(a) ensure the facilitation, with effective control, of transhipment operations and transit movements through their respective territories;
(b) endeavour to promote and implement regional transit arrangements with a view to facilitating trade;
(c) ensure the cooperation and coordination between all concerned authorities and agencies in their respective territories to facilitate traffic in transit, in accordance with its laws and regulations; and
(d) allow goods intended for import to be moved within its territory under customs control from a customs office of entry to another customs office in its territory from where the goods would be released or cleared.
Article 5.15. Post-clearance Audit
1. With a view to expediting the release of goods, each Party shall:
(a) adopt or maintain post-clearance audit to ensure compliance with its customs laws and procedures;
(b) conduct post-clearance audits in a risk-based manner, which may include appropriate selectivity criteria;
(c) conduct post-clearance audits in a transparent manner. Where an audit is conducted and conclusive results have been achieved the Party shall, without delay, notify the person whose record is audited of the results, the reasons for the results and the audited person's rights and obligations; and
(d) wherever practicable, use the result of post-clearance audit in applying risk management.
2. The Parties acknowledge that the information obtained in a post-clearance audit may be used in further administrative or judicial proceedings.
Article 5.16. Customs Brokers
1. The Parties agree not to require the mandatory use of customs brokers.
2. Each Party shall:
(a) publish measures on the use of customs brokers; and
(b) apply transparent and objective rules if and when licensing customs brokers.
Article 5.17. Confidentiality
1. Each Party shall maintain, in conformity with its law, the confidentiality of all information collected as part of its customs processes and shall protect that information from use or disclosure that could prejudice the competitive position of the trader to whom the confidential information relates.
2. Each Party shall ensure that the information collected as part of its customs processes shall be used or disclosed solely for the administration and enforcement of customs matters, including in any proceedings before courts or tribunals for failure to comply with customs laws, or as otherwise authorised or required under the Party’s law.
3. The Parties shall communicate to each other information on their applicable laws and regulations.
Article 5.18. Customs and Trade Facilitation Working Group
1. The Parties hereby establish a Working Group on Customs and Trade Facilitation (“CTF Working Group”) composed of government representatives of each Party responsible for customs and trade facilitation matters to consider any matters arising under this Chapter.
2. The functions of the CTF Working Group shall include:
(a) cooperating in the administration and uniform interpretation of this Chapter;
(b) monitoring the effective operation and implementation of this Chapter, including the transparent and consistent application of customs procedures of the Parties and the procedures listed at subparagraph 1(a) of Article 5.5 (Release of Goods) and subparagraph 2(a) of Article 5.6 (Perishable Goods);
(c) cooperating in an endeavour to further simplify and implement the customs procedures set out in Article 5.4 (Simplified Customs Procedures);
(d) exchanging information on matters related to this Chapter;
(e) communicating the necessary contact details of the CTF Working Group members for the purposes of this Chapter;
(f) considering any matters referred to it by the Joint Committee or Subcommittee on Trade in Goods; and
(g) any other matter as the CTF Working Group mutually agrees.
3. The CTF Working Group shall meet within six months of the date of entry into force of this Agreement and thereafter annually.
4. The CTF Working Group shall share its progress with the Joint Committee.
Chapter 6. SANITARY AND PHYTOSANITARY MEASURES
Article 6.1. Definition
1. For the purposes of this Chapter:
“competent authorities” means those authorities within each Party recognised by the national government as responsible for developing, implementing and administering the sanitary and phytosanitary measures within that Party;
“emergency measure” means a sanitary or phytosanitary measure that is applied by the importing Party to the exporting Party to address an urgent problem of human, animal or plant life or health protection that arises or threatens to arise in the Party applying the measure;
“relevant international organisations” means organisations referred to in paragraph 3 of Annex A to the SPS Agreement; and
“SPS Subcommittee” means the Subcommittee on Sanitary and Phytosanitary Measures established under paragraph 1 of Article 6.16 (SPS Subcommittee).
2. For the purposes of this Chapter, the following definitions shall apply:
(a) the definitions in Annex A to the SPS Agreement;
(b) the definitions adopted under the auspices of the Codex Alimentarius Commission (the “Codex”);
(c) the definitions adopted under the auspices of the World Organisation for Animal Health (the “WOAH”); and
(d) the definitions adopted under the auspices of the International Plant Protection Convention (the “IPPC”).
3. Further to paragraph 2, in the event of an inconsistency between the definitions set out in the SPS Agreement and the definitions adopted under the auspices of the Codex, the WOAH and the IPPC, the definitions set out in the SPS Agreement shall prevail.
Article 6.2. Objectives
1. The objectives of this Chapter are to:
1. (a) protect human, animal and plant life and health in the territory of the Parties while facilitating trade between them;
2. (b) ensure that the Parties’ sanitary and phytosanitary measures do not create unjustified barriers to trade;
3. (c) reinforce and support the implementation of the SPS Agreement, and promote the implementation of the relevant international standards, guidelines, and recommendations;
4. (d) ensure greater transparency and understanding on the application of each Party’s sanitary and phytosanitary measures;
5. (e) strengthen communication and cooperation on relevant sanitary and phytosanitary issues;
6. (f) promote resolution of sanitary and phytosanitary issues that may affect trade between the Parties;
7. (g) enhance cooperation in the relevant international organisations to develop international standards, guidelines, and recommendations on animal health, food safety and plant health; and
8. (h) enhance cooperation between the Parties in areas of mutual interest in the field of animal welfare and antimicrobial resistance.
Article 6.3. Scope
1. This Chapter shall apply to all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.
2. This Chapter also includes separate provisions regarding animal welfare and antimicrobial resistance.
Article 6.4. Rights and Obligations
1. The Parties affirm their rights and obligations under the SPS Agreement.
2. Nothing in this Agreement shall affect the rights and obligations of each Party under the SPS Agreement.
Article 6.5. Adaptation to Regional Conditions, Including Pest- or Disease-Free Areas and Areas of Low Pest or Disease Prevalence
1. The Parties acknowledge that adaptation of sanitary and phytosanitary measures to recognise regional conditions, including through the application of concepts such as pest-free or disease-free areas, areas of low pest or low disease prevalence, zoning, compartmentalisation, pest-free places of production, and pest-free production sites, is an important means of facilitating trade. Each Party shall ensure that its sanitary and phytosanitary measures are adapted to regional conditions in accordance with the SPS Agreement.
2. Each Party shall take into account relevant international standards, guidelines and recommendations, and relevant guidance of the WTO SPS Committee, when making determinations related to regional conditions.
3. The Parties shall cooperate on the recognition of regional conditions with the objective of acquiring confidence in the procedures followed by each Party for the recognition of regional conditions. In doing so, the Parties shall promote information sharing in this area and on related matters.
4. On request of the exporting Party, the importing Party shall, without undue delay, explain its process and plan for making the determination of regional conditions.
5. When making an assessment of the regional conditions established by the exporting Party, the importing Party shall base its own determination of the animal and plant health status of the exporting Party or parts thereof, on the information provided by the exporting Party in accordance with the SPS Agreement and relevant international standards, guidelines, and recommendations.
6. With regard to animals and animal products, when establishing or maintaining sanitary measures upon request of the exporting Party, the importing Party shall take into consideration the disease-free areas, areas of low disease prevalence, zones and compartments established by the exporting Party in making a determination to allow or maintain the import. The importing Party shall also consider any relevant official disease status recognised by the WOAH when making its determination. If requested by the importing Party, the exporting Party shall provide an explanation and supporting data for the basis of these regional conditions, based on the WOAH standards, or in other ways as deemed appropriate by the Parties, based on the knowledge acquired through experience of the exporting Party’s relevant authorities.
7. With regard to plants, plant products and other related objects, when establishing or maintaining phytosanitary import conditions upon request of the exporting Party, the importing Party shall take into consideration regional conditions in the exporting Party, including pest-free areas, pest-free places of production, pest-free production sites, and areas of low pest prevalence established by the exporting Party in making a determination to allow or maintain the import, and where this information is provided to the importing Party. If requested by the importing Party, the exporting Party shall provide an explanation and supporting data for the basis of these regional conditions, based on the relevant IPPC standards or in other ways as agreed by the Parties, based on the knowledge acquired through experience of the exporting Party’s relevant authorities.
8. If the importing Party determines that the information provided by the exporting Party in its request is sufficient, it shall initiate an assessment and make a decision as to whether it can accept the exporting Party’s determination of regional conditions, within a reasonable period of time.
9. On request of the exporting Party, the importing Party shall inform the exporting Party of the status of the assessment.
10. If the importing Party has accepted the exporting Party’s determination of regional conditions, the exporting Party shall notify the importing Party of any modification to those regional conditions. Following any such notification, the importing Party shall continue to accept the exporting Party’s determination of regional conditions and allow trade to continue, provided that the importing Party is satisfied that its appropriate level of protection will be maintained.
11. If the importing Party adopts a measure that recognises specific regional conditions of the exporting Party, the importing Party shall implement the measure as soon as possible, and inform the exporting Party of the outcome and when trade can commence without undue delay.
12. If the importing Party decides not to recognise the regional conditions of the exporting Party, it shall provide the exporting Party with the rationale for its determination and, to the extent practicable, indicate the required conditions for which the process referred to in paragraphs 4 through 10 may be reinitiated. Upon request, the importing Party shall hold consultations with the exporting Party, within a reasonable period of time.
13. If there are circumstances that result in the importing Party modifying or revoking a decision recognising the regional conditions of the exporting Party, the Parties shall cooperate to assess whether the determination can be reinstated.
Article 6.6.. Equivalence
1. The Parties acknowledge that recognition of equivalence of sanitary and phytosanitary measures is an important means of facilitating trade. In determining equivalence of an individual measure, group of measures, or measures on a systems-wide basis, each Party shall consider the relevant guidance of the WTO SPS Committee and relevant international standards, guidelines, and recommendations.
2. The importing Party shall recognise the equivalence of sanitary or phytosanitary measures, even if the measures differ from its own, if the exporting Party objectively demonstrates to the importing Party that the exporting Party’s measures achieve the importing Party’s appropriate level of protection.
3. In determining equivalence, the importing Party shall take into account available relevant knowledge, information, and experience as well as the regulatory competence of the exporting Party.
4. A Party shall, upon request from the other Party, enter into bilateral consultations with the aim of achieving recognition of equivalence of an individual measure, group of measures, or measures on a systems-wide basis. For this purpose, reasonable access shall be given, upon request, to the importing Party for inspection, testing and other relevant procedures.
5. As a part of such consultations on request by the exporting Party, the importing Party shall explain and provide within a reasonable period of time:
(a) the rationale and objective of its measures; and
(b) the specific risks its measures are intended to address.
6. The exporting Party shall provide necessary information in order for the importing Party to commence an equivalence assessment. Once the importing Party determines that the information provided by the exporting Party is sufficient, it shall commence the assessment within a reasonable period of time. The importing Party shall, upon request, explain the process and plan for making an equivalence determination, without undue delay.
7. The consideration by a Party of a request from the other Party for recognition of equivalence of its measures for a specific product, or group of products, shall not be in and of itself a reason to disrupt or suspend ongoing imports from the Party of the product or products in question, provided that the importing Party’s appropriate level of protection continues to be met.
8. When the importing Party has concluded its assessment, it shall notify the equivalence determination to the exporting Party, within a reasonable period of time and in writing. If an equivalence determination results in recognition by the importing Party, the importing Party shall implement a measure recognising equivalence within a reasonable period of time. If an equivalence determination does not result in recognition by the importing Party, the importing Party shall provide the exporting Party with the rationale for its decision.
9. If a Party proposes to modify, amend, repeal, or remove a sanitary or phytosanitary measure which is the subject of an equivalence arrangement between the Parties, it shall notify the other Party and indicate its likely effect on recognition of equivalence. Following such notification, the importing Party shall continue to apply its determination of equivalence unless its appropriate level of protection is not met. The Parties may use the SPS Subcommittee as a forum for further engagement on processes for possible withdrawal and reinstatement of recognition of equivalence measures.
10. Compliance of a product with sanitary or phytosanitary measures that have been accepted as equivalent to sanitary or phytosanitary measures of the other Party, shall not remove the need for that product to comply with any other relevant mandatory requirements.
11. The final determination of equivalence, and any subsequent withdrawal or suspension of equivalence, rests with the importing Party, acting in accordance with its administrative and legislative framework, taking into account international standards, guidelines, and recommendations.
Article 6.7. Import Conditions
1. Without prejudice to the rights and obligations of each Party under the SPS Agreement and this Chapter, the import conditions of the importing Party shall apply to the entire territory of the exporting Party in a consistent manner.
2. (With regard to import conditions for animals, animal products, plants, plant products, and other related objects, each Party, in accordance with Article 3 of the SPS Agreement, shall set out its import conditions for animals, animal products, plants, plant products and other related objects, based upon the principles set out in the relevant standards, guidelines, and recommendations developed under the relevant international organisations. The Parties shall also take into account the decisions and recommendations of the WTO SPS Committee, when setting out those import conditions.
3. The importing Party shall make publicly available its general sanitary and phytosanitary import conditions related to goods.
4. The importing Party shall endeavour, within 30 days of receipt of a reasonable request from the exporting Party, to make available to the exporting Party all sanitary or phytosanitary import conditions relating to the import of specific goods.
5. Paragraph 4 shall not apply if the information requested by the exporting Party is publicly available.
6. For the purposes of establishing the specific sanitary or phytosanitary import conditions, the exporting Party shall, on request of the importing Party:
(a) provide all relevant available information required by the importing Party; and
(b) give reasonable access to the importing Party to conduct audits of the relevant procedures undertaken by the exporting Party, in accordance with Article 6.8 (Audit).
7. Each Party shall ensure that all sanitary and phytosanitary control, inspection, assessment and approval procedures, including if needed audits, are undertaken and completed without undue delay to authorise a good for import. Each Party shall avoid unnecessary or unduly burdensome information requests and take into account information already available to the importing Party, such as information related to the legislative framework and audit reports of the exporting Party.
8. Subject to its laws and regulations, if a risk assessment is required in the process of determining import conditions, a Party shall, upon request, provide the other Party with the outcomes of that risk assessment, within a reasonable period of time of the risk assessment being finalised.
9. Without prejudice to Article 6.8 (Audit), Article 6.10 (Import Checks), and Article 6.11 (Emergency Measures), and in accordance with its laws and regulations or as otherwise agreed between the Parties, upon request of the exporting Party, the importing Party shall approve an establishment or facility situated in the territory of the exporting Party without prior inspection if the importing Party has:
(a) received all relevant information, including, if necessary, appropriate assurances from the competent authorities of the exporting Party; and
(b) determined that the establishment or facility meets its relevant sanitary and phytosanitary requirements.
The competent authority of the importing Party may suspend or withdraw the approval of the establishment or facility if it no longer meets its relevant sanitary and phytosanitary requirements.
10. On approval of an establishment or facility of the exporting Party under paragraph 9, the importing Party shall take necessary measures to allow imports from such establishments or facilities without undue delay.
11. If an approval is suspended or withdrawn by the competent authorities of the importing Party, both the Parties shall consult with an aim to once again reinstate the approval of the relevant establishment or facility of the exporting Party.
12. Without prejudice to Article 6.11 (Emergency Measures), the importing Party shall not refuse or prevent the importation of a good of the exporting Party solely for the reason that it is undertaking a review of its sanitary or phytosanitary measure, if the importing Party permitted the importation of that good of the exporting Party when the review was initiated.
Article 6.8. Audit
1. For the purposes of attaining and maintaining confidence in the exporting Party’s regulatory control programme, and to comply with the sanitary and phytosanitary import conditions and related control measures of the importing Party, the importing Party shall have the right to carry out an audit of all or part of the regulatory control programme of the exporting Party’s competent authority. (1)
2. Each Party shall assist the other to carry out audit procedures.
3. Prior to the commencement of an audit, the competent authorities of the Parties shall discuss the rationale for the audit and shall endeavour to agree on the objectives and scope of the audit, the criteria or requirements against which the exporting Party will be assessed, and any other relevant matters.
4. The Parties shall carry out those audits in accordance with the provisions of the SPS Agreement, taking into account the relevant guidance of the WTO SPS Committee and the relevant international standards, guidelines, and recommendations.
5. Each Party shall endeavour to limit the frequency and number of audit visits. Only in justified circumstances shall the importing Party carry out a subsequent audit related to the same product, and in those circumstances, the importing Party shall provide the exporting Party with an explanation as to the reason for the audit.
6. The importing Party may appoint a governmental body, in accordance with the relevant international standards, guidelines, and recommendations, to carry out all or part of an audit on its behalf.
7. The importing Party shall provide the exporting Party with the opportunity to comment in writing on the findings of an audit. The importing Party shall take these comments into account before reaching its conclusions and taking any action thereon. The importing Party shall, within a reasonable period of time, provide the exporting Party with a written report setting out its conclusions.
8. Measures taken by the importing Party as a consequence of its audit shall be proportionate to the risk identified and supported by objective evidence, taking into account the importing Party’s knowledge of, relevant experience with, and confidence in the exporting Party, and shall not be more trade restrictive than necessary to achieve the importing Party’s appropriate level of protection. Nothing in this paragraph prevents a Party from taking an emergency measure consistent with Article 6.11 (Emergency Measures).
9. The costs for an audit shall be borne by the importing Party unless the Parties agree otherwise.
10. The Parties shall:
(a) each ensure, in accordance with its respective laws and regulations, that procedures are in place to prevent the disclosure of confidential information that is acquired during the audit process; and
(b) jointly determine how and to whom a report is made available.
Article 6.9. Certification
1. Where the importing Party requires official certificates, they shall be set in line with the principles as laid down in the relevant international standards, guidelines, and recommendations.
2. The Parties may agree to specify or implement further guidance, procedures, and requirements in relation to export certification.
3. The Parties shall encourage the implementation of electronic certification and other technologies to facilitate trade, as appropriate.
4. If a Party requires import certification, it shall ensure the sanitary or phytosanitary requirement for certification is applied only to the extent necessary to meet its appropriate level of protection.
5. Without prejudice to each Party’s right to check and ensure the fulfilment of its import conditions, the importing Party shall accept certificates issued by the exporting Party in compliance with the regulatory requirements of the importing Party.
Article 6.10. Import Checks
1. The importing Party shall have the right to carry out import checks based on the sanitary and phytosanitary risks associated with imports. These checks shall be carried out without undue delay and with minimising trade disrupting effects. Each Party shall ensure that its control, inspection and approval procedures are in accordance with Annex C to the SPS Agreement.
2. If import checks reveal non-compliance with the relevant import conditions, the action taken by the importing Party shall be based on an assessment of the risk involved, and not be more trade-restrictive than required to achieve the Party’s appropriate level of protection. The import checks shall be based on the following:
(a) in carrying out physical sanitary and phytosanitary import checks, where sampling takes place, the importing Party shall ensure that plants and plant products, animal products and other goods and their packaging are sampled in a representative manner; and
(b) unless there is an identified risk, the importing Party shall, in accordance with its domestic administrative and legislative framework, provide the opportunity for the exporter or its authorised representative to take back the consignment, where reasonably practicable.
3. The importing Party shall notify the importer or its representative, of a non-compliant consignment and of the reason for non-compliance and shall endeavour, subject to its domestic laws and regulations, to provide them with an opportunity for a review of the decision. If a review is undertaken, the importing Party shall consider any relevant information submitted to assist it in the review, and it shall carry out the review within a reasonable period of time.
4. The Parties reaffirm Article V of GATT 1994 and agree that there shall be freedom of transit for goods in transit.
Article 6.11. Emergency Measures
1. If a Party adopts an emergency measure necessary for the protection of human, animal or plant life or health, that Party shall notify the other Party of the measure through its contact point as soon as possible.
2. On request of the other Party, a Party adopting an emergency measure shall engage in technical consultations under Article 6.14 (Technical Consultations). The Parties shall endeavour to hold technical consultations within 14 days of the receipt of the request, and in any case, the Parties shall hold the consultations as soon as possible following receipt of the request. The Party that adopts the emergency measure shall take into consideration any information provided by the other Party in response to the notification and during technical consultations. These technical consultations shall be carried out in order to avoid unnecessary disruptions to trade and the Parties may consider options for the facilitation of the implementation of the measures.
3. If a consignment is being transported between the Parties at the time of the adoption of the emergency measure, the importing Party shall, when it makes its decision for that consignment, consider any information that has been promptly provided by the exporting Party. The importing Party shall consider the most suitable and proportionate solution to avoid unnecessary disruptions to trade.
4. The importing Party shall ensure that any emergency measure taken on the grounds referred to in paragraph 1 is in accordance with the SPS Agreement.
5. If a Party adopts an emergency measure, it shall commence a science-based review of the measure within a reasonable period of time. The Party shall then review the need for the emergency measure as required, and if it remains in place provide, on request, the justification for maintaining the emergency measure. If the exporting Party considers, on the basis of scientific evidence, that an emergency measure is being maintained by the importing Party without justification, it may provide that evidence to the other Party and request the other Party to review the measure or engage in technical consultations under Article 6.14 (Technical Consultations).
Article 6.12. Animal Welfare
1. The Parties recognise the connection between the improved health of farmed animals and the welfare of farmed animals.
2. The Parties recognise that the protection and improvement of animal welfare may, in accordance with their WTO commitments, be an interest in the context of a Party’s trade objectives.
3. The Parties affirm the right of each Party to set its policies and priorities for the protection of animal welfare. Each Party shall take into account its relevant international commitments on animal welfare, when the Party adopts or modifies its law and policies.
4. The Parties shall exchange information, expertise, and experiences in the field of animal welfare with a view to improving mutual understanding of their respective laws and regulations.
5. The Parties shall cooperate in the field of animal welfare and on the WOAH animal welfare standards.
Article 6.13. Antimicrobial Resistance
1. The Parties recognise that antimicrobial resistance is a problem and a global threat to human and animal health.
2. The Parties acknowledge that the nature of the threat requires a One Health approach, in line with the Global Action Plan on Antimicrobial Resistance, which the Parties support.
3. Each Party acknowledges that the threat of antimicrobial resistance requires developing and implementing a National Action Plan in line with the Global Action Plan on Antimicrobial Resistance.