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)
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
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
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
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