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U.S. Department of State

Diplomacy in Action

Working Procedures for Submissions on Environmental Law Enforcement Matters under Chapter 17 of the Dominican Republic - Central America - United States Free Trade Agreement (English)


Bureau of Oceans and International Environmental and Scientific Affairs
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The Environmental Affairs Council (“Council”) of the Dominican Republic – Central America – United States Free Trade Agreement (“CAFTA-DR”):

RECALLING that Article 17.7(1) of the CAFTA-DR requires the Parties to the CAFTA-DR to designate a secretariat to receive and consider submissions asserting that a Party is failing to effectively enforce its environmental laws (“submissions on environmental law enforcement matters” or “submissions”) and, that Article 17.8(2) of the CAFTA-DR requires the Secretariat, when so instructed by the Environmental Affairs Council of the CAFTA-DR, by a vote of any Party, to prepare factual records regarding submissions;

RECALLING that the Understanding Regarding the Establishment of a Secretariat for Environmental Matters Under the Dominican Republic-Central America-United States Free Trade Agreement (“Secretariat Understanding”) of February 18, 2005 requires the establishment of working arrangements, including, as appropriate, procedures and guidelines, under which the Secretariat shall operate;

RECALLING that on February 10, 2006, the CAFTA-DR Parties requested the Secretariat for Central American Economic Integration (“SIECA”) to establish a new unit within SIECA to serve as the secretariat and that on May 22, 2006, SIECA agreed to that request; and

RECALLING the Agreement Establishing a Secretariat for Environmental Matters under the Dominican Republic-Central America-United States Free Trade Agreement (“Secretariat Agreement”) of July 27, 2006, in which the Parties to the CAFTA-DR established the Secretariat for Environmental Matters (“Secretariat”) and designated it to carry out the functions prescribed for the secretariat in Articles 17.7 and 17.8 of the CAFTA-DR;

IN ORDER to provide additional guidance on the process for submitting and considering submissions on enforcement matters,

hereby establishes the following Working Procedures for Submissions on Environmental Law Enforcement Matters under Chapter 17 of the Dominican Republic-Central America-United States Free Trade Agreement (“Working Procedures”):

PURPOSE

1. What is the purpose of these Working Procedures?

1.1 The Working Procedures describe and elaborate procedures for filing submissions on enforcement matters, and on the process the Secretariat employs for considering those submissions, under Articles 17.7 and 17.8 of the CAFTA-DR. The relevant CAFTA-DR articles are annexed to these Working Procedures.

1.2 Where issues arise that are not specifically addressed in these Working Procedures, the Secretariat shall resolve them consistent with Chapter 17 of the CAFTA-DR in a manner that favors transparency, and an effective submissions process.

1.3 These Working Procedures shall be published on the Secretariat’s website to provide information and guidance to the public.

1.4 These Working Procedures are not intended to impose obligations on the Council or the CAFTA-DR Parties.

1.5 These Working Procedures do not modify the Secretariat Agreement or the CAFTA-DR. In the event of any inconsistency between a provision of these Working Procedures and a provision of either the Secretariat Agreement or the CAFTA-DR, the provision of the Secretariat Agreement or of the CAFTA-DR shall prevail to the extent of the inconsistency.

SUBMISSIONS

2. What is a submission on environmental law enforcement matters?

2.1 A submission on environmental law enforcement matters (“submission”) is a written assertion under Article 17.7(1) of the CAFTA-DR that a Party is failing to effectively enforce one or more of its environmental laws, as that term is defined in Article 17.13 of the CAFTA-DR. A submission may concern an assertion that one or more Parties are failing to effectively enforce their respective environmental laws.

3. Who may file submissions?

3.1 Any “person of a Party” may file a submission for consideration by the Secretariat as follows:

a. a person of Central America or the Dominican Republic asserting that the United States or any other Party is failing to effectively enforce its environmental laws may file a submission with the Secretariat; and

b. a person of the United States asserting that a Central American Party or the Dominican Republic is failing to effectively enforce its environmental laws may file a submission with the Secretariat.

For purposes of these Working Procedures, the term “submitter(s)” shall refer to a person of a Party that files a submission with the Secretariat asserting that a Party is failing to effectively enforce its environmental laws. A submitter may engage any person to assist it in the preparation or filing of a submission.

3.2 As provided in Article 17.7 (3) of the CAFTA-DR, a person of the United States asserting that the United States is failing to effectively enforce its environmental laws may not file a submission with the Secretariat but instead may file such a submission with the Secretariat of the Commission for Environmental Cooperation established under the North American Agreement on Environmental Cooperation.

3.3 With respect to submissions referred to in paragraph 3.2 and as provided in footnote 2 of Article 17.7(3) of the CAFTA-DR, arrangements will be made for the United States to make available in a timely manner to the other Parties all such submissions, U.S. written responses, and factual records developed in connection with those submissions; at the request of any Party, the Council shall discuss such documents.

3.4 For purposes of these Working Procedures, the term “person of a Party” means a national or an enterprise of a Party as defined in Article 2.1 of the CAFTA-DR. An enterprise of a Party includes a non-governmental organization constituted or organized under a Party’s law.

4. How may submissions be filed and how does the Secretariat confirm it has received them?

4.1 A submission may be filed with the Secretariat by mail or express delivery addressed to:

Secretariat for Environmental Matters

SIECA Apartado Postal 1237, Guatemala 01901, Guatemala;

by facsimile at:

(502) 2368-1071 or (502) 2337-3750;

The Secretariat also may be contacted by telephone at (502) 2368-2151 or (502) 2368-2154 with regard to questions about the submissions process.

4.2 Submissions should not exceed 20 letter´┐Ż'sized pages, excluding exhibits or appendices containing documentary evidence or other factual information in support of the submission. Submissions should, where feasible, be typed. If the submission is not filed by electronic mail or over the Internet, the submitter should, where feasible, provide the Secretariat with an electronic copy of the submission at the time the submission is filed.

4.3 Submissions must include the submitter’s full name and nationality and information sufficient to enable the Secretariat to contact the submitter, and, if available, should also include the submitter’s full postal address, electronic mail address, telephone number, and fax number.

4.4 The Secretariat shall promptly (to the extent possible within 7 days of receipt) acknowledge to the submitter in writing the receipt of any submission, as well as the receipt of any correspondence or other written documents it receives from a submitter relating to the submission. The Secretariat shall transmit its acknowledgements and any correspondence it sends to a submitter using any reliable method that provides a record that the acknowledgement or correspondence was sent.

4.5 The Secretariat shall promptly (to the extent possible within 7 days of receipt) forward the submission to the Council. The Secretariat shall initially forward the submission to the Council in the language in which it was received and, consistent with Article 10.2 of the Secretariat Agreement, provide the Council a translation of the submission in the other official Secretariat language no later than the date it determines whether the submission meets the criteria listed in Article 17.7(2) of the CAFTA-DR.

4.6 Promptly after forwarding the submission to the Council, the Secretariat shall prepare and forward to the Council a draft public notice briefly describing the submission and informing the public that the Secretariat will review the submission in accordance with these Working Procedures to determine whether it meets the criteria listed in Article 17.7(2) of the CAFTA-DR. Unless the Secretariat receives a Council decision instructing it otherwise, the Secretariat shall finalize and publish (or otherwise make publicly available) the public notice 15 days after the date it forwards it to the Council. The Secretariat shall consider any comments or proposed edits it may receive from any Council member during the 15-day period. For greater certainty, the Secretariat shall follow any Council decision providing instructions concerning the public notice, including any instructions not to publish the public notice.

TYPES OF DETERMINATIONS

5. What determinations does the Secretariat make in reviewing submissions and when does it make them?

5.1 In carrying out Articles 17.7 and 17.8 of the CAFTA-DR, the Secretariat makes up to three determinations:

1. First, the Secretariat determines whether the submission meets the criteria listed in Article 17.7(2) of the CAFTA-DR. The Secretariat shall, to the extent possible, make this determination within 45 days from the date it receives the submission.

2. If the Secretariat finds that the submission meets those criteria, the Secretariat next determines, guided by the factors in Article 17.7(4) of the CAFTA-DR (elaborated in paragraph 9 of these Working Procedures), whether the submission merits requesting a response from the Party concerned. The Secretariat shall, to the extent possible, make this determination within 60 days from the date it makes its determination that the submission meets the criteria in Article 17.7(2).

3. Finally, if the Secretariat requests a response from the Party concerned, the Secretariat determines, in light of any response the Party has provided, whether to inform the Council that the Secretariat considers the development of a factual record to be warranted, as provided in Article 17.8(1) of the CAFTA-DR. The Secretariat shall, to the extent possible, make this determination within 60 days from the date it receives the Party’s response or, if the Party fails to respond within the timeframe provided in Article 17.7(5) of the CAFTA-DR, within 75 days of the date the Secretariat makes its determination that the submission merits requesting a response from the Party.

5.2 The Secretariat may request additional information regarding the submission or the Party’s response. If the Secretariat requests such information, the Secretariat may, upon notification to the Council, and unless directed otherwise by the Council, suspend the relevant timeline set out in paragraph 5.1 of these Working Procedures, pending the Secretariat’s receipt of such information, or as otherwise appropriate, and may adjust the timeframe as warranted (e.g., to consider any such additional information it may receive). In addition, the Secretariat shall suspend the relevant timeframe set out in paragraph 5.1 if it suspends its consideration of a submission pursuant to paragraph 8.1 or paragraph 19.1 of these Working Procedures.

5.3 Where it is not possible to make the required determination within the timelines provided in paragraph 5.1 of these Working Procedures, the Secretariat, shall promptly notify the Council and the submitter in writing explaining the reasons it is not possible to meet the relevant timeline and the additional time needed, and thereafter may extend the relevant timeline to the extent necessary to make the required determination, unless otherwise directed by the Council. It may not be possible to meet a relevant timeline, for example, where the Secretariat receives multiple submissions within a short period of time or additional time is needed to review complex submissions.

INITIAL DETERMINATONS

6. What information must a submission include and how does the Secretariat determine if it meets the criteria listed in Article 17.7(2) of the CAFTA-DR?

6.1 A submission must satisfy the criteria listed in Article 17.7(2) of the CAFTA-DR, which are elaborated in paragraphs 6.2 through 6.6 of these Working Procedures.

6.2 A submission must be in writing in Spanish or English.

6.3 A submission must provide sufficient information to allow the Secretariat to review the submission. To this end, a submission must identify the statute(s) or regulation(s) falling within the scope of Article 17.13 of the CAFTA-DR that the submitter asserts the Party is failing to effectively enforce, and should, where feasible, identify the specific provision(s) thereof. In addition, submissions must provide a succinct account of the facts on which the submitter bases its assertion and information in support of its assertion, including any documentary evidence on which the submission may be based. A submission should focus on acts or omissions of a Party that, in the submitter’s view, demonstrate that the Party is failing to effectively enforce one or more of its environmental laws.

6.4 Submitters are encouraged where possible to include in their submissions information that will assist the Secretariat in determining whether the submission merits requesting a response from the Party concerned in light of the factors in Article 17.7(4) of the CAFTA-DR. However, because the submitter is not required to include information concerning the factors in Article 17.7(4) in the submission, the Secretariat may not use the absence of such information as a basis for determining that the submission does not meet the criteria listed in Article 17.7(2) of the CAFTA-DR.

6.5 A submission must appear to be aimed at promoting enforcement rather than at harassing industry. In determining whether a submission meets this criterion, the Secretariat shall consider, among other factors, whether the submission is focused on the Party’s acts or omissions rather than on whether a particular company or business has complied with the Party’s environmental law. The Secretariat shall give special attention to this factor if the submitter is a competitor of a business or company that the submission asserts is not complying with the Party’s environmental law.

6.6 The submission must indicate that the enforcement matter has been communicated in writing to the Party’s relevant authorities, and must describe the Party’s response, if any. The submitter must include, with the submission, copies of its correspondence with the relevant authorities concerning the matter. For purposes of this paragraph, “relevant authorities” means the agency or agencies of the Party concerned that are responsible for enforcing the environmental law in question.

6.7 A submission must clearly identify the person making the submission and be filed by a person of a Party. Accordingly, as provided in paragraph 4.3 of these Working Procedures, a submission must identify the submitter’s full name and nationality. If the submitter is an enterprise of a Party, it should also include information demonstrating that it is an enterprise organized under the laws of a Party.

6.8 The criteria listed in Article 17.7(2) of the CAFTA-DR are not intended to create a high threshold for Secretariat consideration of a submission. The Secretariat may deny consideration of a submission only if it determines without any doubt that it fails to meet the criteria in Article 17.7(2).

7. What if the submission meets the criteria in Article 17.7(2) of the CAFTA-DR?

7.1 If the Secretariat determines that a submission satisfies the criteria in Article 17.7(2) of the CAFTA-DR, it shall promptly (to the extent possible within 7 days of making its determination) so notify the submitter and the Council in writing and explain how the submission meets each such criterion. The Secretariat shall thereafter determine whether the submission merits requesting a response from the Party concerned, guided by the criteria of Article 17.7(4) of the CAFTA-DR, as elaborated in paragraph 9 of these Working Procedures.

7.2 Promptly after notifying the Council that it has received a submission that satisfies the criteria in Article 17.7(2) of the CAFTA-DR, the Secretariat shall prepare and forward to the Council a draft press release or public notice describing the submission. Unless the Secretariat receives a Council decision instructing it otherwise, the Secretariat shall finalize and publish (or otherwise make publicly available) the press release or public notice 15 days after the date it forwards it to the Council. The Secretariat shall consider any comments or proposed edits it may receive from any Council member during the 15-day period. For greater certainty, the Secretariat shall follow any Council decision providing instructions concerning the press release or public notice, including any instructions not to publish the press release or public notice.

8. What if the submission does not meet the criteria in Article 17.7(2) of the CAFTA-DR?

8.1 If the Secretariat determines that a submission does not satisfy the criteria in Article 17.7(2), the Secretariat shall suspend its review of the submission and shall promptly (to the extent possible within 7 days of making its determination) so notify the submitter and the Council in writing and explain the reasons for the suspension.

8.2 Within 30 calendar days after the date the Secretariat provides notice under paragraph 8.1, the submitter may file a revised submission with the Secretariat. On receipt of a revised submission, the Secretariat shall resume its review.

8.3 If the Secretariat determines that the revised submission does not meet the criteria in Article 17.7(2), the Secretariat shall terminate its review of the submission and shall promptly (to the extent possible within 7 days of making its determination) so notify the submitter and the Council in writing and explain the reasons for the terminating its review.

8.4 A Secretariat determination that a submission does not meet the criteria in Article 17.7(2) shall not prejudice the submitter’s right to file a new submission on the same matter with the Secretariat.

8.5 The Secretariat may notify a submitter of any minor errors of form in its submission, such as typographical errors, and provide the submitter an opportunity to rectify them. For greater certainty, the Secretariat may not decline to consider a submission on the basis of any such errors.


DETERMINING WHETHER A RESPONSE IS MERITED

9. How does the Secretariat determine whether to request a response?

9.1 Article 17.7(4) calls for the Secretariat to determine whether a submission merits requesting a response from the Party concerned. In making this determination, the Secretariat shall be guided by whether:

a. the submission is not frivolous;

b. the submission alleges harm to the submitter;

c. the submission, alone or in combination with other submissions, raises matters the further study of which would advance the goals of Chapter 17 of the CAFTA-DR and the Environmental Cooperation Agreement (ECA), taking into account any guidance regarding those goals provided by the Council and the Environmental Cooperation Commission established under the ECA;

d. private remedies available under the Party’s law have been pursued, bearing in mind that in some cases there may be barriers to pursuing such remedies; and

e. the submission is drawn exclusively from mass media reports,

taking into account, inter alia, any information the submitter may have chosen to include in the submission that relates to these factors.

9.2 For greater certainty, Article 17.7(4) of the CAFTA-DR identifies factors intended to guide the Secretariat’s determination of whether to request a response from a Party and, as such, are not requirements that a submission must meet in order for the Secretariat to request a response from the Party. Accordingly, the Secretariat may request a response from a Party even if it finds that one or more of the factors are not present with respect to the submission. The Secretariat shall resolve any doubt as to whether to request a response, in favor of requesting a response.


9.3 In considering whether the submission alleges harm to the submitter, the Secretariat shall examine such factors as whether the alleged harm:

a. is asserted to be due, in whole or in substantial part, to the asserted failure to effectively enforce the Party’s environmental law; and

b. relates to environmental protection or to the prevention of a danger to human, animal or plant life or health (but is not directly related to worker safety or health).

9.4 In the course of considering whether private remedies that are available under the Party’s law have been pursued, the Secretariat shall examine whether the preparation of a factual record could interfere with or duplicate actions in connection with any private remedies that the submitter is pursuing or has pursued and whether the submitter has taken any steps to pursue such remedies, bearing in mind that in some cases there may be barriers to pursuing those remedies.

9.5 When a submission is based exclusively on mass media reports, the Secretariat shall determine whether other sources of information were reasonably available to the submitter.

10. What if the Secretariat decides the submission does not merit a response?

10.1 If the Secretariat determines that a submission does not merit a response from the Party concerned, the Secretariat shall promptly (to the extent possible within 7 days of making its determination) so notify the submitter and the Council in writing. The notice shall describe the reasons for the determination, including an explanation of how the factors set out in Article 17.7(4), and any other factors the Secretariat considered, guided the Secretariat in making its determination.

10.2 The Secretariat may consider any new or supplemental information that the submitter provides within 60 days after the date the Secretariat delivers a notice under paragraph 10.1. If the submitter provides such information, the Secretariat shall determine, to the extent possible within 30 days after the date it receives the information whether the information provides a basis for changing its determination under paragraph 10.1. If the Secretariat determines that the information provides such a basis, the Secretariat shall request a response from the Party, as elaborated in paragraph 11.1 of these Working Procedures.

10.3 If the submitter does not provide any new or supplemental information within the 60-day period, or if the submitter provides such information and the Secretariat determines that it does not provide a basis for changing its determination under paragraph 10.1, the Secretariat shall terminate its consideration of the submission. In this case, the Secretariat shall promptly (to the extent possible, if the submitter does not provide any new or supplemental information within 7 days of expiry of the 60-day period, or if the submitter provides such information, within 7 days of the date the Secretariat determines it does not provide a basis for changing its determination under paragraph 10.1) so notify the submitter and the Council in writing and explain the reasons for its decision to terminate its consideration of the submission.

10.4 A Secretariat determination that a submission does not merit a response from the Party concerned, shall not prejudice the submitter’s right to file a new submission on the same matter with the Secretariat.

11. What if the Secretariat decides a response to a submission is merited?

11.1 If the Secretariat determines that a submission merits requesting a response from the Party concerned, the Secretariat shall promptly (to the extent possible within 7 days of making its determination) notify the Party, the submitter and the Council in writing and forward to the Party a copy of the submission in the official languages of the Secretariat and any supporting information. The request shall describe the reasons for the determination, including an explanation of how the factors set out in Article 17.7(4) of the CAFTA-DR, and any other factors the Secretariat considered, guided the Secretariat in making its determination.

11.2 If the Party concerned wishes to respond to any point raised in the Secretariat’s request, it should do so in its written response.

11.3 The Party shall submit its written response to the Secretariat within 45 days after the Secretariat delivers the request, or in exceptional circumstances and on notification to the Secretariat, within 60 days of delivery of the request. The Party may, within that same period of time, supplement its response in writing with any information referred to in paragraphs 11.3(a) or (b). The response shall:

a. advise the Secretariat whether the precise matter at issue is the subject of a pending judicial or administrative proceeding, as defined in Article 17.13(2) of the CAFTA-DR; and

b. include any other information that the Party wishes to submit, such as,

i. whether the matter was previously the subject of a judicial or administrative proceeding;

ii. whether private remedies in connection with the matter are available to the submitter, and whether they have been pursued; or

iii. information concerning any relevant capacity-building activities undertaken under the ECA.

11.4 If the Party concerned is able to demonstrate that the precise matter at issue in the submission is the subject of a pending judicial or administrative proceeding, the Secretariat shall terminate its consideration of the submission, and shall promptly (to the extent possible within 7 days of the date it terminates its consideration) so notify the submitter and the Council in writing and explain the reasons for its decision to terminate its consideration of the submission

11.5 After it receives the Party’s response or the response period expires, the Secretariat shall consider whether the submission warrants developing a factual record.


DETERMINATIONS ON DEVELOPING A FACTUAL RECORD

12. How does the Secretariat determine whether a factual record is warranted?

12.1 In deciding whether a submission warrants the development of a factual record, the Secretariat shall review the submission in light of any response the Party has provided under paragraph 11.3 of these Working Procedures.

12.2 If, after reviewing a submission under paragraph 12.1, the Secretariat determines that the submission does not warrant developing a factual record, the Secretariat shall terminate its consideration of the submission and shall promptly (to the extent possible within 7 days of the date it makes its determination) so notify the submitter and the Council in writing and explain the reasons for its determination.

12.3 If the Secretariat considers that the submission warrants developing a factual record, the Secretariat shall promptly (to the extent possible within 7 days of the date it makes its determination) so notify the submitter and the Council in writing and explain the reasons for its determination in sufficient detail for the Council to make a reasoned decision on the matter. In addition, the Secretariat shall provide the Council a copy of the submission, including any documentary evidence or other factual information in support of the submission, any response the Party has provided, and any other information that the Secretariat considers relevant.

12.4 Within 21 days after the date the Secretariat notifies the Council of a determination under paragraph 12.3, any Council member may request the Secretariat to clarify all or some of its reasons for its determination and shall promptly (to the extent possible within 7 days of the date it receives any such request) notify the other Council members of any such request. The Secretariat shall provide its response to any such request within 21 days after the date the Secretariat receives the request from any member of the Council. The Secretariat shall provide its response to the Council.

12.5 A Secretariat determination that a submission does not warrant development of a factual record shall not prejudice the submitter’s right to file a new submission on the same matter with the Secretariat.

13. Who decides whether the Secretariat should prepare a factual record?

13.1 Any Party may vote for the Secretariat to prepare a factual record by notifying the other members of the Council and the Secretariat of its vote in writing. No Party should vote for the Secretariat to prepare a factual record until at least 21 days after the date the Secretariat provides its notification under paragraph 12.3 of these Working Procedures that it considers the submission warrants developing a factual record.

13.2 If any Party provides a notification under paragraph 13.1, each member of the Council, within 21 days of the date the Party delivers the notification, should acknowledge the vote to the Secretariat and instruct it in writing to prepare a factual record. The Secretariat shall proceed to prepare a factual record 21 days after the date the Party delivers a notification under paragraph 13.1 even if the Secretariat receives no such instruction under this paragraph.

13.3 If the Secretariat does not receive, within 120 days after the date it provides its notification under paragraph 12.3 of these Working Procedures, any notification that a Party is voting for the Secretariat to prepare a factual record, it shall so notify the Council and the submitter in writing upon expiry of the 120-day period. If the Secretariat does not receive any notification that a Party is voting for the Secretariat to prepare a factual record, the Secretariat shall not prepare a factual record.

13.4 The fact that no Party has voted for the Secretariat to prepare a factual record with respect to the submission shall not prejudice the submitter’s right to file a new submission on the same matter with the Secretariat.


PREPARATION OF A FACTUAL RECORD

14. How does the Secretariat prepare a factual record?

14.1 In preparing draft and final factual records, the Secretariat shall consider any information contained in the submission or otherwise provided by the submitter in accordance with these Working Procedures and any information that the Party concerned provides in its response (or to supplement its response) under Article 17.7(5) of the CAFTA-DR and paragraph 11.3 of these Working Procedures. In addition, the Secretariat may consider any other relevant technical, scientific or other information that is:

a. publicly available;

b. submitted by any interested person, including a natural or legal person (for example an enterprise or non-governmental organization);

c. submitted by a Party’s national advisory or consultative committee, as described in CAFTA-DR Article 17.6(3);

d. developed by an independent expert; or

e. developed by the Parties under the ECA.

14.2 If a Party’s national advisory or consultative committee provides relevant technical, scientific or other information to the Secretariat relating to the development of a factual record, the Secretariat shall promptly forward copies of the information to the Council.

14.3 Any interested person, independent expert, or national advisory or consultative committee that submits information to the Secretariat under paragraph 14.1 should ensure that the information is relevant and as concise as possible.

15. What must the Secretariat include in the factual record?

15.1 Factual records shall contain:

a. an executive summary;

b. a summary of the submission that led to the factual record;

c. a summary of the response, if any, that the concerned Party provided;

d. a summary of the reasons why the Secretariat considered the development of a factual record to be warranted;

e. a summary of any information the Secretariat considered under paragraph 14.1 of these Working Procedures; and

f. the Secretariat’s factual findings with respect to the matters raised in the submission.

15.2 The factual record shall identify all sources the Secretariat relied on in developing the factual record, except where the Secretariat determines that identifying the source would subject the source to serious reprisal, in which case the Secretariat shall employ the procedures established in paragraph 22 of these Working Procedures to prevent disclosure of the source’s identity.

16. How long will it take to develop a factual record and what happens after the Secretariat develops it?

16.1 The Secretariat shall develop and submit to the Council a draft factual record, to the extent possible, within 180 days after it receives any notification under paragraph 13.1 of these Working Procedures that a Party is voting for it to prepare a factual record. If it is not possible to submit the draft factual record to the Council within the 180-day period, the Secretariat shall promptly notify the Council explaining the reasons why it is not possible to meet the relevant timeline and the additional time needed. Thereafter, the Secretariat may extend the 180-day period to the extent necessary to complete and submit the draft factual record to the Council, unless otherwise directed by the Council. The Secretariat may not extend the 180-day period unless it notifies the Council of the need to extend the timeline at least 30 days prior to the date the 180-day period expires.

16.2 Any Party may provide comments on the accuracy of the draft factual record within 45 days after the date the Council receives it. Following expiry of the 45-day period, the Secretariat shall prepare a final factual record, incorporating any such comments as appropriate. The Secretariat shall endeavor to submit the final factual record to the Council within 60 days of the date the comment period expires.

16.3 In accordance with Article 17.7(8) of the CAFTA-DR, the Council shall consider the final factual record, in light of the objectives of Chapter 17 of CAFTA-DR and the ECA at a Council meeting occurring no more than 60 days after the Secretariat submits final factual record to the Council.

17. Will the final factual record be made public?

17.1 The Secretariat shall not furnish to the public or allow public access to a draft factual record, or to a final factual record that the Council, by a vote of any Party, has not instructed the Secretariat to make public. If the Secretariat is instructed, by a vote of any Party, to make a final factual record public, it shall do so only in accordance with Article 9 of the Secretariat Agreement and paragraph 22 of these Working Procedures.

17.2 Normally within 60 days from the date the Secretariat submits it to the Council, the Council may, by a vote of any Party, make a final factual record publicly available. Any Party may vote to make a factual record publicly available by notifying the Council and the Secretariat in writing of its vote.

17.3 If any Party provides a notification under paragraph 17.2, each Council member within 21 days of the date the Party delivers such a notification, should acknowledge the vote to the Secretariat and instruct it in writing to make the final factual record publicly available. The Secretariat shall make the final factual record publicly available (including on the Secretariat’s website) within 21 days after the date any Party delivers a notification under paragraph 17.2, even if the Secretariat receives no such instructions under this paragraph.

17.4 No Party may provide a notification under paragraph 17.2, until at least 15 days after the date the Secretariat submits the final factual record to the Council.

17.5 If the Secretariat does not receive, within 60 days after the date it submits the final factual record to the Council, any notification under paragraph 17.2 of these Working Procedures that a Party is voting to make the final factual record publicly available, the Secretariat shall so inform the submitter and the Council.


WITHDRAWING OR SUSPENDING CONSIDERATION OF A SUBMISSION

18. When may a submitter withdraw a submission?

18.1 If, before the Secretariat receives a response to the submission from the Party concerned, the submitter or, in the case of a joint submission, each submitter, requests the Secretariat in writing to withdraw the submission (hereafter “request to withdraw a submission”), the Secretariat shall terminate its consideration of the submission. In such case, the Secretariat shall promptly notify the submitter(s) and the Council in writing that it is terminating consideration of the submission.

18.2 If the Secretariat receives a request to withdraw a submission after the Secretariat receives a response from the Party concerned, the Secretariat shall so inform the Council and shall terminate its consideration of the submission, unless within 30 days after the date it receives the request to withdraw the submission, the Party concerned requests the Secretariat to continue to consider the submission, in which case the Secretariat shall not terminate its consideration of the submission. The Secretariat shall promptly notify the submitter and Council whether it is terminating or continuing its consideration of the submission.

18.3 If the Secretariat receives a request to withdraw a submission after the Council has instructed the Secretariat to prepare a factual record, the Secretariat shall so notify the Council. In such case, the Secretariat shall prepare the factual record unless the Council decides otherwise.

18.4. Withdrawal of a submission shall not prejudice the submitter’s right to file a new submission on the same matter with the Secretariat.

19. How may consideration of a submission be suspended?

19.1 With respect to any submission, the submitter and the Party that is the subject of the submission may jointly request the Secretariat to suspend consideration of the submission for a period not to exceed 90 days from the date of the request. If the Secretariat receives such a joint request, the Secretariat shall suspend its consideration of the submission for the requested period and promptly notify the Council of the request and the period for which its consideration shall be suspended. Any Council member may request additional information from the submitter, Party or Secretariat concerning the suspension request. The submitter and the Party may jointly make only one request to the Secretariat to suspend consideration of a submission.


PUBLIC ACCESS TO INFORMATION

20. What submission-related documents will be available to the public?

20.1 Subject to Article 9 of the Secretariat Agreement (addressing the treatment of confidential information), the Secretariat shall, except as otherwise instructed by the Council, make publicly available any:

a. submission, including any documentary evidence or other factual information in support of the submission, that it determines meets the criteria in Article 17.7(2) of the CAFTA-DR and other requirements of these Working Procedures;

b. request it makes to a Party to provide a response;

c. response from the Party concerned;

d. other document or written communication the Secretariat receives or transmits relating to a submission or the preparation of a factual record, including any notices the Secretariat provides pursuant to these Working Procedures;

e. determination the Secretariat makes regarding whether a submission (i) meets the criteria of Article 17.7(2); (ii) merits requesting a response from the Party concerned; or (iii) warrants the preparation of a factual record; and any information the Secretariat relies on in making any such determinations;

f. notification that the Secretariat has received that a Party is voting for it to prepare a factual record or to make a final factual record publicly available;

g. instruction the Secretariat has received to prepare a factual record or to make a final factual record publicly available; and

h. any final factual record that the Council, by a vote of any Party, has instructed the Secretariat to make publicly available.

In addition, subject to Article 9 of the Secretariat Agreement and paragraph 22 of the Working Procedures, the Secretariat may make any document that it receives or transmits that is not listed in subparagraphs (a) through (h) publicly available, including submissions that it has determined do not meet the criteria listed in Article 17.7(2).

20.2 The Secretariat shall make the materials described in paragraph 20.1 of these Working Procedures available to the public in a timely manner, including, where appropriate, by first making a document or communication publicly available solely in the official language in which the Secretariat received or prepared it, if translation into the other official language would result in a substantial delay.

21. How will the Secretariat make this information available to the public?

21.1 Subject to Article 9 of the Secretariat Agreement and paragraph 22 of these Working Procedures, the Secretariat shall maintain in its headquarters, for access by the public, all documents listed in paragraph 20.1 of these Working Procedures.

21.2 Subject to Article 9 of the Secretariat Agreement and paragraph 22 of these Working Procedures, the Secretariat shall maintain a publicly available website that includes, except in extraordinary circumstances:

a. these Working Procedures and other relevant procedures the Council may establish;

b. any other information related to filing and considering submissions;

c. the materials described in paragraph 20.1 of these Working Procedures;

d. the registry described in paragraph 21.4 of these Working Procedures; and

e. materials the Secretariat prepares in accordance with Article 5.2 of the Secretariat Agreement to promote public awareness and understanding of the submissions process.

21.3 The Secretariat shall make the website, and materials posted on the website, available in both English and Spanish.

21.4 The Secretariat shall establish a registry setting out summary information relating to each submission. Subject to Article 9 of the Secretariat Agreement and paragraph 22 of these Working Procedures, the registry shall include:

a. a list of each document or written communication the Secretariat receives or prepares relating to a submission, including submissions and factual records, together with the date on which the Secretariat received or transmitted the document or communication;

b. with respect to each submission that the Secretariat receives:

i. the name(s) of the person(s) that submitted it;

ii. the identity of the Party concerned;

iii. the statutes or regulations that the submitter asserts the Party concerned is failing to effectively enforce and, where available, a citation and web link to such statutes or regulations;

iv. a summary of the assertion(s) contained in the submission; and

v. a summary of the Secretariat’s determination regarding whether the submission satisfies the criteria in Article 17.7(2) of the CAFTA-DR;

c. with respect to any submission that the Secretariat has determined to satisfy the criteria in Article 17.7(2) of the CAFTA-DR:

i. the current status of its consideration by the Secretariat or the Council and, if the Secretariat has terminated consideration of the submission, a summary of the reasons it is terminating its consideration;

ii. a summary of the concerned Party’s response, if any;

iii. a summary of reasons for any determination the Secretariat has made regarding whether a submission merits requesting a response from the Party concerned or warrants the preparation of a factual record;

iv. notification that the Secretariat has received that a Party is voting for it to prepare a factual record; and

v. any instruction that the Secretariat has received to prepare a factual record; and

d. with respect to any final factual record:

i. a brief description of any information the Secretariat has received from interested persons, independent experts, or a Party’s national advisory or consultative committees relating to the submission;

ii. any notification that the Secretariat has received to make a final factual record publicly available;

iii. any instruction that the Secretariat has received to make the final factual record publicly available; and

iv. a brief summary of any final factual record that the Council has, by a vote of any Party, instructed the Secretariat to make publicly available.


CONFIDENTIAL INFORMATION

22. How will the Secretariat treat confidential information?

22.1 In accordance with Article 9 of the Secretariat Agreement, the Secretariat shall not furnish to the public or allow public access to any information it may receive:

a. i. that the provider has identified as confidential in accordance with the procedures provided in paragraph 22.3 of these Working Procedures;

ii. that is not otherwise publicly available; and

iii. the disclosure of which could reveal:

1. the provider’s identity and subject the provider to serious reprisal, or

2. confidential or proprietary information; or

b. from a Party, the disclosure of which the Party has determined would impede law enforcement, compromise personal privacy, or reveal confidential business or proprietary information or governmental decision-making.

22.2 With the exception of information referred to in subparagraph 22.1(a)(iii)(1), the Secretariat may, as necessary, disclose such information to a Party or the Council, provided the submitter or Secretariat has marked the document containing such information in accordance with paragraph 22.3 or 22.4 and the Party or Council member has agreed in writing that it should not furnish to the public or allow public access to the information.

22.3 Any person or Party that provides a document to the Secretariat that it considers to contain information described in paragraph 22.1 shall:

a. mark the word “CONFIDENTIAL”, where practicable in red, on the top of the first page of the document and all subsequent pages that contain such information;

b. provide with the document the provider’s reasons for considering the document to contain information described in paragraph 22.1; and

c. to the extent possible, provide a version of such document that redacts the information described in paragraph 22.1 and contains the word “NON-CONFIDENTIAL” on the top of the first page of the document.

22.4 If the Secretariat determines that any information identified as confidential under paragraph 22.1(a) does not meet the criteria for such information under that paragraph, it shall provide the provider an opportunity to withdraw the information. If the information is not withdrawn, the Secretariat may, as appropriate, publicly disclose such information.

22.5 If the Secretariat receives a document containing information that it determines meets the criteria of paragraph 22.1(a), or that the Party providing the information has determined meets the criteria of paragraph 22.1(b), the Secretariat shall take the following steps to safeguard it from public disclosure:

a. if the provider has not already done so, mark the word “CONFIDENTIAL” in red on the top of the first page and where practicable on all subsequent pages that contain the information and mark any document the Secretariat prepares using the information in the same manner;

b. secure the document, and any document the Secretariat prepares using the information, in a locked safe or other secure facility where access is limited to Secretariat personnel; and

c. if the Secretariat normally processes or stores such information on a computer system, the Secretariat shall ensure that only Secretariat personnel have access to it and that it is not transmitted outside the Secretariat.

22.6 If the Secretariat includes information described in paragraph 22.1 in a factual record, it shall prepare a non-confidential version of the factual record that redacts such information. If the Council, by a vote of any Party, instructs the Secretariat to make a factual record publicly available, the Secretariat shall only make the non-confidential version of the factual record publicly available.


TIME PERIODS

23. How are time periods calculated for the purposes of these Working Procedures?

23.1 Where these Working Procedures provide for action to be taken within a specified number of “days”, the term “days” shall be understood to mean calendar days. Where the final day of a prescribed time period does not fall on a day that is an official business day of SIECA, the next business day shall constitute the final day.

NEGOTIATORS’ NOTES:

(1) Article 17.5 of the CAFTA-DR provides that the Council shall comprise cabinet-level or equivalent representatives of the Parties or their designees and that each Party shall designate a point of contact to carry out the work of the Council. Accordingly, the negotiators recognize that any action referred to in these Working Procedures as an action taken by a Council member of a Party may be taken by the designated point of contact of that Party.

(2) The negotiators recognize that these Working Procedures are intended to address the range of circumstances that may arise in connection with submissions on environmental law enforcement matters and that the Council may supplement or otherwise amend or terminate these Working Procedures at any time to provide the Secretariat additional or alternative guidance consistent with Articles 17.7 and 17.8 of the CAFTA-DR.

(3) The negotiators recognize that, notwithstanding the difference in wording between the English and Spanish texts of paragraph 9.1(d) of these Working Procedures, these texts reflect no substantive disagreement among the Parties and accordingly are intended to ensure that, in determining whether a submission merits a response from the Party concerned, the Secretariat considers whether the submitter pursued those private remedies available under the Party’s law.



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