2. Each Party shall provide a mechanism for importers, exporters, carriers, customs brokers and other stakeholders to submit complaints regarding perceived improper or corrupt behavior in its territory, including at ports of entry and other customs offices, of its customs administration personnel. Each Party shall take appropriate action on a complaint in a timely manner in accordance with its laws, regulations, or procedures.
Article 7.20. Customs Brokers
1. Each Party shall allow an importer and any other person it deems appropriate, in accordance with its laws and regulations, to self-file a customs declaration and other import or transit documentation without the services of a customs broker. For the purposes of electronic filing, self-filing shall include direct access or access through a service provider, to electronic systems for filing and transmitting customs declarations and other import or transit documentation. Each Party shall ensure that access to the electronic systems is available for self-filers on a non- discriminatory basis relative to other categories of users.
2. If a Party establishes requirements for qualifications, licensing, or registration to be a customs broker or to provide customs broker services, the Party shall ensure that the requirements are transparent, based on objective criteria related to providing customs broker services, promote integrity and professionalism among customs brokers, and are administered uniformly in its territory.
3. No Party shall impose arbitrary limits to the number of ports or locations at which a customs broker may operate. A Party shall allow a licensed customs broker to electronically submit a customs declaration and import documentation to the electronic systems referred to in paragraph 1, at any port at which it is licensed to operate in accordance with the preceding sentence.
Article 7.21. Border Inspections
1. The Parties shall cooperate with each other, as appropriate, with a view to facilitating trade through the promotion of efficient and effective processing of imports and exports through their ports of entry.
2. Each Party shall ensure that its customs administration and other relevant agencies that examine goods, conveyances, or instruments of international traffic, carry out examinations with appropriate coordination and, to the extent practicable, simultaneously within a single location, with a view to releasing goods and allowing conveyances and instruments of international traffic to enter its territory in a timely manner and immediately after the examinations have been completed, provided that all regulatory requirements have been met.
3. Pursuant to paragraphs 1 and 2, each Party is encouraged to develop and implement standard operating procedures amongst its customs administration and relevant agencies that examine goods, conveyances, or instruments of international traffic. If practicable, each Party is encouraged to adapt their border facilities to carry out the examinations specified in paragraph 2.
4. As appropriate, the Parties shall coordinate to develop procedures or facilities adjacent to ports of entry for the efficient movement of goods the processing of which requires specific accommodations with respect to facilities or examination.
5. Nothing in this Article requires a Party to provide services for the examination and release of goods for all types of goods at all ports of entry within its territory.
Article 7.22. Protection of Trader Information
1. Each Partyâs customs administration shall apply measures governing the collection, protection, use, disclosure, retention, correction, and disposal of information that it collects from traders.
2. Each Party's customs administration shall protect, in accordance with its law, confidential information from use or disclosure that could prejudice the competitive position of the trader to whom the confidential information relates.
3. Notwithstanding paragraph 2, a Party may use or disclose confidential information but only for the purposes of administration or enforcement of its customs laws or as otherwise provided under the Party's law, including in an administrative, quasi-judicial, or judicial proceeding.
4. If confidential information is used or disclosed other than in accordance with this Article, the Party shall address the incident, in accordance with its laws, regulations, or procedures, and strive to prevent a reoccurrence.
Article 7.23. Customs Initiatives for Trade Facilitation
1. The Parties shall cooperate in the development and implementation of customs initiatives telated to the trade facilitation measures described in this Section, as well as on other trade facilitation initiatives.
2. This cooperation may include information sharing or collaboration with respect to:
(a) best practices on the implementation of customs procedures;
(b) the management of customs and trade compliance measures;
(c) engagement between the customs administrations at the operational level to address issues related to regular cross-border operations and to resolve specific cases, including pending shipments;
(d) the development and implementation of procedures to facilitate cross border trade and improve customs operations related to the movement, release, and clearance of goods;
(e) the harmonization of cargo manifest data requirements in each mode of transportation;
(f) the implementation of programs designed to facilitate the movement of goods through their ports of entry, including, if feasible, alignment of hours of service, joint customs inspections, and the use of shared facilities; and
(g) the design, development, and construction of ports of entry located at their common borders.
Article 7.24. Committee on Trade Facilitation
1. The Parties hereby establish a Committee on Trade Facilitation (Trade Facilitation Committee), composed of government representatives of each Party.
2. The Trade Facilitation Committee shall:
(a) facilitate the exchange of information among the Parties with respect to their respective experiences regarding the development and implementation of a single window including information regarding each Party's participating border agencies and the automation of its forms, documents, and procedures;
(b) facilitate the exchange of information among the Parties regarding the formulation and implementation of, and experiences under, each Party's low-risk trader programs, including their AEO programs;
(c) provide a forum for the sharing of views on individual cases involving questions of tariff classification, customs valuation, other customs treatments, or emerging industry trends and issues, with a view to reconciling inconsistencies, supporting a competitive business environment, or otherwise facilitating trade and investment among the Parties;
(d) facilitate the exchange of information among the Parties regarding the formulation and implementation of, and experiences with, each Party's measures that promote voluntary compliance by traders;
(e) providing a forum for the Parties to consult and endeavor to resolve issues relating to this Chapter, including, as appropriate, in coordination or jointly with other committees or other subsidiary bodies established under this Agreement;
(f) review international initiatives on trade facilitation;
(g) identify initiatives for joint action by their respective customs administrations, in cases where joint action could facilitate trade among the Parties, and taking into account priorities and experiences of their customs administrations;
(h) discuss technical assistance and support for capacity building to enhance the impact of trade facilitation measures for traders, and in particular to identify priorities for this assistance and support among their customs administrations and outside North America; and
(i) engage in other activities as the Parties may decide.
3. The Trade Facilitation Committee shall meet within one year of the date of entry into force of this Agreement, and thereafter at such times as the Parties decide.
4. The Parties are encouraged to provide opportunities for persons to provide input to each Party's representative to the Trade Facilitation Committee on matters relevant to the Committee's work, such as through the mechanism described in Article 7.3 (Communication with Traders).
Section B. Cooperation and Enforcement
Article 7.25. Regional and Bilateral Cooperation on Enforcement
1. The Parties agree to strengthen and expand their customs and trade enforcement efforts and cooperation as set out in this Section. In these efforts, the Parties may use any applicable mechanism, including bilateral cooperation mechanisms.
2. Each Party shall, in accordance with its laws and regulations, cooperate with other Parties for the purposes of enforcing or assisting in the enforcement of their respective measures concerning customs offenses in the trade in goods between the Parties, including ensuring the accuracy of claims for preferential tariff treatment under this Agreement.
3. With a view to facilitating the effective operation of this Agreement, each Party shall:
(a) encourage cooperation with the other Parties regarding customs issues that affect goods traded between the Parties; and
(b) endeavor to provide the other Parties with advance notice of any significant administrative change, modification of a law or regulation, or other measure related to its laws or regulations that governs importations, exportations, or transit procedures that is likely to substantially affect the operation of this Agreement or likely to affect the effective implementation and enforcement of the customs and trade laws and regulations of a Party.
4. Each Party shall take appropriate measures, such as legislative, administrative, or judicial actions for enforcement of its laws, regulations, and procedures related to customs offenses, to enhance coordination between its customs administration and other relevant agencies and for cooperation with another Party.
5. The measures under paragraph 4 may include:
(a) specific measures, such as enforcement actions to detect, prevent, or address customs offenses, especially on identified customs priorities, taking into account trade data, including patterns of imports, exports, or transit goods to identify potential or real sources of these offenses;
(b) adopting or maintaining penalties aimed at deterring or penalizing customs offenses; and
(c) providing a Party's government officials with the legal authority to meet its enforcement obligations under this Agreement.
6. The Parties shall, subject to their respective laws, regulations and procedures, cooperate by sharing information, including exchanging historical data and if practicable and appropriate, data in real time with respect to imports, exports, and transit of goods to identify potential or real sources of customs offenses, especially on priority initiatives or industry sectors. Each Party shall identify and maintain the capability for the secure exchange of customs data with another Party.
7. Each Party shall, whenever practicable, and subject to its laws and regulations, provide another Party with information that has come to its attention that it believes would assist the receiving Party in detecting, preventing, or addressing potential or real customs offenses in particular those related to unlawful activities, including duty evasion, smuggling, and similar infractions. Such information may include specific data on any person suspected to be involved in unlawful activity, the mode of transportation, other relevant information, and the results of enforcement actions, application of penalties, or unusual trade patterns, both collected directly by the providing Party and received from other sources.
8. The Parties shall endeavor to cooperate, subject to their laws, regulations, and procedures, bilaterally or trilaterally, as appropriate, by developing customs enforcement initiatives, which may include the creation of task forces, joint or coordinated data analysis, and identification of special monitoring measures and other actions, to prevent, deter, and address customs offenses, particularly with respect to priorities of mutual concern.
Article 7.26. Exchange of Specific Confidential Information
1. For the purposes of enforcing or assisting in the enforcement of its respective measures concerning customs offenses, a Party may request that another Party provide specific confidential information that is normally collected in connection with the importation, exportation, or transit of a good if the requesting Party has relevant facts indicating that a customs offense is occurring or is likely to occur.
2. A request under paragraph 1 shall be made in writing, electronically, or through another means that allows for the acknowledgement of receipt, and shall include a brief statement of the matter at issue, the information requested, the relevant facts indicating that a customs offense is occurring or is likely to occur, and sufficient information for the Party that receives a request to respond in accordance with its laws and regulations.
3. The Party that receives a request under paragraph 1 shall, subject to its laws, regulations, procedures, or other legal obligations, provide to the requesting Party a written response containing the requested information held by the Party as soon as practicable.
4. A Party may provide information under this Article in paper or electronic format.
5. In order to facilitate the rapid and secure exchange of information, each Party shall designate or maintain a contact point for cooperation under this Section in accordance with Article 30.5 (Agreement Coordinator and Contact Points).
6. For the purposes of paragraph 1, relevant facts indicating that a customs offense is occurring or is likely to occur means historical evidence of non-compliance with laws or regulations, or other information that the requesting Party and the Party from which the information is requested agree is sufficient in the context of a particular request.
Article 7.27. Customs Compliance Verification Requests
1. A Party may request another Party to conduct a verification in that Party's territory to assist the requesting Party to determine whether a customs offence is occurring or has occurred by obtaining information, including documents, from an exporter or producer. The requesting Party shall make the request in writing. The requested Party shall respond to the request promptly and in no case later than 30 days after the date it receives the request. The response will include whether it will conduct the verification. If the Party does not intend to conduct the verification, the response will indicate the basis for refusal. If a Party will conduct the verification, the response will indicate the intended timing and other relevant details.
2. If the requested Party conducts a verification under paragraph 1, it shall provide the requesting Party promptly upon completing the verification a report containing the relevant information including data and documents, obtained during its verification.
3. In the case ofa site visit by the requested Party, the requesting Party may, through officials it designates and subject to the consent of a legally responsible person for the location visited, accompany the requested Party. Accompanying the requested Party does not create any legal authority for the designated officials of the requesting Party. The designated officials of the requesting Party shall fulfill the conditions and procedures mutually agreed between the relevant Parties for the visit. Nothing in this Agreement requires the requested Party to allow or facilitate the participation of the designated officials of the requesting Party.
Article 7.28. Confidentiality between Parties
1. If a Party provides information to another Party in accordance with this Section and designates the information as confidential or is confidential under the receiving Party’s law, the receiving Party shall keep the information confidential in accordance with its law.
2. A Party may decline to provide information requested by another Party if that Party has failed to act in accordance with paragraph 1.
3. A Party may use or disclose confidential information received from another Party under this Section but only for the purposes of administration or enforcement of its customs laws or as otherwise provided under the Party's law, including in an administrative, quasi-judicial, or judicial proceeding.
Article 7.29. Sub-Committee on Customs Enforcement
1. The Parties hereby establish a Sub-Committee on Customs Enforcement (Customs Enforcement Sub-Committee), composed of government representatives of each Party, to address issues related to potential or real customs offenses.
(a) work to identify regional priorities of mutual concern and programs for detecting, preventing, and addressing duty evasion and other customs offenses;
(b) identify and discuss opportunities for the exchange of customs and trade information or data among the Parties that facilitates detecting, preventing, and addressing customs offenses;
(c) provide a forum to discuss proposed customs enforcement initiatives, including by identifying areas of coordination and cooperation, as appropriate, especially those related to detecting, preventing, and addressing customs offenses;
(d) facilitate the exchange of information of best practices on customs enforcement and in managing customs compliance;
(e) provide a forum to discuss technical guidance or assistance and support for capacity building, including specific training programs, in matters related to customs enforcement and compliance;
(f) provide a forum to discuss, with a view to identifying and enhancing joint customs enforcement and compliance initiatives on topics of mutual concern, including with respect to customs offenses, such as deterring duty evasion and circumvention of safeguards, antidumping, and countervailing duty laws and orders;
(g) identify appropriate government officials to address the matters raised in the Customs Enforcement Sub-Committee and share their contact information;
(h) inform the Trade Facilitation Committee about customs enforcement measures implemented by a Party that may have an impact on their customs procedures with respect to a matter covered by this Chapter; and
(i) engage in other matters related to customs offenses as the Parties may decide.
3. The Parties shall designate and notify a contact point for this Customs Enforcement Sub- Committee in accordance with Article 30.5 (Agreement Coordinator and Contact Points).
4. The Customs Enforcement Sub-Committee shall meet within one year of the date of entry into force of this Agreement, and thereafter as the Parties may decide.
Chapter 8. RECOGNITION OF THE UNITED MEXICAN STATES' DIRECT, INALIENABLE, AND IMPRESCRIPTIBLE OWNERSHIP OF HYDROCARBONS
Article 8.1. Recognition of the United Mexican States' Direct, Inalienable, and Imprescriptible Ownership of Hydrocarbons
1. As provided for in this Agreement, the Parties confirm their full respect for sovereignty and their sovereign right to regulate with respect to matters addressed in this Chapter in accordance with their respective Constitutions and domestic laws, in the full exercise of their democratic processes.
2. In the case of Mexico, and without prejudice to their rights and remedies available under this Agreement, the United States and Canada recognize that:
(a) Mexico reserves its sovereign right to reform its Constitution and its domestic legislation; and
(b) Mexico has the direct, inalienable, and imprescriptible ownership of all hydrocarbons in the subsoil of the national territory, including the continental shelf and the exclusive economic zone located outside the territorial sea and adjacent thereto, in strata or deposits, regardless of their physical conditions pursuant to Mexico's Constitution (Constitución Política de los Estados Unidos Mexicanos).
Chapter 9. SANITARY AND PHYTOSANITARY MEASURES
Article 9.1. Definitions
1. The definitions in Annex A of the SPS Agreement are incorporated into and made part of this Chapter, mutatis mutandis, except as otherwise provided for in paragraph 2.
2. For the purposes of this Chapter:
competent authority means a government body of a Party responsible for measures or matters referred to in this Chapter;
import check means an inspection, examination, sampling, review of documentation, test, or procedure, including laboratory, organoleptic, or identity, conducted at the border or otherwise during the entry process by an importing Party or its representative to determine if a consignment complies with the sanitary or phytosanitary requirements of the importing Party;
relevant international organizations means the Codex Alimentarius Commission, the World Organization for Animal Health, the International Plant Protection Convention, and other international organizations as decided by the Committee on Sanitary and Phytosanitary Measures established under Article 9.17 (SPS Committee);
relevant international standards, guidelines, or recommendations means those defined in paragraph 3(a) through (c) of Annex A of the SPS Agreement and standards, guidelines, or recommendations of other international organizations as decided by the SPS Committee;
risk management means the weighing of policy alternatives in light of the results of risk assessment and, if required, selecting and implementing appropriate controls, which may include sanitary or phytosanitary measures;
WTO SPS Committee means the WTO Committee on Sanitary and Phytosanitary Measures established under Article 12 of the SPS Agreement.
Article 9.2. Scope
This Chapter applies to all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.
Article 9.3. Objectives
1. The objectives of this Chapter are to:
(a) protect human, animal, or plant life or health in the territories of the Parties while facilitating trade between them;
(b) reinforce and build upon the SPS Agreement;
(c) strengthen communication, consultation, and cooperation between the Parties, and particularly between the Partiesâ competent authorities;
(d) ensure that sanitary or phytosanitary measures implemented by a Party do not create unnecessary barriers to trade;
(e) enhance transparency in and understanding of the application of each Party's sanitary and phytosanitary measures;
(f) encourage the development and adoption of science-based international standards, guidelines, and recommendations, and promote their implementation by the Parties;
(g) enhance compatability of sanitary or phytosanitary measures as appropriate; and
(h) advance science-based decision making.
Article 9.4. General Provisions
1. The Parties affirm their rights and obligations under the SPS Agreement.
2. Sanitary or phytosanitary measures which conform to the relevant provisions of this Chapter are presumed to be consistent with the obligations of the Parties under Chapter 2 (National Treatment and Market Access for Goods), which relate to the use of sanitary or phytosanitary measures, and Article XX(b) of the GATT 1994 as incorporated into Article 32.1 (General Exceptions).
3. Sanitary or phytosanitary measures which conform to relevant international standards, guidelines, and recommendations are deemed to be necessary to protect human, animal, or plant life or health, and presumed to be consistent with the relevant provisions of this Chapter, Chapter 2 (National Treatment and Market Access for Goods), which relate to the use of sanitary or phytosanitary measures, and Article XX(b) of the GATT 1994 as incorporated into Article 32.1 (General Exceptions).
Article 9.5. Competent Authorities and Contact Points
1. Each Party shall provide to the other Parties a list of its central level of government competent authorities. On request of a Party, and, if applicable, a Party shall provide contact information or written descriptions of the sanitary and phytosanitary responsibilities of its competent authorities.
2. 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).
3. Each Party shall promptly inform the other Parties of any change in its competent authorities or contact points.
Article 9.6. Science and Risk Analysis
1. The Parties recognize the importance of ensuring that their respective sanitary and phytosanitary measures are based on scientific principles.
2. Each Party has the right to adopt or maintain sanitary and phytosanitary measures necessary for the protection of human, animal, or plant life or health, provided that those measures are not inconsistent with the provisions of this Chapter.
3. Each Party shall base its sanitary and phytosanitary measures on relevant international standards, guidelines, or recommendations provided that doing so meets the Party's appropriate level of sanitary or phytosanitary protection (appropriate level of protection). Ifa sanitary or phytosanitary measure is not based on relevant international standards, guidelines, or recommendations, or if relevant international standards, guidelines, or recommendations do not exist, the Party shall ensure that its sanitary or phytosanitary measure is based on an assessment, as appropriate to the circumstances, of the risk to human, animal, or plant life or health.
4. Recognizing the Parties' rights and obligations under the relevant provisions of the SPS Agreement, this Chapter does not prevent a Party from:
(a) establishing the level of protection it determines to be appropriate;
(b) establishing or maintaining an approval procedure that requires a risk assessment to be conducted before the Party grants a product access to its market; or
(c) adopting or maintaining a sanitary or phytosanitary measure on a provisional basis if relevant scientific evidence is insufficient.
5. If a Party adopts or maintains a provisional sanitary or phytosanitary measure if relevant scientific evidence is insufficient, the Party shall within a reasonable period of time:
(a) seek to obtain the additional information necessary for a more objective assessment of risk;
(b) complete the risk assessment after obtaining the requisite information; and
(c) review and, if appropriate, revise the provisional measure in light of the risk assessment.
6. Each Party shall ensure that its sanitary and phytosanitary measures:
(a) are applied only to the extent necessary to protect human, animal, or plant life or health;
(b) are based on relevant scientific principles, taking into account relevant factors, including, if appropriate, different geographic conditions;
(c) are not maintained if there is no longer a scientific basis;
(d) do not arbitrarily or unjustifiably discriminate between Parties where identical or similar conditions prevail, including between its own territory and that of other Parties; and
(e) are not applied in a mamner that constitutes a disguised restriction on trade between the Parties.
7. Each Party shall conduct its risk assessment and risk management with respect to a sanitary or phytosanitary regulation within the scope of Annex B of the SPS Agreement in a manner that is documented and provides the other Parties and persons of the Parties an opportunity to comment, in a manner to be determined by that Party.
8. In conducting its risk assessment and risk management, each Party shall:
(a) ensure that each risk assessment it conducts is appropriate to the circumstances of the risk to human, animal, or plant life or health, and takes into account the available relevant scientific evidence, including qualitative and quantitative data and information; and
(b) take into account relevant guidance of the WTO SPS Committee and the relevant international standards, guidelines, and recommendations of the relevant international organization.
9. Each Party shall consider, as a risk management option, taking no measure if that would achieve the Party's appropriate level of protection.
10. Without prejudice to Article 9.4 (General Provisions), each Party shall select a sanitary or phytosanitary measure that is not more trade restrictive than required to achieve the level of protection that the Party has determined to be appropriate. For greater certainty, a sanitary or phytosanitary measure is not more trade restrictive than required unless there is another option that is reasonably available, taking into account technical and economic feasibility, that achieves the Party's appropriate level of protection and is significantly less restrictive to trade.
11. If an importing Party requires a risk assessment to evaluate a request from an exporting Party to authorize importation of a good of that exporting Party, the importing Party shall provide, on request of the exporting Party, an explanation of the information required for the risk assessment. On receipt of the requisite information from the exporting Party, the importing Party shall endeavor to facilitate the evaluation of the request for authorization by scheduling work on this request in accordance with the procedures, policies, resources, laws, and regulations of the importing Party.
12. On request of the exporting Party, the importing Party shall inform the exporting Party of the status of a request to authorize trade, including the status of any risk assessment or other evaluation the Party requires to authorize trade, and of any delay that occurs during the process.
13. If the importing Party, as a result of a risk assessment, adopts a sanitary or phytosanitary measure that may facilitate trade between the Parties, the importing Party shall implement the measure without undue delay.
14. If a Party has reason to believe that a specific sanitary or phytosanitary measure adopted or maintained by another Party is constraining, or has the potential to constrain, its exports and the measure is not based on a relevant international standard, guideline, or recommendation, or a relevant standard, guideline, or recommendation does not exist, the Party adopting or maintaining the measure shall provide an explanation of the reasons and pertinent relevant information regarding the measure upon request by the other Party.
15. Without prejudice to Article 9.14 (Emergency Measures), no Party shall stop the importation of a good of another Party for the reason that the importing Party is undertaking a review of its sanitary or phytosanitary measure, if the importing Party permitted the importation of that good of the other Party when the review was initiated. (1)