4. Each Party is encouraged to develop authorized operator schemes on the basis of international standards, where such standards exist, except when such standards would be an inappropriate or ineffective means for the fulfillment of the legitimate objectives pursued.
Article 4.14. Risk Management
1. Each Party shall adopt or maintain a risk management system for customs control.
2. Each Party shall design and apply risk management in a manner so as to avoid arbitrary or unjustifiable discrimination, or disguised restrictions on trade.
3. Each Party shall concentrate customs control and, to the extent possible, other relevant border controls on high risk consignments, and expedite the release of low risk consignments. Each Party may also select, on a random basis, consignments for such controls as part of its risk management.
4. Each Party shall base risk management on the assessment of risk through appropriate selectivity criteria. Such selectivity criteria may include, inter alia, HS code, nature and description of the goods, country of origin, country from which the goods were shipped, value of the goods, compliance record of traders and type of transport.
Article 4.15. Express Consignments
1. Each Party shall adopt or maintain customs procedures to expedite the clearance of express consignments for at least those goods entered through air cargo facilities while maintaining appropriate customs control and selection, by:
(a) providing for pre-arrival processing of information related to express consignments;
(b) permitting, to the extent possible, the single submission of information covering all goods contained in an express consignment, through electronic means;
(c) minimizing the documentation required for the release of express consignments;
(d) providing for express consignment to be released under normal circumstances as rapidly as possible, and within six hours when possible, after the arrival of the goods and submission of the information required for release;
(e) endeavoring to apply the treatment referred to in subparagraphs (a) through (d) to shipments of any weight or value, recognizing that a Party is permitted to require additional entry procedures, including declarations, supporting documents and payment of customs duties and taxes, and to limit such treatment based on the type of good, provided that the treatment is not limited to low value goods such as documents; and
(f) providing, to the extent possible, for a de minimis shipment value or dutiable amount for which customs duties and taxes will not be collected, aside from certain prescribed goods. Internal taxes, such as value added taxes and excise taxes, applied to imports consistently with Article III of the GATT 1994, shall not be subject to this subparagraph.
Note: In cases where a Party has an existing procedure that provides the treatment referred to in this paragraph, this paragraph would not require that Party to introduce separate expedited release procedures.
2. Nothing in paragraph 1 shall affect the right of a Party to examine, detain, seize, confiscate or refuse the entry of goods, or to carry out post-clearance audits, including in connection with the use of risk management systems. Further, nothing in that paragraph shall prevent a Party from requiring, as a condition for release, the submission of additional information and the fulfillment of non-automatic licensing requirements.
Article 4.16. Post-Clearance Audit
1. With a view to expediting the release of goods, each Party shall adopt or maintain post-clearance audit to ensure compliance with its customs and other related laws and regulations.
2. Each Party shall select a person or a consignment for post-clearance audit in a risk-based manner, which may include appropriate selectivity criteria. Each Party shall conduct post-clearance audits in a transparent manner. Where the person is involved in the audit process and conclusive results have been achieved, the Party shall, without delay, notify the person whose record was audited of the:
(a) results;
(b) reasons for the results; and
(c) person’s rights and obligations.
3. The Parties acknowledge that the information obtained in post-clearance audit may be used in further administrative or judicial proceedings.
4. Each Party shall, wherever practicable, use the result of post-clearance audit in applying risk management.
Article 4.17. Time Release Studies
1. Each Party recognizes the importance of collecting and analyzing the time required for the release of goods by its customs authority, for the purpose of ensuring the effective implementation of this Chapter.
2. Each Party shall, to the extent possible, measure the time required for the release of goods by its customs authority periodically and in a consistent manner, and publish the findings thereof, using tools such as the Guide to Measure the Time Required for the Release of Goods issued by the World Customs Organization with a view to:
(a) assessing its trade facilitation measures; and
(b) considering opportunities for further improvement of the time required for the release of goods.
3. Each Party shall share, on request of the other Party, with that other Party its experiences in the time release studies referred to in paragraph 2, including the methodologies used and the bottlenecks identified.
Article 4.18. Appeal and Review
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/or
(b) a judicial appeal or review of the decision.
Note: For the purposes of this Article, the term “administrative decision” means a decision with a legal effect that affects the rights and obligations of a specific person in an individual case. It shall be understood that an administrative decision referred to in this Article covers an administrative action within the meaning of Article X of the GATT 1994 or failure to take an administrative action or decision as provided for in a Party’s laws and regulations and legal system. For addressing such failure, a Party may maintain an alternative administrative mechanism or judicial recourse to direct the customs authority to promptly issue an administrative decision in place of the right to appeal or review under subparagraph (a).
2. The legislation of a Party may require that an administrative appeal or review be initiated prior to a judicial appeal or review.
3. Each Party shall ensure that its procedures for appeal or review are carried out in a non-discriminatory manner.
4. Each Party shall ensure that if a person receives a decision on an appeal or review as provided under paragraph 1, that decision shall be applicable in the same manner throughout the territory of the Party with respect to that person.
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 of time as specified in its laws or regulations; or
(b) without undue delay,
the person referred to in paragraph 1 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.
Note: Nothing in this paragraph shall prevent a Party from recognizing administrative silence on appeal or review as a decision in favor of the person referred to in paragraph 1 in accordance with its laws and regulations.
6. Each Party shall ensure that the person referred to in paragraph 1 is provided with the reasons for the administrative decision so as to enable such a person to have recourse to procedures for appeal or review where necessary.
7. Each Party shall ensure that the person referred to in paragraph 1 is not treated unfavorably merely because that person seeks review of an administrative decision or omission referred to in that paragraph.
8. Each Party is encouraged to make this Article applicable to an administrative decision issued by a relevant border agency other than its customs authority.
9. The decision, and the reasons for the decision, of an administrative or judicial appeal or review shall be provided in writing.
Article 4.19. Standards of Conduct
1. Each Party shall adopt or maintain measures to deter its customs officials from engaging in any action that would result in, or that reasonably creates the appearance of, use of their public service position for private gain, including any monetary benefit.
2. Each Party shall provide a mechanism for any interested persons to submit complaints regarding perceived improper or corrupt behavior in its territory, including at ports of entry and other customs offices, of its customs officials. Each Party shall take appropriate action on a complaint in a timely manner in accordance with its laws, regulations and procedures.
Article 4.20. Penalties
1. Each Party shall adopt or maintain measures that allow for the imposition of a penalty by its customs authority for a breach of its customs laws, regulations or procedural requirements, including those governing tariff classification, customs valuation, country of origin and claims for preferential treatment under this Agreement.
2. Each Party shall ensure that a penalty imposed by its customs authority for a breach of a customs law, regulation or procedural requirement is imposed only on the person legally responsible for the breach.
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.
Note: Facts and circumstances shall be established objectively according to each Party’s law.
4. Each Party shall ensure that it maintains measures to avoid:
(a) conflicts of interest in the assessment and collection of penalties and duties; and
(b) creating an incentive for the assessment or collection of a penalty that is inconsistent with paragraph 3.
5. Each Party shall ensure that if a penalty is imposed by its customs authority for a breach of a customs law, regulation or procedural requirement, an explanation in writing is provided to the person upon whom the penalty is imposed specifying the nature of the breach and the law, regulation or procedure used for determining the penalty amount.
6. If a person voluntarily discloses to a Party’s customs authority the circumstances of a breach of a customs law, regulation or procedural requirement prior to the discovery of the breach by the customs authority, the Party’s customs authority shall, if appropriate, consider this fact as a potential mitigating factor when a penalty is established for that person.
7. Each Party shall provide in its laws, regulations or procedures, or otherwise give effect to, a fixed and finite period of time within which its customs authority may initiate proceedings to impose a penalty relating to a breach of a customs law, regulation or procedural requirement.
Note: For greater certainty, the term “proceedings” means administrative measures by the customs authority and does not include judicial proceedings.
Article 4.21. Customs Cooperation
1. Without prejudice to other forms of cooperation provided for in this Agreement, the customs authorities of the Parties shall cooperate, including by exchanging information, and provide mutual administrative assistance in the matters referred to in this Chapter in accordance with the Agreement between the Government of Japan and the Government of the People’s Republic of Bangladesh on Cooperation and Mutual Assistance in Customs Matters, signed at Tokyo on April 26, 2023.
2. Each Party shall, to the extent possible, provide the other Party with timely notice of any significant administrative change, modification of a law or regulation, or similar measure related to its laws or regulations that govern importations or exportations, that is likely to substantially affect the operation of this Chapter. The notice can be made in the English language or the Party’s language and will be provided to the contact point designated pursuant to Article 4.22.
Article 4.22. Consultations and Contact Points
1. A Party may at any time request consultations with the other Party regarding any significant customs matter arising from the operation or implementation of this Chapter, providing relevant details related to the matter. Such consultations shall be conducted through the respective contact points designated pursuant to paragraph 3 and shall commence within 30 days following the date of receipt of the request, unless the Parties determine otherwise.
2. In the event that such consultations fail to resolve the matter, the requesting Party may refer the matter to the Sub-Committee on Customs Procedures and Trade Facilitation established pursuant to Article 4.23.
3. Each Party shall, upon entry into force of this Agreement, designate one or more contact points for the purposes of this Chapter and notify the other Party of the contact details and other relevant information, if any. The Parties shall promptly notify each other of any change of those contact details.
Article 4.23. Sub-Committee on Customs Procedures and Trade Facilitation
1. For the purpose of the effective implementation and operation of this Chapter, the Parties hereby establish a Sub-Committee on Customs Procedures and Trade Facilitation (hereinafter referred to in this Article as “the Sub-Committee”).
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) identifying areas, related to this Chapter, to be improved for facilitating trade between the Parties;
(c) reporting the findings of the Sub-Committee to the Joint Committee; and
(d) carrying out other functions as may be delegated by the Joint Committee.
3. The Sub-Committee shall be composed of:
(a) for Bangladesh, officials from Bangladesh Customs and Ministry of Commerce, and other government officials with the necessary expertise relevant to the issues to be discussed who may be included on an ad hoc basis; and
(b) for Japan, officials from the Ministry of Foreign Affairs and the Ministry of Finance, and other government officials with the necessary expertise relevant to the issues to be discussed who may be included on an ad hoc basis.
4. The Parties shall ensure that the composition of their delegations to the meetings of the Sub-Committee corresponds to the agenda items.
5. The Sub-Committee shall hold meetings at such times and venues or by means, as may be decided by the Parties.
Chapter 5. Sanitary and Phytosanitary Measures
Article 5.1. Scope
This Chapter shall apply to all sanitary and phytosanitary (hereinafter referred to as “SPS”) measures of the Parties under the SPS Agreement that may, directly or indirectly, affect trade in goods between the Parties.
Article 5.2. Reaffirmation of Rights and Obligations
The Parties reaffirm their rights and obligations related to SPS measures under the SPS Agreement.
Article 5.3. Transparency
1. Upon request, a Party shall, within 30 days of the request, provide the requesting Party with the documents or a summary of the documents describing the requirements of draft sanitary or phytosanitary measures that may have a significant effect on the trade of the other Party, and that have been notified to the WTO through the online WTO Sanitary and Phytosanitary Measures Notification Submission System, in the English language.
2. Following the notification of sanitary or phytosanitary measures to the WTO, upon request, a Party shall provide the requesting Party with the documents or a summary of the documents describing the requirements of the adopted sanitary or phytosanitary measures, within a reasonable period of time as decided by the Parties, in the English language.
Article 5.4. Enquiry Points
Each Party shall designate an enquiry point to answer all reasonable enquiries from the other Party regarding SPS measures and, where appropriate, to provide the other Party with relevant information.
Article 5.5. Sub-Committee on Sanitary and Phytosanitary Measures
1. For the purpose of the effective implementation and operation of this Chapter, the Parties hereby establish a Sub-Committee on SPS Measures (hereinafter referred to in this Article as “the Sub-Committee”).
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) exchanging information on such matters as change or introduction of SPS-related regulations and standards of the Parties and occurrences of SPS incidents in the Areas of the Parties, which may, directly or indirectly, affect trade in goods between the Parties;
(c) undertaking science-based consultations to identify and address specific issues that may arise from the application of SPS measures with the objective of achieving mutually acceptable solutions;
(d) discussing technical cooperation between the Parties on SPS measures with a view to strengthening it;
(e) reporting the findings of the Sub-Committee to the relevant bodies;
(f) carrying out other functions as may be delegated by the Joint Committee; and
(g) discussing any other issues related to this Chapter.
3. The Sub-Committee shall be composed of representatives of the Governments of the Parties with appropriate participation of relevant experts.
4. The Sub-Committee shall hold meetings at such times and venues or by means, as may be decided by the Parties.
Article 5.6. Non-Application of Chapter 21
Chapter 21 shall not apply to this Chapter.
Chapter 6. Technical Regulations, Standards and Conformity Assessment Procedures
Article 6.1. Definitions
For the purposes of this Chapter:
(a) the term “TBT Agreement” means the Agreement on Technical Barriers to Trade in Annex 1A to the WTO Agreement; and
(b) the terms and definitions set out in Annex 1 of the TBT Agreement shall apply.
Article 6.2. Objectives
The objectives of this Chapter are to promote trade between the Parties by:
(a) enhancing transparency;
(b) ensuring that technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to trade;
(c) promoting mutual understanding of the technical regulations, standards and conformity assessment procedures in each Party;
(d) strengthening information exchange and cooperation between the Parties in relation to the preparation, adoption and application of technical regulations, standards and conformity assessment procedures;
(e) strengthening cooperation between the Parties at international and regional fora on the work related to standardization and conformity assessments;
(f) improving the implementation of the TBT Agreement; and
(g) promoting greater regulatory cooperation and good regulatory practice.
Article 6.3. Scope
1. This Chapter shall apply to technical regulations, standards and conformity assessment procedures as defined in the TBT Agreement, that may affect trade in goods between the Parties.
2. This Chapter shall not apply to:
(a) purchasing specifications prepared by governmental bodies for production or consumption requirements of such bodies; or
(b) SPS measures as defined in Annex A of the SPS Agreement.
Article 6.4. Reaffirmation of Rights and Obligations
The Parties reaffirm their rights and obligations related to technical regulations, standards and conformity assessment procedures under the TBT Agreement.
Article 6.5. Transparency
1. The Parties recognize the importance of the provisions relating to transparency in the TBT Agreement.
2. Upon written request, a Party shall provide to the requesting Party, if already available, the full text or summary of technical regulations and conformity assessment procedures notified to the WTO, in the English language. If unavailable, the requested Party shall provide to the requesting Party a summary stating the requirements of the notified technical regulations and conformity assessment procedures, in the English language, within a reasonable period of time decided by the Parties and, if possible, within 30 days after receiving the written request. In implementing the preceding sentence, the contents of the summary shall be determined by the requested Party.
Article 6.6. Technical Regulations
1. Upon request of a Party that has an interest in developing a technical regulation similar to a technical regulation of the other Party, such other Party shall provide, to the extent practicable, relevant information, including studies or documents, except for confidential information, on which it has relied in its development.
2. Each Party shall give positive consideration to accepting as equivalent technical regulations of the other Party, even if those regulations differ from its own, provided that it is satisfied that those regulations adequately fulfill the objectives of its own regulations.
Article 6.7. Acceptance of Results of Conformity Assessment Procedures
Each Party shall ensure, whenever possible, that results of the conformity assessment procedures in the other Party are accepted, even if 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.
Article 6.8. Enquiry Points
Each Party shall designate an enquiry point to answer all reasonable enquiries from the other Party regarding technical regulations, standards and conformity assessment procedures and, where appropriate, to provide the other Party with other relevant information which it considers the other Party should be made aware of.
Article 6.9. Sub-Committee on Technical Regulations, Standards and Conformity Assessment Procedures
1. For the purpose of the effective implementation and operation of this Chapter, the Parties hereby establish a Sub-Committee on Technical Regulations, Standards and Conformity Assessment Procedures (hereinafter referred to in this Article as “the Sub-Committee”).
2. The functions of the Sub-Committee shall be:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) discussing any issues related to this Chapter, including exchanging information and undertaking consultations on technical regulations, standards and conformity assessment procedures;
(c) reporting the findings of the Sub-Committee to the relevant bodies; and
(d) carrying out other functions as may be delegated by the Joint Committee.
3. The Sub-Committee shall be composed of representatives of the Governments of the Parties.
4. The Sub-Committee shall be coordinated by:
(a) for Bangladesh, the Ministry of Commerce, or its successor; and
(b) for Japan, the Ministry of Foreign Affairs, or its successor.
5. The Sub-Committee shall hold meetings at such times and venues or by means, as may be decided by the Parties.
Article 6.10. Cooperation
1. The Parties shall strengthen their cooperation on mutually determined terms and conditions in the field of technical regulations, standards and conformity assessment procedures, consistent with the objectives of this Chapter.