WORLD TRADE
ORGANIZATIONG/SPS/GEN/86
23  July 1998
(98-2919)
Committee on Sanitary and Phytosanitary Measures Original:  English
TRANSPARENCY
Submission made by India at the Meeting of 10-11 June 1998
1. Article 7 of the SPS Agreement states that:
"Members shall notify changes in their SPS measur es and shall provide  information on their
SPS measures in accordance with the provisions of Annex B."
While this provision is an integral and important part of the Agreement, it is our view that the issue of
transparency needs to be considered in a broader perspective.  Transparency, we feel, cannot be
limited to issues of notification and the need to ensure fulfilment of notification obligations alone, and
would need to be viewed as an integral part of the  primary objective of the Agreement that measures
taken by Members do not constitute hidden barriers to trade.
2. In our view, therefore, issues of transparency need to be considered from two broad aspects.
First, as generally accepted, it is of vital importance to ensure that all Members are up to date in the
fulfilment of their notification obligations with re spect to the implementation of the Agreement. The
second aspect from which transparency provisions need to be examined is in ensuring that the process
of developing SPS measures is made as transparent as possible, especially in view of the potential that
SPS measures have for affecting international trade.  This is particularly important where newmeasures are being introduced and where, as per Annex B of the Agreement, the notifying Member is
expected to provide adequate opportunity to interested Members to comment on the proposed
regulatory measures.
3. Viewed from this aspect, it is clear that transparency is critical for ensuring that trade is not
subject to hidden barriers, since non-availability of relevant information regarding the standard(s)
adopted by the importing countries can hamper free flow of trade.  Very often the notifications of
Members do not contain details regarding the methodology of risk assessment and the factors taken
into account for determining the appropriate level of SPS protection.  It is often difficult and time-
consuming to obtain information in  this regard since, at times, more than one domestic agency(within a Member) is involved in establishing these standards. The documentation/information
provided is at times in the language of the importing country which may not necessarily be one of the
official languages of the WTO.  Moreover, requests for detailed information are responded to after a
considerable time has elapsed and often after the expiry of the time period for making comments,
rendering the whole exercise futile.
4. In this context we would like the Committee to consider the following issues in the course of
the review:
(i) A primary issue which needs to be examined is whether the notification provides
sufficient information to enable Members to become acquainted with the proposed SPS
measures.  Often only a very brief description of the proposed measure is given.  ThisG/SPS/GEN/86
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necessitates that details of the measure have to be then obtained from the Enquiry Points and
by the time that these details are actually obtained, the last date for comments is invariably
past.  Similarly, the main legislation which is being amended is also usually not available and
its procurement  too takes a long time, which further delays the process.  It also needs to be
strictly ensured that the notification is in one of the official languages of the WTO only, andnot in any other language.
(ii) A second issue which is significant relates to the time that is provided to the Members
to analyze and respond to the new regulations that are proposed to be implemented.  Article 2
of Annex B states that except in urgent circumstances, Members shall allow a reasonable
interval between the publication of an SPS regulation and its entry into force, in order to
allow time for producers in exporting Members, particularly in developing countries, to adapttheir products and methods of production to the requirements of the importing Members.
This recommended procedure has also been elaborated in G/SPS/7.  However, it is
unfortunate that very few notifications proposing the adoption of new SPS measures actually
fulfil the obligations specified in Article 2 of Annex B.
(iii) It is clear that Members proposing new SPS measures need to provide adequate time
for other interested Members to raise concerns.  If complete details are not provided, as is
often the case, then it is not possible for Members to obtain all necessary documents related to
the proposed notification, analyze it and submit comments, all within a time frame which is
invariably short.   In fact, we have specific instances in the past where notifications have been
issued on the last day of a month and which have indicated the next month as the date of entry
into force,  thereby providing practically no time for Members to respond to a proposed
measure.   One reason for this is that the Agreement does not specify what should be deemed
to be a sufficient  interval between the circulation of a proposed measure and its entry into
force. While recognising the need for flexibility in urgent circumstances, India feels that this
is an issue which needs to be addressed in the review of the Agreement.
(iv) Annex B pertaining to SPS regulations stipulates that proposed regulations be
discussed bilaterally upon request.  It is however felt that at times the comments are not given
due consideration by the notifying Member, and the entire procedure is gone through only
routinely.  It may be appropriate for Members to be given an opportunity to present the
comments personally and the Member who presented the comment should be intimated of theoutcome of the discussions on the comments presented.  In this context we would like to
suggest that Members should specifically respond to Members who have submitted comments
or raised objections on the proposed notification. Another alternative which could be
considered is to ensure that the proposed measure, the various comments which may have
been received, and the notifying Members response to the comments are all put on theInternet. This would go a long way in increasing the transparency in the procedure.
(v) We would also like to highlight the importance of a second interval of time, whenever
new measures are being introduced.  This second time frame that we are referring to is
intrinsically related to the objective of providing producers sufficient time to adapt to the newrequirements of the importing countries.  It is logical to assume that producers in the
exporting countries would commence initiating such changes only after the consultation
process has been exhausted and the concerned Member has indicated its intention to finally
promulgate an SPS measure, whether in the form that it was originally notified or in an
amended form as a result of the consultations entered upon.  This interval is perhaps ascritical, if not more so, if SPS measures are not to act as barriers to trade.  We hesitate to
qualify this time period and would only like to state that, except in urgent circumstances, it
should be as long as it would  take for producers to practically adapt to the changed
requirements.  If such a period is not provided for, new SPS measures initiated by MembersG/SPS/GEN/86
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could very easily result in the temporary nullification of exports, particularly from developing
countries.
(vi) It would also be appropriate to create a suitable data base incorporating Member’s
SPS rules and regulations having a major trade impact so as to provide precise knowledgeabout SPS requirements of various countries, particularly since many of the rejections are due
to lack of knowledge of these aspects.  It may be noted that at times there is also lack of
awareness of the legislative requirements of the importing country.  It may be possible to
mandate certain obligations on the importing Member that he keep the suppliers/exporting
Member fully informed about the SPS obligations that would have to be met for the goods
sought to be exported.  It may therefore be useful to circulate standards on the Internet to
facilitate easier and quicker accessibility.
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