

Article 909.6: Where a Party allows non-governmental persons in its territory to be present during the process of development of standards-related measures, it shall also allow non-governmental persons from the territories of the other Parties to be present.

Article 909.7: Each Party shall notify the other Parties of the development of, amendment to, or change in the application of its standards-related measures no later than the time at which it notifies non-governmental persons in general or the relevant sector in its territory.

Article 909.8: Each Party shall seek, through appropriate measures, to ensure the observance of paragraphs 6 and 7 by a state or provincial government, and by non-governmental standardizing bodies in its territory.

  1. without discrimination, allow other Parties and interested persons to make comments in writing, and shall, on request, discuss the comments and take the comments and the results of the discussions into account.

Article 909.9: Each Party shall designate by January 1, 1994 a government authority responsible for the implementation at the federal level of the notification provisions of this Article, and shall notify the other Parties thereof. Where a Party designates two or more government authorities for that purpose, it shall provide to the other Parties complete and unambiguous information on the scope of responsibility of each such authority.

Andean Community Article 11: Each member country must notify the other member countries, through the Board, of the initiation of any activity leading to the publication of a standard, as well as the text of the same once it is published.(Decision 376)

Article 18: Each Member Country must notify the rest of the Member Countries, through the Board, the National Accreditation Bodies and the bodies and persons accredited by them, indicating the areas of action corresponding [to accreditation]. (Decision 376)

Article 27: Each member country must notify the other member countries, through the Board, of new technical regulations that, in accordance with the previous article, may be incorporated into their legislation. Said notification must be realized within a period of no less than sixty days before the date of its official publication.

Article 27: Each Member Country must notify the rest of the Member Countries, through the Board, of the new technical regulations that, in compliance with the preceding article, may be incorporated into its legislation. Said notification must be realized within a period of no less than sixty days before the date of its official publication. To formulate the notification within the time period indicated, it shall be necessary to require compliance by the other Member Countries. (Decision 376)

CACM  
Group of Three Article 14-09.1: Each Party shall inform the other Parties about the standards-related measures it intends to adopt, in accordance with this chapter, before the before the measures become effective and not after notifying its own nationals.

Article 14-09.2: Upon proposing the adoption or modification of a standards-related measure, each Party shall:

  1. at least 60 days prior to the adoption of modification of the measure, publish a notice and notify the other Parties of its intention to adopt or modify this measure so as to allow interested persons to become familiar with the proposal;
  2. identify in the notice and the notification the good or service to which the measure will apply, and include a brief description of the objective of and motivation for the measure;
  3. provide a copy of the proposed measure to any Party or interested person that so requests, and, whenever possible, identify the provisions that differ substantially from relevant international standards;
  4. without discrimination, allow other Parties and interested persons to make comments and shall, on request, discuss the comments and take into account the comments and the results of the discussions; and
  5. ensure that, upon adoption of the measure, it be promptly published or in some other form be made available to interested persons within the Party so that they may become familiar with it.

Article 14-09.3: With respect to any technical regulation of a state or department or municipal government, each Party shall

  1. ensure that at an early appropriate stage a notice is published and the other Parties are notified of the intention of that government to adopt or modify the measure;
  2. ensure that the good or service to which the technical regulation will apply is identified within the notice and notification, and include a brief description of the objective and motivation for the adoption or modification;
  3. ensure the a copy of the proposed regulation is provided to the Parties or any interested persons that request it; and
  4. take reasonable measures as may be available to ensure that upon adoption of the technical regulation, it is promptly published or in some other form be made available to interested persons within the Party so that they may become familiar with it.

Article 14-09.4: Each Party shall inform the other Parties about its standardization programs and plans.

Article 14-09.5: When a Party considers it necessary to address an urgent problem related to safety or to the protection of human, animal or plant life or health, of the environment or practices that may harm consumers, it may omit any of the steps established in paragraph 14-09.2(a) and b), provided that upon adoption of the standard-related measure it shall

  1. immediately notify the other parties immediately in accordance with the requirements established in paragraph 14-09.2 (b), including a brief description of the urgent problem;
  2. provide a copy of the measure to any Party or interested person who requests it;
  3. without discrimination, permit other Parties or interested persons to make comments and shall, on request, discuss the comments and take into account the comments and the results of the discussions; and
  4. ensure that the measure be promptly published to allow interested persons within the Party to become familiar with it.

Article 14-09.6: The Parties shall, except when necessary to address an urgent problem referred to in paragraph 14-09.5, allow a reasonable period of time to pass between the publication of its standards-related measures and the date they become effective, to provide an opportunity for interested persons to adapt to the measures.

Article 14-09.7: Each Party shall designate a government authority responsible for the implementation at the federal or central level of the provisions of notification in this Chapter, and shall notify the other Parties thereof. When a Party designates two or more government authorities for this purpose, it shall notify the other Parties, without ambiguities or exceptions, the scope of responsibility of these authorities.

MERCOSUR Resolution 61/97: Idem. Page 25

ALADI

Article 18. The signatory countries shall promote ongoing contacts between their national bodies for standardization, regulation, and conformity assessment and the specialized regional bodies, in order to promote and speed up the process of harmonization and ensure, to the extent possible, that the Technical Regulations, Technical Standards, or conformity assessment procedures and systems and their application will neither impede nor hinder intra-regional trade.
CARICOM  
CHILE & MERCOSUR Article 26: Provisions for the notification of new standards and technical regulations and for their harmonization and compatibility will be developed under the scope of the Administrative Commission.

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B. Procedures for Changes in Standards-Related Measures

WTO See Article 2.9, 2.10 above.
See Article 5.6, 5.7 above.
NAFTA Articles 909.1 through 909.9, listed above, describe the appropriate procedures for changes in Standards-Related Measures.
Andean Community  
CACM  
Group of Three See Article 14-09 above under Notification.
MERCOSUR Res. GMC 152/96. Item 5.1. Request for review and preparation of MERCOSUR technical regulations.

ALADI

 
CARICOM  

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C. Time Requirements for Notification of Changes

WTO Article 2.11: Members shall ensure that all technical regulations which have been adopted are published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them.

Article 2.12: Except in those urgent circumstances referred to in Article 2, paragraph 10, Members shall allow a reasonable interval between the publication of a technical regulation and its entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products or methods of production to the requirements of the importing Member.

NAFTA Articles 909.1, 909.4, 909.5 and 909.7, listed above in section A), describe the time requirements for notification of changes.
Andean Community  
CACM  
Group of Three See Article 14-09 above under Notification.
MERCOSUR  

ALADI

 
CARICOM  

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VIII. DISPUTE SETTLEMENT

A. Consultations on Standards-Related Disputes

WTO Article 14.1: Consultations and the settlement of disputes with respect to any matter affecting the operation of this Agreement shall take place under the auspices of the Dispute Settlement Body and shall follow, mutatis mutandis, the provisions of Articles XXII and XXIII of the GATT 1994, as elaborated and applied by the Understanding Governing the Rules and Procedures for Settlement of Disputes.

Article 14.2: At the request of a party to a dispute, or at its own initiative, a panel may establish a technical expert group to assist in questions of a technical nature, requiring detailed consideration by experts.

Article 14.3: Technical expert groups shall be governed by the procedures of Annex 2.

Article 14.4: The dispute settlement provisions set out above can be invoked in cases where a Member considers that another Member has not achieved satisfactory results under Articles 3, 4, 7, 8 and 9 and its trade interests are significantly affected. In this respect, such results shall be equivalent to those as if the body in question were a Member.

NAFTA Article 913.2(c): The Committee's (Committee on Standards-Related Measures) functions shall include providing a forum for the Parties to consult on issues relating to standards-related measures, including the provisions of technical advice and recommendations under Article 914.

Article 914.1: Where a Party requests consultations regarding the application if this Chapter to a standards-related measure, and so notifies the Committee, the Committee may facilitate the consultations, if it does not consider the matter itself, by referring the matter for non-binding technical advice or recommendations to a subcommittee or working group, or to another forum.

Article 914.2: The Committee should consider any matter referred to it under paragraph 1 as expeditiously as possible and promptly forward to the Parties any technical advice or recommendations that it develops or receives concerning the matter. The Parties involved shall provide a written response to the Committee concerning the technical advice or recommendations within such time as the Committee may request.

Article 914.3: Where the involved Parties have had recourse to consultations facilitated by the Committee under paragraph 1, the consultations shall, on the agreement of the Parties involved, constitute consultations under Article 2006 (Consultations).

Article 914.4: The Parties confirm that a Party asserting that a standards-related measure of another Party is inconsistent with this Chapter shall have the burden of establishing the inconsistency.

Andean Community Article 7: The standards, technical regulations and conformity assessment procedures that the Member Countries elaborate, adopt, apply, or maintain, must not have as their objective or have the effect of creating technical obstacles to intra-subregional trade. (Decision 376)

Article 8: If a Member Country considers that the national standards or technical regulations, or the conformity assessment procedures of another Member Country constitute technical barriers to trade, or diminishes its rights derived from this Decision, it may hold consultations with the Member Country that adopts the measure, solicit the technical intervention of the Committee or approach the Board so that it can pronounce conformity with the dispositions in Article 43 of the Accord, and if the Board finds that a barrier exists may order the revocation of the measure. The holding of consultations, the technical intervention of the committee or the pronouncements of the Board may not exceed thirty calender days from the date of receiving the corresponding petition. The Board, in considering the case, may request the technical opinion of the Committee members or of the corresponding Ad Hoc committee members. (Decision 376).

CACM  
Group of Three Article 14-18.1: When a Party has concerns regarding the interpretation or implementation of this Chapter to its standards-related measures, metrology, or to those of another Party, the Party may seek recourse either through the Committee (on Standards Related Measures) or through the dispute settlement mechanism within the Treaty. The Parties involved shall not be allowed to use both channels simultaneously.

Article 14-18.2: When a Party decides to seek recourse through the Committee, the Party shall so inform the Committee so that it can consider the matter or refer it to a subcommittee or working group, or other competent forum, in order to obtain non-binding technical advice or recommendations.

Article 14-18.3: the Committee shall consider any matter referred to it, in accordance with paragraphs 14-18.1 and 2, as expeditiously as possible and, in the same manner, forward to the Parties any technical advice or recommendations that it develops or receives related to that matter. Once the Parties involved receive from the Committee the technical advice or recommendation they had requested, they shall send a written response to the Committee related to the technical advice or recommendation within a time frame to be determined by the Committee.

Article 14-18.4: In accordance to paragraphs 14-18.2 and 3, in case the technical recommendation issued by the Committee does not solve the existing differences between the Parties involved, they can invoke the dispute resolution mechanism of the Treaty. If the Parties involved agree, the consultations facilitated by the Committee shall constitute consultations under Article 19-05.

Article 14-18.5: The Party asserting that a standards-related measure of another Party is inconsistent with the provisions of this Chapter shall have to demonstrate this inconsistency.

MERCOSUR  

ALADI

Article 24. The signatory countries undertake, as required, to hold technical consultative meetings pertaining to the objectives of the present Agreement.

Article 25. The countries directly involved shall ask the Representatives Committee to establish Technical Groups to arrange such consultative meetings.

The Technical Groups shall issue their recommendations within strict time frames set by the Representatives Committee.

CARICOM  
CHILE & MERCOSUR: Article 26:

The current measures on technical regulations at the date of the signature of this Agreement will be replaced within a period of six months, from the date it enters into force.

Those measures will be revised by the Administrative Commission, in order to verify if they effectively do not constitute a barrier to reciprocal trade. If they do, negotiation procedures for their compatibility within a period of time to be defined by the Administrative Commission, will be initiated immediately. If at the end of this period no agreement has been reached, the measure should be incorporated to the Complementary Notes, established in Article 7 of this Agreement.

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B. Provisions for General Dispute Settlement

WTO Article 14.1: Consultations and the settlement of disputes with respect to any matter affecting the operation of this Agreement shall take place under the auspices of the Dispute Settlement Body and shall follow, mutatis mutandis, the provisions of Articles XXII and XXIII of the GATT 1994, as elaborated and applied by the Understanding Governing the Rules and Procedures for Settlement of Disputes.
NAFTA Articles 913, 914, and 2006-2022 list the procedures and the role of the Committee on Standards Related Measures, as well as the full dispute resolution process.
Andean Community Article 47: The solution of controversies that originate with the outcome of the application of the judicial process of the Andean Community will be subject to the deliberations of the Tribunal of Justice.
CACM  
Group of Three  
MERCOSUR Annex III

ALADI

 
CARICOM General provisions are detailed in Articles 11 and 12.
CHILE & MERCOSUR Article 22:

The disputes over the interpretation, application and attainment of the present Agreement will be settled according to the Settlement of Disputes Regime contained in Annex 14.

BOLIVIA & MERCOSUR Article 21:

The disputes which may arise with the application of this agreement will be settled according to the Settlement of Disputes Regime contained in Annex 11.

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C. Relationship to WTO Dispute Settlement Disciplines

WTO  
NAFTA Article 2005.1: Subject to paragraphs 2, 3 and 4, disputes regarding any matter arising under both this Agreement and the General Agreement on Tariffs and Trade, any agreement negotiated thereunder, or any successor agreement (GATT), may be settled in either forum at the discretion of the complaining party.

Paragraphs 2-7 of Article 2005 further elaborate the relationship between the NAFTA and WTO dispute settlement procedures.

Andean Community  
CACM  
Group of Three  
MERCOSUR  

ALADI

 
CARICOM  

Continue to: Part II: PROVISIONS ON STANDARDS AND TECHNICAL BARRIERS TO TRADE
IN BILATERAL FREE TRADE


 
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