(d) to conform with a judicial decision or a change in its domestic law.
6. Each Party shall provide a written notice to the applicant explaining the Party’s decision to revoke or modify the advance ruling issued to the applicant.
7. Each Party shall provide that any modification or revocation of an advance ruling shall be effective on the date on which the modification or revocation is 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.
8. For the issuance of the advance ruling, each Party shall apply its respective laws and procedures.
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 requirement are imposed only on the person(s) responsible for the breach under that Party’s laws.
3. Each Party shall ensure that the penalty imposed by its customs authority is dependent on the facts and circumstances of the case and is commensurate with the degree and severity of the breach.
4. Each Party shall ensure that it maintains measures to avoid conflicts of interest in the assessment and collection of penalties and duties.
5. Each Party shall ensure that if a penalty is imposed by its customs authority for a breach of a its customs laws, regulation or procedural requirements, 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. In order to facilitate trade between the Parties, each Party shall adopt or maintain simplified customs procedures for the efficient release of goods. For greater certainty, this paragraph shall not require a Party to release a good if the Party’s requirements for release have not been met.
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 fulfillment 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 temporary transfer to warehouses or other facilities, provided all requirements are met; and
(d) require that the importer be informed if a Party does not promptly release goods, including, to the extent permitted by its laws and regulations, the reasons why the goods are not released and which border agency, if not the customs authority, has withheld release of the goods.
3. Each Party may allow, to the extent practicable, goods intended for importation 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. Authorised Economic Operators
In order to facilitate trade and enhance compliance and risk management between them, the Parties agreed to implement the MRA of their respective Authorised Economic Operator (AEO) programs.
Article 4.12. Border Agency Cooperation
The Parties shall ensure that their authorities and agencies responsible for border controls and procedures dealing with the importation, exportation, and transit of goods cooperate with one another and coordinate their activities in order to facilitate trade pursuant to this Chapter.
Article 4.13. Expedited Shipments
Each Party shall adopt or maintain expedited customs procedures for goods entered through air cargo facilities while maintaining appropriate customs control. These procedures shall:
(a) provide for information necessary to release an express shipment to be submitted and processed before the shipment arrives;
(b) allow a single submission of information covering all goods contained in an express shipment, such as a manifest, if possible, through electronic means; (7)
(c) to the extent possible, provide for the release of certain goods with a minimum of documentation;
(d) under normal circumstances, provide for express shipments to be released as soon as possible after submission of the necessary customs documents, provided that the shipment has arrived;
(e) apply to shipments of any weight or value recognizing that a Party may require formal entry procedures as a condition for release, including declaration and supporting documentation and payment of customs duties, based on the good’s weight or value; and
(f) provide that, under normal circumstances, no customs duties will be assessed on express shipments valued at or below a fixed amount set under the Party’s law. (8) Each Party shall review the amount taking into account factors that it may consider relevant.
Article 4.14. Review and Appeal
1. Each Party shall provide that any person to whom its customs authority issues an administrative decision has the right, within its territory, 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 its procedures for appeal and review are carried out in a non-discriminatory and timely manner.
3. Each Party shall ensure than an authority conducting a review or appeal under paragraph 1 notifies the person in writing of its determination or decision in the review or appeal, and the reasons for the determination or decision.
4. The legislation of a Party may require that an administrative appeal or review be initiated prior to a judicial appeal or review.
5. Each Party shall ensure that, in a case where the decision on appeal or review under subparagraph 1(a) is not given either:
(a) within set periods as specified in its laws or regulations; or
(b) without undue delay, the petitioner has the right to either further appeal to, or further review by, the administrative authority or the judicial authority or any other recourse to the judicial authority.
6. Each Party shall ensure that the person referred to in paragraph 1 is not treated unfavourably merely because that person seeks review of an administrative decision referred to in paragraph 1.
7. Each Party is encouraged to make the obligations in this Article applicable to administrative decisions issued by a relevant border agency other than its customs authority.
8. The decision, and the reasons for the decision, of an administrative or judicial review or appeal shall be provided in writing.
Article 4.15. Customs Cooperation
1. With a view to further enhancing customs cooperation and exchange of information between their customs authorities to secure and facilitate lawful trade, each Party shall implement and comply with the obligations in the CMAA.
2. The Parties shall facilitate initiatives for the exchange of information on best practices in relation to the implementation and management of customs procedures described in this Chapter, and in accordance with the CMAA.
Article 4.16. Confidentiality
1. Any information received under this Agreement shall be treated as confidential pursuant to the terms of the CMAA.
2. Each Party shall maintain, in accordance with its laws and regulations, the confidentiality of information obtained pursuant to this Chapter and shall protect that information from disclosure that could prejudice the competitive position of the persons providing the information.
Chapter 5. SANITARY AND PHYTOSANITARY MEASURES
Article 5.1. Definitions
For the purposes of this Chapter:
(a) the definitions provided in Annex A of the SPS Agreement shall apply;
(b) competent authority means those authorities within each Party recognised by the national government as responsible for developing and administering the sanitary and phytosanitary measures within that Party and;
(b) emergency measure means a sanitary or phytosanitary measure that is applied by an importing Party to the other 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.
Article 5.2. Objectives
The objectives of this Chapter are to:
(a) protect human, animal, or plant life or health in the territories of the Parties while facilitating trade between them;
(b) enhance the implementation of the SPS Agreement;
(c) strengthen communication, consultation, and cooperation between the Parties, and particularly between the Parties’ competent authorities;
(d) ensure that sanitary or phytosanitary measures implemented by a Party do not create unnecessary barriers to trade;
(e) enhance transparency in and understanding of the application of each Party’s sanitary and phytosanitary measures; and
(f) encourage the development and adoption of science-based international standards, guidelines, and recommendations, and promote their implementation by the Parties.
Article 5.3. Scope
This Chapter shall apply to all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.
Article 5.4. General Provision
The Parties affirm their rights and obligations with respect to each other under the SPS Agreement, and to this end, the SPS Agreement is incorporated into and made a part of this agreement, mutatis mutandis.
Article 5.5. Competent Authorities and Contact Points
1. The Parties shall exchange information on the application of sanitary and phytosanitary measures with regard to regulations, standards and procedures through designated competent authorities and contact points.
2. Each Party shall provide the other Party with a written description of the sanitary and phytosanitary responsibilities of its competent authorities, the contact points within each of these authorities, and the name and contact information of its primary representative. Each Party shall keep this information up to date.
Article 5.6. Committee on Sanitary and Phytosanitary Measures
1. For the purposes of the effective implementation and operation of this Chapter, the Parties hereby establish a Committee on Sanitary and Phytosanitary Measures (“Committee”), composed of government representatives of each Party responsible for sanitary and phytosanitary matters. The Committee shall carry out its work under the direction of the Joint Committee.
2. The objectives of the Committee are to:
(a) enhance each Party’s implementation of this Chapter;
(b) consider sanitary and phytosanitary matters of mutual interest; and
(c) enhance communication and cooperation on sanitary and phytosanitary matters
3. The Committee shall establish its terms of reference at its first meeting and may revise those terms as needed. The Committee shall thereafter meet as needed at its own discretion or at the direction of the Joint Committee.
4. The Committee is intended to serve as a forum to:
(a) improve the Parties’ understanding of sanitary and phytosanitary issues that relate to the implementation of the SPS Agreement and this Chapter;
(b) enhance mutual understanding of each Party’s sanitary and phytosanitary measures and the regulatory processes that relate to those measures;
(c) exchange information on the implementation of this Chapter;
(d) share information on a sanitary or phytosanitary issue that has arisen between them.
5. If a Party considers that there is a disruption to trade on sanitary and phytosanitary grounds, it may request technical consultations through the Committee on an urgent basis with a view to facilitating trade. On receiving a request under this paragraph, the other Party will endeavor to provide any requested information and respond to questions pertaining to the matter, and if requested, enter into technical consultations within a reasonable period of time after receiving such a request. The Parties shall make every effort to reach a mutually satisfactory resolution through technical consultations within a period of time agreed upon by the Parties.
Article 5.7. Equivalence
1. The Parties recognise that the principle of equivalence as provided for under Article 4 of the SPS Agreement, has mutual benefits for both exporting and importing countries.
2. The Parties shall follow the procedures for determining the equivalence of SPS measures and standards developed by the WTO SPS Committee and relevant international standard setting bodies as referred to in Annex A of the SPS Agreement, mutatis mutandis.
3. Compliance by an exported product with an SPS measure or standard that has been accepted as equivalent to SPS measures or standards of the importing Party shall not remove the need for that product to comply with any other relevant mandatory requirements of the importing Party.
Article 5.8. Emergency Measures
1. If a Party adopts an emergency measure that is necessary for the protection of human, animal or plant life or health, the Party shall promptly notify the other Party of that measure through the primary representative and the relevant contact point referred to in Article 5.5 (Competent Authorities and Contact Points). The importing Party shall take into consideration any information provided by the other Party in response to the notification.
2. If a Party adopts an emergency measure referred to in paragraph 1, it shall ensure that the emergency measure is not maintained without scientific evidence and shall review the scientific basis of that measure within a reasonable period of time or, promptly on the request of the other Party, and make available the results of the review to the other Party on request. If the emergency measure is maintained after the review, because the reason for its adoption remains, the Party should review the measure periodically.
Article 5.9. Transparency
1. The Parties recognise the value of transparency in the adoption and application of sanitary and phytosanitary measures and the importance of sharing information about such measures on an ongoing basis.
2. In implementing this Article, each Party should take into account relevant guidance of the WTO SPS Committee and international standards, guidelines and recommendations.
3. Each Party agrees to notify a proposed sanitary or phytosanitary measure that may have an effect on the trade of the other Party, including any that conforms to international standards, guidelines, or recommendations, by using the WTO SPS notification submission system as a means of notification.
4. Unless urgent problems of human, animal or plant life or health protection arise or threaten to arise, or the measure is of a trade facilitating nature, the Party proposing a sanitary or phytosanitary measure shall normally allow at least 60 days for the other Party to provide written comments on the proposed measure, other than proposed legislation, after it makes a notification under paragraph 3. If feasible and appropriate, the Party proposing the measure should allow more than 60 days. The Party shall consider any reasonable request from the other Party to extend the comment period. On request of the other Party, the Party proposing the measure shall respond to the written comments of the other Party in an appropriate manner.
5. A Party that proposes to adopt a sanitary or phytosanitary measure shall discuss with the other Party, on request and if appropriate and feasible, any scientific or trade concerns that the other Party may raise regarding the proposed measure and the availability of alternative, less trade-restrictive approaches for achieving the objective of the measure.
6. The Parties encourage the publication, by electronic means including in a website, of the proposed sanitary or phytosanitary measure notified under paragraph 3 and the legal basis for the measure, and the written comments or a summary of the written comments that the Party has received from the public on the measure.
7. Each Party shall notify the other Party of final sanitary or phytosanitary measures through the WTO SPS notification submission system. Each Party shall ensure that the text or the notice of a final sanitary or phytosanitary measure specifies the date on which the measure takes effect and the legal basis for the measure. Each Party shall publish, preferably by electronic means, including in a website, notices of final sanitary or phytosanitary measures.
8. An exporting Party shall notify the importing Party through the contact points referred to in Article 5.5 (Competent Authorities and Contact Points) in a timely and appropriate manner:
(a) if it has knowledge of a significant sanitary or phytosanitary risk related to the export of a good from its territory;
(b) of urgent situations where a change in animal or plant health status in the territory of the exporting Party may affect current trade;
(c) of significant changes in the status of a regionalised pest or disease;
(d) of new scientific findings of importance which affect the regulatory response with respect to food safety, pests or diseases; and
(e) of significant changes in food safety, pest or disease management, control or eradication policies or practices that may affect current trade.
9. A Party shall provide to the other Party, on request, all sanitary or phytosanitary measures related to the importation of a good into that Party’s territory.
Article 5.10. Cooperation
1. The Parties shall cooperate on sanitary and phytosanitary matters to protect human, animal, fish and plant life, or, health through their respective competent authorities.
2. The Parties shall explore opportunities for cooperation and collaboration in e-certification, technical assistance, best practices, joint research, and other areas of mutual interest.
Chapter 6. STANDARDS, TECHNICAL REGULATIONS AND CONFORMITY ASSESSMENT PROCEDURES (STRACAP)
Article 6.1. Definitions
For the purposes of this Chapter, the terms and their definitions, including the chapeau and explanatory notes, provided in Annex 1 of the TBT Agreement shall apply mutatis mutandis.
Article 6.2. Objectives
The objectives of this Chapter are to facilitate trade in goods between the Parties by:
(a) ensuring that standards, technical regulations, and conformity assessment procedures do not create unnecessary obstacles to trade;
(b) promoting mutual understanding of each Party's standards, technical regulations, and conformity assessment procedures;
(c) strengthening information exchange and cooperation between the Parties in relation to the preparation, adoption and application of standards, technical regulations and conformity assessment procedures;
(d) strengthening cooperation between the Parties in the work of international bodies related to standardisation and conformity assessments; and
(e) providing a framework to implement supporting mechanisms to realise these objectives.
Article 6.3. Scope
1. This Chapter shall apply to the preparation, adoption and application of all standards, technical regulations and conformity assessment procedures that may affect trade in goods between the Parties.
2. Notwithstanding paragraph 1, this Chapter shall not apply to:
(a) sanitary and phytosanitary measures, as defined in Chapter 5 (Sanitary and Phytosanitary Measures); and
(b) purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies.
3. Each Party shall take such reasonable measures as may be available to it to ensure compliance, in the implementation of this Chapter, by local governments and non-governmental bodies within its territory that are responsible for the preparation, adoption and application of standards, technical regulations and conformity assessment procedures.
4. Nothing in this Chapter shall limit the right of a Party to prepare, adopt, and apply standards, technical regulations and conformity assessment procedures only to the extent necessary to fulfil a legitimate objective. Such legitimate objectives include, inter alia, national security requirements; the prevention of deceptive practices; the protection of human health or safety; animal or plant life or health; or the environment.
Article 6.4. Affirmation of the WTO TBT Agreement
1. The Parties affirm their existing rights and obligations with respect to each other under the TBT Agreement, of which Articles 2 through 6, and Article 9 as well as Annex 3 are incorporated into and made part of this Agreement, mutatis mutandis.
2. Neither Party shall have recourse to dispute settlement under Chapter 16 (Dispute Settlement) for any matter arising under this Chapter if the dispute concerns:
(a) exclusively claims made under the provisions under paragraph 1 of the TBT Agreement incorporated; or
(b) a measure that a Party alleges to be inconsistent with this Chapter that was referred to, or is subsequently referred to, a WTO dispute settlement panel or was taken to comply in response to a ruling of the WTO Dispute Settlement Body.
Article 6.5. Standards
1. The Parties recognising the important role that international standards, guides, and recommendations can play in supporting greater regulatory alignment and in reducing unnecessary barriers to trade.
2. With respect to the preparation, adoption and application of standards, each Party shall ensure that its standardising body accept and complies with Annex 3 to the TBT Agreement.
3. To determine whether there is an international standard, guide, or recommendation within the meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement, each Party shall apply the TBT Committee Decision on International Standards.
4. No Party shall accord any preference to the consideration or use of standards that are developed through processes that:
(a) are inconsistent with the TBT Committee Decision on International Standards; or
(b) treat persons of the other Party less favorably than persons whose domicile is the same as the standardisation body.
Article 6.6. Technical Regulations
1. Where relevant international standards exist or their completion is imminent, each Party shall use them, or relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems.
2. If a Party has not used such international standards or relevant parts of them, as a basis for a technical regulation, a Party shall, on request from the other Party, explain why it has not used a relevant international standard or has substantially deviated from an international standard.
3. Each Party shall give positive consideration to accepting as equivalent, technical regulations of the other Party, even if these regulations differ from its own, provided it is satisfied that these regulations adequately fulfil the objectives of its own regulations.
4. If a Party does not accept a technical regulation of the other Party as equivalent to its own, it shall, on request of the other Party, explain the reasons for its decision within a reasonable period of time.
5. In implementing paragraph 2 of Article 2 of the TBT Agreement, each Party shall consider available alternatives in order to ensure that the proposed technical regulations to be adopted are not more trade restrictive than necessary to fulfil a legitimate objective.
6. Each Party shall uniformly and consistently apply its technical regulations that are prepared and adopted in a manner consistent with the provisions of the TBT Agreement to its whole territory.
7. On the request of a Party that has an interest in developing a technical regulation similar to a technical regulation of the other Party, the other Party shall endeavour to provide, to the extent practicable, relevant information, including studies or documents, except for confidential information, on which it has relied in its development.
8. Consistent with the obligations of the TBT Agreement each Party shall ensure that its technical regulations concerning labels:
(a) accord treatment no less favorable than that accorded to like goods of national origin; and
(b) do not create unnecessary obstacles to trade between the Parties.