Chapter XVII: Section III: Canadian Special Safeguard Goods (2)

3. Where a Party pursuant to Article 904(2) establishes the level of protection that it considers appropriate and conducts an assessment of risk, it should avoid arbitrary or unjustifiable distinctions between similar goods or services in the level of protection it considers appropriate, if such distinctions:

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

(b) constitute a disguised restriction on trade between the
Parties; or

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

Article 908: Conformity Assessment

1. The Parties shall, further to Article 906 and recognizing the existence of substantial differences in the structure, organization, and operation of conformity assessment procedures in their respective territories, make compatible to the greatest extent practicable such procedures.

2. Recognizing that it should be to the mutual advantage of the Parties concerned and except as set out in Annex 908(2), each Party shall accredit, approve, license or otherwise recognize conformity assessment bodies in the territory of another Party on terms no less favorable than those accorded to such bodies in its territory.

3. With respect to a Party's conformity assessment procedure, such Party shall:

(a) not adopt or maintain any such procedure that is stricter, nor apply such procedure more strictly, than necessary to give it confidence that a good or a service conforms with an applicable technical regulation or standard, taking into account the risks that non-conformity would create;

(b) initiate and complete such procedure as expeditiously
as possible;

(c) in accordance with Article 904(3), undertake processing
of applications in non-discriminatory order;

(d) publish the normal processing period for each such procedure or communicate the anticipated processing period to an applicant upon request;

(e) ensure that the competent body

(i) upon receipt of an application, promptly examines the completeness of the documentation and informs the applicant in a precise and complete manner of any deficiency,

(ii) transmits to the applicant as soon as possible the results of the conformity assessment procedure in a form that is precise and complete so that such applicant may take any necessary corrective action,

(iii) where the application is deficient, proceeds as far as practicable with such procedure if the applicant so requests, and

(iv) informs the applicant, upon request, of the status of the application and the reasons for any delay;

(f) limit the information the applicant is required to supply to that necessary to conduct such procedure and to determine appropriate fees;

(g) accord confidential or proprietary information arising from, or supplied in connection with, the conduct of such procedure for a good of another Party or for a service provided by a person of another Party

(i) the same treatment as that for a good of such Party or a service provided by a person of such Party, and

(ii) in any event, treatment that protects an applicant's legitimate commercial interests to the extent provided under the Party's law;

(h) ensure that any fee it imposes for conducting such procedure is no higher for a good of another Party or a service provider of another Party than is equitable in relation to any such fee imposed for its like goods or service providers or for like goods or service providers of any other country, taking into account communication, transportation and other related costs;

(i) ensure that the location of facilities at which a conformity assessment procedure is conducted does not cause unnecessary inconvenience to an applicant or its agent;

(j) limit such procedure, for a good or service modified subsequent to a determination that such good or service conforms to the applicable technical regulation or standard, to that necessary to determine that such good or service continues to conform to such technical regulation or standard; and

(k) limit any requirement regarding samples of a good to that which is reasonable, and ensure that the selection of samples does not cause unnecessary inconvenience to an applicant or its agent.

4. Each Party shall apply, with appropriate modifications, the relevant provisions of paragraph 3 to its approval procedures.

5. Each Party shall, upon the request of another Party, take such reasonable measures as may be available to it to facilitate access in its territory for conformity assessment activities.

6. Each Party shall give sympathetic consideration to a request by another Party to negotiate agreements for the mutual recognition of the results of that other Party's conformity assessment procedures.

Article 909: Notification, Publication, and Provision of Information

1. Further to Articles 1802 (Publication) and 1803 (Notification and Provision of Information), each Party proposing to adopt or modify a technical regulation, shall:

(a) at least 60 days prior to the adoption or modification of such technical regulation, 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 such measure, except that in the case of any such measure related to perishable goods, each Party shall, to the greatest extent practicable, publish such notice and provide such notification at least 30 days prior to the adoption or modification of such measure, but no later than when notification is provided to domestic producers;

(b) identify in such notice and notification the good or service to which the proposed measure would apply, and shall provide a brief description of the objective of, and reasons for, such measure;

(c) 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

(d) without discrimination, allow other Parties and interested persons to make comments in writing and shall, upon request, discuss such comments and take such comments and the results of such discussions into account.

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:

(a) at an early appropriate stage, publish a notice and provide a notification of the type required in paragraphs 1 (a) and (b); and

(b) observe paragraphs 1 (c) and (d).

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:

(a) that, at an early appropriate stage, a notice and notification of the type required under paragraphs 1 (a) and (b) are made prior to their adoption; and

(b) observance of paragraphs 1 (c) and (d).

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 paragraphs 1 or 3, provided that upon adoption of a standards-related measure it shall:

(a) immediately provide to the other Parties a notification of the type required under paragraph 1(b), including a brief description of the urgent problem;

(b) provide a copy of such measure to any Party or
interested person that so requests; and

(c) without discrimination, allow other Parties and interested persons to make comments in writing, and shall, upon request, discuss such comments and take such comments and the results of such discussions into account.

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 such measure.

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.

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.

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

9. Each Party shall designate 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 such purpose, it shall provide to the other Parties complete and unambiguous information on the scope of responsibility of each such authority.

Article 910: Inquiry Points

1. Each Party shall ensure that there is an inquiry point that is able to answer all reasonable inquiries from other Parties and interested persons, and to provide relevant documents regarding:

(a) any standards-related measure proposed, adopted or maintained in its territory at the federal, provincial, or state government level;

(b) the membership and participation of such Party, or its relevant federal, provincial or state government authorities, in international and regional standardizing bodies and conformity assessment systems, and in bilateral and multilateral arrangements regarding standards-related measures, and the provisions of such systems and arrangements;

(c) the location of notices published pursuant to Article
909, or where such information can be obtained;

(d) the location of the inquiry points referred to in
paragraph 3; and

(e) such Party's procedures for assessment of risk, factors it considers in conducting such assessment and in establishing, pursuant to Article 904(2), the levels of protection that it considers appropriate.

2. Where a Party designates more than one inquiry point, it shall:

(a) provide to the other Parties complete and unambiguous information on the scope of responsibility of each inquiry point; and

(b) ensure that any enquiry addressed to an incorrect inquiry point is promptly conveyed to the correct inquiry point.

3. Each Party shall take such reasonable measures as may be available to it to ensure that there is at least one enquiry point that is able to answer all reasonable enquiries from other Parties and interested persons and to provide relevant documents or information as to where they can be obtained regarding:

(a) any standard or conformity assessment procedure proposed, adopted or maintained by non-governmental standardizing bodies in its territory; and

(b) the membership and participation of relevant non- governmental bodies in its territory in international and regional standardizing bodies and conformity assessment systems.

4. Each Party shall ensure that where copies of documents are requested by another Party or by interested persons in accordance with this Chapter, they are supplied at the same price, apart from the actual cost of delivery, as the price for domestic purchase.

Article 911: Technical Cooperation

1. Each Party shall, upon the request of another Party:

(a) provide to that Party technical advice, information and assistance on mutually agreed terms and conditions to enhance that Party's standards-related measures, and related activities, processes, and systems;

(b) provide to that Party information on its technical cooperation programs regarding standards-related measures relating to specific areas of interest; and

(c) consult with that Party during the development of, or prior to the adoption or change in the application of, any standards-related measure.

2. Each Party shall encourage its standardizing bodies to cooperate with the standardizing bodies of the other Parties in their participation, as appropriate, in standardizing activities, such as through membership in international standardizing bodies.

Article 912: Limitations on the Provision of Information

Nothing in this Chapter shall be construed as requiring a
Party to:

(a) communicate, publish texts, or provide particulars or copies of documents other than in an official language of such Party; or

(b) furnish any information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of particular enterprises.

Article 913: Committee on Standards-Related Measures

1. The Parties hereby establish a Committee on Standards- Related Measures, comprising representatives of each Party.

2. The Committee's functions shall include:

(a) monitoring the implementation and administration of this Chapter, including the progress of the subcommittees and working groups established under paragraph 4, and the operation of the enquiry points established under Article 910;

(b) facilitating the process by which the Parties make
compatible their standards-related measures;

(c) providing a forum for the Parties to consult on issues relating to standards-related measures, including the provision of technical advice and recommendations under Article 914;

(d) enhancing cooperation on the development, application
and enforcement of standards-related measures;

(e) considering non-governmental, regional and multilateral developments regarding standards-related measures, including under the GATT; and

(f) reporting annually to the Commission on the
implementation of this Chapter.

3. The Committee shall meet upon the request of any Party and, unless the Parties otherwise agree, at least once each year.

4. The Committee may, as it considers appropriate, establish and determine the scope and mandate of subcommittees or working groups, comprising representatives of each Party. Each such subcommittee or working group may:

(a) as it considers necessary or desirable, include or
consult with

(i) representatives of non-governmental bodies,
including standardizing bodies,

(ii) scientists, and

(iii) technical experts; and

(b) determine its work program, taking into account
relevant international activities.

5. Further to paragraph 4, the Committee shall establish:

(a) the following subcommittees or working groups

(i) Land Transportation Standards Subcommittee, in
accordance with Annex 913-A,

(ii) Telecommunications Standards Subcommittee, in
accordance with Annex 913-B,

(iii) Automotive Standards Council, in accordance with
Annex 913-C, and

(iv) Subcommittee on Labelling of Textile and Apparel
Goods, in accordance with Annex 913-D;

(b) such other subcommittees or working groups as it
considers appropriate to address any topic, including:

(i) identification and nomenclature for goods
subject to standards-related measures,

(ii) quality and identity standards and
technical regulations,

(iii) packaging, labelling, and presentation of consumer information, including languages, measurement systems, ingredients, sizes, terminology, symbols, and related matters,

(iv) product approval and post-market
surveillance programs,

(v) principles for the accreditation and recognition of conformity assessment bodies, procedures, and systems,

(vi) development and implementation of a uniform chemical hazard classification and communication system,

(vii) enforcement programs, including training and inspections by regulatory, analytical, and enforcement personnel,

(viii) promotion and implementation of good
laboratory practices,

(ix) promotion and implementation of good
manufacturing practices,

(x) criteria for assessment of potential
environmental hazards of goods,

(xi) methodologies for assessment of risk,

(xii) guidelines for testing of chemicals, including industrial and agricultural chemicals, pharmaceuticals, and biologicals,

(xiii) methods by which consumer protection, including matters relating to consumer redress, can be facilitated, and

(xiv) extension of the application of this Chapter to
other services.

6. Each Party shall, upon the request of another Party, take such reasonable measures as may be available to it to provide for the participation in the work of the Committee, where and as appropriate, of representatives of provincial or state governments in the activities of the Committee.

7. A Party requesting technical advice, information, or assistance pursuant to Article 911 shall notify the Committee which shall facilitate any such request.

Article 914: Technical Consultations

1. Where a Party requests consultations regarding the application of this Chapter to a Party's standards-related measure, and so notifies the Committee, the Committee may facilitate such 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, including an ad hoc subcommittee or working group, or to another forum.

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.

3. Where the involved Parties have had recourse to consultations facilitated by the Committee under paragraph 1, such consultations shall, if agreed by the Parties involved, constitute consultations under Article 2006 (Consultations).

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

Article 915: Definitions

1. For purposes of this Chapter:

approval procedure means any registration, notification, or other mandatory administrative procedure for obtaining permission for a good or service to be produced, marketed, or used for a stated purpose or under stated conditions;

assessment of risk means evaluation of the potential for adverse effects;

conformity assessment procedure means any procedure used, directly or indirectly, to determine that a relevant technical regulation or standard is fulfilled, including sampling, testing, inspection, evaluation, verification, monitoring, auditing, assurance of conformity, accreditation, registration, or approval used for such a purpose, but does not mean an approval procedure;

international standard means a standards-related measure, or other guide or recommendation, adopted by an international standardizing body and made available to the public;

international standardizing body means a standardizing body whose membership is open to the relevant bodies of at least all the parties to the GATT Agreement on Technical Barriers to Trade, including the International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC), Codex Alimentarius Commission, the World Health Organization (WHO), the Food and Agriculture Organization (FAO), the International Telecommunications Union (ITU); or any other body that the Parties designate;

land transportation service means a transportation service provided by means of motor carrier or rail;

legitimate objective includes an objective such as:

(a) safety;

(b) protection of human, animal or plant life or health, the environment or consumers (including matters relating to quality and identifiability of goods or services); or

(c) sustainable development,

considering, among other things, where appropriate, fundamental climatic or other geographical factors, technological or infrastructural factors, or scientific justification but does not include the protection of domestic production;

make compatible means bring different standards-related measures of the same scope approved by different standardizing bodies to a level such that they are either identical, equivalent, or have the effect of permitting goods or services to be used in place of one another or fulfill the same purpose;

services means land transportation services and telecommunication services;

standard means a document, approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products, or related processes and production methods, or for services or related operating methods with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production or operating method;

standardizing body means a body having recognized activities in standardization;

standards-related measure means a standard, technical regulation or conformity assessment procedure;

technical regulation means a document which lays down product characteristics or their related processes and production methods, or for services or operating methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production or operating method;

telecommunication service means a service provided by means of the transmission and reception of signals by any electromagnetic means.

2. Except as they are otherwise defined in this Agreement, other terms in this Chapter shall be interpreted in accordance with their ordinary meaning in context and in the light of the objectives of this Agreement, and where appropriate by reference to the terms presented in the sixth edition of the ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning Standardization and Related Activities.

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ANNEX 908.2

Transitional Rules for Conformity Assessment Procedures

1. Except in respect of governmental conformity assessment bodies, Article 908(2) shall impose no obligation and confer no right on Mexico until four years after the date of entry into force of this Agreement.

2. Where a Party charges a reasonable fee, limited in amount to the approximate cost of the service rendered, to accredit, approve, license, or otherwise recognize a conformity assessment body in the territory of another Party, it need not, prior to December 31, 1998 or such earlier date as the Parties may agree, charge such a fee to a conformity assessment body in its territory.

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ANNEX 913 - A

Land Transportation Standards Subcommittee

1. The Land Transportation Standards Subcommittee, established under Article 913, shall comprise representatives of each Party.

2. The Subcommittee shall implement the following work program for making compatible the Parties' relevant standards-related measures for:

(a) motor carrier operations,

(i) no later than one and one-half years from the date of entry into force of this Agreement, for non-medical standards-related measures respecting drivers, including measures relating to the age of and language used by drivers,

(ii) no later than two and one-half years from the date of entry into force of this Agreement, for medical standards-related measures respecting drivers,

(iii) no later than three years from the date of entry into force of this Agreement, for standards- related measures respecting vehicles, including measures relating to weights and dimensions, tires, brakes, parts and accessories, securement of cargo, maintenance and repair, inspections, and emissions and environmental pollution levels not covered by the Automotive Standards work program established under Annex 913-C,

(iv) no later than three years from the date of entry into force of this Agreement, for standards- related measures respecting each Party's supervision of motor carriers' safety compliance, and

(v) no later than three years from the date of entry into force of this Agreement, for standards- related measures respecting road signs;

(b) rail operations,

(i) no later than one year from the date of entry into force of this Agreement, for standards- related measures respecting operating personnel that are relevant to cross-border operations, and

(ii) no later than one year from the date of entry into force of this Agreement, for standards- related measures respecting locomotives and other rail equipment; and

(c) transportation of dangerous goods, no later than six years from the date of entry into force of this Agreement, using as their basis the United Nations Recommendations on the Transport of Dangerous Goods, or such other standards as the Parties may agree.

3. The Subcommittee may address other related standards-related measures as it considers appropriate.

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ANNEX 913 - B

Telecommunications Standards Subcommittee

1. The Telecommunications Standards Subcommittee, established under Article 913, shall comprise representatives of each Party.

2. The Subcommittee shall, within six months of the date of entry into force of this Agreement, develop a work program, including a timetable, for making compatible the Parties' standards-related measures for authorized equipment as defined in