1. In accordance with its commitments under the Agreement of Trade Facilitation, contained in Annex 1A to the WTO Agreement (TFA), each Party shall provide for the issuance of an advance ruling, prior to the importation of a good into its territory, to an importer of the good in its territory or to an exporter or producer of the good in the territory of another Party.
2. For the purposes of paragraph 1, each Party shall issue rulings as to whether the good qualifies as an originating good or to assess the good's tariff classification. In addition, each Party may issue rulings that cover additional trade matters as specified in article 8 of the TFA. Each Party shall issue its determination regarding the origin or classification of the good within a reasonable time-bound manner from the date of receipt of a complete application for an advance ruling.
3. The importing Party shall apply an advance ruling issued by it under paragraph 1 on the date that the ruling is issued or on a later date specified in the ruling and remain in effect for a reasonable period of time after its issuance, unless the laws, regulations, facts or circumstances justifying that ruling have changed.
4. The advance ruling issued by the Party shall be binding to the person to whom the ruling is issued only.
5. 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 a post clearance audit or an administrative, judicial, or quasi-judicial review, or appeal. A Party that declines to issue an advance ruling shall promptly notify, in writing, the person requesting the ruling, setting out the relevant facts and circumstances and the basis for its decision.
6. The importing Party may modify or revoke an advance ruling:
(a) if the ruling was based on an error of fact;
(b) if there is a change in the material facts or circumstances on which the ruling was based;
(c) to conform with a modification of this Chapter; or (d) to conform with a judicial decision or a change in its domestic law.
7. Each Party shall provide written notice to the applicant explaining the Party's decision to revoke or modify the advance ruling issued to the applicant.
8. 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. The issuing Party may modify, revoke or invalidate a ruling retroactively only if the ruling was based on inaccurate or false information.
9. Notwithstanding paragraph 4, the issuing Party shall postpone the effective date of the modification or revocation of an advance ruling for a reasonable period of time and in accordance with each Party's national procedures on advance rulings, where the person to whom the advance ruling was issued demonstrates that he has relied in good faith to his detriment on that ruling.
Article 4.8. 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 requirements are imposed only on the person(s) responsible for the breach under its laws.
3. Each Party shall ensure that the penalty imposed by its Customs Administration 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. No portion of the remuneration of a government official shall be calculated as a fixed portion or percentage of any penalties or duties assessed or collected.
5. Each Party shall ensure that if a penalty is imposed by its Customs Administration for a breach of a customs law, regulation, or procedural requirement, 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 4.9. Release of Goods
1. Each Party shall adopt or maintain simplified customs procedures for the efficient release of goods in order to facilitate trade.
2. Pursuant to paragraph 1, each Party shall adopt or maintain procedures that:
(a) adopt or maintain procedures allowing the release of goods prior to the final determination of customs duties, taxes, fees, and charges, if such a determination is not done prior to, or upon arrival, or as rapidly as possible after arrival and provided that all other regulatory requirements and procedures have been met;
(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) to the greatest extent possible, allow goods to be released at the point of arrival without requiring temporary transfer to warehouses or other facilities; 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 administration, has withheld release of the goods.
3. Nothing in this Article requires a Party to release a good if its requirements for release have not been met nor prevents a Party from liquidating a security deposit in accordance with its law.
4. Each Party may allow, to the extent practicable and in accordance with its customs laws, goods intended for import 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 4.10. Authorized Economic Operators
1. In order to facilitate trade and enhance compliance and risk management between them, the Parties shall endeavour to mutually conclude a MRA.
2. The Parties shall promote the national adoption and implementation of AEO programs in accordance with the WCO SAFE Framework of Standards to Secure and Facilitate Global Trade. The obligations, requirements, formalities of the programs, as well as the benefits offered to the companies that comply with the requirements shall be established in accordance with the laws and regulations of each Party.
Article 4.11. Border Agency Cooperation
Each Party shall ensure that its 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 4.12. Expedited Shipments
1. Each Party shall adopt or maintain expedited customs procedures for goods entered through air cargo facilities while maintaining appropriate customs control and selection. 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 through, if possible, electronic means (1);
(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 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.(2)
Article 4.13. Review and Appeal
1. Each Party shall ensure that any person to whom it issues a determination on a customs matter has access to:
(a) at least one level of administrative review of determinations by its Customs Administration independent (3) of either the official or office responsible for the decision under review; and
(b) judicial review of decisions taken at the final level of administrative review.
2. Each Party shall ensure that its procedures for appeal and review are carried out ina 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.
Article 4.14. Customs Cooperation
1. With a view to further enhancing customs cooperation through the exchange of information and the sharing of best practices between the Customs Administrations to secure and facilitate lawful trade, the Customs Administrations of the Parties will endeavour to conclude and sign a CMAA.
2. The Contracting Parties shall, for the purposes of applying customs law and to give effect to the provisions of this Agreement, endeavour to:
(a) co-operate and assist each other in the prevention and investigation of offences against customs law;
(b) upon request, provide each other information to be used in the enforcement of customs law; and
(c) co-operate in the research, development, and application of new customs procedures, in the training and exchange of personnel, sharing of best practices, and in other matters of mutual interest.
3. Assistance under this Chapter shall be provided in accordance with the domestic laws and regulations of the requested Party.
4. The Parties shall exchange official contact points with a view to facilitating the effective implementation of this Chapter.
Article 4.15. Confidentiality
1. Nothing in this Agreement shall be construed to require a Party to furnish or allow access to confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice the legitimate commercial interests of particular enterprises, public, or private. Any information received under this Agreement shall be treated as confidential.
2. Each Party shall maintain, in accordance with its domestic 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
1. The definitions in Annex A of the SPS Agreement are incorporated into and made part of this Chapter, mutatis mutandis.
2. In addition, for the purposes of this Chapter:
Competent Authority means a government body of each Party responsible for the Sanitary and Phytosanitary (hereinafter referred to as "SPS") measures and matters referred to in this Chapter;
Contact Point means the government body of each Party that is responsible for the implementation and coordination of this Chapter; and
emergency measure means a sanitary or phytosanitary measure that is applied by the importing Party to a good of the exporting Party to address an urgent problem of human, animal, or plant life or health protection that arises or threatens to arise in the importing Party.
Article 5.2. Objectives
The objectives of this Chapter are to protect human, animal, and plant life or health while facilitating trade, to enhance cooperation, communication, and transparency between the Parties, to ensure that the Parties' SPS measures are science-based and do not create unjustified barriers to trade.
Article 5.3. Scope
This Chapter shall apply to all SPS measures of each Party that may, directly or indirectly, affect trade between the Parties.
Article 5.4. General Provisions
1. The Parties affirm their rights and obligations under the SPS Agreement of the WTO.
2. Nothing in this Agreement shall limit the rights and obligations of each Party under the SPS Agreement.
Article 5.5. Contact Points and Competent Authorities
1. Upon the entry into force of this Agreement, each Party shall designate a Contact Point or Contact Points to facilitate communication on matters covered by this Chapter and promptly notify the other Party no later than 30 days after the entry into force of this Agreement.
2. For the purposes of implementing this Chapter, the Competent Authorities of the Parties shall be those listed in Annex 5A (Competent Authorities).
3. Each Party shall keep the information on Contact Points and Competent Authorities up to date and shall promptly inform the other Party of any change.
Article 5.6. Technical Consultations
1. The Parties will work expeditiously to address any specific SPS trade-related issue and commit to carry out the necessary technical level discussions in order to resolve any such issue.
2. At any time, a Party may raise a specific SPS issue with the other Party through the Competent Authorities, as referred to in Annex SA (Competent Authorities) and may request additional information related to the issue. The other Party shall respond in a timely manner.
3. If an issue is not resolved through the information exchanged under paragraph 2 and Article 5.9, upon request of either Party through its Contact Point, the Parties shall meet in a timely manner to discuss the specific SPS issue, to avoid a disruption in trade, or to reach a mutually acceptable solution. The Parties shall meet either in person or using available technological means.
Article 5.7. Equivalence
1. The Parties recognize 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 in accordance with Annex A of the SPS Agreement, mutatis mutandis.
3. The fact that an exported product achieves compliance with SPS measures or standards that have been accepted as equivalent to SPS measures and 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, that Party shall promptly notify the other Party of that measure through the relevant Contact Point and the Competent Authority referred to in Article 5.5. The Party adopting the emergency measure shall take into consideration any information provided by the other Party in response to the notification and, upon request of the other Party, consultations between the Competent Authorities shall be held within 14 days of the notification.
2. The importing Party shall consider information provided by the exporting Party in a timely manner when making decisions with respect to consignments that, at the time of adoption of the emergency measure, are being transported between the Parties.
3. If a Party adopts an emergency measure, it shall review the scientific basis of that measure within six months and make available the results of the review to the other Party on request. If the Party maintains the emergency measure after the review because the reason for its adoption remains, the Party should review the measure periodically.
Article 5.9. Transparency and Exchange of Information
1. The Parties recognize the value of transparency in the adoption and application of SPS measures and the importance of sharing information about such measures on an ongoing basis.
2. In implementing this Chapter, 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. The Parties shall exchange information on proposed or actual SPS measures which affect or are likely to affect trade between them and relating to each Partyâs SPS regulatory system and to the extent that any Party desires to provide written comments on a proposed SPS measure by the other Party, the Party shall provide those comments in a timely 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. 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, notices of final sanitary or phytosanitary measures.
7. An exporting Party shall notify the importing Party through the Contact Points established under Article 5.5 in a timely and appropriate manner if it has knowledge of:
(a) a significant or urgent situation of a sanitary or phytosanitary risk in its territory that may affect current trade between the Parties; or
(b) significant changes in food safety, pest, or disease management, control, or eradication policies or practices that may affect current trade between the Parties.
8. A Party shall provide to the other Party, on request, all sanitary or phytosanitary measures related to the importation of a good into that Partyâs territory.
9. Each Party shall provide information, upon request of the other Party, on results of import checks in case of rejected or non-compliant consignments, including the scientific basis for such rejections.
Article 5.10. Cooperation
1. The Parties shall cooperate to facilitate the implementation of this Chapter.
2. The Parties shall explore opportunities for further cooperation, collaboration, and information exchange between the Parties on SPS matters of mutual interest related to the implementation of the SPS Agreement, consistent with this Chapter. Those opportunities may include trade facilitation initiatives and technical assistance.
3. The Parties may promote cooperation on matters related to the implementation of the WTO SPS Agreement, and in relevant international standard-setting bodies such as the Codex Alimentarius Commission, the International Plant Protection Convention (IPPC), and the World Organisation for Animal Health (WOAH), as appropriate.
4. If there is mutual interest, and with the objective of establishing a common scientific foundation for each Partyâs regulatory approach, the Competent Authorities of the Parties are encouraged to:
(a) share best practices; and
(b) cooperate on joint scientific data collection.
Chapter 6. TECHNICAL BARRIERS TO TRADE
Article 6.1. Definitions
For the purposes of this Chapter, the definitions shall be those contained in Annex 1 of the TBT Agreement.
Article 6.2. Objectives
The objective of this Chapter is to facilitate trade, including by eliminating unnecessary technical barriers to trade between the Parties that may arise as a result of the preparation, adoption and application of technical regulations, standards and conformity assessment procedures, enhancing transparency, and promoting joint cooperation between the Parties. Article 6.3: Scope
1. This Chapter shall apply to the preparation, adoption, and application of all technical regulations, standards, and conformity assessment procedures that may affect trade in goods between the Parties.
2. Notwithstanding paragraph 1, this Chapter shall not apply to:
(a) purchasing specifications prepared by a governmental body for its production or consumption requirements which are covered by Chapter 11 (Government Procurement); or
(b) sanitary or phytosanitary measures which are covered by Chapter 5 (Sanitary and Phytosanitary Measures).
Article 6.4. Affirmation and Incorporation of the TBT Agreement
The Parties affirm their existing rights and obligations with respect to each other under the TBT Agreement which is incorporated into and made part of this Agreement, mutatis mutandis, other than Articles 7 and 8 of the TBT Agreement.
Article 6.5. International Standards
1. 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, as a basis for its technical regulations and conformity assessment procedures.
2. In determining whether an international standard, guide, or recommendation within the meaning of Articles 2 and 5 and Annex 3 of the TBT Agreement exists, each Party shall base its determination on the principles set out in 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", adopted on 13 November 2000 by the WTO Committee on Technical Barriers to Trade (Annex 2 to PART 1 of G/TBT/1/Rev.14), and any subsequent version thereof.
3. The Parties shall encourage cooperation between their respective national standardizing organizations in areas of mutual interest, in the context of their participation in international standardizing bodies, to ensure that international standards developed within such organizations are trade facilitating and do not create unnecessary obstacles to international trade.
Article 6.6. Technical Regulations
1. The Parties shall use international standards as a basis for preparing their technical regulations, unless those international standards are ineffective or inappropriate for achieving the legitimate objective pursued. Each Party shall, upon request of the other Party, provide its reasons for not having used international standards as a basis for preparing its technical regulations.
2. Each Party shall give positive consideration to a request by the other Party to negotiate arrangements for achieving the equivalence of technical regulations of the other Party even if these regulations differ from its own, provided that these regulations adequately fulfill the objectives of its own regulations.
3. Each Party shall, upon request of the other Party, explain within a reasonable period of time, the reasons why it has not accepted a request by the other Party to negotiate such arrangements.
Article 6.7. Conformity Assessment Procedures
1. The Parties recognise that, depending on the specific sectors involved, a broad range of mechanisms exists to facilitate the acceptance in a Party's territory of the results of conformity assessment procedures conducted in the other Party's territory. Such mechanisms may include:
(a) recognizing existing international multilateral recognition agreements and arrangements among conformity assessment bodies;
(b) promoting mutual recognition of conformity assessment results by the other Party, through recognizing the other Party's designation of conformity assessment bodies;
(c) encouraging voluntary arrangements between conformity assessment bodies in the territory of each Party; (d) accepting a supplier's declaration of conformity where appropriate;
(e) harmonizing criteria for the designation of conformity assessment bodies, including accreditation procedures; or
(f) other mechanisms as mutually agreed by the Parties.
2. Each Party shall ensure, whenever possible, that the results of conformity assessment procedures conducted in the territory of the other Party are accepted, even when those procedures differ from its own, provided that those procedures offer a satisfactory assurance of applicable technical regulations or standards equivalent to its own procedures. Where a Party does not accept the results of a conformity assessment procedure conducted in the territory of the other Party, it shall, on request of the other Party, explain the reasons for its decision within a reasonable period of time.
3. In order to enhance confidence in the consistent reliability of conformity assessment results, the Parties may consult on matters such as the technical competence of the conformity assessment bodies involved.
4. Each Party shall give positive consideration to a request by the other Party to negotiate agreements or arrangements for the mutual recognition of the results of their respective conformity assessment procedures. The Parties shall consider the possibility of negotiating agreements or arrangements for mutual recognition of the results of their respective conformity assessment procedures in areas mutually agreed upon.
5. The Parties shall endeavour to intensify their exchange of information on acceptance mechanisms with a view to facilitating the acceptance of conformity assessment results.
Article 6.8. Cooperation
1. The Parties shall strengthen their cooperation in the field of technical regulations, standards, and conformity assessment procedures with a view to:
(a) increasing the mutual understanding of their respective systems;
(b) enhancing cooperation between the Parties' regulatory agencies on matters of mutual interests including health, safety and environmental protection;
(c) facilitating trade by implementing good regulatory practices; and
(d) enhancing cooperation, as appropriate, to ensure that technical regulations and conformity assessment procedures are based on international standards or the relevant parts of them and do not create unnecessary obstacles to trade between the Parties.
2. In order to achieve the objectives set out in paragraph 1, the Parties shall, as mutually agreed and to the extent possible, co-operate on regulatory issues, which may include the:
(a) promotion of good regulatory practices based on risk management principles;
(b) exchange of information with a view to improving the quality and effectiveness of their technical regulations;
(c) development of joint initiatives for managing risks to health, safety, or the environment, and preventing deceptive practices; and
(d) exchange of market surveillance information where appropriate.