Australia-United States Free Trade Agreement - Guide to the Agreement
7. Sanitary and Phytosanitary (SPS) Measures
1. Purpose and Structure
In the SPS Chapter, which comprises four articles and an annex, Australia and the United States reaffirm that decisions on matters affecting quarantine and food safety will continue to be made on the basis of scientific assessments of the risks involved in the commercial movement of animals and plants and their products. This affirmation is made to reflect the primacy of existing rights and obligations under the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement).
The Chapter recognises that both Australia and the United States are major agricultural producers and exporters but with different environmental conditions and pest and disease status. Nothing in the Chapter undermines the right of either Party to determine the level of protection it considers appropriate.
The Parties have agreed to work together to improve each country's understanding of the other's SPS measures and associated regulatory processes. Two Committees will be established for this purpose, one focusing on general matters and the other one on a more specific set of plant and animal health (quarantine) matters.
2. General Provisions
In Article 7.3.1, each Party reaffirms existing commitments to the WTO SPS Agreement. Article 7.3.2 states that there is no recourse to dispute settlement under the FTA for SPS matters. This is because the Chapter creates no new SPS rights or obligations so there is no need for the Parties to have recourse to dispute settlement under the Agreement. Rights under the WTO dispute settlement mechanism would continue to apply for each Party.
3. Committee on Sanitary and Phytosanitary Matters
The new bilateral SPS Committee established in this Chapter will comprise representatives of each Party with responsibility for sanitary and phytosanitary matters. Its mandate, set out in Article 7.4.5 of the Chapter, emphasises a role for the Committee in increasing the mutual understanding of the SPS measures and regulatory processes of each Party as well as continuing the cooperative efforts of the Parties internationally.
There are a number of regulatory agencies in Australia and in the United States with responsibility for SPS matters, including food safety as well as quarantine, not all of which interact regularly. The SPS Committee provides a forum where the various agencies can participate as necessary to enhance mutual understanding of the SPS processes and policies adopted by each Party. Representatives from the trade departments of both Australia and the United States will be members of the Committee. Their key contribution will be to provide advice on international rights and obligations, particularly those relating to SPS measures in the WTO.
The Committee will meet at least once a year following entry into force unless the Parties agree otherwise, and shall meet within 45 days of entry into force of the Agreement. Detailed operating procedures such as where the Committee will meet, who is responsible for preparing the agenda and other procedural matters are yet to be agreed.
Because Australia and the United States enjoy a significant trading relationship in agricultural products, it is likely that there will, at any point in time, be an agenda of market access issues for which quarantine risk assessments are underway or pending, and which may benefit from scientific and technical discussion. This is recognised by the establishment in Article 7.4.9 of the Standing Technical Working Group on Animal and Plant Health (the Working Group). Annex 7-A provides more detail on the Working Group's mandate and objectives.
The SPS Committee can establish other technical working groups if there is agreement to do so.
4. Annex 7-A: Standing Working Group on Animal and Plant Health
Paragraph 1 of Annex 7-A explicitly recognises the importance of protecting human, animal and plant life and health, the rights of the Parties in that regard and their right to maintain their own regulatory systems, risk assessment and policy development processes.
The Working Group is designed to help with the resolution of specific animal and plant health matters. This initiative recognises that technical exchange and cooperation can assist in resolving matters relating to specific quarantine risks in ways that address the importing Party's quarantine concerns but do not unduly restrict trade.
Paragraph 4 of Annex 7-A specifies that the Working Group will provide a forum for this enhanced technical cooperation with an emphasis on early engagement to avoid unnecessary delays in the risk assessment and policy development processes. Each Party understands, however, that it may not always be possible to reach agreement on scientific issues (Subparagraph 4 (a)).
The Working Group builds on the cooperative relationship that already exists between the Australian and United States' agencies with major responsibility for technical market access issues relating to animal and plant health (Biosecurity Australia and the US Animal and Plant Health Inspection Service (APHIS)). That is why Paragraph 2 of Annex 7-A specifies that the Working Group will be chaired by those agencies.
Paragraph 5 of Annex 7-A recognises that each Party is not the other's only trading partner and will be working on a range of access requests relating to quarantine for other trading partners. Existing arrangements that allow for exchanges on plant and animal health bilateral matters will continue. The Working Group is intended to manage a more intensive engagement on a small range of bilateral issues identified by either Party as of particular importance. Article 6 requires each Party to identify those priority issues that are of particular importance, to assist one another in balancing resource constraints.
Paragraph 8 provides the flexibility to the Working Group to appoint sub-groups to consider particular technical issues. These are intended to focus on specific scientific matters of relevance to the Working Group's agenda.
In Paragraph 9, the Chapter allows for the Working Group to manage a more intensive engagement on specific bilateral issues identified by either Party as being of particular importance.
5. Annex 7-A: Section B: Development of Work Plans
If either Party refers a matter of particular interest or concern to the Working Group, the Working Group will develop a specific work plan outlining how the Parties will engage with each other, and on what, in order to try to resolve any matters of scientific difference. Within 60 days of a Party referring a matter to the Working Group under this provision, the Working Group is required to develop a specific work plan that is focused on technical and scientific matters associated with the referral.
Paragraph 11 of the Annex identifies the range of possible types of activities arising from such a referral, but the inclusion of any one of them in the specific work plan will depend on the issue and the stage it has reached in the importing Party's risk assessment or regulatory process. The possible activities were developed in the light of each Party's existing processes and are not intended to interfere with or prejudge the outcome of any stage of those processes. Rather, the objective is to identify steps or stages in those processes where enhanced technical exchange may help in resolving issues and moving the process along.
March 6, 2004