1. A Certificate of Origin in paper format shall:
(a) be in standard A4 white paper as per the attached Form set out in Annex 3B (Certificate of Origin).
(b) comprise one original and two copies. The original shall be forwarded by the producer or exporter to the importer for submission to the customs authority of the importing Party. The duplicate shall be retained by the competent authority of the exporting Party. The triplicate shall be retained by the producer or exporter;
(c) may cover one or more goods under one consignment; and (d) be in a printed format or such other medium including electronic fomat.
2. Each Certificate of Origin shall bear a unique serial reference number separately given by each place or office of issuance. 3. A Certificate of Origin shall bear an official seal of the competent authority. The official seal may be applied electronically.
4. In case the official seal is applied electronically, an authentication mechanism, such as QR code or a secured website, shall be included in the certificate for the certificate to be considered as an original copy.
Article 3.24. Electronic Data Origin Exchange System
For the purposes of Article 3.21.2. (b), the Parties shall endeavour to develop an electronic system for origin information exchange to ensure the effective and efficient implementation of this Chapter particularly on transmission of E-Certificate.
Article 3.25. Origin Declaration
1. For the purposes of Article 3.21.2. (c), the Parties shall, within six months from the date of entry into force of this Agreement, implement provisions allowing each competent authority to recognize an origin declaration made by an approved exporter.
2. The competent authority or customs authority of the exporting Party may authorise any exporter, (hereinafter referred to as "approved exporter"), who exports goods under this Agreement, to make out Origin Declarations, a specimen of which appears in Annex 3C (Origin Declaration Pursuant to Article 3.25), irrespective of the value of the goods concerned.
3. An exporter seeking such authorisation must offer to the satisfaction of the customs or competent authorities all guarantees necessary to verify the originating status of the goods as well as the fulfilment of the other requirements of this Chapter.
4. The customs or competent authorities of the exporting patty may grant the status of approved exporter, subject to any conditions which they consider appropriate.
5. The customs or competent authorities of the exporting party shall share or publish th.e list of approved exporters and periodically update it.
6. An Origin Declaration (the text of which appears in Annex 3C (Origin Declaration Pursuant to Article 3.25) shall be made out by the approved exporter by typing, stamping or printing the declaration on the invoice, the delivery note or another commercial document which describes the products concerned in sufficient detail to enable them to be identified. The declaration may also be hand-written; if the declaration is band-written, it shall be written in permanent ink in legible printed characters.
7. The approved exporter making out an Origin Declaration shall be prepared to submit at any time, at the request of the customs authorities of the exporting Party, all appropriate documents proving the originating status of the goods concerned, as well as the fulfilment of the other requirements of this Chapter.
Article 3.26. Application and Examination of Application for a Certificate of Origin
1. Certificates of Origin shall be issued by the competent authority of the exporting Party, either upon an electronic application or an application in paper form, having been made by the exporter or under the exporter's responsibility by his or her authorized representative, in accordance with the domestic regulations of the exporting Party.
2. The exporter applying for the issuance of a Certificate of Origin shall be prepared to submit at any time, at the request of the competent authority of the exporting Party, all appropriate documents proving the originating status of the goods concerned, as well as the fulfilment of the other requirements of this Chapter.
3. The competent authority shall, to the best of its competence and ability, carry out a proper examination to ensure that: (a) the application and the Certificate of Origin is duly completed and signed by the authorised signatory; (b) the origin of the good is in conformity with the provisions of this Chapter; and ( c) HS Code, description, gross weight or other quantity and value conform to the good to be exported.
Article 3.27. Certificate of Origin Issued Retrospectively
1. The Certificate of Origin shall be issued by the competent authority of the exporting Party prior to or at the time of shipment.
2. In exceptional cases where a Certificate of Origin has not been issued prior to or at the time of shipment, due to involuntary errors or omissions or other valid causes, the Certificate of Origin may be issued retroactively but with a validity ofno longer than one (1) year from the date of shipment, in which case it is necessary to indicate "ISSUED RETROACTIVELY" in the appropriate field as detailed in Annex 3B (Certificate of Origin).
3. The provisions of this Article shall be applied to goods which comply with the provisions of this Agreement, and which on the date of its entry into force, are either in transit or are in the territory of the Parties in temporary storage under customs control. This shall be subject to the submission to the customs authorities of the importing Party, witrun six months from the said date, of a Certificate of Origin issued retrospectively by the Competent Authority of the exporting Party together with documents, showing that the goods have been transported directly in accordance with the provisions of Article 3.18.
Article 3.28. Loss of the Certificate of Origin
1. In the event of theft, loss or destruction of a Certificate of Origin, the manufacturer, producer, exporter, or its authorized representative may apply to the Competent Authority, which issued it, for a certified true copy of the original Certificate of Origin to be made out on the basis of the export documents in possession of the Competent authority.
2. The certified true copy of the original Certificate of Origin shall be endorsed with an official signature and seal and bear the words "DUPLICATE" and the date of issuance of the original Certificate of Origin in appropriate field as detailed in Annex 3B (Certificate of Origin). The certified true copy of a Certificate of Origin shall be issued within the same validity period of the original Certificate of Origin.
3. The exporter shall immediately notify the loss to the competent authority, and undertake not to use the original Certificate of Origin for exports under this Agreement.
Article 3.29. Importation by Instalments
Where, at the request of the importer and on the conditions laid down by the customs authorities of the importing Party, dismantled or non-assembled products within the meaning of General Rule 2(a) of the Harmonized System are imported by instalments, a single Proof of Origin for such products shall be submitted to the customs authorities upon importation of the first instalment.
Article 3.30. Treatment of Erroneous Declaration In the Certificate of Origin
Neither erasures nor superimposition shall be allowed on the Certificate of Origin. Any alterations shall be made by issuing a new Certificate of Origin to replace the erroneous one. The reference number of the corrected Certificate of Origin should be indicated in the appropriate field on the newly issued Certificate of Origin as detailed in Annex 3B (Certificate of Origin). The validity of the replacement certificate will be the same as the original.
Article 3.31. Treatment of Minor Discrepancies
1. The discovery of minor discrepancies between the statements made in the Certificate of Origin and those made in the documents submitted to the customs authority of the importing Party for the purpose of carrying out the formalities for importing the goods shall not ipso-facto invalidate the Certificate of Origin, if it does in fact correspond to the goods submitted.
2. Obvious formal errors, such as typing errors, on a Proof of Origin should not cause such document to be rejected if these errors are not such as to create doubts concerning the correctness of the statements made in this document.
Section D. Cooperation and Origin Verification
Article 3.32. Denial of Preferential Tariff Treatment
1. Except as otherwise provided in this Chapter, the customs authority of the importing Party may deny a claim for preferential tariff treatment or recover unpaid duties, in accordance with its laws and regulations, where:
(a) the good does not meet the requirements of this Chapter; or
(b) the importer, exporter, or producer of the good fails or has failed to comply with any of the relevant requirements of this Chapter for obtaining preferential tariff treatment; or
(c) the customs authority of the importing Party bas not received sufficient information to detennioe that the good is originating; or
(d) the exporter, producer, or competent authority or customs authority of the exporting Party does not comply with the requirements of veri.fication in accordance with Article 3.33 or Article 3.34.
2. Where the customs authority of the importing Party denies a claim for preferential tariff treatment, it shall provide the decision in writing to the importer that includes the reasons for the decision.
3. Upon being communicated the grounds for denial of preferential tariff treatment, the exporter/producer/manufacturer in the exporting Party may, within the period provided for in the custom laws of the importing Party, file an appeal against such decision with the appropriate authority under the customs laws and regulations of the importing Party.
Article 3.33. Retroactive Check
1. The customs authority of the importing Party may request a retroactive check at random or when it has reasonable doubt as to the authenticity of the document or as to the accuracy of the information regarding the true origin of the goods in question or of certain parts thereof.
2. For the purpose of paragraph 1, the customs or competent authority of the importing Party may conduct the checking process by issuing a written request for additional information from the competent authority or customs authority of the exporting party.
3. The request shall be accompanied with the copy of Proof of Origin concerned and shall specify the reasons and any additional information suggesting that the particulars given on the said Proof of Origin may be inaccurate, unless the retroactive check is requested on a random basis.
4. The customs authority of the importing Party may suspend the provisions on preferential treatment while awaiting the result of verification. However, it may release the goods to the importer subject to any administrative measures deemed necessary, provided that they are not held to be subject to import prohibition or restriction and there is no suspicion of fraud.
5. Pursuant to paragraph 2, the concerned party receiving a request for retroactive check shall respond to the request promptly and reply not later than 90 (ninety) days after the receipt of the request.
6. When a reply from the concerned party is not obtained within 90 (ninety) days after the receipt of the request pursuant to paragraph 5, the customs authority of the importing Party may deny preferential tariff treatment to the good referred to in the said Proof of Origin that would have been subject to the retroactive check.
Article 3.34. Verification Visits
1. Pursuant to Article 3.33.2, if the customs or competent authority of the importing Party is not satisfied with the outcome of the retroactive check, it may, under exceptional circumstances for justifiable reasons, request the competent authority or customs authority of the exporting party to conduct a verification visit to the producer or exporter premises including inspection of the exporter's or producer's accounts, records or any other check considered appropriate. However, the verification visit can be carried out jointly by the Parties, ifrequested by the importing Party.
2. Prior to conducting a verification visit pursuant to paragraph 1, the customs or competent authority of the importing party shall deliver a written notification to the competent or customs authority of the exporting party to conduct the verification visit.
3. The written notification mentioned in paragraph 2 shall be as comprehensive as possible and shall include, among others:
(a) the producer or exporter whose premises are to be visited;
(b) justification for the unsatisfactory outcome of the retroactive check conducted by the competent or customs authority of the exporting Party; and
(c) the coverage of the proposed verification visit, including reference to the good subject to the verification, and evidence of fulfilling the requirements of this Chapter.
4. The competent or customs authority of the exporting Party shall obtain the written consent of the producer or exporter whose premises are to be visited.
5. When a written consent from the producer or exporter is not obtained within 30 (thirty) days from the date of receipt of the verification visit notification, the customs authority of the importing Party may deny preferential tariff treatment to the good referred to in the said Certificate of Origin that would have been subject to the verification visit.
6. The competent or customs authority of the exporting Party conducting the verification visit shall provide the producer or exporter, whose good is subject to such verification, with a written determination of whether or not the good subject to such verification qualifies as an originating good.
7. Upon the issuance of the written determination referred to in paragraph 6 that the good qualifies as an originating good, the customs authority of the importing party shall immediately restore preferential benefits and promptly refund the duties paid in excess of the preferential duty or release guarantees obtained in accordance with the domestic legislation of the Parties.
8. Upon the issuance of the written determination referred to in paragraph 6 that the good does not qualifies as an originating good, the producer or exporter shaU be allowed 30 (thirty) days from the date of receipt of the written determination to provide in writing comments or additional information regarding the eligibility of the good for preferential tariff treatment. The final written determination shall be communicated to the producer or exporter within 30 (thirty) days from the date of receipt of the comments or additional information.
9. The verification visit process, including the actual visit and the determination under paragraph 6, shall be carried out and its results communicated to the competent or customs authority of the importing party within a maximum period of 6 (six) months from the first day the initial verification visit was requested. While the process of verification is being undertaken, Article 3.33.4 shall be applied.
Article 3.35. Record Keeping Requirement
1. For the purposes of the verification process pursuant to Article 3.33 and 3.34, each Party shall require that:
(a) The manufacturer, producer or exporter retain, for a period not less than 5 (five) years from the date of issuance of the Proof of Origin, or a longer period in accordance with its domestic laws and regulations, all supporting records necessary to prove that the good for which the Proof of Origin was issued was originating;
(b) The importers shall retain, for a period not less than 5 (five) years from the date of importation of the good, or a longer period in accordance with its domestic laws and regulations, all records to prove that the good for which preferential tariff treatment was claimed was originating; and
(c) The competent authority retains, for a period not less than 5 (five) years from the date of issuance of the Proof of Origin, or a longer period in accordance with its domestic laws and regulations, all supporting records of the application for the Proof of Origin.
2. The records referred to in paragraph l may be maintained in any medium that allows for prompt retrieval, including but not limited to, digital, electronic, optical, magnetic, or written form.
Article 3.36. Confidentiality
All information related to the application of this Chapter communicated between the Parties shall be treated as confidential. It shall not be disclosed by the Parties' authorities without express permission of the person or authority providing it.
Article 3.37. Contact Points
Each Party shall, within 30 days of the date of entry into force of this Agreement for that Party, designate one or more contact points within its competent authority for the implementation of this Chapter and notify the other Party of the contact details of that contact point or those contact points. Each Party shall promptly notify the other Party of any change to those contact details.
Article E. SECTION E: Consultation and Modification
Article 3.38. Consultation and Modifications
The Parties shall consult and cooperate as appropriate through the Joint Committee to:
(a) ensure that this Chapter is applied m an effective and uniform manner; and
(b) discuss necessary amendments to this Chapter, taking into account developments in technology, production processes, and other related matters.
Article 3.39. Notification
The competent authorities of both Parties shall provide each other the following within one month from the date of signing of the Agreement:
(a) a specimen impression of the official stamps and signatures used in their offices for the issue of Certificate of Origin;
(b) name and Address of the competent authorities responsible for verifying the Proof of Origin; and
(c) secured web address for the QR codes and electronic certificates authentications.
Chapter 4. CUSTOMS PROCEDURES & TRADE FACILITATION
Article 4.1. Definitions
For the purpose of this Chapter, the following definitions shall mean:
Customs Administration: the Federal Authority of Identity, Citizenship, Customs and Port Security for the UAE and the Customs & Border Control Department for Kenya;
customs laws: provisions implemented by legislations and regulations concerning the importation, exportation, transit of goods, or any other customs procedures whether relating to customs duties, taxes or any other charges collected by the Customs Administrations, or to measures for prohibition, restriction, or control enforced by the Customs Administrations;
customs procedure: the measures applied by the customs authority of a Party to goods and to the means of transport that are subject to its customs laws and regulations;
persons: both natural and legal persons, unless the context otherwise requires;
Customs Mutual Assistance Agreement (CMAA): the agreement that further enhances customs cooperation and exchange of information between the Parties to secure and facilitate lawful trade, to be negotiated between the Parties;
Authorized Economic Operator(s) (AEO): the program which recognizes an operator involved in the international movement of goods in whatever function that has been approved by the national Customs Administration as complying with the World Customs Organization (WCO) or equivalent supply chain security standards; and
Mutual Recognition Arrangement (MRA): the arrangement between the Parties that mutually recognize AEO authorizations that has been properly granted by one of the Customs Administrations.
Article 4.2. Scope
This Chapter shall apply, in accordance with the Parties' respective national laws, rules and regulations, to customs procedures required for clearance of goods traded between the Parties.
Article 4.3. General Provisions
1. The Parties agree that their customs law and procedures shall be transparent, non-discriminatory, consistent and avoid unnecessary procedural obstacles to trade.
2. Customs procedures of the Parties shall conform where possible, to the standards and recommended practices of the World Customs Organization.
3. The Customs Administration of each Party shall periodically review its customs procedures with a view to their further simplification and development to facilitate bilateral trade.
4. This chapter shall be in conformity with the provisions and obligations of the Parties to the WTO Trade Facilitation Agreement.
Article 4.4. Publication and Availability of Information
1. Each Party shall ensure that its laws, regulations, guidelines, procedures, and administrative rulings governing customs matters are promptly published, either on the Internet or in print form in the English language, to the extent possible.
2. Each Party shall designate, establish, and maintain one or more enquiry points to address enquiries or complaints from interested persons pertaining to customs matters, and shall endeavour to make available publicly through electronic means, information concerning procedures for making such enquiries. Such inquiries or complaints shall be dealt with in a timely manner in accordance with its laws and procedures.
3. The Parties in accordance with their domestic laws and procedures are encouraged not to require a payment of a fee for answering enquiries and providing required forms and documents. If any, the Parties shall limit the amount of their fees and charges to the approximate cost of services rendered.
4. Nothing in this Article or in any part of this Agreement shall require any Party to publish law enforcement procedures and internal operational guidelines, including those related to conducting risk analysis and targeting methodologies.
5. Each Party shall, to the extent practicable, and in a manner consistent with its domestic law and legal system, ensure that new or amended laws and regulations of general application related to the movement, release, and clearance of goods, including goods in transit, are published or information on them made otherwise publicly available, as early as possible before their entry into force, so that interested parties have the opportunity to become acquainted with the new or amended laws and regulations. Such information and publications shall be available in the English language, to the extent possible.
Article 4.5. Risk Management
The Parties shall adopt a risk management approach in its customs activities, based on its identified risk of goods, in order to facilitate the clearance of low risk consignments, while focusing its inspection activities on high-risk goods.
Article 4.6. Post-Clearance Audit
With a view to expediting the release of goods, each party shall adopt or maintain post-clearance audit to ensure compliance with its laws and procedures in applying its customs risk management system and in accordance with international best practices and obligations.
Article 4.7. Paperless Communications
1. For the purposes of facilitating bilateral exchange of international trade data and expediting procedures for the release of goods trade facilitation, the Parties shall endeavour to provide an electronic environment that supports business transactions between their respective Customs Administration and their trading entities.
2. Each Party shall endeavour to establish or maintain a single window system that enables the electronic submission through a single-entry point of the documentation and data that the Party requires for importation into its territory.
3. The Parties shall endeavour to review the operations of its single window system with a view to expanding its functionality to cover all its import, export, and transit transactions.
4. The Parties shall exchange views and information on reabsing and promoting paperless communications between their respective Customs Administration and their trading entities.
5. The respective Customs Administration of the Parties, in implementing initiatives which provide for the use of paperless communications, shall take into account the methodologies agreed at the WCO as well as those stated in the CMAA to be negotiated between the two Parties.
Article 4.8. Advance Rulings
1. In accordance with its commitments under the WTO Trade Facilitation Agreement (TF A), each Party shall provide for the issuance of an advance ruling, prior to the importation of a good into its territory, to an importer of the good in its territory or to an exporter or producer of the good in the territory of another Party.
2. For the purposes of paragraph 1, each Party shall issue rulings as to whether the good qualifies as an originating good or to assess the good's tariff classification. In addition, each Party may issue rulings that cover additional trade matters as specified in the TFA. Each Party shall issue its determination regarding the origin or classification of the good within a reasonable, time-bound manner from the date of receipt of a complete application for an advance ruling.
3. The Party shall apply an advance ruling issued by it under paragraph I on the date that the ruling is issued or on a later date specified in the ruling and remain in effect for a reasonable period of time and in accordance with the national procedures on advanced ruling unless the advance ruling is modified or revoked.
4. The advance ruling issued by the Party shall be binding in accordance with its laws and procedures.
5. A Party may decline to issue an advance ruling if the facts and circumstances forming the basis of the advance ruling are the subject of a post clearance audit or an administrative, judicial, or quasi-judicial review or appeal. A Party that declines to issue an advance ruling shall promptly notify, in writing, the person requesting the ruling, setting out the relevant facts and circumstances and the basis for its decision.
6. A Party may modify or revoke an advance ruling:
(a) if the ruling was based on an error of fact;
(b) if there is a change in the material facts or circumstances on which the ruling was based;
(c) to conform with a modification of this Chapter; or
(d) to conform with a judicial decision or a change in its domestic law.
7. Each Party shall provide written notice to the applicant explaining the Party's decision to revoke or modify the advance ruling issued to the applicant.
8. Each Party shall provide that any modification or revocation or invalidation of an advance ruhng shall be effective on the date on which either was issued, or on such later date as may be specified therein, and shall not be applied to importations of a good that have occurred prior to that date, unless the person to whom the advance ruling was issued has not acted in accordance with its terms and conditions.
9. Notwithstanding paragraph 4, the issuing Party shall postpone the effective date of the modification or revocation of an advance ruling for a reasonable period of time and in accordance with each Party's national procedures on advance rulings, where the person to whom the advance ruling was issued demonstrates that be has relied in good faith to his detriment on that ruling.
Article 4.9. Penalties
1. Each Party shall maintain measures imposing criminal, civil or administrative penalties, whether solely or in combination, for violations of the Party's customs laws, regulations or procedural requirements.
2. Each Party shall ensure that penalties issued for a breach of a customs law, regulations or procedural requirements are imposed only on the person(s) responsible for the breach under its laws.
3. Each Party shall ensure that the penalty imposed by its Customs Administration is dependent on the facts and circumstances of the case and is commensurate with the degree and severity of the breach.
4. If a person voluntarily discloses to a Party's customs administration the circumstances of a breach of a customs law, regulation or procedural requirement prior to the discovery of the breach by the customs administration, the Party's customs administration shall, if appropriate, consider this fact as a potential mitigating factor when a penalty is established for that person.
5. Each Party shall ensure that it maintains measures to avoid conflicts of interest in the assessment and collection of penalties and duties. No portion of the remuneration of a government official shall be calculated as a fixed portion or percentage of any penalties or duties assessed or collected.
6. Each Party shall ensure that if a penalty is imposed by its Customs Administration for a breach of a customs law, regulation or procedural requirement, an explanation in writing is provided to the person(s) upon whom the penalty is imposed specifying the nature of the breach and the law, regulation or procedure used for determining the penalty amount.
Article 4.10. Release of Goods
1. Each Party shall adopt or maintain simplified customs procedures for the efficient release of goods in order to facilitate trade.
2. Pursuant to paragraph 1, each Party shall adopt or maintain procedures that:
(a) provide for the immediate release of goods upon receipt of the customs declaration and fulfilment of all applicable requirements and procedures;
(b) provide for the electronic submission and processing of documentation and data, including manifests, prior to the arrival of the goods in order to expedite the release of goods from customs control upon arrival;
(c) allow goods to be released at the point of arrival without requiring temporary transfer to warehouses or other facilities; and
(d) require that the importer be informed if a Party does not promptly release goods, including, to the extent permitted by its law, the reasons why the goods are not released and which border agency, if not the customs administration, has withheld release of the goods.
3. Each Party may, in accordance with its laws and procedures, provide for the release of goods prior to a final determination and payment of any customs duties, taxes, fees, and charges imposed on or in connection with importation of the goods.
4. Nothing in this Article requires a Party to release a good if its requirements for release have not been met nor prevents a Party from liquidating a security deposit in accordance with its law.
5. Each Party may allow, to the extent practicable and in accordance with its customs laws, goods intended for import to be moved within its territory under customs control from the point of entry into the Party's territory to another customs office in its territory from where the goods are intended to be released, provided the applicable regulatory requirements are met.
Article 4.11. Authorized Economic Operators
In order to facilitate trade and enhance compliance and risk management between them, the Parties shall endeavour to conclude an AEO MRA between their Customs Administrations.