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<p> 2-1 CHAPTER 2 NATIONAL TREATMENT AND MARKET ACCESS FOR GOODS Section A: Definitions and Scope Article 2.1: Definitions For the purposes of this Chapter: advertising films and recordings means recorded visual media or audio materials, consisting essentially of images or sound, showing the nature or operation of goods or services offered for sale or lease by a person of a Party, that are of a kind suitable for exhibition to prospective customers but not for broadcast to the general public; Agreement on Agriculture means the Agreement on Agriculture, set out in Annex 1A to the WTO Agreement; commercial samples of negligible value means commercial or trade samples: having a value, individually or in the aggregate as shipped, of not more than one U.S. dollar or the equivalent amount in the currency of another Party; or so marked, torn, perforated or otherwise treated that they are unsuitable for sale or for use except as commercial samples; consular transactions means requirements that goods of a Party intended for export to the territory of another Party must first be submitted to the supervision of the consul of the importing Party in the territory of the exporting Party for the purpose of obtaining consular invoices or consular visas for commercial invoices, certificates of origin, manifests, shippers’ export declarations, or any other customs documentation required on or in connection with importation; consumed means, with respect to a good: (a) actually consumed; or (b) further processed or manufactured: (i) so as to result in a substantial change in the value, form or use of the good; or (ii) in the production of another good; duty-free means free of customs duty; 2-2 goods admitted for sports purposes means sports requisites admitted into the territory of the importing Party for use in sports contests, demonstrations or training in the territory of that Party; goods intended for display or demonstration includes their component parts, ancillary apparatuses and accessories; import licensing means an administrative procedure requiring the submission of an application or other documentation, other than that generally required for customs clearance purposes, to the relevant administrative body of the importing Party as a prior condition for importation into the territory of that Party; Import Licensing Agreement means the Agreement on Import Licensing Procedures, set out in Annex 1A to the WTO Agreement; performance requirement means a requirement that: (a) a given level or percentage of goods or services be exported; (b) domestic goods or services of the Party granting a waiver of customs duties or an import licence be substituted for imported goods; (c) a person benefiting from a waiver of customs duties or a requirement for an import licence purchase other goods or services in the territory of the Party that grants the waiver of customs duties or the import licence or accord a preference to domestically produced goods; (d) a person benefiting from a waiver of customs duties or a requirement for an import licence produce goods or supply services in the territory of the Party that grants the waiver of customs duties or the import licence, with a given level or percentage of domestic content; or (e) relates in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows, but does not include a requirement that an imported good be: (f) subsequently exported; (g) used as a material in the production of another good that is subsequently exported; 2-3 (h) substituted by an identical or similar good used as a material in the production of another good that is subsequently exported; or (i) substituted by an identical or similar good that is subsequently exported; and printed advertising materials means those goods classified in Chapter 49 of the Harmonized System, including brochures, pamphlets, leaflets, trade catalogues, yearbooks published by trade associations, tourist promotional materials and posters, that are used to promote, publicise or advertise a good or service, are essentially intended to advertise a good or service, and are supplied free of charge. Article 2.2: Scope Unless otherwise provided in this Agreement, this Chapter applies to trade in goods of a Party. Section B: National Treatment and Market Access for Goods Article 2.3: National Treatment 1. Each Party shall accord national treatment to the goods of the other Parties in accordance with Article III of GATT 1994, including its interpretative notes, and to this end, Article III of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis. 2. For greater certainty, the treatment to be accorded by a Party under paragraph 1 means, with respect to a regional level of government, treatment no less favourable than the most favourable treatment that the regional level of government accords to any like, directly competitive or substitutable goods, as the case may be, of the Party of which it forms a part. 3. Paragraph 1 shall not apply to the measures set out in Annex 2-A (National Treatment and Import and Export Restrictions). Article 2.4: Elimination of Customs Duties 1. Unless otherwise provided in this Agreement, no Party shall increase any existing customs duty, or adopt any new customs duty, on an originating good. 2. Unless otherwise provided in this Agreement, each Party shall progressively eliminate its customs duties on originating goods in accordance with its Schedule to Annex 2-D (Tariff Commitments). 2-4 3. On request of any Party, the requesting Party and one or more other Parties shall consult to consider accelerating the elimination of customs duties set out in their Schedules to Annex 2-D (Tariff Commitments). 4. An agreement between two or more of the Parties to accelerate the elimination of a customs duty on an originating good shall supersede any duty rate or staging category determined pursuant to those Parties’ Schedules to Annex 2-D (Tariff Commitments) for that good once approved by each Party to that agreement in accordance with its applicable legal procedures. The parties to that agreement shall inform the other Parties as early as practicable before the new rate of customs duty takes effect. 5. A Party may at any time unilaterally accelerate the elimination of customs duties set out in its Schedule to Annex 2-D (Tariff Commitments) on originating goods of one or more of the other Parties. A Party shall inform the other Parties as early as practicable before the new rate of customs duty takes effect. 6. For greater certainty, no Party shall prohibit an importer from claiming for an originating good the rate of customs duty applied under the WTO Agreement. 7. For greater certainty, a Party may raise a customs duty to the level set out in its Schedule to Annex 2-D (Tariff Commitments) following a unilateral reduction for the respective year. Article 2.5: Waiver of Customs Duties 1. No Party shall adopt any new waiver of a customs duty, or expand with respect to an existing recipient or extend to any new recipient the application of an existing waiver of a customs duty, that is conditioned, explicitly or implicitly, on the fulfilment of a performance requirement. 2. No Party shall, explicitly or implicitly, condition the continuation of any existing waiver of a customs duty on the fulfilment of a performance requirement. Article 2.6: Goods Re-entered after Repair and Alteration 1. No Party shall apply a customs duty to a good, regardless of its origin, that re-enters the Party’s territory after that good has been temporarily exported from the Party’s territory to the territory of another Party for repair or alteration, regardless of whether that repair or alteration could have been performed in the territory of the Party from which the good was exported for repair or alteration or increased the value of the good.1 1 For Canada, this paragraph shall not apply to certain ships of Chapter 89 that have been repaired or altered. These ships will be treated in a manner consistent with the notes associated with the relevant tariff items in Canada’s Schedule to Annex 2-D (Tariff Commitments). 2-5 2. No Party shall apply a customs duty to a good, regardless of its origin, admitted temporarily from the territory of another Party for repair or alteration. 3. For the purposes of this Article, “repair or alteration” does not include an operation or process that: (a) destroys a good’s essential characteristics or creates a new or commercially different good; or (b) transforms an unfinished good into a finished good. Article 2.7: Duty-Free Entry of Commercial Samples of Negligible Value and Printed Advertising Material Each Party shall grant duty-free entry to commercial samples of negligible value and printed advertising material imported from the territory of another Party, regardless of their origin, but may require that: (a) commercial samples of negligible value be imported solely for the solicitation of orders for goods, or services provided from the territory, of another Party or a non-Party; or (b) printed advertising material be imported in packets that each contain no more than one copy of the material and that neither that material nor those packets form part of a larger consignment. Article 2.8: Temporary Admission of Goods 1. Each Party shall grant duty-free temporary admission for the following goods, regardless of their origin: (a) professional equipment, including equipment for the press or television, software, and broadcasting and cinematographic equipment, that is necessary for carrying out the business activity, trade or profession of a person who qualifies for temporary entry pursuant to the laws of the importing Party; (b) goods intended for display or demonstration; (c) commercial samples and advertising films and recordings; and (d) goods admitted for sports purposes. 2-6 2. Each Party shall, at the request of the person concerned and for reasons its customs authority considers valid, extend the time limit for duty-free temporary admission beyond the period initially fixed. 3. No Party shall condition the duty-free temporary admission of the goods referred to in paragraph 1, other than to require that those goods: (a) be used solely by or under the personal supervision of a national of another Party in the exercise of the business activity, trade, profession or sport of that national of another Party; (b) not be sold or leased while in its territory; (c) be accompanied by a security in an amount no greater than the charges that would otherwise be owed on entry or final importation, releasable on exportation of the goods; (d) be capable of identification when imported and exported; (e) be exported on the departure of the national referred to in subparagraph (a), or within any other period reasonably related to the purpose of the temporary admission that the Party may establish, or within one year, unless extended; (f) be admitted in no greater quantity than is reasonable for their intended use; and (g) be otherwise admissible into the Party’s territory under its laws. 4. Each Party shall grant duty-free temporary admission for containers and pallets regardless of their origin, that are in use or to be used in the shipment of goods in international traffic. (a) For the purposes of this paragraph, container means an article of transport equipment that is: fully or partially enclosed to constitute a compartment intended for containing goods; substantial and has an internal volume of one cubic metre or more; of a permanent character and accordingly strong enough to be suitable for repeated use; used in significant numbers in international traffic; specially designed to facilitate the carriage of goods by more than one mode of transport without intermediate reloading; and designed both for ready handling, particularly when being transferred from one mode of transport to another, and to be easy to fill and to empty, but does 2-7 not include vehicles, accessories or spare parts of vehicles or packaging.2 (b) For the purposes of this paragraph, pallet means a small, portable platform, which consists of two decks separated by bearers or a single deck supported by feet, on which goods can be moved, stacked and stored, and which is designed essentially for handling by means of fork lift trucks, pallet trucks or other jacking devices. 5. If any condition that a Party imposes under paragraph 3 has not been fulfilled, the Party may apply the customs duty and any other charge that would normally be owed on the good in addition to any other charges or penalties provided for under its law. 6. Each Party shall adopt and maintain procedures providing for the expeditious release of goods admitted under this Article. To the extent possible, those procedures shall provide that when a good admitted under this Article accompanies a national of another Party who is seeking temporary entry, the good shall be released simultaneously with the entry of that national. 7. Each Party shall permit a good temporarily admitted under this Article to be exported through a customs port other than the port through which it was admitted. 8. Each Party shall, in accordance with its law, provide that the importer or other person responsible for a good admitted under this Article shall not be liable for failure to export the good on presentation of satisfactory proof to the importing Party that the good was destroyed within the period fixed for temporary admission, including any lawful extension. 9. Subject to Chapter 9 (Investment) and Chapter 10 (Cross-Border Trade in Services): (a) each Party shall allow a vehicle or container used in international traffic that enters its territory from the territory of another Party to exit its territory on any route that is reasonably related to the economical and prompt departure of that vehicle or container;3 2 Each Party shall eliminate customs duties on containers classified in HS 86.09 that have an internal volume of less than one cubic metre on the date of entry into force of this Agreement for that Party as set out in that Party’s Schedule to Annex 2-D (Tariff Commitments). 3 For greater certainty, nothing in this subparagraph shall be construed to prevent a Party from adopting or maintaining highway and railway safety measures of general application, or from preventing a vehicle or container from entering or exiting its territory in a location where the Party does not maintain a customs port. 2-8 (b) no Party shall require any security or impose any penalty or charge solely by reason of any difference between the customs port of entry and the customs port of departure of a vehicle or container; (c) no Party shall condition the release of any obligation, including any security, that it imposes in respect of the entry of a vehicle or container into its territory on the exit of that vehicle or container through any particular customs port of departure; and (d) no Party shall require that the vehicle or carrier bringing a container from the territory of another Party into its territory be the same vehicle or carrier that takes that container to the territory of that other Party, or to the territory of any other Party. 10. For the purposes of paragraph 9, vehicle means a truck, a truck tractor, a tractor, a trailer unit or trailer, a locomotive, or a railway car or other railroad equipment. Article 2.9: Ad hoc Discussions 1. Each Party shall designate and notify a contact point in accordance with Article 27.5 (Contact Points), to facilitate communications between the Parties on any matter covered by this Chapter, including any request or information conveyed under Article 26.5 (Provision of Information) relating to a measure of a Party that may affect the operation of this Chapter. 2. A Party (the requesting Party) may request ad hoc discussions on any matter arising under this Chapter (including a specific non-tariff measure) that the requesting Party believes may adversely affect its interests in trade in goods, except a matter that could be addressed under a Chapter-specific consultation mechanism established under another Chapter, by delivering a written request to another Party (the requested Party) through its contact point for this Chapter. The request shall be in writing and identify the reasons for the request, including a description of the requesting Party’s concerns and an indication of the provisions of this Chapter to which the concerns relate. The requesting Party may provide all the other Parties with a copy of the request. 3. If the requested Party considers that the matter that is the subject of the request should be addressed under a Chapter-specific consultation mechanism established under another Chapter, it shall promptly notify the contact point for this Chapter of the requesting Party and include in its notice the reasons it considers that the request should be addressed under the other mechanism. The requested Party shall promptly forward the request and its notice to the overall contact points of the requesting and requested Parties designated under Article 27.5 (Contact Points) for appropriate action. 2-9 4. Within 30 days of receipt of a request under paragraph 2, the requested Party shall provide a written reply to the requesting Party. Within 30 days of the requesting Party’s receipt of the reply, the requesting and requested Parties (the discussing Parties) shall meet in person or via electronic means to discuss the matter identified in the request. If the discussing Parties choose to meet in person, the meeting shall take place in the territory of the requested Party, unless the discussing Parties decide otherwise. 5. Any Party may submit a written request to the discussing Parties to participate in the ad hoc discussions. If the matter has not been resolved prior to the receipt of a Party’s request to participate and the discussing Parties agree, the Party may participate in these ad hoc discussions subject to any conditions that the discussing Parties may decide. 6. If the requesting Party believes that the matter is urgent, it may request that ad hoc discussions take place within a shorter time frame than that provided for under paragraph 4. Any Party may request urgent ad hoc discussions if a measure: (a) is applied without prior notice or without an opportunity for a Party to avail itself of ad hoc discussions under paragraphs 2, 3 and 4; and (b) may threaten to impede the importation, sale or distribution of an originating good which is in the process of being transported from the exporting Party to the importing Party, or has not been released from customs control, or is in storage in a warehouse regulated by the customs administration of the importing Party. 7. Ad hoc discussions under this Article shall be confidential and without prejudice to the rights of any Party, including being without prejudice to rights pertaining to dispute settlement proceedings under Chapter 28 (Dispute Settlement). Article 2.10: Import and Export Restrictions 1. Unless otherwise provided in this Agreement, no Party shall adopt or maintain any prohibition or restriction on the importation of any good of another Party or on the exportation or sale for export of any good destined for the territory of another Party, except in accordance with Article XI of GATT 1994 and its interpretative notes, and to this end Article XI of GATT 1994 and its interpretative notes are incorporated into and made part of this Agreement, mutatis mutandis. 2-10 2. The Parties understand that GATT 1994 rights and obligations incorporated by paragraph 1 prohibit, in any circumstances in which any other form of restriction is prohibited, a Party from adopting or maintaining: (a) export and import price requirements, except as permitted in enforcement of countervailing and antidumping duty orders and undertakings; (b) import licensing conditioned on the fulfilment of a performance requirement; or (c) voluntary export restraints inconsistent with Article VI of GATT 1994, as implemented under Article 18 of the SCM Agreement and Article 8.1 of the AD Agreement. 3. For greater certainty, paragraph 1 applies to the importation of commercial cryptographic goods. 4. For the purposes of paragraph 3: commercial cryptographic goods means any good implementing or incorporating cryptography, if the good is not designed or modified specifically for government use and is sold or otherwise made available to the public. 5. Paragraphs 1 and 2 shall not apply to the measures set out in Annex 2-A (National Treatment and Import and Export Restrictions). 6. In the event that a Party adopts or maintains a prohibition or restriction on the importation from or exportation to a non-Party of a good, no provision of this Agreement shall be construed to prevent that Party from: (a) limiting or prohibiting the importation of the good of the non-Party from the territory of another Party; or (b) requiring, as a condition for exporting the good of that Party to the territory of another Party, that the good not be re-exported to the non-Party, directly or indirectly, without being consumed in the territory of the other Party. 7. In the event that a Party adopts or maintains a prohibition or restriction on the importation of a good from a non-Party, the Parties, on the request of any Party, shall consult with a view to avoiding undue interference with or distortion of pricing, marketing, or distribution arrangements in another Party. 2-11 8. No Party shall, as a condition for engaging in importation or for the importation of a good, require a person of another Party to establish or maintain a contractual or other relationship with a distributor in its territory.4 9. For greater certainty, paragraph 8 does not prevent a Party from requiring a person referred to in that paragraph to designate a point of contact for the purpose of facilitating communications between its regulatory authorities and that person. 10. For the purposes of paragraph 8: distributor means a person of a Party who is responsible for the commercial distribution, agency, concession or representation in the territory of that Party of goods of another Party. Article 2.11: Remanufactured Goods 1. For greater certainty, Article 2.10.1 (Import and Export Restrictions) shall apply to prohibitions and restrictions on the importation of remanufactured goods. 2. If a Party adopts or maintains measures prohibiting or restricting the importation of used goods, it shall not apply those measures to remanufactured goods.5, 6 Article 2.12: Import Licensing 1. No Party shall adopt or maintain a measure that is inconsistent with the Import Licensing Agreement. 2. Promptly after this Agreement enters into force for a Party, that Party shall notify the other Parties of its existing import licensing procedures, if any. The notice shall include the information specified in Article 5.2 of the Import Licensing Agreement and any information required under paragraph 6. 4 This paragraph shall not apply to the importation or distribution of rice and paddy in Malaysia. 5 For greater certainty, subject to its obligations under this Agreement and the WTO Agreement, a Party may require that remanufactured goods: (a) be identified as such for distribution or sale in its territory; and (b) meet all applicable technical requirements that apply to equivalent goods in new condition. 6 This paragraph shall not apply to the treatment of certain remanufactured goods by Viet Nam as set out in Annex 2-B (Remanufactured Goods). 2-12 3. A Party shall be deemed to be in compliance with the obligations in paragraph 2 with respect to an existing import licensing procedure if: (a) it has notified that procedure to the WTO Committee on Import Licensing provided for in Article 4 of the Import Licensing Agreement together with the information specified in Article 5.2 of that agreement; (b) in the most recent annual submission due before the date of entry into force of this Agreement for that Party to the WTO Committee on Import Licensing in response to the annual questionnaire on import licensing procedures described in Article 7.3 of the Import Licensing Agreement, it has provided, with respect to that procedure, the information requested in that questionnaire; and (c) it has included in either the notice described in subparagraph (a) or the annual submission described in subparagraph (b) any information required to be notified to the other Parties under paragraph 6. 4. Each Party shall comply with Article 1.4(a) of the Import Licensing Agreement with respect to any new or modified import licensing procedure. Each Party shall also publish on an official government website any information that it is required to publish under Article 1.4(a) of the Import Licensing Agreement. 5. Each Party shall notify the other Parties of any new import licensing procedures it adopts and any modifications it makes to its existing import licensing procedures, if possible, no later than 60 days before the new procedure or modification takes effect. In no case shall a Party provide the notification later than 60 days after the date of its publication. The notification shall include any information required under paragraph 6. A Party shall be deemed to be in compliance with this obligation if it notifies a new import licensing procedure or a modification to an existing import licensing procedure to the WTO Committee on Import Licensing in accordance with Article 5.1, 5.2 or 5.3 of the Import Licensing Agreement, and includes in its notification any information required to be notified to the other Parties under paragraph 6. 6. (a) A notice under paragraph 2, 3 or 5 shall state if, under any import licensing procedure that is a subject of the notice: (i) the terms of an import licence for any product limit the permissible end users of the product; or (ii) the Party imposes any of the following conditions on eligibility for obtaining a licence to import any product: (A) membership in an industry association; 2-13 (B) approval by an industry association of the request for an import licence; (C) a history of importing the product or similar products; (D) minimum importer or end user production capacity; (E) minimum importer or end user registered capital; or (F) a contractual or other relationship between the importer and a distributor in the Party’s territory. (b) A notice that states, under subparagraph (a), that there is a limitation on permissible end users or a licence-eligibility condition shall: (i) list all products for which the end-user limitation or licence- eligibility condition applies; and (ii) describe the end-user limitation or licence-eligibility condition. 7. Each Party shall respond within 60 days to a reasonable enquiry from another Party concerning its licensing rules and its procedures for the submission of an application for an import licence, including the eligibility of persons, firms and institutions to make an application, the administrative body or bodies to be approached and the list of products subject to the licensing requirement. 8. If a Party denies an import licence application with respect to a good of another Party, it shall, on request of the applicant and within a reasonable period after receiving the request, provide the applicant with a written explanation of the reason for the denial. 9. No Party shall apply an import licensing procedure to a good of another Party unless it has, with respect to that procedure, met the requirements of paragraph 2 or 4, as applicable. Article 2.13: Transparency in Export Licensing Procedures7 1. For the purposes of this Article: export licensing procedure means a requirement that a Party adopts or maintains under which an exporter must, as a condition for exporting a good from the 7 The obligations in this Article shall apply only to procedures for applying for an export licence. 2-14 Party’s territory, submit an application or other documentation to an administrative body or bodies, but does not include customs documentation required in the normal course of trade or any requirement that must be fulfilled prior to introduction of the good into commerce within the Party’s territory. 2. Within 30 days of the date of entry into force of this Agreement for a Party, that Party shall notify the other Parties in writing of the publications in which its export licensing procedures, if any, are set out, including addresses of relevant government websites. Thereafter, each Party shall publish in the notified publications and websites any new export licensing procedure, or any modification of an export licensing procedure, that it adopts as soon as practicable but no later than 30 days after the new procedure or modification takes effect. 3. Each Party shall ensure that it includes in the publications it notifies under paragraph 2: (a) the texts of its export licensing procedures, including any modifications it makes to those procedures; (b) the goods subject to each licensing procedure; (c) for each procedure, a description of: (i) the process for applying for a licence; and (ii) any criteria an applicant must meet to be eligible to apply for a licence, such as possessing an activity licence, establishing or maintaining an investment, or operating through a particular form of establishment in a Party’s territory; (d) a contact point or points from which interested persons can obtain further information on the conditions for obtaining an export licence; (e) the administrative body or bodies to which an application for a licence or other relevant documentation must be submitted; (f) a description of or a citation to a publication reproducing in full any measure or measures that the export licensing procedure is designed to implement; (g) the period during which each export licensing procedure will be in effect, unless the procedure will remain in effect until withdrawn or revised in a new publication; 2-15 (h) if the Party intends to use a licensing procedure to administer an export quota, the overall quantity and, if practicable, value of the quota and the opening and closing dates of the quota; and (i) any exemptions or exceptions available to the public that replace the requirement to obtain an export licence, how to request or use these exemptions or exceptions and the criteria for them. 4. Except where doing so would reveal business proprietary or other confidential information of a particular person, on request of another Party that has a substantial trade interest in the matter, a Party shall provide, to the extent possible, the following information regarding a particular export licensing procedure that it adopts or maintains: (a) the aggregate number of licences that the Party has granted over a recent period that the requesting Party has specified; and (b) measures, if any, that the Party has taken in conjunction with the licensing procedure to restrict domestic production or consumption or to stabilise production, supply or prices for the relevant good. 5. Nothing in this Article shall be construed in a manner that would require a Party to grant an export licence, or that would prevent a Party from implementing its obligations or commitments under United Nations Security Council Resolutions, as well as multilateral non-proliferation regimes, including: the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual- Use Goods and Technologies; the Nuclear Suppliers Group; the Australia Group; the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, done at Paris, January 13, 1993; the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, done at Washington, London, and Moscow, April 10, 1972; the Treaty on the Non-Proliferation of Nuclear Weapons, done at London, Moscow and Washington, July 1, 1968; and the Missile Technology Control Regime. Article 2.14: Administrative Fees and Formalities 1. Each Party shall ensure, in accordance with Article VIII:1 of GATT 1994 and its interpretative notes, that all fees and charges of whatever character (other than export taxes, customs duties, charges equivalent to an internal tax or other internal charge applied consistently with Article III:2 of GATT 1994, and antidumping and countervailing duties) imposed on or in connection with importation or exportation are limited in amount to the approximate cost of services rendered and do not represent an indirect protection to domestic goods or a taxation of imports or exports for fiscal purposes. 2-16 2. No Party shall require consular transactions, including related fees and charges, in connection with the importation of a good of another Party. 3. Each Party shall make publicly available online a current list of the fees and charges it imposes in connection with importation or exportation. 4. No Party shall levy fees and charges on or in connection with importation or exportation on an ad valorem basis.8 5. Each Party shall periodically review its fees and charges, with a view to reducing their number and diversity if practicable. Article 2.15: Export Duties, Taxes or Other Charges Except as provided for in Annex 2-C (Export Duties, Taxes or Other Charges), no Party shall adopt or maintain any duty, tax or other charge on the export of any good to the territory of another Party, unless such duty, tax or charge is adopted or maintained on that good when destined for domestic consumption. Article 2.16: Publication Each Party shall promptly publish the following information in a non- discriminatory and easily accessible manner, in order to enable interested parties to become acquainted with it: (a) importation, exportation and transit procedures, including port, airport and other entry-point procedures, and required forms and documents; (b) applied rates of duties, and taxes of any kind imposed on or in connection with importation or exportation; (c) rules for the classification or the valuation of products for customs purposes; (d) laws, regulations and administrative rulings of general application relating to rules of origin; 8 The Merchandise Processing Fee (MPF) shall be the only fee or charge of the United States to which this paragraph shall apply. In addition, this paragraph shall not apply to any fee or charge of the United States until three years after the date of entry into force of this Agreement for the United States. Further, this paragraph shall not apply to any fee or charge of Mexico on or in connection with the importation or exportation of a non-originating good until five years after the date of entry into force of this Agreement for Mexico. 2-17 (e) import, export or transit restrictions or prohibitions; (f) fees and charges imposed on or in connection with importation, exportation or transit; (g) penalty provisions against breaches of import, export or transit formalities; (h) appeal procedures; (i) agreements or parts of agreements with any country relating to importation, exportation or transit; (j) administrative procedures relating to the imposition of tariff quotas; and (k) correlation tables showing correspondence between any new national nomenclature and the previous national nomenclature. Article 2.17: Trade in Information Technology Products Each Party shall be a participant in the WTO Ministerial Declaration on Trade in Information Technology Products (Information Technology Agreement), 13 December 1996, and have completed the procedures for modification and rectification of its Schedule of Tariff Concessions set out in the Decision of 26 March 1980, L/4962, in accordance with paragraph 2 of the Information Technology Agreement.9, 10 Article 2.18: Committee on Trade in Goods 1. The Parties hereby establish a Committee on Trade in Goods (Committee), composed of government representatives of each Party. 2. The Committee shall meet as necessary to consider any matters arising under this Chapter. During the first five years after entry into force of this Agreement, the Committee shall meet no less than once a year. 3. The Committee’s functions shall include: 9 This Article shall not apply to Brunei Darussalam until one year after the date of entry into force of this Agreement for Brunei Darussalam. 10 Notwithstanding this Article, Chile and Mexico shall endeavour to become participants in the Information Technology Agreement. The eventual participation of Chile and Mexico in that agreement shall be subject to the completion of their respective internal legal procedures. 2-18 (a) promoting trade in goods between the Parties, including through consultations on accelerating tariff elimination under this Agreement and other issues as appropriate; (b) addressing barriers to trade in goods between the Parties, other than those within the competence of other committees, working groups or any other subsidiary bodies established under this Agreement, especially those related to the application of non-tariff measures and, if appropriate, refer these matters to the Commission for its consideration; (c) reviewing the future amendments to the Harmonized System to ensure that each Party’s obligations under this Agreement are not altered, including by establishing, as needed, guidelines for the transposition of Parties’ Schedules to Annex 2-D (Tariff Commitments) and consulting to resolve any conflicts between: (i) amendments to the Harmonized System and Annex 2-D (Tariff Commitments); or (ii) Annex 2-D (Tariff Commitments) and national nomenclatures; (d) consulting on and endeavouring to resolve any differences that may arise between the Parties on matters related to the classification of goods under the Harmonized System and Annex 2-D (Tariff Commitments); and (e) undertaking any additional work that the Commission may assign to it. 4. The Committee shall consult, as appropriate, with other committees established under this Agreement when addressing issues of relevance to those committees. 5. The Committee shall, within two years of the date of entry into force of this Agreement, submit to the Commission an initial report on its work under paragraphs 3(a) and 3(b). In producing this report, the Committee shall consult, as appropriate, with the Committee on Agricultural Trade established under Article 2.25 (Committee on Agricultural Trade) and the Committee on Textile and Apparel Trade Matters established under Chapter 4 (Textile and Apparel Goods) of this Agreement on portions of the report of relevance to those committees. 2-19 Section C: Agriculture Article 2.19: Definitions For the purposes of this Section: agricultural goods means those goods referred to in Article 2 of the Agreement on Agriculture; export subsidies shall have the meaning assigned to that term in Article 1(e) of the Agreement on Agriculture, including any amendment of that Article; modern biotechnology means the application of: (a) in vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (rDNA) and direct injection of nucleic acid into cells or organelles; or (b) fusion of cells beyond the taxonomic family, that overcome natural physiological reproductive or recombinant barriers and that are not techniques used in traditional breeding and selection; and products of modern biotechnology means agricultural goods, as well as fish and fish products11 , developed using modern biotechnology, but does not include medicines and medical products. Article 2.20: Scope This Section shall apply to measures adopted or maintained by a Party relating to trade in agricultural goods. Article 2.21: Agricultural Export Subsidies 1. The Parties share the objective of the multilateral elimination of export subsidies for agricultural goods and shall work together to achieve an agreement in the WTO to eliminate those subsidies and prevent their reintroduction in any form. 2. No Party shall adopt or maintain any export subsidy on any agricultural good destined for the territory of another Party.12 11 For the purposes of Article 2.27 (Trade of Products of Modern Biotechnology) and the definition of “products of modern biotechnology”, “fish and fish products” are defined as products in Chapter 3 of the Harmonized System. 2-20 Article 2.22: Export Credits, Export Credit Guarantees or Insurance Programmes Recognising the ongoing work in the WTO in the area of export competition and that export competition remains a key priority in multilateral negotiations, Parties shall work together in the WTO to develop multilateral disciplines to govern the provision of export credits, export credit guarantees and insurance programmes, including disciplines on matters such as transparency, self-financing and repayment terms. Article 2.23: Agricultural Export State Trading Enterprises The Parties shall work together toward an agreement in the WTO on export state trading enterprises that requires: (a) the elimination of trade distorting restrictions on the authorisation to export agricultural goods; (b) the elimination of any special financing that a WTO Member grants directly or indirectly to state trading enterprises that export for sale a significant share of the Member’s total exports of an agricultural good; and (c) greater transparency regarding the operation and maintenance of export state trading enterprises. Article 2.24: Export Restrictions – Food Security 1. Parties recognise that under Article XI:2(a) of GATT 1994, a Party may temporarily apply an export prohibition or restriction that is otherwise prohibited under Article XI:1 of GATT 1994 on foodstuffs13 to prevent or relieve a critical shortage of foodstuffs, subject to meeting the conditions set out in Article 12.1 of the Agreement on Agriculture. 2. In addition to the conditions set out in Article 12.1 of the Agreement on Agriculture under which a Party may apply an export prohibition or restriction, other than a duty, tax or other charge, on foodstuffs: (a) a Party that: (i) imposes such a prohibition or restriction on the exportation or sale for export of foodstuffs to another Party to prevent 12 For greater certainty and without prejudice to any Party’s position in the WTO, this Article does not cover measures referred to in Article 10 of the Agreement on Agriculture. 13 For the purpose of this Article, foodstuffs include fish and fisheries products, intended for human consumption. 2-21 or relieve a critical shortage of foodstuffs, shall in all cases notify the measure to the other Parties prior to the date it takes effect and, except when the critical shortage is caused by an event constituting force majeure, shall notify the measure to the other Parties at least 30 days prior to the date it takes effect; or (ii) as of the date of entry into force of this Agreement for that Party, maintains such a prohibition or restriction, shall, within 30 days of that date, notify the measure to the other Parties. (b) A notification under this paragraph shall include the reasons for imposing or maintaining the prohibition or restriction, as well as an explanation of how the measure is consistent with Article XI:2(a) of GATT 1994, and shall note alternative measures, if any, that the Party considered before imposing the prohibition or restriction. (c) A measure shall not be subject to notification under this paragraph or paragraph 4 if it prohibits or restricts the exportation or sale for export only of a foodstuff or foodstuffs of which the Party imposing the measure has been a net importer during each of the three calendar years preceding the imposition of the measure, excluding the year in which the Party imposes the measure. (d) If a Party that adopts or maintains a measure referred to in subparagraph (a) has been a net importer of each foodstuff subject to that measure during each of the three calendar years preceding imposition of the measure, excluding the year in which the Party imposes the measure, and that Party does not provide the other Parties with a notification under subparagraph (a), the Party shall, within a reasonable period of time, provide to the other Parties trade data demonstrating that it was a net importer of the foodstuff or foodstuffs during these three calendar years. 3. A Party that is required to notify a measure under paragraph 2(a) shall: (a) consult, on request, with any other Party having a substantial interest as an importer of the foodstuffs subject to the measure, with respect to any matter relating to the measure; (b) on the request of any Party having a substantial interest as an importer of the foodstuffs subject to the measure, provide that Party with relevant economic indicators bearing on whether a critical shortage within the meaning of Article XI:2(a) of GATT 1994 exists or is likely to occur in the absence of the measure, and on how the measure will prevent or relieve the critical shortage; and 2-22 (c) respond in writing to any question posed by any other Party regarding the measure within 14 days of receipt of the question. 4. A Party which considers that another Party should have notified a measure under paragraph 2(a) may bring the matter to the attention of that other Party. If the matter is not satisfactorily resolved promptly thereafter, the Party which considers that the measure should have been notified may itself bring the measure to the attention of the other Parties. 5. A Party should ordinarily terminate a measure subject to notification under paragraph 2(a) or 4 within six months of the date it is imposed. A Party contemplating continuation of a measure beyond six months from the date it is imposed shall notify the other Parties no later than five months after the date the measure is imposed and provide the information specified in paragraph 2(b). Unless the Party has consulted with the other Parties that are net importers of any foodstuff the exportation of which is prohibited or restricted under the measure, the Party shall not continue the measure beyond 12 months from the date it is imposed. The Party shall immediately discontinue the measure when the critical shortage, or threat thereof, ceases to exist. 6. No Party shall apply any measure that is subject to notification under paragraph 2(a) or 4 to food purchased for non-commercial humanitarian purposes. Article 2.25: Committee on Agricultural Trade 1. The Parties hereby establish a Committee on Agricultural Trade, composed of government representatives of each Party. 2. The Committee on Agricultural Trade shall provide a forum for: (a) promoting trade in agricultural goods between the Parties under this Agreement and other issues as appropriate; (b) monitoring and promoting cooperation on the implementation and administration of this Section, including notification of export restrictions on foodstuffs as stipulated in Article 2.24 (Export Restrictions – Food Security), and discussing the cooperative work identified in Article 2.21 (Agricultural Export Subsidies), Article 2.22 (Export Credits, Export Credit Guarantees or Insurance Programmes) and Article 2.23 (Agricultural Export State Trading Enterprises); (c) consultation among the Parties on matters related to this Section in coordination with other committees, working groups or any other subsidiary bodies established under this Agreement; and 2-23 (d) undertaking any additional work that the Committee on Trade in Goods and the Commission may assign. 3. The Committee on Agricultural Trade shall meet as necessary. During the first five years after entry into force of this Agreement, the Committee on Agricultural Trade shall meet no less than once a year. Article 2.26: Agricultural Safeguards Originating agricultural goods from any Party shall not be subject to any duties applied by a Party pursuant to a special safeguard taken under the Agreement on Agriculture. Article 2.27: Trade of Products of Modern Biotechnology 1. The Parties confirm the importance of transparency, cooperation and exchanging information related to the trade of products of modern biotechnology. 2. Nothing in this Article shall prevent a Party from adopting measures in accordance with its rights and obligations under the WTO Agreement or other provisions of this Agreement. 3. Nothing in this Article shall require a Party to adopt or modify its laws, regulations and policies for the control of products of modern biotechnology within its territory. 4. Each Party shall, when available and subject to its laws, regulations and policies, make available publicly: (a) any documentation requirements for completing an application for the authorisation of a product of modern biotechnology; (b) a summary of any risk or safety assessment that has led to the authorisation of a product of modern biotechnology; and (c) a list or lists of the products of modern biotechnology that have been authorised in its territory. 5. Each Party shall designate and notify a contact point or contact points for the sharing of information on issues related to low level presence (LLP) 14 occurrences, in accordance with Article 27.5 (Contact Points). 14 For the purposes of this Article, “LLP occurrence” means the inadvertent low level presence in a shipment of plants or plant products, except for a plant or plant product that is a medicine or medical product, of rDNA plant material that is authorised for use in at least one country, but not in the importing country, and if authorised for food use, a food safety assessment has been done 2-24 6. In order to address an LLP occurrence, and with a view to preventing a future LLP occurrence, on request of an importing Party, an exporting Party shall, when available and subject to its laws, regulations and policies: (a) provide a summary of the risk or safety assessment or assessments, if any, that the exporting Party conducted in connection with an authorisation of a specific plant product of modern biotechnology; (b) provide, if known to the exporting Party, contact information for any entity within its territory that received authorisation for the plant product of modern biotechnology and which the Party believes is likely to possess: (i) any validated methods that exist for the detection of the plant product of modern biotechnology found at a low level in a shipment; (ii) any reference samples necessary for the detection of the LLP occurrence; and (iii) relevant information that can be used by the importing Party to conduct a risk or safety assessment or, if a food safety assessment is appropriate, relevant information for a food safety assessment in accordance with Annex 3 of the Codex Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants (CAC/GL 45-2003); and (c) encourage an entity referred to in subparagraph (b) to share the information referred to in subparagraphs (b)(i), (b)(ii) and (b)(iii) with the importing Party. 7. In the event of an LLP occurrence, the importing Party shall, subject to its laws, regulations and policies: (a) inform the importer or the importer’s agent of the LLP occurrence and of any additional information that the importer will be required to submit to allow the importing Party to make a decision on the disposition of the shipment in which the LLP occurrence has been found; (b) if available, provide to the exporting Party a summary of any risk or safety assessment that the importing Party has conducted in connection with the LLP occurrence; and based on the Codex Guideline for the Conduct of a Food Safety Assessment of Foods Derived from Recombinant-DNA Plants (CAC/GL 45-2003). 2-26 Section D: Tariff-Rate Quota Administration Article 2.28: Scope and General Provisions 1. Each Party shall implement and administer tariff-rate quotas (TRQs16) in accordance with Article XIII of GATT 1994, including its interpretative notes, the Import Licensing Agreement and Article 2.12 (Import Licensing). All TRQs established by a Party under this Agreement shall be incorporated into that Party’s Schedule to Annex 2-D (Tariff Commitments). 2. Each Party shall ensure that its procedures for administering its TRQs are made available to the public, are fair and equitable, are no more administratively burdensome than absolutely necessary, are responsive to market conditions and are administered in a timely manner. 3. The Party administering a TRQ shall publish all information concerning its TRQ administration, including the size of quotas and eligibility requirements; and, if the TRQ will be allocated, application procedures, the application deadline, and the methodology or procedures that will be used for the allocation or reallocation, on its designated publicly available website at least 90 days prior to the opening date of the TRQ concerned. Article 2.29: Administration and Eligibility 1. Each Party shall administer its TRQs in a manner that allows importers the opportunity to utilise TRQ quantities fully. 2. (a) Except as provided in subparagraphs (b) and (c), no Party shall introduce a new or additional condition, limit or eligibility requirement on the utilisation of a TRQ for importation of a good, including in relation to specification or grade, permissible end-use of the imported product or package size, beyond those set out in its Schedule to Annex 2-D (Tariff Commitments).17 (b) A Party seeking to introduce a new or additional condition, limit or eligibility requirement on the utilisation of a TRQ for importation of a good shall notify the other Parties at least 45 days prior to the proposed effective date of the new or additional condition, limit or 16 For the purposes of this Section, TRQs means only TRQs that are established under this Agreement as set out in a Party’s Schedule to Annex 2-D (Tariff Commitments). For greater certainty, this Section shall not apply to TRQs set out in a Party’s Schedule to the WTO Agreement. 17 For greater certainty, this paragraph shall not apply to conditions, limits or eligibility requirements that apply regardless of whether or not the importer utilises the TRQ when importing the good. 2-27 eligibility requirement. Any Party with a demonstrable commercial interest in supplying the good may submit a written request for consultations to the Party seeking to introduce the new or additional condition, limit or eligibility requirement. On receipt of such a request for consultations, the Party seeking to introduce the new or additional condition, limit or eligibility requirement shall promptly undertake consultations with the Party that submitted the request, in accordance with Article 2.32.6 (Transparency). (c) The Party seeking to introduce the new or additional condition, limit or eligibility requirement may do so if: (i) it has consulted with any Party with a demonstrable commercial interest in supplying the good that has submitted a written request for consultations pursuant to subparagraph (b); and (ii) no Party with a demonstrable commercial interest in supplying the good that submitted a written request for consultations pursuant to subparagraph (b) objected, after the consultation, to the introduction of the new or additional condition, limit or eligibility requirement. (d) A new or additional condition, limit or eligibility requirement that is the outcome of any consultation held pursuant to subparagraph (c), shall be circulated to the Parties prior to its implementation. Article 2.30: Allocation18 1. In the event that access under a TRQ is subject to an allocation mechanism, each importing Party shall ensure that: (a) any person of a Party that fulfils the importing Party’s eligibility requirements is able to apply and to be considered for a quota allocation under the TRQ; (b) unless otherwise agreed, it does not allocate any portion of the quota to a producer group, condition access to an allocation on the purchase of domestic production or limit access to an allocation to processors; 18 For the purposes of this Section, “allocation mechanism” means any system where access to the TRQ is granted on a basis other than first-come first-served. 2-28 (c) each allocation is made in commercially viable shipping quantities and, to the maximum extent possible, in the amounts that importers request; (d) an allocation for in-quota imports is applicable to any tariff lines subject to the TRQ and is valid throughout the TRQ year; (e) if the aggregate TRQ quantity requested by applicants exceeds the quota size, allocation to eligible applicants shall be conducted by equitable and transparent methods; (f) applicants have at least four weeks after the opening of the application period to submit their applications; and (g) quota allocation takes place no later than four weeks before the opening of the quota period, unless the allocation is based in whole or in part on import performance during the 12-month period immediately preceding the quota period. If the Party bases the allocation in whole or in part on import performance during the 12- month period immediately preceding the quota period, the Party shall make a provisional allocation of the full quota amount no later than four weeks before the opening of the quota period. All final allocation decisions, including any revisions, shall be made and communicated to applicants by the beginning of the quota period. 2. During the first TRQ year that this Agreement is in force for a Party, if less than 12 months remain in the TRQ year on the date of entry into force of this Agreement for that Party, the Party shall make available to quota applicants, beginning on the date of entry into force of this Agreement for that Party, the quota quantity established in its Schedule to Annex 2-D (Tariff Commitments), multiplied by a fraction the numerator of which shall be a whole number consisting of the number of months remaining in the TRQ year on the date of entry into force of this Agreement for that Party, including the entirety of the month in which this Agreement enters into force for that Party, and the denominator of which shall be 12. The Party shall make the entire quota quantity established in its Schedule to Annex 2-D (Tariff Commitments) available to quota applicants beginning on the first day of each TRQ year thereafter that the quota is in operation. 3. The Party administering a TRQ shall not require the re-export of a good as a condition for application for, or utilisation of, a quota allocation. 4. Any quantity of goods imported under a TRQ under this Agreement shall not be counted towards, or reduce the quantity of, any other TRQ provided for 2-29 such goods in a Party’s Schedule to the WTO Agreement or under any other trade agreements.19 Article 2.31: Return and Reallocation of TRQs 1. When a TRQ is administered by an allocation mechanism, a Party shall ensure that there is a mechanism for the return and reallocation of unused allocations in a timely and transparent manner that provides the greatest possible opportunity for the TRQ to be filled. 2. Each Party shall publish on a regular basis on its designated publicly available website all information concerning amounts allocated, amounts returned and, if available, quota utilisation rates. In addition, each Party shall publish on the same website amounts available for reallocation and the application deadline, at least two weeks prior to the date on which the Party will begin accepting applications for reallocations. Article 2.32: Transparency 1. Each Party shall identify the entity or entities responsible for administering its TRQs and designate and notify at least one contact point, in accordance with Article 27.5 (Contact Points), to facilitate communications between the Parties on matters relating to the administration of its TRQs. Each Party shall promptly notify the other Parties of any amendments to the details of its contact point. 2. When a TRQ is administered by an allocation mechanism, the name and address of allocation holders shall be published on the designated publicly available website. 3. When a TRQ is administered on a first-come, first-served basis, over the course of each year, the importing Party’s administering authority shall publish, in a timely and continually on-going manner on its designated publicly available website, utilisation rates and remaining available quantities for each TRQ. 4. When a TRQ of an importing Party that is administered on a first-come, first-served basis fills, that Party shall publish a notice to this effect on its designated publicly available website within 10 days. 19 For greater certainty, nothing in this paragraph shall prevent a Party from applying a different in-quota rate of customs duty to goods from other Parties, as set out in that Party’s Schedule to Annex 2-D (Tariff Commitments), than that applied to the same goods of non-Parties under a TRQ established under the WTO Agreement. Further, nothing in this paragraph requires a Party to change the in-quota quantity of any TRQ established under the WTO Agreement. 2-30 5</p>
