(b) ensure that the security shall be discharged as soon as possible after its customs authority is satisfied that the obligations arising from the importation of the goods have been fulfilled; and
(c) allow importers to provide security using a form other than cash, including, in appropriate cases where an importer frequently enters goods, instruments covering multiple entries.
Article 5.9. Risk Management
1. Each Party shall adopt or maintain a risk management system for customs control that enables its customs authority to focus its inspection activities on high-risk consignments and expedite the release of low-risk consignments.
2. Each Party shall design and apply risk management in a manner as to avoid arbitrary or unjustifiable discrimination, or disguised restrictions to international trade.
3. Each Party shall base risk management on assessment of risk through appropriate selectivity criteria.
4. Each Party may also select, on a random basis, consignments for inspection activities referred to in paragraph 1 as part of its risk management.
5. In order to facilitate trade, each Party shall periodically review and update, as appropriate, the risk management system specified in paragraph 1.
Article 5.10. Advance Rulings
1. Each Party shall issue, prior to the importation of a good of the other Party into its territory,a writtenadvance ruling at the written requestof an importer in its territory, or an exporter or producer in the territory of the other Party (5), each an "applicant", with regard to:
(a) tariff classification;
(b) whether a good is originating in accordance with Chapter 4 (Rules of Origin and Origin Procedures); and
(c) other matters as the Party may decide.
2. Each Party shall issue an advance ruling as expeditiously as possible and in no case later than 90 days after it receives a request, provided that the applicant has submitted all the information that the receiving Party requires to make the advance ruling. This includes a sample of the good for which the applicant is seeking an advance ruling if requested by the receiving Party. In issuing an advance ruling, the Party shalltake into account the facts and circumstances that the applicant has provided. For greater certainty, 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 administrative or judicial review or where the application is not based on factual information, or does not relate to an intention to import or export. A Party that declines to issue an advance ruling shall promptly notify the applicant in writing, setting out the relevant facts and circumstances and the basis for its decision to decline to issue the advance ruling.
3. Each Party shall provide that its advance rulings shall take effect on the date that they are issued or on another date specified in the ruling, and remain in effect for at least three years, provided that the law, facts and circumstances on which the ruling is based remain unchanged.
4. After issuing an advance ruling, the Party may modify or revoke the advance ruling if there is a change in the law, facts or circumstances on which the ruling was based, if the ruling was based on inaccurate or false information, if the ruling was in error, if conflicting advance rulings have been issued for goods of the same class or kind, if the advance ruling has been reviewed internally, or if the importing customs authority changes its interpretation of the law.
5. Where a Party revokes or modifies an advance ruling, it shall provide written notice to the applicant setting out the relevant facts and the basis for its decision.
6. Neither Party shall apply a revocation or modification retroactively to the detriment of the applicant unless the ruling was based on incomplete, incorrect, inaccurate, false, or misleading information provided by the applicant.
7. Subject to any confidentiality requirements in its laws and regulations, a Party may publish its advance rulings including online.
8. Each Party shall publish online, at least:
(a) the requirements for the application for an advance ruling, including the information to be provided and the format;
(b) the time period by which it will issue an advance ruling; and
(c) the length of time for which the advance ruling is valid.
9. An advance ruling issued by a Party shall be binding on that Party in respect of the applicant that sought it and on the applicant.
10. Each Party shall provide, upon written request of an applicant, a review of the advance ruling or of the decision to revoke or modify it.
Article 5.11. Customs Valuation
For the purpose of determining the customs value of goods traded between the Parties, the provisions of Part I of the Customs Valuation Agreement shall apply, mutatis mutandis.
Article 5.12. Review and Appeal
1. Each Party shall ensure that any person to whom it issues a decision on a customs matter has access to:
(a) an administrative appeal to or review by an administrative authority higher than or independent of the official or office that issued the decision; and
(b) a judicial appeal or review of the decision.
2. Each Party shall ensure that, in a case where the decision on appeal or review under subparagraph 1 (a) is not given within the period of time provided for in its laws and regulations or without undue delay, the person has the right to further administrative or judicial appeal or review or any other recourse to the judicial authority in accordance with that Party's laws and regulations.
3. Each Party shall provide a person to whom it issues an administrative decision on the basis of a review or appeal referred to in paragraph 1 with the reasons for the administrative decision, so as to enable such a person to have recourse to appeal procedures where necessary.
Article 5.13. Penalties
1. Each Party shall adopt or maintain measures that allow for the imposition of a penalty by a Party's customs authority for a breach of its customs laws.
2. Each Party shall ensure that any penalties imposed for breaches of customs laws are proportionate and non-discriminatory. Any penalty imposed shall depend on the facts and circumstances of the case and shall be commensurate with the degree and severity of the breach.
3. Each Party shall ensure that a penalty imposed by its customs authority for a breach of its customs laws is imposed only on the person legally responsible for the breach.
4. Each Party is encouraged to require its customs authority, when imposing a penalty for a breach of its customs laws, to consider as a potential mitigating factor the voluntary disclosure of the breach prior to its discovery by the customs authority.
5. Each Party shall ensure that if a penalty is imposed for a breach of customs laws, an explanation in writing is provided to the person upon whom the penalty is imposed, specifying the nature of the breach and the applicable laws under which the amount or range of penalty for the breach has been prescribed.
6. Each Party shall provide in its laws, regulations or procedures, or otherwise give effect to, a fixed and finite period within which its customs authority may initiate proceedings to impose a penalty relating to a breach of its customs laws.
Article 5.14. Customs Cooperation
1. The Parties shall, within the competence and available resources of their respective customs authorities, enhance cooperation, including the exchange of information on the matters referred to in this Chapter, with a view to further developing trade facilitation, while ensuring compliance with their respective customs laws, regulations, and procedural requirements, and improving supply chain security, in the following areas:
(a) cooperation on harmonisation of data requirements for customs purposes, in line with applicable international standards such as the WCO standards;
(b) cooperation on further development of the customs-related aspects of securing and facilitating the international trade supply chain in accordance with the SAFE Framework of Standards to Secure and Facilitate Global Trade, adopted by the WCO Council in June 2005;
(c) cooperation on improvement of their risk management techniques, including sharing best practices and, if appropriate, risk information and control results; and
(d) cooperation in international organisations on matters of common interest, including tariff classification, customs valuation and origin.
Article 5.15. Single Window
Each Party shall endeavour to develop or maintain single window systems to facilitate a single, electronic submission of all information required by customs and other legislation for the exportation, importation and transit of goods.
Article 5.16. Transit and Transhipment
Each Party shall:
(a) ensure the facilitation and effective control of transhipment operations and transit movements through their tespective territories;
(b) ensure that its authorities and agencies responsible for border controls and procedures dealing with the transit and transhipment of goods cooperate and coordinate their activities in order to facilitate trade; and
(c) allow goods intended for import to be moved under customs control within its territory from a customs office of entry to another customs office in its territory from where the goods would be released or cleared.
Article 5.17. Post-clearance Audit
1. With a view to expediting the release of goods, each Party shall:
(a) adopt or maintain post-clearance audit processes to ensure compliance with customs and other related laws and regulations;
(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.
Article 5.18. Customs Brokers
The Parties shall:
(a) not require the mandatory use of customs brokers;
(b) publish measures on the use of customs brokers; and
(c) apply transparent and objective rules if and when licensing customs brokers.
Article 5.19. Temporary Admission of Goods
1. Each Party shall allow, as provided for in its laws and regulations, goods to be brought into its territory, conditionally relieved, totally or partially, from payment of import duties and taxes, if such goods are brought into its customs territory for a specific purpose, have not undergone any change except normal depreciation and wastage due to the use made of them, and are intended for re-exportation within a specific period.
2. Each Party shall continue to facilitate procedures for the temporary admission of goods traded between the Parties in accordance with its laws and regulations, and international obligations, with regard to:
(a) goods intended for display or demonstration at exhibitions, fairs, meetings, demonstrations or similar events, and goods intended for use in connection with the display of foreign products at those events;
(b) professional equipment;
(c) commercial samples, advertising, films and recordings;
(d) containers, packing materials and pallets that are in use or to be used in the shipment of goods in international traffic;
(e) goods imported for sports purposes; and
(f) any other goods as the Party may decide.
Article 5.20. Perishable Goods
1. For the purposes of this Article, perishable goods are goods that rapidly decay due to their natural characteristics, in particular in the absence of appropriate storage conditions.
2. With a view to preventing avoidable loss or deterioration of perishable goods, and provided that all regulatory requirements have been met, each Party shall:
(a) provide in normal circumstances, for perishable goods to be released within 6 hours of arrival (6) provided:
(i) all information and documentation necessary to release the goods have been submitted on or prior to arrival;
(ii) the goods are not subject to physical examination or inspection;
(iii) the goods are otherwise admissible under the importing Party's laws and regulations; and
(b) in exceptional circumstances where it would be appropriate to do so, provide for the release of perishable goods outside the business hours of customs and other relevant authorities.
3. Each Party shall give appropriate priority to perishable goods when scheduling any physical examinations or inspections that may be required.
4. Each Party shall either arrange or allow an importer to arrange for the proper storage of perishable goods pending their release. Each Party may require that any storage facilities arranged by the importer have been approved or designated by its relevant authorities. The movement of the goods to those storage facilities, including authorisations for the operator moving the goods, may be subject to the approval, where required, of the relevant authorities. Each Party shall, where practicable and consistent with domestic legislation, upon the request of the importer, provide for any procedures necessary for release to take place at those storage facilities.
Article 5.21. Confidentiality
1. Further to Article 31.6 (Confidentiality of Information - General Provisions and Exceptions), each Party shall maintain the confidentiality of the information collected pursuant to this Chapter or Chapter 4 (Rules of Origin and Origin Procedures) and shall protect that information from disclosure that could prejudice the competitive position of the person to whom the confidential information relates.
2. Confidential information collected pursuant to this Chapter or Chapter 4 (Rules of Origin and Origin Procedures) shall only be used or disclosed for the purpose of administration and enforcement of customs matters, including determination of origin, or as otherwise provided under the Party's laws and regulations, except with the permission of the Party who provided the confidential information. Where permission has been granted by a Party, that use shall then be subject to any restrictions laid down by that Party.
3. If the Party receiving or obtaining the information is authorised or required by its laws and regulations to disclose the information, that Party shall, where possible, notify the Party who provided that information, wherever possible in advance of that disclosure.
4. Paragraph 2 shall not preclude the use of information collected as part of its customs processes as evidence in proceedings or charges subsequently instituted before the courts or tribunals for failure to comply with customs law. Where the information is received from the other Party, the Party shall, where possible, notify the Party who provided the information in advance of such use.
Article 5.22. Working Group on Rules of Origin and Customs and Trade Facilitation
The Working Group on Rules of Origin and Customs and Trade Facilitation established pursuant to Article 4.29 (Working Group on Rules of Origin and Customs and Trade Facilitation - Rules of Origin) shall consider any matters arising under this Chapter.
Chapter 6. SANITARY AND PHYTOSANITARY MEASURES
Article 6.1. Definitions
1. For the purposes of this Chapter:
"relevant international organisations" means organisations referred to in Annex A, paragraph 3 of the SPS Agreement;
"SPS measure" means a "sanitary or phytosanitary measure" as defined in Article 1.4 (General Definitions - Initial Provisions and General Definitions); and
"the SPS Committee" means the Committee on Sanitary and Phytosanitary Measures.
2. The definitions set out in Annex A to the SPS Agreement shall apply.
3. The Parties shall take into consideration the glossaries and definitions of the relevant international organisations, such as the Codex Alimentarius Commission ("Codex"), the World Organisation for Animal Health ("OIE") and the International Plant Protection Convention ("IPPC"). In the event of an inconsistency between these glossaries and definitions and the definitions set out in the SPS Agreement, the definitions set out in the SPS Agreement shall prevail.
Article 6.2. Objectives
The objectives of this Chapter are to:
(a) protect human, animal and plant life and health in the territory of the Parties while facilitating trade between them;
(b) ensure that the Partiesâ SPS measures do not create unjustified barriers to trade;
(c) reinforce and build upon the implementation of the SPS Agreement;
(d) promote greater transparency and understanding on the application of each Party's SPS measures;
(e) strengthen communication and cooperation on relevant SPS issues; and
(f) promote resolution of SPS issues that may affect trade between the Parties.
Article 6.3. Scope
This Chapter applies to all SPS measures of a Party that may, directly or indirectly, affect trade between the Parties.
Article 6.4. Affirmation of the SPS Agreement
1. The Parties affirm their rights and obligations with respect to each other under the SPS Agreement.
2. Nothing in this Chapter shall affect the rights and obligations of each Party under the SPS Agreement.
Article 6.5. Science and Risk Assessment
1. The Parties recognise the importance of ensuring that their respective SPS measures are based on scientific principles.
2. The Parties shall ensure that their SPS measures are based on risk assessment in accordance with Article 5 and other relevant provisions of the SPS Agreement, and taking into account risk assessment techniques developed by the relevant international organisations.
Article 6.6. Adaption to Regional Conditions
1. The Parties acknowledge that adaptation of SPS measures to recognise regional conditions, including through application of concepts such as pest or disease free areas, areas of low pest or disease prevalence, zoning, compartmentalisation, pest free places of production, and pest free production sites, is an important means of facilitating trade.
2. Each Party shall apply the concepts set out in paragraph 1 in accordance with the SPS Agreement and take into account relevant international standards, guidelines and recommendations, and relevant guidance of the WTO SPS Committee.
3. The Parties shall endeavour to 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.
4. When undertaking a risk assessment that will establish or maintain an SPS measure applicable to the exporting Party, the importing Party shall take into consideration a regionalisation determination of the exporting Party where this information is provided to them, including:
(a) for sanitary measures applicable to the exporting Party, considering where zones proposed by the exporting Party have the status of disease-free officially recognised by the OIE or when the status has been recovered after an outbreak;
(b) for phytosanitary measures applicable to the exporting Party, taking into account, inter alia, the pest status of an area, pest free areas, pest free places of production, pest free production sites, or areas of low pest prevalence that the exporting Party has established.
5. When making an assessment, 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 international standards, guidelines and recommendations, and any other information it considers appropriate.
6. Where the importing Party determines that the information provided by the exporting Party with its request is sufficient it shall initiate an assessment and make a decision within a reasonable period of time as to whether it can accept the exporting Partyâs determination of regional conditions.
7. Where 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 may continue to accept the exporting country'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. The importing Party may apply any other measure or measures, in accordance with the SPS Agreement, to meet its appropriate level of protection.
8. If the importing Party adopts a measure that recognises specific regional conditions of an exporting Party, the importing Party shall implement the measure within a reasonable period of time and inform the exporting party when trade can commence without undue delay.
9. If the evaluation of the evidence provided by the exporting Party does not result in a decision to recognise the regional conditions of the exporting Party, the importing Party shall provide the exporting Party with the rationale for its determination within a reasonable period of time.
10. If there is an incident that results 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 6.7. Equivalence
1. The Parties acknowledge that recognition of the equivalence of SPS 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 international standards, guidelines and recommendations.
2. The importing Party shall recognise the equivalence of SPS 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. The final determination of equivalence rests with the importing Party.
3. In order to strengthen cooperation on equivalence the Parties may, pursuant to paragraph 3(a) of Article 6.16 (Committee on SPS Measures), consider establishing a procedure for recognition of equivalence based on relevant international standards, guidelines and recommendations, and guidance of the WTO SPS Committee. Such a procedure may include, inter alia, the consultation process, information requirements, appropriate timeframes, and the respective responsibilities of the importing and exporting parties. The Parties shall determine the most appropriate form of any such procedure.
Article 6.8. Trade Conditions
1. The importing Party shall make publicly available its general SPS import requirements and, upon request, make available to the exporting Party all SPS import requirements relating to the import of specific goods unless such information is publicly available.
2. For the purpose of establishing specific SPS import conditions, the exporting Party shall, at the request of the importing Party, provide all relevant information required by the importing Party.
3. Each Party shall ensure that all SPS control, inspection, assessment, and approval procedures are undertaken and completed without undue delay including, if needed, audits, and the necessary legislative or administrative measures to complete the approval procedure. Each Party shall, in particular, avoid unnecessary or unduly burdensome information requests, and take into account information already available in the importing Party, such as on the legislative framework and audit reports of the exporting Party
4. Subject to its laws and regulations, when 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.
5. The importing Party shall approve an establishment or facility situated in the territory of the exporting Party without prior inspection where it has determined that the establishment or facility meets its relevant SPS requirements.
Article 6.9. Audit and Verification
1. For the purpose of attaining and maintaining confidence in an exporting Party's ability to provide required assurances and to comply with the SPS import requirements and related control measures of the importing Party, the importing Party shall have the right to carry out an audit or verification (1) of all or part of the control system of the competent authority of the exporting Party.
2. If possible, an audit or verification shall be systems-based and designed to check the effectiveness of the regulatory controls of the competent authorities of the exporting Party.
3. In undertaking an audit or verification a Party shall take into account relevant guidance of the WTO SPS Committee and relevant international standards, guidelines and recommendations.
4. The Parties shall endeavour to agree the conditions under which an audit or verification is to be carried out in advance. Prior to the commencement of an audit or verification, the importing Party shall notify the exporting Party of its intention, and state the basis for undertaking the audit or verification, which may include:
(a) the reason it is required;
(b) the objectives and scope of the assessment;
(c) the criteria or requirements against which the exporting Party will be assessed; and
(d) the procedures for conducting the assessment, including the method or methods of verification.
5. The Parties shall endeavour to limit the frequency and number of audit visits. In case of a subsequent audit related to the same good, the importing Party shall carry out an audit only in duly justified circumstances and provide the exporting Party with an explanation as to the reason for the audit.