[Federal Register Volume 63, Number 216 (Monday, November 9, 1998)]
[Notices]
[Pages 60437-60440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29990]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE


Sanitary and Phytosanitary Issues

AGENCY: Trade Policy Staff Committee, USTR.

ACTION: Request for written comments on ``Information for Evaluation of 
the Consistency of Foreign Trade Measures with the Provisions of the 
WTO Agreement on the Application of Sanitary and Phytosanitary 
Measures.''

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[[Page 60438]]

SUMMARY: The Trade Policy Staff Committee (TPSC) is publishing a set of 
questions developed to elicit information on foreign trade measures 
that may be inconsistent with the provisions of the World Trade 
Organization (WTO) Agreement on the Application of Sanitary and 
Phytosanitary Measures (SPS Agreement). This set of questions, 
``Information for Evaluation of the Consistency of Foreign Trade 
Measures with the Provisions of the WTO Agreement on the Application of 
Sanitary and Phytosanitary Measures,'' was developed by a subcommittee 
of the TPSC which focuses on issues related to the WTO SPS Agreement. 
These questions are attached as an annex to this Federal Register 
notice. They will be used by the TPSC in collecting and organizing 
information for analysis and for prioritizing potential U.S. Government 
action on trade barriers raised by sanitary or phytosanitary measures 
that appear to be inconsistent with the SPS Agreement.
    The purpose of this notice is to solicit written public comments on 
the set of questions developed by the inter-agency TPSC committee. 
Comments are specifically invited to address the appropriateness and 
comprehensiveness of the questions as they are set forth in the annex 
to this Federal Register notice. If there are areas of concern or 
issues which commentors feel have not been fully addressed they should 
provide their rationale for inclusion or exclusion of such concerns.

DATES: Written comments should be submitted by December 9, 1998.

FOR FURTHER INFORMATION CONTACT:
John Payne, Director for SPS Affairs, USTR, telephone (202) 395-6127; 
or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: It was recommended in a United States 
General Accounting Office (GAO) report, entitled ``Agricultural 
Exports: U.S. Needs a More Integrated Approach to Address Sanitary/
Phytosanitary Issues'' (NSIAD-98-32 December 11, 1997) that the U.S. 
Government should:

    * * * establish a more systematic process by which USDA entities 
evaluate complaints they receive about SPS measures, determine which 
ones they should address, prioritize their efforts, develop unified 
approaches, and determine when to recommend consideration of dispute 
settlement procedures to USTR. This process should be developed and 
implemented in consultation with the U.S. Trade Representative, the 
Commissioner of Food and Drugs, the Administrator of EPA, and the 
Secretary of State, or their designees.

    The USTR in its response to the GAO report stated that the SPS 
subcommittee of the TPSC would develop a methodology for evaluating SPS 
issues brought to its attention and that methodology would be used to 
determine policy options for addressing specific SPS issues which 
appear to violate the WTO SPS Agreement. USDA in its response to the 
GAO report stated that a Federal Register notice would be published 
that invited public comment on factors to be taken into account in 
evaluating and prioritizing trade-related SPS measures.
    The SPS subcommittee of the TPSC (comprised of representatives from 
USTR, the United States Department of Agriculture, the Food and Drug 
Administration, the Environmental Protection Agency, the State 
Department, and representatives of other interested Departments and 
Agencies) developed a set of questions to guide the collection of 
information to evaluate the consistency of foreign trade measures with 
the provisions of the SPS Agreement. This set of questions will be 
amended based on comments provided from this notice and, over time, 
through experience as new issues are identified that would lead to 
improving the collection of information for analysis of SPS measures 
which appear to violate the WTO SPS Agreement.
    In order to assist the TPSC in its analysis of specific SPS 
measures, government Agencies intend to use the set of questions as a 
tool to systematically collect and organize their information on 
issues. It is understood that the information responsive to these 
questions may be provided from a number of sources, including Agencies 
of the U.S. Government and information voluntarily provided by industry 
or consumer groups. Failure of the TPSC to obtain answers to some of 
the questions does not mean that the issue will not be addressed, but 
the more complete the information, the sooner the evaluation can be 
completed, and potentially, the sooner the issue could be resolved. 
This set of questions is intended to ensure that the TPSC is aware of 
all available information that is pertinent to an issue. It does not 
imply any particular judgment regarding the relative importance of any 
specific item of information provided.

Submission of Written Comments

    Those persons wishing to submit written comments should provide 
twenty (20) copies (in English) to Gloria Blue, Executive Secretary, 
Trade Policy Staff Committee, Office of the United States Trade 
Representative, Room 501, 600 17th Street Northwest, Washington, DC 
20508. Comments should state clearly the position taken and should 
describe the specific information supporting that position.
    If the submission contains business confidential information, 
twenty copies of a confidential version must also be submitted. A 
justification as to why the information contained in the submission 
should be treated confidentially must be included in the submission. In 
addition, any submissions containing business confidential information 
must be clearly marked ``Confidential'' at the top and bottom of the 
cover page (or letter) and of each succeeding page of the submission. 
The version that does not contain confidential information should also 
be clearly marked, at the top and bottom of each page, ``public 
version'' or ``non-confidential.''
    Written comments submitted in connection with this request, except 
for information granted ``business confidential'' status pursuant to 15 
CFR 20003.6, will be available for public inspection in the USTR 
Reading Room, Room 101, Office of the United States Trade 
Representative, 600 17th Street Northwest, Washington, DC. An 
appointment to review the file may be made by calling Brenda Webb (202) 
395-6186. The Reading Room is open to the public from 9:30 a.m. to 12 
noon, and from 1 p.m. to 4 p.m., Monday through Friday.
Frederick L. Montgomery,
Chairman, Trade Policy Staff Committee.

Annex: The Consistency of Foreign Trade Measures With the 
Provisions of the WTO Agreement on the Application of Sanitary and 
Phytosanitary Measures

    In order to assist the TPSC in its analysis of the SPS measure in 
question, please provide as much information as possible in response to 
the following questions. It is understood that the information 
requested may be provided from several other sources, including the 
U.S. Government. Failure to answer questions does not mean that the 
issue will not be addressed by the TPSC, but the more complete the 
information, the sooner the evaluation can be completed. If any of the 
information provided is business confidential, please ensure that 
specific business confidential information on all copies is so marked.
    Please note that this set of questions is intended to ensure that 
the TPSC is aware of all available information that is pertinent to 
this issue. It does not imply any judgment regarding the relative 
importance of any specific questions or specific elements of the 
information provided.

[[Page 60439]]

I. Description of The SPS Barrier

    A. What country has imposed a trade restriction or SPS barrier?
    B. What product or commodity is affected?
    C. What claim (e.g., health, safety, etc.) is the government making 
as the reason for its measure?
    D. Has this issue been brought to the attention of the U.S. 
Government before? If so, what was the date of the previous 
communication and to what Agency?
    E. Who may have information available to answer more fully 
questions in this questionnaire? U.S. Government Agencies? Others?

II. Market Impact

    A. Which export markets (i.e., countries, territories, regions) are 
affected by this measure?
    B. Which foreign government agencies are responsible for 
developing, implementing, and enforcing the measure?
    C. When was the measure adopted, publicized and implemented? Please 
provide as complete a chronology as possible.
    D. Which U.S. export products are affected? Please provide as 
detailed a description as possible, including harmonized tariff 
schedule numbers (If known).
    E. What other countries' imports of products into the country 
taking the measure are (might be) impacted by this measure?
    F. What is the approximate value of the actual lost export earnings 
resulting from the application of this measure? (or) The estimate of 
lost export earnings which would result if the proposed measure were 
implemented?
    (1) What is the approximate value of U.S. exports of the affected 
products to the affected markets in recent years?
    (2) What is the approximate value of all U.S. exports of the 
affected products to the world in recent years?
    (3) If there is no trade because of the measure (import bans, 
etc.), what is your estimate of potential market value if the current 
restriction were removed?

III. Health Objective of the Measure

    A. Has the government applying the measure identified that it is 
doing so to protect human, animal or plant life or health? If so, 
provide the specific health concern the measure is intended to address. 
Please provide any available documentation.
    B. If the measure is intended to mitigate against a disease or 
pest, which specifically?
    (1) Do the pests or diseases of concern exist in the U.S.?
    (2) If the pest or disease exist in the U.S., are there relevant 
surveillance or monitoring data to demonstrate that the pest or disease 
does not affect the product for which the measure is taken?
    (3) Is the pest or disease known to occur in the country that has 
applied the measure? If so, is the pest or disease limited or 
widespread in that countries territory? Is the pest or disease under an 
official control program or quarantine in that country?

IV. Scientific Basis for the Measure

    A. Are there any international standards, guidelines or 
recommendations which address the same or similar health concerns? 
Please identify and describe. Would use of those international 
standards, guidelines or recommendations be more or less trade 
restrictive than application of the measure in question?
    B. Has the government that has applied (or is proposing) the 
measure conducted a risk assessment which provides a scientific basis 
for the measure? Are you aware of any other risk assessment upon which 
the measure may be based?
    C. Is there strong scientific evidence that the measure is or is 
not based on scientific principles or maintained on the basis of 
sufficient scientific evidence? Does the scientific evidence indicate 
that application of this measure is necessary to achieve the intended 
level of health protection (as determined by the government applying 
the measure)? Please attach a technical summary of the relevant 
scientific evidence.
    D. Have U.S. government or private sector scientists evaluated the 
scientific basis for the measure in question? If so, what is their 
view?
    E. Does the measure take into account the sanitary and 
phytosanitary characteristics of the areas from which the affected 
products originate and the areas to which they are destined (e.g., does 
in recognize post harvest risk mitigation techniques and pest-free or 
disease-free production areas)?
    F. How much technical analysis and research are required to 
generate conclusions regarding the other county's SPS measure (low, 
medium, high)? What are the research costs, current activity, and 
funding sources?

V. Consistency of the Measure

    A. Has the measure been enforced consistently and in a non-
discriminatory manner?
    (1) Is the measure applied in a non-discriminatory way to all 
international suppliers, where identical or similar conditions prevail?
    (2) Does the government applying the measure apply the measure in a 
non-discriminatory way to both imported and domestic products, where 
identical or similar conditions prevail? If not, has the government 
given a reason why it does not?
    (3) Is the measure applied seasonally? If so, is there a scientific 
justification for seasonal implementation? How does seasonal 
implementation relate to seasonal U.S. export patterns?

VI. Transparency and Other Procedural Issues

    A. To your knowledge, has the measure been formally notified 
through WTO notification procedures to the SPS Committee? Other WTO 
Committees?
    B. Did the government applying the measure provide an opportunity 
for U.S. firms to comment on the measure before its adoption and 
implementation? Were any comments provided in response? If so, were 
they taken into account in the development of the final measure?
    C. Did the government applying the measure provide sufficient time 
for U.S. exporters to adjust to the measure prior to its 
implementation?

VII. Previous or Ongoing Consultations

    A. Have there been any consultations between the government 
applying the measure and affected (private sector) U.S. exporters? If 
so, when did those consultations take place, which foreign government 
agencies were involved, and what were the results? Please attach as 
detailed a chronology as possible.
    B. Have there been any official bilateral consultations between the 
government applying the measure and the U.S. government regarding the 
application of the measure? When did those consultations take place, 
and which U.S. and foreign government agencies were involved?
    C. Have any third parties sought or conducted consultations with 
the government applying the measure on this issue? If so, what were the 
results?
    D. Are issues relevant to the application of this measure currently 
on the agenda of any relevant international standards setting bodies or 
other regional or international organizations?

VIII. Comparable Measures

    A. What SPS measures, if any, does the United States apply in order 
to address the same or similar health concerns in association with the 
same or comparable products? In other words, What are the comparable 
U.S. measures, including related domestic and interstate regulations, 
to protect against the same or comparable risks?

[[Page 60440]]

    (1) Are those U.S. measures more or less trade restrictive than the 
foreign measure in question?
    (2) Are there any known scientific or other legitimate reasons for 
any difference between the foreign measure in question and the 
comparable U.S. measures?
    B. What SPS measures, if any, do other governments apply in order 
to address the same or similar health concerns? Are these measures more 
or less restrictive than the measure in question?
    C. Is there any other reasonably available measure or risk 
mitigation strategy which, taking into account technical and economic 
feasibility, would achieve the intended level of health protection (as 
determined by the government applying the measure) in a less trade-
restrictive manner? Please provide any available scientific evidence 
which would demonstrate the efficacy of such alternatives.

IX. Other Information

    A. Is there any other relevant information not asked for in 
previous questions, or information you believe to be pertinent that has 
not been provided in response to the previous questions?
    B. Information in the following categories is particularly useful:
    (1) Chronology of actions leading to the adoption and 
implementation of the measure.
    (2) Chronology of any consultations between U.S. traders or U.S 
government representatives and the government applying the measure in 
question.
    (3) Any available documentation of the specific requirements 
imposed under the measure and of the health justification identified by 
the government applying the measure.
    (4) A technical summary of any available scientific evidence which 
calls into question the scientific basis for the measure.

[FR Doc. 98-29990 Filed 11-6-98; 8:45 am]
BILLING CODE 3190-01-M