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Re: US-Canada RCC Request for Information

Dear Administrator Rao:

The Institute for Agriculture and Trade Policy (IATP), a non-profit 501(c)(3) organization headquartered in
Minneapolis, Minnesota, appreciates the opportunity to submit these comments in response to the Request for
Information (RFI) related to the activities of the US-Canada Regulatory Cooperation Council (RCC), Federal Register
Vol. 83, No. 195 at 50689. For more than 30 years, IATP has provided technical expertise, research and analysis on
policy that supports family farmers and thriving rural communities, and protects the environment and public health,
both in the United States and internationally. IATP regularly participates in the rulemaking process by submitting
comments on proposed regulations and in other fora. These comments are jointly submitted with the Center for Food
Safety; Center for International Environmental Law; Protect All Children’s Environment; and Children’s Environmental

In response to the six questions/topics on which the Federal Register notice specifically seeks stakeholder insight, our
comments are particularly addressing topics: (3) on the appropriate role for stakeholders; (5) on alternatives to direct
regulation, including of emerging technologies; and (6) on whether the RCC should continue with existing work plans
and activities.

If done right, early consultation by regulators across international borders to discuss developing consistent standards
that both protect the public interest and smooth the way for compliance by industry could benefit everyone. An
effective regulatory cooperation process requires the following elements:

  • Harmonize upwards. Where there are differences between Canadian and U.S. standards, agreements to
    harmonize regulatory approaches must adopt the more protective standard. The RCC must not be used as a
    mechanism or excuse to deregulate or reduce public protections. For example, Canadian chemical safety
    communication materials that inform workers and emergency responders are significantly more comprehensive
    and detailed than those required in the U.S. Accordingly, as an example, the U.S. hazard communications
    standard should be harmonized upwards to the more protective standard. This approach both eliminates
    differences between the two standards, a primary goal of the RCC, and insures that an important workplace
    safety and health standards are maintained and not weakened.
  • Protect the public and environment as new technologies emerge. Regulatory cooperation should not be used
    to halt the development of protective standards for rapidly evolving technologies, to limit precautionary
    measures, or to promote the use of voluntary alternatives to enforceable regulations. Instead, the RCC should
    encourage the sharing of information and expertise in order to promote regulation that fully protects the public
    interest in both the U.S. and Canada.
  • Full transparency. Regulatory Cooperation Council activities must be transparent. These activities can lead to
    significant changes in existing regulations and agreements about how to regulate new processes and
    technologies for the first time. A commitment to full transparency for RCC activities must include:
    • Public notice of all meetings and other activities. Notice must be sufficient to allow for public
      participation, and include detailed information regarding the subject matter of the meeting and ways
      to participate in the meeting.
    • Committee membership, workplans and reports must be readily available on public websites.
    • Meetings must be open to the public and meeting minutes and materials, and a list of all participants,
      should be posted on a public website.
    • Regulatory cooperation activities should provide meaningful opportunities for public comment to
      permit meeting participants and other interested stakeholders to provide input on any proposed
      approach or decisions.
    • All decisions should be posted on public website and include detailed reasons for the decisions.
  • Inclusiveness. Regulatory cooperation should not be an industry-dominated and directed process.
    “Stakeholders” including consumer, labor, health, environmental, farm and other civil society experts and
    advocates representing those who are affected must be invited to participate.
    • If sectoral committees engaged in regulatory cooperation activities include nongovernment members,
      membership must be balanced and not limited or heavily weighted to industry stakeholders.
    • Civil society should be invited to participate as observers and commenters.
  • State and provincial governments must be consulted and informed, and state policies respected. Although the
    RCC Memorandum of Agreement properly focuses on central level regulations, nonetheless RCC activities could
    have consequences for state government regulatory activities. In fact, there is the potential for harmonized
    international standards to lead to direct or indirect preemption of state regulations. Particularly where state-level
    standards are more protective of the public than federal policies, the RCC must not be used as a back-door
    means to prevent implementation or adoption of those state regulations. States have primary jurisdiction in
    policy areas, such as regulation of insurance and workers’ compensation, and share jurisdiction over many
    other policy areas, including air, water and waste regulation. Where federal regulation is lacking or spotty,
    states are the de facto primary regulators, including for example, adopting modern animal welfare protections,
    regulation of cosmetics, and setting aquaculture standards for coastal states such as Maine and Washington.

Unfortunately, since the RCC was established in 2011, it has not met these guidelines in carrying out its activities. The
regulatory cooperation activities undertaken by the RCC appear in most instances to be largely non-transparent,
corporate-directed, and with minimal participation by civil society or stakeholders outside of the regulated industries.
As just one example, the meat inspection work plan for 2016 provides as a medium-term goal, “CFIA and FSIS will
assess and, to the greatest extent possible, implement the Canadian Meat Council (CMC) and the North American
Meat Institute (NAMI) proposal to streamline export requirements, in support of new electronic certification
platforms”.1 A list of the participants in the meat sector RCC committee is not posted on the public Internet site, so
it is impossible to know who was involved, and the referenced industry-written plan is not linked. Further, detailed
minutes of meetings are not posted, and while some reports may be available through other agencies’ websites, there
appears to be spotty access to many of the RCC’s work products and proceedings.2 It is unclear the extent to which
state governments with overlapping regulatory authority have been consulted, if at all.

The renewal and re-starting of the RCC process is an opportunity to approach regulatory cooperation activities
differently. Unfortunately, the Federal Register notice seeking comment is focused instead on using the RCC and
regulatory cooperation “to serve deregulatory functions”, to reduce costs on businesses, and to promote “alternatives
to direct regulation.” We categorically reject this approach. First, the RCC stakeholder and meeting process should be
completely revised to incorporate the principles and measures we have articulated. Second, the existing work plans
and activities should not automatically be continued, as they do not represent the product of an inclusive and
transparent process. Current priorities and work must be reviewed and revised after the RCC is reorganized. Third,
the RCC must not be used to promote voluntary measures instead of enforceable regulations, or to advance

Thank you for your consideration of these comments.

Respectfully submitted,

Sharon Anglin Treat
Senior Attorney,
Institute for Agriculture and Trade Policy


Download a PDF of the letter.

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