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Canada-United States-Mexico Agreement (CUSMA) – Chapter 28 – Good regulatory practices

Article 28.1:  Definitions 

For the purposes of this Chapter:

regulation means a measure of general application adopted, issued, or maintained by a regulatory authority with which compliance is mandatory, except as set forth in Annex 28-A (Additional Provisions Concerning the Scope of “Regulations” and “Regulatory Authorities”);

regulatory authority means an administrative authority or agency at the Party’s central level of government that develops, proposes or adopts a regulation, and does not include legislatures or courts; and

regulatory cooperation means an effort between two or more Parties to prevent, reduce, or eliminate unnecessary regulatory differences to facilitate trade and promote economic growth, while maintaining or enhancing standards of public health and safety and environmental protection.

Article 28.2:  Subject Matter and General Provisions 

1. The Parties recognize that implementation of government-wide practices to promote regulatory quality through greater transparency, objective analysis, accountability, and predictability can facilitate international trade, investment, and economic growth, while contributing to each Party’s ability to achieve its public policy objectives (including health, safety, and environmental goals) at the level of protection it considers appropriate.  The application of good regulatory practices can support the development of compatible regulatory approaches among the Parties, and reduce or eliminate unnecessarily burdensome, duplicative, or divergent regulatory requirements.  Good regulatory practices also are fundamental to effective regulatory cooperation. 

2. Accordingly, this Chapter sets out specific obligations with respect to good regulatory practices, including practices relating to the planning, design, issuance, implementation, and review of the Parties’ respective regulations.

3. For greater certainty, this Chapter does not prevent a Party from:

Article 28.3:  Central Regulatory Coordinating Body

Recognizing that institutional arrangements are particular to each Party’s system of governance, the Parties note the important role of their respective central regulatory coordinating bodies in promoting good regulatory practices; performing key advisory, coordination, and review functions to improve the quality of regulations; and developing improvements to their regulatory system. The Parties intend to maintain their respective central regulatory coordinating bodies, within their respective mandates and consistent with their law.

Article 28.4:  Internal Consultation, Coordination, and Review

1. The Parties recognize that internal processes or mechanisms providing for consultation, coordination, and review among domestic authorities in the development of regulations can increase regulatory compatibility among the Parties and facilitate trade.  Accordingly, each Party shall adopt or maintain those processes or mechanisms to pursue, among others, the following objectives:

2. Each Party shall make publicly available a description of the processes or mechanisms referred to in paragraph 1.

Article 28.5:  Information Quality

1. Each Party recognizes the need for regulations to be based upon information that is reliable and of high quality.  To that end, each Party should adopt or maintain publicly available guidance or mechanisms that encourage its regulatory authorities when developing a regulation to:

2. If a regulatory authority systematically collects information from members of the public through identical questions in a survey for use in developing a regulation, each Party shall provide that the authority should:

Article 28.6:  Early Planning

Each Party shall publish annually a list of regulations that it reasonably expects within the following 12 months to adopt or propose to adopt.  Each regulation identified in the list should be accompanied by:

Entries in the list should also include, to the extent available, time tables for subsequent actions, including those providing opportunities for public comment under Article 28.9 (Transparent Development of Regulations).

Article 28.7:  Dedicated Website 

1. Each Party shall maintain a single, free, publicly available website that, to the extent practicable, contains all information that it is required to publish pursuant to Article 28.9 (Transparent Development of Regulations).

2. A Party may comply with paragraph 1 by making publicly available information on, and providing for the submission of comments through, more than one website, provided the information can be accessed, and submissions can be made, from a single web portal that links to other websites.

Article 28.8:  Use of Plain Language

Each Party should provide that proposed and final regulations are written using plain language to ensure that those regulations are clear, concise, and easy for the public to understand, recognizing that some regulations address technical issues and that relevant expertise may be required to understand or apply them.

Article 28.9:  Transparent Development of Regulations

1. During the period described in paragraph 2, when a regulatory authority is developing a regulation, the Party shall, under normal circumstances, Footnote 2 publish:

At the same time the Party publishes the information listed in subparagraphs (a) through (d), the Party shall also make publicly available data, other information, and scientific and technical analyses it relied upon in support of the regulation, including any risk assessment.

2. With respect to the items required to be published under paragraph 1, each Party shall publish them before the regulatory authority finalizes its work on the regulation Footnote 3 and at a time that will enable the regulatory authority to take into account the comments received and, as appropriate, make revisions to the text of the regulation published under subparagraph 1(a).

3. After the items identified in paragraph 1 have been published, the Party shall ensure that any interested person, regardless of domicile, has an opportunity, on terms no less favorable than those afforded to a person of the Party, to submit written comments on the items identified in paragraph 1 for consideration by the relevant regulatory authority of the Party. Each Party shall allow interested persons to submit any comments and other inputs electronically and may also allow written submissions by mail to a published address or through another technology.

4. If a Party expects a draft regulation to have a significant impact on trade, the Party should normally provide a time period to submit written comments and other input on the items published in accordance with paragraph 1 that is:

5. With respect to draft regulations not covered under paragraph 4, a Party shall endeavor, under normal circumstances, to provide a time period to submit written comments and other input on the information published in accordance with paragraph 1 that is not less than four weeks from the date the items identified in paragraph 1 are published.

6. In addition, the Party shall consider reasonable requests to extend the comment time period under paragraph 4 or 5 to submit written comments or other input on a draft regulation.

7. Each Party shall endeavor to promptly make publicly available any written comments it receives, except to the extent necessary to protect confidential information or withhold personal identifying information or inappropriate content. If it is impracticable to publish all the comments on the website provided for in Article 28.7 (Dedicated Website), the regulatory authority of a Party shall endeavor to publish those comments on its own website.

8. Before finalizing its work on a regulation, a regulatory authority of a Party shall evaluate any information provided in written comments received during the comment period.

9. When a regulatory authority of a Party finalizes its work on a regulation, the Party shall promptly publish the text of the regulation, any final impact assessment, and other items as set out in Article 28.12 (Final Publication).

10. The Parties are encouraged to publish government-generated items identified in this Article in a format that can be read and digitally processed through word searches and data mining by a computer or other technology.

Article 28.10:  Expert Advisory Groups

1. The Parties recognize that their respective regulatory authorities may seek expert advice and recommendations with respect to the preparation or implementation of regulations from groups or bodies that include non-governmental persons. The Parties also recognize that obtaining those advice and recommendations should be a complement to, rather than a substitute for, the procedures for seeking public comment pursuant to Article 28.9.3 (Transparent Development of Regulations).

2. For the purposes of this Article, an expert group or body means a group or body:

This Article does not apply to a group or body that is established to enhance intergovernmental coordination, or to provide advice related to international affairs, including national security. Footnote 4

3. Each Party shall encourage its regulatory authorities to ensure that the membership of any expert group or body includes a range and diversity of views and interests, as appropriate to the particular context.

4. Recognizing the importance of keeping the public informed with respect to the purpose, membership, and activities of expert groups and bodies, and that those expert groups or bodies can provide an important additional perspective or expertise on matters affecting government operations, each Party shall encourage its regulatory authorities to provide public notice of:

5. Each Party shall endeavor, as appropriate, to make publicly available any documentation made available to or prepared for or by the expert group or body, and recognizes the importance of providing a means for interested persons to provide inputs to the expert groups or bodies.

Article 28.11:  Regulatory Impact Assessment

1. The Parties recognize that regulatory impact assessment is a tool to assist regulatory authorities in assessing the need for and potential impacts of regulations they are preparing.  Each Party should encourage the use of regulatory impact assessments in appropriate circumstances when developing proposed regulations that have anticipated costs or impacts exceeding certain thresholds established by the Party.  

2. Each Party shall maintain procedures that promote the consideration of the following when conducting a regulatory impact assessment:

3. Each Party should consider whether a proposed regulation may have significant adverse economic effects on a substantial number of small enterprises. If so, the Party should consider potential steps to minimize those adverse economic impacts, while allowing the Party to fulfill its objectives.

Article 28.12:  Final Publication

1. When a regulatory authority of a Party finalizes its work on a regulation, the Party shall promptly publish, in a final regulatory impact assessment or other document:

2. Each Party shall ensure that all regulations in effect are published on a free, publicly available website.

Article 28.13:  Retrospective Review

1. Each Party shall adopt or maintain procedures or mechanisms to conduct retrospective reviews of its regulations in order to determine whether modification or repeal is appropriate. Retrospective reviews may be initiated, for example, pursuant to a Party’s law, on a regulatory authority’s own initiative, or in response to a suggestion submitted pursuant to Article 28.14 (Suggestions for Improvement).

2. When conducting a retrospective review, each Party should consider, as appropriate:

3. Each Party shall include among the procedures or mechanisms adopted pursuant to paragraph 1 provisions addressing impacts on small enterprises.

4. Each Party is encouraged to publish, to the extent available, any official plans and results of retrospective reviews.

Article 28.14:  Suggestions for Improvement

Each Party shall provide the opportunity for any interested person to submit to any regulatory authority of the Party written suggestions for the issuance, modification, or repeal of a regulation.  The basis for those suggestions may include, for example, that, in the view of the interested person, the regulation has become ineffective at protecting health, welfare, or safety, has become more burdensome than necessary to achieve its objective (for example with respect to its impact on trade), fails to take into account changed circumstances (such as fundamental changes in technology, or relevant scientific and technical developments), or relies on incorrect or outdated information.

Article 28.15:  Information About Regulatory Processes

1. Each Party shall publish online a description of the processes and mechanisms employed by its regulatory authorities to prepare, evaluate, or review regulations.  The description shall identify the applicable guidelines, rules, or procedures, including those regarding opportunities for the public to provide input.

2. Each Party shall also publish online:

Article 28.16:  Annual Report

Each Party shall prepare and make freely and publicly available online, on an annual basis, a report setting forth:

Article 28.17:  Encouragement of Regulatory Compatibility and Cooperation

1. The Parties recognize the important contribution of dialogues between their respective regulatory authorities in promoting regulatory compatibility and regulatory cooperation when appropriate, and in order to facilitate trade and investment and to achieve regulatory objectives.  Accordingly, each Party should encourage its regulatory authorities to engage in mutually beneficial regulatory cooperation activities with relevant counterparts of one or more of the other Parties in appropriate circumstances to achieve these objectives.

2. The Parties recognize the valuable work of bilateral and trilateral cooperation fora, and intend to continue to work together to further regulatory compatibility on a mutually beneficial basis in such fora or under this Agreement.  The Parties also recognize that effective regulatory cooperation requires the participation of regulatory authorities that possess the authority and technical expertise to develop, adopt, and implement regulations.  Each Party should encourage input from members of the public to identify promising avenues for cooperation activities.

3. The Parties recognize that a broad range of mechanisms including those set forth in the WTO Agreement, exists to help minimize unnecessary regulatory differences and to facilitate trade or investment, while contributing to each Party’s ability to meet its public policy objectives.  These mechanisms may include, as appropriate to the particular circumstances:

Article 28.18:  Committee on Good Regulatory Practices

1. The Parties hereby establish a Committee on Good Regulatory Practices (the GRP Committee) composed of government representatives from each Party, including representatives from their central regulatory coordinating bodies as well as relevant regulatory agencies.

2. Through the GRP Committee, the Parties shall enhance their communication and collaboration in matters relating to this Chapter, including encouraging regulatory compatibility and regulatory cooperation, with a view to facilitating trade between the Parties:

3. The GRP Committee’s functions include:

4. Each Party shall provide opportunities for persons of that Party to provide views on the implementation of this Chapter.

5. In carrying out its work, the GRP Committee shall take into account the activities of other committees, working groups and other subsidiary bodies established under this Agreement in order to avoid duplication of activities.

6. Unless the Parties decide otherwise, the GRP Committee shall meet at least once a year.  The Parties shall endeavor to schedule meetings to permit participation of government representatives engaged in the work of other relevant chapters in this Agreement. The GRP Committee may also invite interested persons to contribute to its work. 

7. The GRP Committee shall provide an annual report to the Commission on its activities.

Article 28.19:  Contact Points

Each Party shall designate and notify a contact point for matters arising under this Chapter, in accordance with Article 30.5 (Agreement Coordinator and Contact Points).  A Party shall promptly notify the other Parties of any material changes to its contact point.

Article 28.20:  Application of Dispute Settlement

1. Recognizing that a mutually acceptable solution can often be found outside recourse to dispute settlement, a Party shall exercise its judgement as to whether recourse to dispute settlement under Chapter 31 (Dispute Settlement) would be fruitful. 

2. Chapter 31 (Dispute Settlement) shall apply with respect to a responding Party as of one year after the date of entry into force of this Agreement for that Party. 

3. No Party shall have recourse to dispute settlement under Chapter 31 (Dispute Settlement) for a matter arising under this Chapter except to address a sustained or recurring course of action or inaction that is inconsistent with a provision of this Chapter.

ANNEX 28-A

ADDITIONAL PROVISIONS CONCERNING THE SCOPE OF “REGULATIONS” AND “REGULATORY AUTHORITIES”

1. The following measures are not regulations for the purposes of this Chapter:

2. The following entities are not regulatory authorities for the purposes of this Chapter:

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