Article 4.9. Penalties
Each Party shall adopt or maintain measures that allow for the imposition of penalties by a Party’s customs authority for violations of its domestic customs laws, regulations, and procedural requirements, including those governing tariff classification, customs valuation, country of origin, and claims for preferential tariff treatment under this Agreement.
Article 4.10. Advance Rulings
1. Each Party, through its customs authority, shall issue, before a good is imported into its territory, a written advance ruling at the written request of an importer in its territory, or an exporter or producer in the territory of the other Party (4) with regard to:
(a) tariff classification;
(b) the application of customs valuation criteria for a particular case, in accordance with the Customs Valuation Agreement;
(c) whether a good is originating; and
(d) other matters as the Parties may agree.
2. Each Party, through its customs authority, shall issue an advance ruling within 90 days after the Party receives a request provided that the applicant has submitted all information that the Party requires, including, if the Party requests, a sample of the good for which the applicant is seeking an advance ruling. In issuing an advance ruling, the Party shall take into account facts and circumstances 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. A Party that, pursuant to this paragraph, declines to issue an advance ruling shall promptly notify the applicant in writing, setting forth the relevant facts and the basis for its decision to decline to issue the advance ruling.
3. Each Party shall provide that advance rulings shall take effect on the date they are issued, or on another date specified in the ruling, provided that the facts or circumstance on which the ruling is based remain unchanged.
4. The issuing Party may modify or revoke an advance ruling where:
(a) the ruling was based on an error of fact or law (including human error);
(b) the information provided is false or inaccurate;
(c) there is a change in its domestic laws consistent with this Agreement; or
(d) there is a change in a material fact or circumstances on which the ruling was based.
5. The issuing Party may modify or revoke a ruling retroactively only if the ruling was
based on inaccurate or false information provided by the applicant.
6. Each Party shall ensure that applicants have access to administrative review of advance rulings.
7. Subject to any confidentiality requirements in its domestic laws and regulations, each Party shall publish its advance rulings, including on the internet.
Article 4.11. Consultations
1. Each customs authority may request consultations with the other customs authority on any matter arising from the operation or implementation of this Chapter and Chapter 3 (Rules of Origin and Origin Procedures). Such consultations shall be conducted through the relevant contact points.
2. In the event that such consultations fail to resolve any such matter, the requesting Party may refer the matter to the Customs Committee referred to in Article 4.12.
Article 4.12. Customs Committee
1. The Parties hereby establish a Customs Committee (hereinafter referred to as the “Committee”) composed of the customs authorities of the Parties. The competent authorities of the Parties may join the Committee if the Parties deem it necessary.
2. The Committee shall ensure the proper functioning of this Chapter and Chapter 3 (Rules of Origin and Origin Procedures) and examine all the issues arising from the application of these Chapters.
3. The functions of the Committee shall include:
(a) monitoring and implementing of this Chapter and Chapter 3 (Rules of Origin and Origin Procedures)
(b) establishing uniform guidelines for the effective, uniform, and consistent interpretation of this Chapter and Chapter 3 (Rules of Origin and Origin Procedures);
(c) revising Annex 3-A (Product Specific Rules) on the basis of the transposition of the Harmonized System;
(d) where necessary, finding solutions for issues related to tariff classification, customs valuation, calculation of the regional value content and other customs matters which may adversely affect trade facilitation between the Parties in the process of implementation of this Chapter or Chapter 3 (Rules of Origin and Origin Procedures); and
(e) reviewing revision, and reaching agreement on revision, of this Chapter and Chapter 3 (Rules of Origin and Origin Procedures).
4. The Committee shall meet every year, or as otherwise agreed, alternating between the Parties.
Chapter 5. SANITARY AND PHYTOSANITARY MEASURES
Article 5.1. Objectives
The objectives of this Chapter are to:
(a) enhance the Parties’ implementation of the SPS Agreement, taking into account international standards, guidelines and recommendations developed by relevant international organizations;
(b) minimize negative effects on bilateral trade while protecting human, animal or plant life or health in the territories of the Parties; and
(c) strengthen technical cooperation and consultations between the competent authorities of the Parties.
Article 5.2. Scope and Definitions
1. This Chapter shall apply to the adoption or enforcement of all sanitary and phytosanitary (hereinafter referred to as “SPS”) measures of a Party which may, directly or indirectly, affect bilateral trade between the Parties.
2. For the purposes of this Chapter:
(a) SPS Agreement means the Agreement on the Application of Sanitary and
Phytosanitary Measures in Annex 1A to the WTO Agreement; and
(b) the definitions contained in Annex A to the SPS Agreement shall apply.
Article 5.3. General Provisions
1. The Parties reaffirm their existing rights and obligations with respect to each other under the SPS Agreement, taking into account international standards, guidelines and recommendations developed by relevant international organizations.
2. Neither Party shall apply its SPS measures as an arbitrary or unjustifiable discrimination or a disguised restriction on trade between the Parties.
Article 5.4. Technical Cooperation
1. The Parties agree to explore the opportunity for technical cooperation in SPS areas, with a view to enhancing the mutual understanding of the regulatory systems of the Parties, building capacity of the Parties, acquiring confidence between competent authorities of the Parties, and minimizing the negative effects on bilateral trade.
2. The Parties shall give due consideration to cooperation relating to SPS issues. Such cooperation, which shall be on mutually agreed terms and conditions, may include, but is not limited to:
(a) furthering exchange of experience and cooperation in the development and application of domestic SPS measures as well as international standards;
(b) strengthening cooperation with respect to, inter alia, risk analysis methodology, disease or pest control methods, and laboratory testing techniques;
(c) developing exchange programs for relevant officials of competent authorities, for the purposes of building capacity and confidence of the Parties regarding animal disease and plant pest management;
(d) exchanging information, upon request of a Party, on outbreak of any significant animal disease or incident related to food safety, and follow-up measures including related domestic regulations and their explanations;
(e) enhancing cooperation and exchange of experience between the WTO SPS Enquiry Points of the Parties;
(f) carrying out joint research and sharing the result of such research in SPS areas including animal disease, plant pest and food safety; and
(g) any other cooperative activity mutually agreed by the Parties.
Article 5.5. Committee on Sanitary and Phytosanitary Measures
1. For the purposes of effective implementation and operation of this Chapter, the Parties hereby agree to establish a Committee on Sanitary and Phytosanitary Measures (hereinafter referred to as the “Committee”) comprising representatives of each Party’s competent authorities of SPS matters.
2. The Committee’s functions shall include:
(a) monitoring the implementation of this Chapter;
(b) providing a forum to exchange relevant information regarding each Party’s SPS measures, which may, directly or indirectly, affect trade between the Parties;
(c) conducting consultations on and review of any matter relating to the development or application of SPS measures that affect, or may affect, trade between the Parties, and if necessary, upon request of a Party, giving positive consideration to establishing technical working group, within a reasonable period of time, on the basis of terms and conditions to be agreed by the Committee;
(d) enhancing mutual understanding of each Party’s SPS measures and the regulatory processes related to those measures;
(e) identifying, discussing and reviewing technical cooperation between the Parties including the cooperative efforts in international fora; and
(f) carrying out other functions mutually agreed by the Parties.
3. Each Party shall ensure that appropriate representatives with responsibility for SPS matters participate in the Committee meetings, and all decisions made by the Committee shall be by mutual agreement.
4. The Committee shall meet in person within one year from the date of entry into force of this Agreement and at least once annually thereafter or at any time mutually determined by the Parties. The meetings may be conducted via teleconference, via videoconference, or through other means as mutually agreed by the Parties.
5. In order to find the most effective way to implement the SPS Agreement, with respect to SPS measures adopted by a Party affecting bilateral trade, upon request of the other Party, the Parties shall, if necessary, enter into consultations on the basis of terms and conditions to be agreed by the Committee, within a reasonable period of time from the date of the request, with a view to seeking to address SPS matters of mutual interest of the Parties.
6. The Parties shall establish the Committee not later than 90 days after the date of entry into force of this Agreement through an exchange of letters identifying the primary representative of each Party to the Committee and establishing the Committee’s terms of reference.
7. With a view to coordinating the Committee meetings and providing a means of information exchange within a reasonable period of time, the Parties shall designate the following contact points, ensuring the provided information is kept up to date:
(a) for Korea, the Ministry of Agriculture, Food and Rural Affairs; and
(b) for Viet Nam, the Ministry of Agriculture and Rural Development;
or their respective successors.
Article 5.6. Dispute Settlement
The provisions of Chapter 15 (Dispute Settlement) shall not apply to any matter arising under this Chapter.
Chapter 6. TECHNICAL BARRIERS TO TRADE
The objectives of this Chapter are to:
(a) increase and facilitate trade between the Parties, through the improvement of the implementation of the TBT Agreement;
(b) ensure that standards, technical regulations, and conformity assessment procedures do not create unnecessary obstacles to trade; and
(c) enhance joint cooperation between the Parties.
Article 6.2. Affirmation of the TBT Agreement
The Parties affirm their existing rights and obligations with respect to each other under the TBT Agreement, and to this end the TBT Agreement is incorporated into and made part of this Agreement, mutatis mutandis.
Article 6.3. Scope
1. This Chapter shall apply to all standards, technical regulations, and conformity assessment procedures of central and local government bodies that may affect the trade in goods between the Parties.
2. Notwithstanding paragraph 1, this Chapter shall not apply to sanitary and phytosanitary measures as defined in Annex A to the Agreement on the Application of Sanitary and Phytosanitary Measures in Annex 1A to the WTO Agreement or to technical specifications prepared by governmental bodies for production or consumption requirements of such bodies.
Article 6.4. International Standards
1. As a basis for its technical regulations and conformity assessment procedures, each Party shall use relevant international standards, guides, and recommendations to the extent provided in Articles 2.4 and 5.4 of the TBT Agreement.
2. In determining whether an international standard, guide, or recommendation within the meaning of Articles 2.4, 5.4 and Annex 3 of the TBT Agreement exists, each Party shall apply the Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement (1) adopted on 13 November 2000 by the WTO Committee on Technical Barriers to Trade (hereinafter referred to as the “TBT Committee”).
Article 6.5. Technical Regulations
1. Each Party shall, upon written request of the other Party, give positive consideration to accepting as equivalent technical regulations of the other Party, even if these regulations differ from its own, provided that it is satisfied that these regulations adequately fulfill the objectives of its own regulations.
2. Where a Party does not accept a technical regulation of the other Party as equivalent to its own, it shall, upon request of the other Party, explain the reasons for its decision.
Article 6.6. Conformity Assessment Procedures
1. Each Party shall give positive consideration to accepting the results of conformity assessment procedures of the other Party, even where those procedures differ from its own, provided that it is satisfied that those procedures offer an assurance of conformity with applicable technical regulations or standards equivalent to its own procedures.
2. Each Party shall seek to enhance the acceptance of the results of conformity assessment procedures conducted in the territory of the other Party with a view to increasing efficiency, avoiding duplication and ensuring cost effectiveness of the conformity assessments. In this regard, each Party may choose, depending on the situation of the Party and the specific sectors involved, a broad range of approaches. These may include, but are not limited to:
(a) agreements on mutual acceptance of the results of conformity assessment procedures with respect to specific technical regulations conducted by bodies located in the territory of the other Party;
(b) adoption of accreditation or nomination procedures for qualifying conformity assessment bodies located in the territory of the other Party;
(c) designation of conformity assessment bodies located in the territory of the other Party;
(d) recognition by a Party of the results of conformity assessment procedures conducted in the territory of the other Party;
(e) voluntary arrangements between conformity assessment bodies in the territory of each Party; and
(f) supplier’s declaration of conformity.
3. The Parties shall exchange information on their experience in the development and application of the approaches in subparagraphs 2(a) through (f) and other appropriate approaches with a view to facilitating the acceptance of the results of conformity assessment procedures.
4. A Party shall, upon request of the other Party, explain its reasons for not accepting the results of any conformity assessment procedure performed in the territory of that other Party.
5. A Party shall, upon written request of the other Party, give positive consideration to accrediting, approving, or otherwise recognizing the conformity assessment bodies recommended by the other Party, which have a local presence in the former Party’s territory.
6. The Parties shall endeavor to promote information exchange relating to the APEC Mutual Recognition Arrangement for Conformity Assessment of Telecommunications Equipment.
Article 6.7. Transparency
1. Upon request of the other Party, each Party shall provide, whenever possible, the other Party with an online link to, or a copy of, the complete text of the technical regulations and conformity assessment procedures which are notified according to Articles 2.9.3 and 5.6.3 of the TBT Agreement.
2. Each Party shall allow, whenever possible, a period of at least 60 days following the notification of its proposed technical regulations and conformity assessment procedures for the public and the other Party to provide written comments, except where urgent problems of safety, health, environmental protection, or national security arise or threaten to arise.
3. Each Party shall, upon request of the other Party, provide information on the objectives of, and rationale for, a technical regulation or conformity assessment procedure that the Party has adopted or is proposing to adopt.
4. A Party shall endeavor to give positive consideration to a reasonable request of the other Party, received prior to the end of the comment period following the notification of a proposed technical regulation, for extending the period of time between the publication of the technical regulation and its entry into force, except where this would be ineffective in fulfilling the legitimate objectives pursued.
5. The Parties shall ensure, whenever possible, that all adopted technical regulations and conformity assessment procedures are available on official websites.
Article 6.8. Joint Cooperation
1. The Parties shall strengthen their cooperation in the field of standards, technical regulations, and conformity assessment procedures with a view to increasing the mutual understanding of their respective systems and facilitating access to their respective markets.
In particular, the Parties will seek to identify, develop, and promote trade facilitating initiatives regarding standards, technical regulations, and conformity assessment procedures that are appropriate for particular issues or sectors.
2. These initiatives may include:
(a) information exchange on standards, technical regulations, and conformity assessment procedures;
(b) cooperation on regulatory issues, such as transparency, promotion of good regulatory practices, harmonization with international standards, and use of accreditation to qualify conformity assessment bodies;
(c) technical assistance directed at reaching effective and full compliance with metrology demands arising from this Chapter and the TBT Agreement; and
(d) use of mechanisms to facilitate the acceptance of results of conformity assessment procedures conducted in the other Party’s territory.
3. A Party shall endeavor to give favorable consideration to any specific sector
proposed by the other Party for further cooperation under this Chapter, for example, construction materials, cosmetics products, pharmaceutical products and medical devices, et cetera.
Article 6.9. Information Exchange
1. Any information or explanation that a Party provides upon request of the other Party pursuant to this Chapter shall be communicated within a reasonable period of time , in written form through regular mail or any other means accepted by the Parties, including electronic mail. A Party shall endeavor to respond to each such request within 60 days.
2. Nothing in this Chapter shall be construed to require a Party to furnish any information, the disclosure of which it considers contrary to its essential security interests.
Article 6.10. Committee on Technical Barriers to Trade
1. For the purpose of the effective implementation and operation of this Chapter, the Committee on Technical Barriers to Trade (hereinafter referred to as the “Committee”) shall be established. The Committee shall be composed of representatives of the Parties.
2. The functions of the Committee shall include:
(a) facilitating the implementation of this Chapter and cooperation between the Parties in all matters pertaining to this Chapter;
(b) monitoring the implementation, enforcement and administration of this Chapter;
(c) promptly addressing any issue that a Party raises relating to the development, adoption, application, or enforcement of standards, technical regulations, or conformity assessment procedures;
(c) promptly addressing any issue that a Party raises relating to the development, adoption, application, or enforcement of standards, technical regulations, or conformity assessment procedures;
(d) coordinating and enhancing joint cooperation between the Parties in the areas set out in Article 6.8;
(e) identifying mutually agreed priority sectors for enhanced cooperation, including giving favorable consideration to any proposal made by either Party,
(f) exchanging information, upon request of a Party, on standards, technical regulations, and conformity assessment procedures;
(g) exchanging information on developments in non-governmental, regional, and multilateral fora engaged in activities related to standards, technical regulations, and conformity assessment procedures;
(h) upon written request of a Party, consulting with the aim of solving any matter arising under this Chapter within a reasonable period of time;
(i) reviewing this Chapter in light of any development under the TBT Agreement and, if necessary, developing recommendations for amendments to this Chapter;
(j) establishing, if necessary to achieve the objectives of this Chapter, issue- specific or sector-specific ad hoc working groups;
(k) as it considers appropriate, reporting to the Joint Committee on the implementation of this Chapter; and
(l) taking any other steps that the Parties consider will assist them in implementing this Chapter.
3. The Committee shall meet upon request of a Party. Meetings may be conducted in person, or via teleconference, videoconference, or any other means as mutually agreed by the Parties.
4. Where the Parties have had recourse to consultations under subparagraph 2(h), the Committee shall, if the Parties agree, constitute consultations according to the Article 15.4 (Consultations).
5. The Committee shall be coordinated by:
(a) for Korea, the Korean Agency for Technology and Standards; and
(b) for Viet Nam, the Directorate for Standards Metrology and Quality, Ministry of Science and Technology;
or their respective successors.
6. Each Party shall designate a contact point who shall have the responsibility to coordinate the implementation of this Chapter; and provide the other Party with the name of this designated contact point and the contact detail of relevant officials in that organization, including information on telephone, facsimile, e-mail and other relevant details. Each Party shall promptly notify the other Party of any change of its contact point or any amendment to the information of the relevant officials.
Article 6.11. Definitions
1. For the purposes of this Chapter, TBT Agreement means the Agreement on Technical Barriers to Trade, in Annex 1A to the WTO Agreement.