Detailed Presentation of Transparency Requirements and Procedures for SPS in the WTO

Transcription

1 WTO E-LEARNING COPYRIGHT 12 Detailed Presentation of Transparency Requirements and Procedures for SPS in the WTO OBJECTIVES Present another core principle of the SPS Agreement: Transparency; Explain the Transparency Requirements and Procedures set forth in the SPS Agreement and in the relevant decisions and recommendations by the SPS Committee. M y C o u r s e s e r i e s

2 I. INTRODUCTION WTO Members are permitted to adopt SPS measures which are more stringent than the relevant international standards (or when international standards are not in place), provided the measures are: based on scientific risk assessment; consistently applied; and not more trade restrictive than necessary. There are two types of risk assessment as defined by Annex A.4 of the SPS Agreement: for risks arising from pests or diseases: the evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing WTO Member according to the SPS measures which might be applied, and of the associated potential biological and economic consequences; or for food-borne risks: the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs. On the Appropriate Level of Protection (ALOL), we learned that the level of SPS protection deemed appropriate is set by the WTO Member imposing the measure, and that WTO Members should take into account the objective of minimizing negative trade effects, when choosing their appropriate level of protection. Furthermore, WTO Members shall adopt measures which are not more trade restrictive than what is required to achieve the chosen level of SPS protection, considering their technical and economic feasibility. A measure is more trade restrictive than required if there is another measure which is, cumulatively (Appellate Body in Australia - Salmon), reasonably available taking into account technical and economic feasibility; achieves the WTO Member's appropriate level of sanitary or phytosanitary protection; and is significantly less restrictive to trade than the contested SPS measure. The Consistency requirement, articulated in Article 5.5 of the SPS Agreement, means that WTO Members must avoid unjustifiable differences in the level of health protection they require in different situations if such differences result in discrimination or a disguised restriction on international trade. In June 2000, the SPS Committee adopted the "Guidelines to Further the Practical Implementation of Article 5.5" (G/SPS/15), to provide assistance to WTO Members in the application of consistency while deciding on the appropriate levels of protection or the adoption and implementation of SPS measures. Furthermore, the SPS Agreement, in Article 5.7, permits the adoption of provisional measures when there is insufficient scientific evidence to permit a final decision on the safety of a product or process. In such cases, measures may be provisionally adopted on the basis of the available pertinent information about the health risk(s) of a product or process. However, a WTO Member must seek the additional information necessary for a more objective assessment of the risk(s), and review the SPS measure within a reasonable period of time. Furthermore, the SPS Agreement disciplines what is called Regionalization. That is, WTO Members shall ensure that their sanitary or phytosanitary measures are adapted to the sanitary or phytosanitary characteristics of the area whether all of a country, part of a country, or all or parts of several countries from which the product originated and to which the product is destined. 2

3 In this Module, we are going to learn about Transparency, which is another core discipline of the SPS Agreement. First, we will discuss the requirements regarding notification, then, we will analyse the publication obligations. Finally, we will examine the tasks assigned to the SPS Enquiry Points under the SPS Agreement and the role they play in the implementation of the Agreement. 3

4 II. TRANSPARENCY IN THE SPS AGREEMENT The word transparency in the context of the WTO is used to signify one of the fundamental principles of its agreements: the aim to achieve a greater degree of clarity, predictability and information exchange about trade policies, rules and regulations of WTO Members. WTO Members use notifications as the main instrument to implement transparency. Transparency features in many WTO agreements, such as the GATT (Article X), GATS (Article III), TRIPS (Article 63), TBT (Articles 2, 3, 5, 7 to 10 and Annex 3) and the SPS Agreement (Article 7 and Annex B, as well as Article 5.8). IN BRIEF Transparency is an important tool to ensure that trade flows as smoothly, predictably and freely as possible. The SPS Agreement contains transparency obligations in: Article 5.8 (provision of explanations in response to requests); Article 7 (general transparency provision); and Annex B. Under the SPS Agreement, each WTO Member is required to: notify draft and adopted SPS measures under certain circumstances, and to identify a single central government notification authority to be responsible for the notification requirements of the SPS Agreement; publish all SPS measures; and establish an enquiry point responsible for answering queries from other WTO Members about its SPS measures and related issues. Therefore, we may say that the transparency obligations set forth in the SPS Agreement may be grouped into these three sets of obligations. 4

5 Summarizing: Figure 1: Transparency provisions in the SPS Agreement During the 2nd Review of the SPS Agreement (G/SPS/36), WTO Members underlined that assistance should be provided to least-developed and developing countries in order to enable them to fully implement the transparency provisions and to make use of the benefits associated with transparency. Developing country and LDC WTO Members are encouraged to clearly identify the specific problems they face in implementing their transparency obligations, in order to have their technical assistance needs fulfilled by interested donors and cooperation agencies. Transparency remains a standing item on the SPS Committee's Agenda, which means that WTO Members may further discuss and elaborate procedures to facilitate the implementation of such obligations, and can raise any problems or difficulties encountered therein. We shall explain each of these three sets of transparency obligations further below. IF YOU WANT TO KNOW MORE THE HANDBOOK ON HOW TO APPLY THE TRANSPARENCY PROVISIONS OF THE SPS AGREEMENT To help WTO Members implement the transparency obligations, in particular the developing and leastdeveloped countries, the Secretariat has put together a handbook titled: "How to Apply the Transparency Provisions of the SPS Agreement". There you will find detailed descriptions of how to set up and operate Enquiry Points and National Notification Authorities, how to notify, models for letters, etc. 5

6 III. NOTIFICATIONS The obligation to notify is central to the transparency disciplines of the SPS Agreement. III.A. NOTIFICATION AUTHORITY Pursuant to Annex B, paragraph 10, of the SPS Agreement, WTO Members shall designate a single central government authority as responsible for the implementation, at the national level, of provisions concerning notification procedures according to paragraphs 5, 6, 7 and 8 of that Annex. Important note The notification authority must be part of the central government. This function cannot be carried out at the sub-national level (by a state, provincial or regional agency). Most WTO Members find it convenient for the notification authority to be operated by the government department that is most concerned with the responsibilities covered by the SPS Agreement (i.e., food safety, animal health, plant health). Even if these functions are the responsibility of more than one government agency, there should be only one SPS notification authority. The notification authority is responsible for: ensuring proposed SPS regulations are published early, to allow for comments; notifying other WTO Members, through the WTO Secretariat, of proposed regulations, using the appropriate notification forms; providing copies of proposed regulations on request; and ensuring that comments are handled correctly. TIP The addresses of WTO Members' SPS Notification Authorities are contained in the document "National Notification Authorities", Note by the Secretariat, G/SPS/NNA/ and are available and regularly updated on the SPS website at: 6

7 III.B. BACKGROUND Notifications can make an important contribution towards avoiding unnecessary obstacles to trade and providing WTO Members with the opportunity to influence final requirements of other WTO Members. Annex B (Transparency of Sanitary and Phytosanitary Regulations) paragraphs 5, 6, 7 and 8, contain the notification obligations related to SPS regulations. The SPS Committee has put in place detailed procedures for notification (G/SPS/7/Rev.2). Below you will find an example of typical questions that a WTO Member might raise while exporting to another WTO Member: how to find out about the measures adopted by the importing country? How to comment on such measures? When to comment? Where to obtain more information about the measure that is being implemented? Figure 2: Why notify? Any WTO Member proposing to introduce a new or changed SPS regulation is, in most circumstances, required to: submit a notification through the WTO Secretariat; allow reasonable time for other WTO Members to make comments in writing; discuss these comments upon request; take the comments and the results of the discussions into account; explain to the submitting WTO Member how it plans to take the comments into account; where appropriate, provide additional relevant information on the proposed SPS regulation concerned; provide the submitting country with a copy of the text of the corresponding SPS regulations as adopted, or information that no corresponding SPS regulation will be put into force for the time being. The SPS notification system facilitates trade by allowing some lead time before new measures must be complied with (a "no surprises" approach). 7

8 Important note The SPS Agreement uses the terms 'measures' and 'regulations' somewhat interchangeably. While the body of the SPS Agreement refers to 'measures' (which are defined in Annex A(1) as all relevant laws, decrees, regulations, requirements and procedures), Annex B refers to SPS 'regulations', and a footnote indicates that these are "[s]anitary and phytosanitary measures such as laws, decrees or ordinances which are applicable generally". It is important to recall, however, that in the Japan Agricultural Products II case, the Appellate Body considered that the list in Annex B of laws, decrees or ordinances of general application was not exhaustive, and agreed with the Panel that other instruments which are similar in character and generally applicable must also be notified. Canada presented a proposal to clarify the issue through a Committee Decision recognizing that, when referring to 'regulations' in Annex B, the intent of the SPS Agreement is to include all measures that are applicable generally and may have a significant effect on the trade of other WTO Members, and which shall be, therefore, notified to the WTO. See Canada's document: G/SPS/W/186 IF YOU WANT TO KNOW MORE STATISTICS ON NOTIFICATIONS Following the transparency provisions of the SPS Agreement, 1247 notifications (including addenda, corrigenda and revisions) were submitted in the period between 1 January and 31 December 2006, bringing the total number of SPS notifications submitted since the entry into force of the SPS Agreement to almost 7,500. A regional breakdown of notifications from 1995 to 2004 (when 87 WTO Members had notified at least one new or revised SPS measure) shows that 30 per cent of notifications were made by Asia and Pacific countries, 2 per cent by Africa and the Middle East, 18 per cent by Latin American and the Caribbean WTO Members, 15 per cent by European Countries and 35 per cent by North Americans. As of the end of 2006, more than 100 WTO Members had submitted at least one SPS notification. III.C. WHAT TO NOTIFY? The SPS Agreement requires WTO Members to notify other WTO Members, through the WTO Secretariat, of proposed new SPS regulations or modifications to existing ones, whenever: first, the content of a proposed SPS regulation is not substantially the same as the content of an international standard, guideline or recommendation, OR a relevant international standard, recommendation or guideline does not exist; AND second, the proposed regulation may have a significant effect on the trade of other WTO Members. 8

9 For the sake of improved transparency, some WTO Members also notify regulations which conform to international standards, a practice which is welcomed. IN DETAIL Paragraph 5 of Annex B clarifies which are the regulations that WTO Members have to notify: Whenever an international standard, guideline or recommendation does not exist or the content of a proposed sanitary or phytosanitary regulation is not substantially the same as the content of an international standard, guideline or recommendation, and if the regulation may have a significant effect on trade of other Members shall:... Figure 3: The Two Components of the Obligation to Notify Criteria for the definition of "significant effect on trade of other Members" may refer to the effect on trade of one sanitary and phytosanitary regulation only, or of various SPS regulations in combination; of a specific product, group of products or products in general; and between two or more WTO Members (so strictly bilateral SPS regulations must still be notified if they meet the other criteria). The concept of a significant effect on trade of other WTO Members includes both import-enhancing and import-reducing effects on trade, as long as said effects are significant. This means that SPS regulations that facilitate trade must also be notified. When assessing the significance of the effect on trade of SPS measures, the WTO Member concerned should take into consideration such elements as (G/SPS/7/Rev.2): The value or other importance of imports in respect of the importing and/or exporting WTO Members concerned, whether from other WTO Members individually or collectively; the potential development of such imports; and the difficulties for producers in other WTO Members to comply with the proposed SPS regulations. TIP If you are not certain whether a proposed SPS measure will affect international trade it is recommended that you notify the measure, for the sake of increased transparency. 9

10 Note When a regulation contains both, SPS and/or TBT elements, it should be notified both under the SPS and TBT Agreements following the procedures contained in the respective Agreements, preferably with an indication of which parts of the regulation fall under the SPS Agreement (e.g., a food safety measure) and which parts fall under the TBT Agreement (e.g., quality or compositional requirements). ILLUSTRATION Vanin, a WTO Member, is adopting a new law on the importation of live poultry, given the Avian Influenza epidemics (bird flu), via its Ministry of Animal Health. It currently imports most of the poultry consumed in its domestic market, mainly from Tristat and Rauritania, also WTO Members. The draft sanitary regulation provides, among other things, that: "Imported live poultry from non-infected areas should be submitted to a quarantine procedure of 60 days and shall not be allowed in the country unless vaccinated. Imported live poultry from infected areas shall not be allowed in the country for at least 24 months after the date of the last recorded case of avian influenza in the area, a period which can be extended." Tristat has informed the occurrence of the disease to the World Organization for Animal Health (OIE), while Rauritania, which is a developing country, has not had any cases of the disease. As we know already, the organization responsible for international standardization in the domain of animal health is the OIE, which has developed some standards on Notifiable Avian Influenza (NAI), for control, prevention, surveillance and diagnosis (Chapter of the OIE Terrestrial Animal Health Code (2006). Just as a matter of clarification, there are many strains of avian influenza, not all of which are considered to pose serious animal health risks. Thus, not all strains are required to be notified to the OIE. Article of the OIE Terrestrial Animal Health Code (2006) states that: "When importing from an NAI free country, zone or compartment, Veterinary Administrators should require the presentation of an international veterinary certificate attesting that: 1. the poultry showed no clinical sign of NAI on the day of shipment; 2. the poultry were kept in an NAI free country, zone or compartment since they were hatched or for at least the past 21 days; 3. the required surveillance has been carried out on the establishment within at least the past 21 days; 4. if vaccinated, the poultry have been vaccinated in accordance with Appendix , and the relevant information is attached." Vanin recognized that such international standard exists, but alleges that it has a scientific justification, based on a risk assessment, to adopt a more stringent requirement for the import of live chicken, which is the bird preferred by national consumers. Tristat and Rauritania both produce chicken in conformity with the relevant international standard above and Tristat follows all the procedures for the containment of the disease. Both these countries are of the opinion that Vanin's proposed regulation creates a negative effect on their trade and Rauritania, being a developing country, sustains that the vaccination requirement will represent an additional 10

11 burden on its exporters, in addition to being an unnecessary obstacle to trade, since the country has been free of the disease. In such circumstances, Vanin has the obligation to notify the draft sanitary regulation to other WTO Members via the WTO Secretariat: First, because the measure is not substantially the same as the relevant international standard; and Second, because it is likely to create a significant effect on trade. Figure 4: Recapitulate Learn more about Avian Influenza at: EXERCISES: 1. Transparency provisions in the SPS Agreement may be grouped into three sets of obligations, regarding their nature. Which are these and which are the main provisions on transparency in the SPS Agreement? 2. WTO Members have the obligation to establish a national authority to be responsible for notifications. What is the role of this authority? 3. Under which circumstances shall WTO Members notify the SPS Committee of draft SPS regulations? 11

12 III.D. WHEN TO NOTIFY? (TIMING) WTO Members have several obligations under the transparency provisions of the SPS Agreement. Firstly, WTO Members shall publish a notice at an early stage so as to enable interested WTO Members to become acquainted with the proposal to introduce a particular regulation. Once a draft SPS regulation exists, WTO Members should make a notification to other WTO Members, through the WTO Secretariat. In the previous section, we explained in which cases WTO Members are required to notify a measure. A notification should be made when a draft with the complete text of a proposed regulation is available, and when amendments can still be introduced and comments taken into account. For urgent measures, WTO Members may notify them upon adoption or immediately after they come into effect. The SPS Committee adopted procedures which recommend allowing a comment period of at least 60 days before a draft regulation is adopted. This is the period during which WTO Members may make comments on the draft regulation. WTO Members are also encouraged to provide 30 days extension to the comment period whenever possible. After the closing of the comment period, WTO Members may adopt the regulation, taking into consideration the input provided by other WTO Members. Then, it is required to publish the adopted regulation. WTO Members have the obligation to publish all regulations, and to give at least a six months period between the publication of a regulation and its entry into force. This will be further discussed below. Important note For proposed SPS measures that unambiguously facilitate trade, WTO Members may reduce or eliminate the period for receiving comments. But to enhance transparency, notifications should be made as early as possible. Figure 5: Timing of the Different Transparency Obligations Related to SPS measures 12

13 Important note Many WTO Members use the submission of an SPS notification (#3) as the means of publishing a notice of the draft regulation (#2). URGENT MEASURES A WTO Member may notify an SPS regulation upon adoption in cases "where urgent problems of health protection arise or threaten to arise" for the WTO Member implementing the measure. A shorter period for comments may be established in this case. The provision on urgent problems, paragraph 6 of Annex B, reads: [ ] [w]here urgent problems of health protection arise or threaten to arise for a Member, that Member may omit such of the steps enumerated in paragraph 5 of this Annex as it finds necessary, provided that the Member: a) immediately notifies other Members, through the Secretariat, of the particular regulation and the products covered, with a brief indication of the objective and the rationale of the regulation, including the nature of the urgent problem(s); Emergency measures may be notified either before or immediately after they are adopted, with an explanation of the reasons for resorting to emergency action, as requested in the emergency notification form. Important note Emergency (urgent) SPS measures may be invoked on a temporary basis. This means that after its period of application has expired, the emergency measure should be revoked. As the revocation of a measure also affects trade, it is necessary to make a notification to the WTO when this happens. This would normally be done through an addendum to the original notification. 13

14 III.E. HOW TO NOTIFY? (NOTIFICATION FORMATS) Notifications must contain information on the products covered, together with a brief indication of the objective and rationale of the proposed SPS measure. Remember that when a notification refers to an urgent measures, the notification form shall mention the nature of the urgent problem. Paragraph 5 (b) of Annex B reads: [Members shall] notify other Members through the Secretariat of the products to be covered by the regulation together with a brief indication of the objective and rationale of the proposed regulation. Such notifications shall take place at an early stage when amendments can still be introduced and comments taken into account. ( ) The SPS Committee elaborated on these requirements (G/SPS/7/Rev.2), and adopted the format below for notification of regular SPS measures. Another format has been adopted for the notification of emergency measures: NOTIFICATION OF SPS MEASURES WORLD TRADE ORGANIZATION Committee on Sanitary and Phytosanitary Measures G/SPS/N/COUNTRY/ Date of distribution (##-####) Original: NOTIFICATION 1. Member to Agreement notifying: If applicable, name of local government involved: 2. Agency responsible: 3. Products covered (provide tariff item number(s) as specified in national schedules deposited with the WTO; ICS numbers should be provided in addition, where applicable): 4. Regions or countries likely to be affected, to the extent relevant or practicable: 5. Title, language and number of pages of the notified document: 6. Description of content: 7. Objective and rationale: food safety [ ], animal health [ ], plant protection [ ], protect humans from animal/plant pest or disease [ ], protect territory from other damage from pests [ ] 8. International standard, guideline or recommendation: Codex Alimentarius Commission [ ],Office International des Epizooties [ ],International Plant Protection Convention [ ],None If an international standard, guideline or recommendation exists, give the appropriate reference and briefly identify deviations: 9. Relevant documents and language(s) in which these are available: 14

15 10. Proposed date of adoption: 11. Proposed date of entry into force: 12. Final date for comments: Agency or authority designated to handle comments: National notification authority [ ], National enquiry point [ ], or address, fax number and address (if available) of other body: 13. Texts available from: National notification authority [ ], National enquiry point, or address [ ], fax number and address (if available) of other body: WORLD TRADE ORGANIZATION Committee on Sanitary and Phytosanitary Measures G/SPS/N/COUNTRY/ Date of distribution (##-####) Original: NOTIFICATION OF EMERGENCY MEASURES 1. Member to Agreement notifying: If applicable, name of local government involved: 2. Agency responsible: 3. Products covered (provide tariff item number(s) as specified in national schedules deposited with the WTO; ICS numbers should be provided in addition, where applicable): 4. Regions or countries likely to be affected, to the extent relevant or practicable: 5. Title, language and number of pages of the notified document: 6. Description of content: 7. Objective and rationale: food safety [ ], animal health [ ], plant protection [ ], protect humans from animal/plant pest or disease [ ], protect territory from other damage from pests [ ] 8. Nature of the urgent problem(s) and reason for urgent action: 9. International standard, guideline or recommendation: Codex Alimentarius Commission [ ], Office International des Epizooties [ ], International Plant Protection Convention [ ], None [ ] If an international standard, guideline or recommendation exists, give the appropriate reference and briefly identify deviations: 10. Relevant documents and language(s) in which these are available: 11. Date of entry into force/period of application (as applicable): 12. Agency or authority designated to handle comments: National notification authority [ ], National enquiry point [ ], or address, fax number and address (if available) of other body: 13. Texts available from: National notification authority [ ], National enquiry point [ ], or address, fax number and address (if available) of other body: 15

16 As you can see, there are 13 sections in the notification forms. Both the regular and the emergency notification formats are quite similar concerning the information WTO Members should present: Section 1 indicates the Government, including the competent authority of the European Communities, which makes the notification. In addition, when a local government is involved, it has to be mentioned in this section. Section 2 designates the agency (body) responsible for elaborating the proposal or promulgating the SPS measure. Section 3 contains a clear description of the products covered by the measure (including tariff headings). HS Code or CCCN should come here, where applicable, as contained in national schedules deposited with the WTO. ICS numbers may be provided in addition, where applicable. TIP HS stands for Harmonized Commodity Description and Coding System of tariff nomenclature, which is an internationally standardized system of names and numbers for classifying traded products, developed and maintained by the World Customs Organization (WCO, formerly named Customs Cooperation Council). CCCN stands for Customs Cooperation Council Nomenclature, a customs tariff nomenclature formerly used by many countries, including most European nations. It has been superseded by the Harmonized System Nomenclature to which most trading nations adhere. ICS stands for International Classification for Standards. The ICS was developed and is maintained by the International Organization for Standardization (ISO), as an international classification system for technical standards. It is designed to cover every economic sector where technical standards may be used. Section 4 identifies the geographical regions or countries likely to be affected by the notified regulation. Section 5 indicates the title of the proposed or adopted SPS regulation notified, the number of pages of the notified document, the language(s) in which the notified document is available; and the availability of a translation of the document. Section 6 describes the content of the proposed (or adopted) SPS regulation, including its health protection objective. The summary should be as complete and accurate as possible to allow the full understanding of the proposed regulation and its likely effects on trade. Section 7 states the objective and rationale, whether it be: protection of human health from food-borne risks; protection of animal health from pests or diseases, or from contaminated feed-stuff; protection of plant health from pests or diseases; or protection of human health from plant - or animal - carried diseases; or prevention of other damage from entry, establishment or spread of pests. You will recognize these choices as the objectives that define a measure as an SPS measure, stated in Annex A.1 of the SPS Agreement. Section 8 concerns the existence of a relevant Codex, OIE or IPPC international standard, guideline or recommendation, and requests the identification of the organization and the standard on which the measure is based. Here, one should describe how the proposed regulation deviates from the 16

17 international standard and if there is no relevant international standard, guideline or recommendation,, cross-out the "none" box. In the emergency form, Section 8 relates to the nature of the urgent problem and the reason for urgent action. Section 9 makes a reference to relevant documents and the language in which they are available, such as (1) the publication where a notice appears; (2) the proposal and basic document to which the proposal refers; and (3) the publication in which the proposal will appear when adopted. In the emergency form, Section 9 concerns the existence of a relevant international standard, guideline or recommendation (see Section 8 of the routine notification form above). Section 10 gives the proposed date of adoption of the SPS regulation. In the emergency form, Section 10 makes a reference to relevant documents and the language in which they are available (see Section 9 of the routine notification form above). Section 11 gives the proposed date of entry into force of SPS regulation. Where appropriate, WTO Members should accord longer time-frames for compliance on products of interest to developing country WTO Members. Section 12 indicates a specific and final date by which WTO Members may submit comments, in accordance with paragraph 5(b) of Annex B. A WTO Member shall normally allow a period of at least sixty days for comment. Any WTO Member which is able to provide a time limit beyond sixty days is encouraged to do so. The agency or authority which has been designated to handle the comments should be indicated in this field. Section 13 provides information on whether the text of the measure is available from the national notification authority or enquiry point, or from another body. WTO Members shall also indicate here the exact address, and, where available, the address, telephone and fax numbers of the body responsible for supplying the relevant documents if that body is not the notification authority or enquiry point. If the documents are made available on-line, the web address should be included here. TIP Up-to-date notification authority addresses are listed in documents in the G/SPS/NNA/ series. Addresses for enquiry points are listed in the G/SPS/ENQ/series. You are encouraged to ensure that the information about your own enquiry point and notification authority in these documents is correct, and to inform the WTO Secretariat of any changes. All notifications to the WTO Secretariat are required to be in one of the three working languages of the WTO: English, French or Spanish. WTO Members should not send the texts of the proposed regulation being notified. Notifications should be sent, preferably by , or else by fax or air mail, to the Central Registry of Notifications (CRN) at the WTO, either through the WTO representative or directly. 17

18 The address is: Central Registry of Notifications Rue de Lausanne Geneva 21 Switzerland Fax: (+41 22) Important note The fact that the notification of a regular measure is late should not become the reason for using the emergency format; it is preferable that the notification is made late rather than not at all, and in the right format, that is, the format for routine notifications. Also, changes in the address or contact information for a national notification authority or enquiry point need to be provided directly to the WTO Secretariat. Merely including a new address in Section 12 or 13 on the notification form is not sufficient. IF YOU WANT TO KNOW MORE THE HARMONIZED SYSTEM Before 1987, many countries and territories used the Customs Cooperation Council Nomenclature (CCCN) as a classification basis for their customs tariffs. However, some countries, notably the United States and Canada, used different nomenclatures. In 1970, a Study Group was established in the Customs Cooperation Council (nowadays the World Customs Organization - WCO) to examine the possibility of preparing a new system of nomenclature capable of meeting the principal requirements of customs authorities, statisticians, carriers and producers. The "Harmonized Commodity Description and Coding System" (Harmonized System or HS) is an international product nomenclature which has been developed as a result of the above-mentioned study under the auspices of the WCO, an intergovernmental organization with over 160 WTO Member countries based in Brussels, Belgium. The HS is a six-digit nomenclature. Individual countries have extended it to ten digits for customs purposes, and to eight digits for export purposes. This nomenclature is broadly based on the CCCN and the United Nations SITC (Standard International Trade Classification), but it also takes into account some aspect of the TSUS (national tariff of the United States) and the Canadian nomenclature. The Harmonized System was developed not only for customs purposes but also for the collection of trade statistics, and for all kinds of transactions in international trade (transport, insurance, etc). The HS comprises about 5,000 commodity groups, each identified by a six digit code, arranged in a legal and logical structure. The system is used by more than 200 countries and economies as a basis for their customs tariffs. Over 98 per cent of the merchandise in international trade is classified in terms of the HS. The Harmonized System is governed by "The International Convention on the Harmonized Commodity Description and Coding System". The official interpretation of the HS is given in the Explanatory Notes (5 volumes in English and French) published by the WCO. 18

19 The 2007 version is the third major revision of the HS since its adoption by the WCO Council in 1983 and its entry into force in The new version includes more than 350 amendments to the HS Nomenclature. If you want to know more, check the WCO website: III.F. UPDATES & ADDITIONAL INFORMATION Finally, WTO Members, in addition to their original notifications, should also provide supplementary information in three different forms. An addendum is used to provide additional information or changes to an original notification. A WTO Member may wish to indicate in the addendum if the final regulation has been substantially modified from the notified proposal. A corrigendum is used to correct an error in an original notification such as an incorrect address detail. A revision is used to replace an existing notification. Any addendum or corrigendum should be read in conjunction with the original notification. ADDENDA WTO Members should notify changes in the status of a notified SPS regulation. Addenda to SPS notifications should be made in a number of circumstances, such as: when a proposed regulation is either adopted or comes into force. A WTO Member may wish to indicate on the addendum if the final regulation has been substantially modified from the notified proposal; if a proposed regulation is withdrawn; if a regulation is revoked; if the comment period has been extended; if the period of application of the existing notification is extended; if the scope of application of the existing notification is reduced, either in terms of WTO Members affected or products covered. Such a change may warrant the extension of the comment period. CORRIGENDA WTO Members should inform the WTO Secretariat of any error(s) contained in their original notification. The Secretariat will issue a corrigendum accordingly. 19

20 REVISIONS Revisions replace an existing notification. Revisions should be submitted, for example: when the scope of application of a notified regulation is extended, either in terms of WTO Members affected or products covered; or if a notification contained a large number of errors which necessitated issuing a revision. A WTO Member should provide a further period for comments on the revised notification, normally 60 days. TIP The SPS Committee has adopted forms to be used for routine and emergency notifications, and also for a revision, addendum and corrigendum to these notifications. Such forms are available from the Secretariat in electronic format or in document G/SPS/7/Rev.2 (Recommended Procedures for Implementing the Transparency Obligations of the SPS Agreement (Article 7)), available at our Digital Library. Notification formats are also available on the SPS section of the WTO website. ILLUSTRATION Let's go back to the example we presented above, on Vanin's draft sanitary regulation on the import of live poultry. As you remember, we came to the conclusion that Vanin was required to notify it to the WTO Secretariat. Now it is time for us to prepare the notification form, based on the information Vanin provided. Vanin's country code is VAN and the regulation is written in Vaninian (5 pages), with English translation provided. This sanitary regulation applies to live poultry imported into Vanin and establishes quarantine and vaccination requirements for animals imported from non-infected areas and a ban on the import of poultry from areas where there is an outbreak of avian influenza. The notice was published in the Official Gazette (1 February 2007) and is also available at The final date for comments is 1 April 2007, so that the regulation may be adopted 15 days later. The entry into force is foreseen for 1 November and the National Notification Authority is in charge of providing the regulation text and handling comments. 20

21 WORLD TRADE ORGANIZATION Committee on Sanitary and Phytosanitary Measures G/SPS/N/VAN Date of distribution (##-####) Original: NOTIFICATION 1. Member to Agreement notifying: VANIN If applicable, name of local government involved: N/A 2. Agency responsible: MINISTRY OF ANIMAL HEALTH 3. Products covered (provide tariff item number(s) as specified in national schedules deposited with the WTO; ICS numbers should be provided in addition, where applicable): Live Poultry (HS ) HS And Regions or countries likely to be affected, to the extent relevant or practicable: Tristat and Rauritania 5. Title, language and number of pages of the notified document: Sanitary Requirements on Live Poultry, available in Vaninian, 5 Pages. 6. Description of content: This sanitary regulation applies to live poultry imported into Vanin and establishes quarantine and vaccination requirements for animals imported from non-infected areas and a ban on the import of poultry from areas where there is an outbreak of avian influenza. 7. Objective and rationale: food safety [ ], animal health [X], plant protection [ ], protect humans from animal/plant pest or disease [ ], protect territory from other damage from pests [ ] 8. International standard, guideline or recommendation: Codex Alimentarius Commission [ ],Office International des Epizooties [X],International Plant Protection Convention [ ],None If an international standard, guideline or recommendation exists, give the appropriate reference and briefly identify deviations: Chapter of the OIE Terrestrial Animal Health Code (2006) Deviation of the time-frame for quarantine (60 days instead of 21) and of the vaccination requirement. Imposes restrictions on the import of poultry from infected areas. 9. Relevant documents and language(s) in which these are available: Vanin Official Gazette. Translation into English provided. 10. Proposed date of adoption: 15 April Proposed date of entry into force: 1 November Final date for comments: 1 April 2007 Agency or authority designated to handle comments: National notification authority [X], National enquiry point [ ], or address, fax number and address (if available) of other body: 13. Texts available from: National notification authority [X], National enquiry point, or address [ ], fax number and address (if available) of other body: 21

22 EXERCISES: 4. When is the most appropriate time for making a notification of SPS regulations? 5. Tristat, a developing country WTO Member, is notifying the WTO Secretariat a draft sanitary regulation. Its Ministry of Agriculture proposes the amendment of Tristat Food Safety Code in order to adjust Maximum Residue Limits (MRLs) of certain pesticides, such as Deltamethrin, on "Apples, Beans (dry), Carrots, Cereal Grains, Citrus Fruits, Eggs, Field Pea, Grapes and Hazelnuts", for which it previously did not apply any MRL. This proposed regulatory amendment would adopt the Codex Alimentarius MRLs for Deltamethrin. Since Tristat did not impose any limits on this pesticide before, such a regulation would impose new requirements on imports and Tristat thus decided to notify it, although it is not obliged to do so (due to the fact that the regulation conforms to an international standard). The text of the proposed regulation has three pages and is available at in English. The notice of a draft regulation was published in Tristat's Official Gazette, on 1 March The final date for comments to be sent to Tristat is 15 May 2007 and the regulation will be adopted on 1 June Tristat also stated that the reasonable interval period of six months for the entry into force of the regulation shall be respected. Please fill in the corresponding notification format. 22

23 EXERCISES (CONTINUATION): WORLD TRADE ORGANIZATION Committee on Sanitary and Phytosanitary Measures G/SPS/N/COUNTRY/ Date of distribution (##-####) Original: NOTIFICATION 1. Member to Agreement notifying: If applicable, name of local government involved: 2. Agency responsible: 3. Products covered (provide tariff item number(s) as specified in national schedules deposited with the WTO; ICS numbers should be provided in addition, where applicable): 4. Regions or countries likely to be affected, to the extent relevant or practicable: 5. Title, language and number of pages of the notified document: 6. Description of content: 7. Objective and rationale: food safety [ ], animal health [ ], plant protection [ ], protect humans from animal/plant pest or disease [ ], protect territory from other damage from pests [ ] 8. International standard, guideline or recommendation: Codex Alimentarius Commission [ ],Office International des Epizooties [ ],International Plant Protection Convention [ ],None If an international standard, guideline or recommendation exists, give the appropriate reference and briefly identify deviations: 9. Relevant documents and language(s) in which these are available: 10. Proposed date of adoption: 11. Proposed date of entry into force: 12. Final date for comments: Agency or authority designated to handle comments: National notification authority [ ], National enquiry point [ ], or address, fax number and address (if available) of other body: 13. Texts available from: National notification authority [ ], National enquiry point, or address [ ], fax number and address (if available) of other body: 23

24 III.G. PROCESSING AND CIRCULATION Once an SPS notification has reached the Central Registry for Notifications (CRN) at the WTO, it is put on a file, given a record number and forwarded to the Agriculture and Commodities Division of the WTO Secretariat, where it is formatted and checked for completeness and accuracy. The notification is then transferred to the Document Management System (DMS) for circulation to WTO Members, posted on the WTO website and translated into the other working languages of the WTO. Figure 6: Processing and Circulation of Notifications Past experience shows that the accuracy with which notification forms are completed by WTO Members can significantly affect the processing time required by the Secretariat. An automated distribution system has been set up which twice a week sends out all the SPS notifications (and other SPS documents) issued in the period. To subscribe: ELECTRONIC TRANSMISSION OF SPS NOTIFICATIONS ***************** HOW TO SUBSCRIBE ***************** To subscribe to the list, send an message to "listproc@list.unicc.org" with the following in the body of the message (leave the subject line blank): SUBSCRIBE SPS your full name Example: SUBSCRIBE SPS John Smith Your address will be automatically registered. TIP Notifications of SPS regulations are issued in the G/SPS/N/- (followed by the country code) series of documents. Addenda, Revisions and Corrections (Corrigenda) to notifications carry the same document symbol and number as the original, followed by Add., Rev., and Corr., respectively. This allows them to be adequately traced. Information on where to find unofficial translations of notified regulations, when these are made available, are issued with the same symbol of the original notification, followed by Suppl. The country codes are those proposed by the International Standards Organization (ISO). You can find the various country codes at the Documents Online Help Session. 24

25 The Secretariat prepares monthly lists of notifications. They are contained in documents with the symbol G/SPS/GEN/ (search by keyword "notifications"). All documents are available on the WTO web site and at the Documents Online Database. IF YOU WANT TO KNOW MORE DOCUMENTS ON LINE HOW TO USE IT Documents Online is a database provided by the WTO. There you will be able to find every derestricted WTO document, including SPS notifications. If you have never used it, or if you have doubts about how to use it, do not miss out the "tutorial" offered at the Help section of the Documents online link at the WTO webpage: There, you can also download the Documents online "manual", either in Word or PDF file. TIP There is a specific online tool for the management of SPS related notifications, the SPS Information Management System: It is synchronised with Documents Online and the Central Registry of Notifications, and linked with the WTO Integrated Database, which includes trade and tariff data of WTO Members. For more about the SPS IMS, please go to III.H. HANDLING OTHER WTO MEMBERS' REQUESTS FOR COPIES AND COMMENTS ON DRAFT REGULATIONS When a country notifies an SPS regulation, it is obliged to supply copies of the proposed regulation to other WTO Members, upon request. All requests for documents should be made to the notifying the country's notification authority, unless the enquiry point is specified or an alternative address is listed in the final box of the notification. WTO Members should respond in the same way to all requests for notified documents, and ideally also to those which may come directly from industry groups or individuals (although this is not an obligation under the SPS Agreement). Requests should be dealt with by the notifying WTO Member within 5 working days. If this cannot be done, the request should be acknowledged by fax or and an estimate given of the anticipated delay. With regards to fees charged for the provision of documents, national treatment should be afforded to requests from foreign interested parties, with due adjustments to be made for differential costs of delivery. Furthermore, WTO Members are required, prior to the adoption of SPS regulations, to: allow reasonable time for other WTO Members to make comments about the draft regulation in writing; 25

26 discuss these comments upon request; and take these written comments and the results of these discussions into account. IN DETAIL Paragraph 5(d) of Annex B reads: [Members shall...] without discrimination, allow reasonable time for other Members, to make comments in writing, discuss these comments upon request, and take the comments and the results of the discussions into account. As explained before, the SPS Committee recommends that the normal time-limit for the presentation of comments on notified draft SPS regulations should be at least 60 days before the adoption of the measure takes place. WTO Members who are able to provide a time limit of more than 60 days, such as 90 days, are encouraged to do so and to indicate this fact on the notification form. Insufficient comment periods may prevent WTO Members from exercising their right to submit comments, to hold consultations, and to have their comments taken into account. Lack of time is particularly problematic when draft texts need to be requested and/or translated. Important note The same obligations relating to comments apply to SPS measures adopted for urgent reasons, with the exception that no time-limit is provided and that comments are made after the adoption of the measure. WTO Members should grant requests for extension of the comment period wherever practicable, notably with regard to notifications relating to products of particular interest to developing country WTO Members; where there have been delays in receiving and translating the relevant documents; or where there is a need for further clarification of the measure notified. A 30-day extension should normally be provided. When the notification pertains to a trade-liberalizing measure, e.g. the lifting of a ban on imported products, the WTO Member should take the action without delay and does not need to provide a comment period. Figure 7: Comments Reasonable time 26

27 In order to clarify the procedures for the handling of comments, among other things, the SPS Committee adopted the following procedures (See G/SPS/7/Rev.2): Each WTO Member should notify the WTO Secretariat of the authority or agency (e.g. its notification authority) which it has designated to be in charge of handling comments received (in Box 12 of both formats for notifications); and a WTO Member receiving comments from another WTO Member should, without further request: acknowledge the receipt of such comments; explain within a reasonable time, and at the earliest possible date before the adoption of the measure, to any WTO Member from which it has received comments, how it will take these comments into account and, where appropriate, provide additional relevant information on the proposed sanitary or phytosanitary regulations concerned; provide to any WTO Member from which it has received comments, a copy of the corresponding SPS regulation as adopted or information that no corresponding SPS regulations will be adopted for the time being; and where possible make available to other WTO Members comments and questions it has received and answers it has provided, preferably through electronic facilities. To sum up, these are the obligations WTO Members have under Paragraph 5 of Annex B of the SPS Agreement: Figure 8: The obligations- Annex B of the Agreement III.I. TRANSLATIONS The SPS Agreement neither requires the publication of texts nor the provision of details or copies of drafts other than in the language of the WTO Member. However, pursuant to Paragraph 8 of Annex B, developed country WTO Members are required, upon request, to provide translations of the documents covered by a specific notification; or in case of voluminous documents, summaries of such documents, in one of the three working languages of the WTO. 27

28 This is the only provision concerning translations that was written into the transparency obligations set forth by the SPS Agreement. With this in mind, the SPS Committee elaborated further on this obligation and agreed on procedures to enhance the sharing and dissemination of existing translations in one of the WTO working languages (G/SPS/7/Rev.2): When a translation of a relevant document, or of its summary, exists or is planned, this fact should be indicated on the WTO notification form next to the title of the document (Box 5 of the notification format). If a WTO Member requests a copy of a regulation and a translation exists (in the WTO Member's language or in a WTO working language), it should be automatically sent with the original of the document requested. Where documents are not available in a WTO working language, developed country WTO Members shall, upon request, supply a translation of the document, or in case of voluminous documents, a translation of a summary of the documents, in a WTO working language. WTO Members are encouraged to seek unofficial translations from other WTO Members in cases where the notifying WTO Member does not have a copy of the document in the requesting WTO Member's WTO working language. The notifying WTO Member should advise the requesting WTO Member of other WTO Members that have requested, as of that date, a copy of the document. Any WTO Member possessing an unofficial translation of a document relating to a notification should inform the notifying WTO Member of the existence of the unofficial translation and is encouraged to make it available to other interested WTO Members, through electronic facilities where appropriate, indicating its unofficial nature. TIP The WTO Secretariat has established a mechanism to circulate information on the availability of unofficial translations of draft regulations notified to WTO Members (G/SPS/GEN/487). This document contains a form WTO Members can use in order to notify the Committee of the availability of such unofficial translations. Information on where to find unofficial translations of notified regulations, when these are made available, is issued with the same symbol of the original notification, followed by Suppl. ILLUSTRATION Vanin has already notified the Secretariat about the draft sanitary regulation on the import of live poultry. Now it is the time for WTO Members, especially those such as Tristat and Rauritania, whose trade may be directly affected by the regulation, to act. But how? First, Tristat and Rauritania could request a copy of the drafted measure from Vanin's Notification Authority (as identified in the notification form), and since a translation into English already exists, they can request the translated document. Then, they can make use of the time provided to make comments on the draft regulation to Vanin's Notification Authority. These comments should be acknowledged by the Authority once received. 28

29 Note that Tristat and Rauritania should have at least 60 days to provide comments and in case this time is not enough, they may request an extension of this period. In addition to providing comments to Vanin, these two WTO Members are also entitled, under Article 5.8 of the SPS Agreement, to request that Vanin explains the justification of its measure, since it was not based on the relevant international standard. Vanin has to provide a scientific justification for its sanitary regulation. It should also explain how the comments provided by Tristat and Rauritania have been taken into account in the process of the elaboration/adoption of the measure. In case Vanin decides not to adopt the measure, or to modify the proposed measure substantially, it should inform all WTO Members in an addendum to the original notification. Figure 9: Recapitulation III.J. WHAT ELSE TO NOTIFY? III.J.1. NOTIFICATION OF EQUIVALENCE Although notification of the recognition of equivalence is not a requirement in the SPS Agreement, in June 2002 the SPS Committee adopted a decision on the subject, the Recommended Procedures for the Notification of Determination of the Recognition of Equivalence of Sanitary and Phytosanitary Measures (G/SPS/19/Rev.2). This decision includes a format for equivalence notifications (G/SPS/7/Rev.2/Add.1). According to these recommended procedures, when a WTO Member has made a determination recognizing an SPS measure of another WTO Member as equivalent to its own, it should make a notification of the measure 29

30 that has been recognized, and of the products affected. When significant changes are made to an existing equivalence arrangement, these should also be notified, including suspension or termination of such arrangements. RECALL Equivalence was defined as: "The state wherein sanitary or phytosanitary measures applied in an exporting country, though different from the measures applied in an importing country, achieve, as demonstrated by the exporting country and recognized by the importing country, the importing country's appropriate level of sanitary or phytosanitary protection. A determination of the recognition of equivalence may be with respect to a specific measure or measures related to a certain product or categories of products, or on a systems-wide basis." (G/SPS/19/Rev.2) The format used for Equivalence Notifications is shown below. WORLD TRADE ORGANIZATION G/SPS/EQV/N/# Date of distribution (##-####) Committee on Sanitary and Phytosanitary Measures Original: NOTIFICATION OF DETERMINATION OF THE RECOGNITION OF EQUIVALENCE OF SANITARY OR PHYTOSANITARY MEASURES The following notification of determination of the recognition of equivalence has been received. 1. Member to Agreement notifying: 2. Title of the text stating the determination of the recognition of equivalence: 3. Parties involved: 4. Date of entry into force of the determination of the recognition of equivalence and any associated procedures or regulations: 5. Products covered (HS or CCCN where applicable, otherwise national tariff heading): 6. Description of measures recognized to be equivalent: 7. Further information available from: National Enquiry Point [ ],Other (specify) [ ] 30

31 RECOMMENDED PROCEDURES FOR THE COMPLETION OF THE NOTIFICATION FORMAT Item Description 1. Member notifying Government, including the competent authorities of the European Communities, making the notification. 2. Title of the text stating determination of the recognition of equivalence Title of any formal or informal agreement, Memorandum of Understanding or other document establishing the determination of recognition of equivalence. 3. Parties involved Name of the exporting WTO Member(s) whose measure has been determined to be equivalent. 4. Date of entry into force of the determination of the recognition of equivalence and any associated procedures or regulations 5. Products covered (HS or CCCN where applicable, otherwise national tariff heading) 6. Brief description of the measure(s) recognized to be equivalent Date from which procedures, regulations or other measures based on the determination of recognition of equivalence, took effect. Tariff item number(s) (normally HS, chapter or heading and number), as contained in national schedules deposited with the WTO, of the product(s) which are imported on the basis of the determination of the recognition of equivalence. Clearly indicate the nature of the recognition of equivalence, including the measure(s) of the exporting WTO Member which have been determined to be equivalent, and the elements of the importing WTO Member's usual requirements which are met by these equivalent measures. 7. Further information available from The agency or authority from which an interested WTO Member may request further information regarding the specific determination of equivalence being notified. If this is the national enquiry point, check the box provided. If available from another body, give its address, fax number and (if available) address. Provide the world wide web address of the document, if available. Table 1: Recommended procedures for the completion of the notification format III.J.2. NOTIFICATION OF SPECIAL AND DIFFERENTIAL TREATMENT One of the specific issues raised in the Committee has been the need to enhance transparency regarding the provision of special and differential treatment (S&D treatment). Some WTO Members presented proposals in this regard, and the Committee adopted, in 2003, a proposal suggested by Canada, which recommended that an importing country should consider any requests for special and differential treatment or technical assistance made in response to their notification of a new measure, and should notify the SPS Committee of any subsequent action. In October 2004, the Committee elaborated steps to implement this procedure (Procedure to Enhance Transparency of Special and Differential Treatment in Favour of Developing Country Members, G/SPS/33). More specifically, after submitting a notification for a new or revised draft regulation (following the guidance 31

32 provided in G/SPS/7/Rev.2), a notifying WTO Member shall submit additional information, in a specific addendum to the notification, indicating where special and differential treatment or technical assistance has been requested in the context of the notification, and the response given to the request. If an exporting WTO Member identifies significant difficulties with a proposed measure, or if, following the entry into force of a new regulation (including emergency measures), an exporting WTO Member identifies significant difficulties which its exports face in complying with it, the WTO Member may request an opportunity to discuss its difficulties with the importing WTO Member. Resolution of the concern identified could include one of the following, or a combination thereof: a change in the measure to be applied on an MFN basis; the provision of technical assistance to the exporting WTO Member; the provision of special and differential treatment. Should S&D treatment be provided, it would apply equally to all developing country WTO Members. When a decision is taken on whether and how S&D treatment may be provided for a measure in response to specific requests, the notifying WTO Member should promptly submit to the WTO Secretariat an addendum to its original notification indicating: if special and differential treatment was requested; the name of WTO Member(s) requesting S&D treatment; if S&D treatment was provided, the form of such treatment; and if not provided, the Addendum shall indicate why S&D treatment was not provided and whether technical assistance or any other solution was found to address the identified concern. 32

33 Check the notification format below: WORLD TRADE ORGANIZATION G/SPS/N/COUNTRY/#/Add.# Date of distribution (##-####) Committee on Sanitary and Phytosanitary Measures Original NOTIFICATION Addendum The following communication, dated DD/MM/YY has been received from [Member]. Title outlining what the SPS measure or product is: [Text describing any modification to the notified measure.] Special and Differential Treatment Text (1) indicating if special and differential treatment was requested; (2) providing the name(s) of the Member(s) that requested special and differential treatment; (3) if special and differential treatment was provided, describing how such treatment was provided, including what form it took; and (4) if special and differential treatment was not provided, indicating why it was not provided and whether technical assistance or any other solution was found to address the identified concern. Where the notified document can be obtained from include contact name, agency, full address, telephone, facsimile, and as appropriate. EXERCISES: 6. Where should you send your notifications? What is the general document code for notifications? How can you retrieve information about other WTO Members' notifications? 7. What are WTO Members' transparency obligations under the SPS Agreement, in relation to the provision of requested copies and to the handling of comments on draft SPS regulations made by other WTO Members? 33

34 IV. PUBLICATION OBLIGATIONS A fundamental component of transparency under the SPS Agreement is the publication of regulations. This is a general obligation of WTO Members, and does not relate specifically to the work of either the notification authority or enquiry point. Annex B, in paragraphs 1 and 2, of the SPS Agreement provide that: Publication of regulations 1. Members shall ensure that all sanitary and phytosanitary regulations (5) which have been adopted are published promptly in such a manner as to enable interested Members to become acquainted with them. 2. Except in urgent circumstances, Members shall allow a reasonable interval between the publication of a sanitary or phytosanitary 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 and methods of production to the requirements of the importing Member. (5) Footnote: Sanitary and phytosanitary measures such as laws, decrees or ordinances which are applicable generally. WTO Members are, thus, obliged to: promptly publish adopted SPS regulations, which include laws, decrees or ordinances which are applicable generally. allow a reasonable interval between the publication of an SPS regulation and its entry into force, except in urgent circumstances. In the Decision on Implementation Related Issues and Concerns (WT/MIN(01)17) adopted on 14 November 2001 at the Fourth Ministerial Conference in Doha, Qatar, it was decided that the "reasonable interval" between the publication of an SPS regulation and its entry into force shall normally mean a period of not less than 6 months. Important note The entry into force of measures which liberalize trade should not be unnecessarily delayed. WTO Members must fulfil publication obligations both before the adoption of an SPS measure and after. The obligations WTO Members have concerning publication are presented in more detail below. IV.A. BEFORE THE ADOPTION OF THE REGULATION WTO Members are required to publish an early notice of their intention to introduce a particular SPS regulation. The requirements for the publication of such notice are the same as for the notification of regulations: a notice should be published if the proposed regulation may have a significant effect on trade of other WTO Members and whenever an international standard does not exist or the content of a proposed sanitary or phytosanitary 34

35 regulation is not substantially the same as the content of an international standard, guideline or recommendation. Some WTO Members use the submission of an SPS notification to the WTO Secretariat as the means of publishing this early notice. Paragraph 5(a) of Annex B of the SPS Agreement reads: [Members shall] publish a notice at an early stage in such a manner as to enable interested Members to become acquainted with the proposal to introduce a particular regulation; IV.B. AFTER THE ADOPTION OF THE MEASURE WTO Members are required to promptly publish all adopted SPS measures, including those that do not have a significant effect on the trade of other WTO Members, or those which are in accordance with an international standard. The obligation to publish (all) adopted regulations is wider than the obligation to notify draft measures or to publish an early notice, and includes measures whose notice does not have to be published or which does not have to be notified a priori. Paragraph 1 of Annex B of the SPS Agreement reads as follows: Members shall ensure that all sanitary and phytosanitary regulations (3) which have been adopted are published promptly in such a manner as to enable interested Members to become acquainted with them. Footnote (3) Sanitary and phytosanitary measures such as laws, decrees or ordinances which are applicable generally. CASE STUDY: JAPAN AGRICULTURAL PRODUCTS II (WT/DS 76) JAPAN AGRICULTURAL PRODUCTS II Regarding Japan Agricultural Products II case (WT/DS76), we would like to discuss here the claims made by the US. The US alleged that Japan's testing requirements should have been published and thus Japan had violated its transparency obligations. Regarding Japan's transparency obligations under the SPS Agreement, the Panel found, as upheld by the Appellate Body, that: the measure at issue violated Article 7 and Annex B of the SPS Agreement. The Panel found that the variety testing requirement should have been published, despite the argument made by Japan that the requirement was not mandatory. Concerning the obligation to publish SPS measures, the Appellate Body refuted Japan's argument that those phytosanitary requirements did not constitute a regulation, and therefore did not have to be published. Japan 35

36 stated that such requirements were not enforceable, and did not constitute "laws, decrees or ordinances". The Appellate Body stated that the list of instruments contained in the footnote to paragraph 1 of Annex B was, as indicated by the words "such as", not exhaustive in nature and that the varietal testing requirements should have been published. The Appellate Body: Considered that the scope of application of the publication requirement is not limited to, but also includes other instruments which are applicable generally and are similar in character to the instruments explicitly referred to in the illustrative list of the footnote to paragraph 1 of Annex B of the SPS Agreement. Went on to analyse the object and purpose of the publication requirement (contained in paragraph 1 of Annex B of the SPS Agreement), and concluded that its object and purpose is 'to enable interested Members to become acquainted with' the sanitary and phytosanitary regulations adopted or maintained by other WTO Members and thus to enhance transparency regarding these measures. Noted that it was undisputed that the varietal testing requirement was applicable generally and that, in the light of the actual impact of the varietal testing requirement on exporting countries, this instrument was of a character similar to laws, decrees and ordinances (the instruments explicitly referred to in the footnote to paragraph 1 of Annex B of the SPS Agreement). EXERCISES: 8. What are the main obligations relating to the publication of SPS regulations? 9. WTO Members shall allow a reasonable interval between the publication of an SPS regulation and its entry into force, except in urgent circumstances. What is considered a "reasonable interval between publication and entry into force"? 10. Put the following transparency obligations related to SPS regulations in chronological order: Publication of the measure Drafting of the regulation Entry into force of the measure End of comment period and discussion of comments Provision of copies Adoption of the measure Publication of a notice and notification to other WTO Members 36

37 V. ENQUIRY POINTS (EPS) V.A. ESTABLISHMENT OF ENQUIRY POINTS The enquiry point system was created to allow WTO Members to easily obtain information about SPS and related issues, without having to identify and directly contact the agency responsible for any given function in another country. The Enquiry Point (EP) is the contact point to which any relevant enquiry can be made. It has the responsibility of obtaining the answers from the relevant national bodies and replying to the WTO Member making the enquiry. Paragraph 3 of Annex B of the SPS Agreement is the main provision on the establishment and attribution of Enquiry Points. It states that: 3. Each Member shall ensure that one enquiry point exists which is responsible for the provision of answers to all reasonable questions from interested Members as well as for the provision of relevant documents regarding: (a) (b) (c) (d) any sanitary or phytosanitary regulations adopted or proposed within its territory; any control and inspection procedures, production and quarantine treatment, pesticide tolerance and food additive approval procedures, which are operated within its territory; risk assessment procedures, factors taken into consideration, as well as the determination of the appropriate level of sanitary or phytosanitary protection; the membership and participation of the Member, or of relevant bodies within its territory, in international and regional sanitary and phytosanitary organizations and systems, as well as in bilateral and multilateral agreements and arrangements within the scope of this Agreement, and the texts of such agreements and arrangements. In the period , 138 WTO Members have provided information on the existence of an SPS enquiry point. Some WTO Members have different enquiry points for plant protection, animal protection and food safety subject matters, such as Panama (which has 5); Armenia (which has 4); Bulgaria, Cuba, India, Kenya, Korea, Malawi, Malaysia, Peru and Zambia (all of which have 3); and Bahrain, Brazil, Croatia, El Salvador, Malta, Morocco, Paraguay, Romania and Swaziland (all of which have 2). For transparency reasons, WTO Members are not encouraged to have more than one Enquiry Point and when more than one Enquiry Point exists, their areas of responsibility should be clearly defined by the WTO Member. TIP The addresses of WTO Members SPS Enquiry Points are contained in the document "National Enquiry Points", Note by the Secretariat, G/SPS/ENQ/. They are available and regularly updated on the SPS website on: 37

38 V.B. FUNCTIONING OF ENQUIRY POINTS V.B.1. WHAT TYPE OF INFORMATION? Enquiry points are required to respond to all reasonable enquiries from other WTO Members and to provide relevant documents regarding: any sanitary or phytosanitary regulations adopted or proposed within the territory of the WTO Member; any control and inspection procedures, production and quarantine treatment, pesticide tolerance and food additive approval procedures, which are operated within the territory of the WTO Member; risk assessment procedures, factors taken into consideration, as well as the determination of the appropriate level of sanitary or phytosanitary protection; the membership and participation of the WTO Member, or of relevant bodies within its territory, in international and regional sanitary and phytosanitary organizations and systems, as well as in bilateral and multilateral agreements and arrangements within the scope of this Agreement (including Equivalence Agreements), and the texts of such agreements and arrangements. Developed WTO Members' Enquiry Points shall also provide translations or translated summaries of the documents related to a notification (which is also done by the Notification Authority in certain WTO Members). Enquiry Points should supply copies of requested documents to WTO Members and interested parties of WTO Members at an equitable price. While the WTO Member's notification authority may handle questions on notified draft measures, the EP is responsible for answering questions on all existing SPS measures (even those that existed before the WTO and the SPS Agreement came into force), or those which have not been notified (because, for example, they incorporate international standards or do not restrict international trade). Figure 10: Enquiry Points Functions 38

39 V.B.2. GOING BEYOND OBLIGATIONS In addition to fulfilling the obligations discussed above, certain enquiry points perform additional tasks related to the better dissemination and understanding of SPS related information. In fact, enquiry points can play a significant role in this area if they are made responsible for collecting and sharing information (e.g. notifications) received from other WTO Members. Such information often interests private parties as well, for example, producers, importers, exporters, chambers of commerce, associations, etc. Those directly affected by a foreign regulation may be given the opportunity to make comments and raise concerns to, or via, the enquiry point, if good coordination between these parties is in place. The enquiry point can collect these comments and concerns and be responsible, in consultation with the relevant agencies, of formulating and sending comments to the notifying WTO Member. Some WTO Members' enquiry points work as focal points that coordinate information exchange on SPS matters. Such coordination and consultations may result in a specific trade concern being raised at an SPS Committee meeting. Figure 11: Using the Enquiry Point: Beyond Obligations 39