THAILAND-NEW
ZEALAND
FREE TRADE AGREEMENT
Chapter
3: Customs Procedures and Cooperation
Unless
otherwise defined, for the purposes of this Agreement:
(a) "Agreement" means the Thailand-Australia Free Trade Agreement;
(b) "APEC" means Asia-Pacific Economic Cooperation;
(c) "commercial presence" means any type of business or professional
establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person;
or
(ii) the creation or maintenance of a branch or a representative office,
within the territory of a Party for the purpose of supplying a service;
(d) "customs administration" means the competent authority that
is responsible under the laws of a Party for the administration of customs
laws, regulations and policies;
(e) "customs duties" includes any customs or import duty and
a charge of any kind imposed in connection with the import of a good,
including any form of surtax or surcharge in connection with such import,
but does not include any:
(i) charge equivalent to an internal tax imposed consistently with Article
III (2) of GATT 1994;
(ii) any anti-dumping or countervailing duty applied consistently with
the provisions of GATT 1994, the WTO Agreement on Implementation of Article
VI of the General Agreement on Tariffs and Trade 1994, and the WTO Agreement
on Subsidies and Countervailing Measures; and
(iii) fee or other charge in connection with importing commensurate with
the cost of services rendered;
(f) "days" means calendar days;
(g) "FTA Joint Commission" means the Free Trade Agreement Joint
Commission established under Article 1701 of this Agreement;
(h) "GATS" means the General Agreement on Trade in Services,
which is part of the WTO Agreement;
(i) "GATT 1994" means the General Agreement on Tariffs and Trade
1994, which is part of the WTO Agreement;
(j) "government procurement" means the process by which a government
obtains the use of or acquires goods or services, or any combination thereof,
for governmental purposes and not with a view to commercial sale or resale,
or use in the production or supply of goods or services for commercial
sale or resale;
(k) "Harmonised System" means the Harmonised Commodity Description
and Coding System, including its General Rules of Interpretation, Section
Notes and Chapter Notes, as adopted by the Parties in their respective
tariff laws;
(l) "investment" means every kind of asset, owned or controlled,
directly or indirectly, by an investor, including but not limited to the
following:
(i) movable and immovable property, including rights such as mortgages,
liens and other pledges;
(ii) shares, stocks, bonds and debentures and any other form of participation
in a juridical person;
(iii) a claim to money or a claim to performance having economic value;
(iv) intellectual property rights, including rights with respect to copyright,
patents, trademarks, trade names, industrial designs, trade secrets, know-how
and goodwill;
(v) business concessions and any other rights required to conduct economic
activity and having economic value conferred by law or under a contract,
including concession to search for, cultivate, extract or exploit natural
resources; and
(vi) returns that are invested.
For the purposes of this Agreement, any alteration of the form in which
assets are invested or reinvested shall not affect their character as
investments, provided that such altered investment is approved by the
relevant Party if so required by its laws, regulations or policies;
(m) "investor of a Party" means:
(i) a juridical person of a Party; or
(ii) a natural person who is a national or a permanent resident of a Party,
that has made, is in the process of making, or is seeking to make an investment
in the territory of the other Party;
(n) "juridical person" means any legal entity duly constituted
or otherwise organised under applicable law, whether for profit or otherwise,
and whether privately owned or governmentally owned, including any corporation,
association, trust, partnership, joint venture or sole proprietorship;
(o) a juridical person is:
(i) "owned" by persons of a Party if more than 50 percent of
the equity interest in it is beneficially owned by persons of that Party;
(ii) "controlled" by persons of a Party if such persons have
the power to name a majority of its directors or otherwise to legally
direct its actions;
(p) "juridical person of a Party" means a juridical person duly
constituted or otherwise organised under the applicable law of the Party;
(q) "measure" includes any law, regulation, governmental procedure
or requirement;
(r) "non-originating material" means a material that does not
qualify as originating in accordance with the relevant provisions of Chapter
4;
(s) "originating goods" means goods that qualify as originating
in accordance with the relevant provisions of Chapter 4;
(t) "Parties" means the Kingdom of Thailand and Australia;
(u) "person" means a natural person or a juridical person;
(v) "preferential tariff treatment" means the customs duty rate
that is applicable to an originating good pursuant to Article 203 (3)
of Chapter 2;
(w) "service supplier" means any person that supplies a service;
(x) "services" includes any services in any sector or sub-sector
except services supplied in the exercise of government authority;
(y) "SPS Agreement" means the Agreement on the Application of
Sanitary and Phytosanitary Measures, which is part of the WTO Agreement;
(z) "TBT Agreement" means the Agreement on Technical Barriers
to Trade, which is part of the WTO Agreement;
(aa) "territory" means the territory of a Party as well as the
exclusive economic zone, seabed and subsoil over which the Party exercises
sovereign rights or jurisdiction in accordance with international law;
(bb) "WTO" means the World Trade Organization;
(cc) "WTO Agreement" means the Marrakesh Agreement Establishing
the World Trade Organization, done on 15 April 1994;
(dd) "WTO Agreement on Textiles and Clothing" means the Agreement
on Textiles and Clothing, which is part of the WTO Agreement;
(ee) "WTO Customs Valuation Agreement" means the Agreement on
Implementation of Article VII of the General Agreement on Tariffs and
Trade 1994, which is part of the WTO Agreement; and
(ff) "WTO Safeguards Agreement" means the Agreement on Safeguards,
which is part of the WTO Agreement.
Chapter
4: Rules of Origin
For
the purposes of this Chapter:
(a) “CIF“ means the value of the good imported, and includes
the cost of freight and insurance up to the port or place of entry into
the country of importation. The valuation shall be made in accordance
with the WTO Agreement on Customs Valuation;
(b) “FOB” means the free on board value of the good, inclusive
of the cost of transport to the port or site of final shipment abroad.
The valuation shall be made in accordance with the WTO Agreement on Customs
Valuation;
(c) “fungible goods or materials” means goods or materials
which are interchangeable for commercial purposes, whose properties are
essentially identical, and between which it is impractical to differentiate
by a mere visual examination;
(d) “generally accepted accounting principles” means the
recognised consensus or substantial authoritative support in the territory
of a Party, with respect to the recording of revenues, expenses, costs,
assets and liabilities; the disclosure of information; and the preparation
of financial statements. These standards may encompass broad guidelines
of general application as well as detailed standards, practices and procedures;
(e) “indirect material” means a good used in the production,
testing or inspection of another good but not physically incorporated
into the good, or a good used in the maintenance of buildings or the operation
of equipment associated with the production of a good, including:
-
(i)
fuel, energy, catalysts and solvents;
-
(ii)
equipment, devices and supplies used for testing or inspection of
the goods;
-
(iii)
gloves, glasses, footwear, clothing, safety equipment and supplies;
-
(iv)
tools, dies and moulds;
-
(v)
spare parts and materials used in the maintenance of equipment and
buildings;
-
(vi)
lubricants, greases, compounding materials and other materials used
in production or used to operate equipment and buildings; and
-
(vii)
any other goods which are not incorporated into the good but whose
use in the production of the good can reasonably be demonstrated to
be a part of that production;
(f) “material” means any matter or substance used or consumed
in the production of goods, and physically incorporated into or classified
with those goods;
(g) “minimal operations or processes” are operations or
processes which contribute minimally to the essential characteristics
or properties of goods, including:
-
(i)
operations or processes to ensure that the goods are preserved in
good condition for purposes of transport or storage;
-
(ii)
operations designed to facilitate shipment; and
-
(iii)
operations or processes related to packaging or presentation of the
goods for sale;
By
way of example, the following would be such operations or processes:
-
(A)
aeration, ventilation, drying, refrigeration, freezing, chilling;
-
(B)
cleaning, washing, sieving, sifting or shaking, selection, classification
or grading, extraction;
-
(C)
cutting or slitting;
-
(D)
division of bulk shipments, grouping in packets, the attaching of
markings, distinctive labels or logos on the products and their packing;
-
(E)
packing, unpacking or repacking;
-
(F)
mixing of goods of different origin, provided that the characteristics
of the resulting product are not essentially different from those
of the goods which have been mixed;
-
(G)
dilution in water or in any other aqueous solution; and
-
(H)
the simple assembly or configuring of parts of products making up
a complete good;
(h) “non-originating goods” or “non-originating
materials” means goods or materials which do not qualify as
originating under this Chapter;
(i) “originating material” means a material which qualifies
as originating in accordance with the provisions of this Chapter;
(j) “packing materials and containers for shipment” means
items used to protect a good during its transport, other than containers
or packaging used for retail sale;
(k) “preferential tariff treatment” means the customs duty
rate that is applicable to an originating good pursuant to Article 2.3
of Chapter 2 of this Agreement;
(l) “producer” means a person who grows, raises, mines, harvests,
farms, fishes, traps, hunts, manufactures, processes, captures, gathers,
collects, breeds, extracts or assembles a good;
(m) “production” means methods of obtaining goods, including
but not limited to, growing, raising, mining, harvesting, farming, fishing,
trapping, hunting, manufacturing, processing, capturing, gathering, collecting,
breeding, extracting or assembling a good;
(n) “wholly obtained goods” means:
-
(i)
mineral goods extracted in the territory of a Party;
-
(ii)
agricultural goods harvested, picked or gathered in the territory
of a Party;
-
(iii)
live animals born and raised in the territory of a Party;
-
(iv)
goods obtained from live animals in the territory of a Party;
-
(v)
goods obtained directly from hunting, trapping, fishing, farming,
gathering, or capturing in the territory of a Party;
-
(vi)
goods (fish, shellfish, plant and other marine life) taken within
the territorial sea or the relevant maritime zone of a Party seaward
of the territorial sea under that Party's applicable laws in accordance
with the provisions of the United Nations Convention on the Law of
the Sea 1982, or taken from the high seas by a vessel flying or entitled
to fly the flag of that Party;
-
(vii)
goods obtained or produced on board factory ships flying or entitled
to fly the flag of a Party from the goods referred to in Sub-paragraph
(vi) above;
-
(viii)
goods taken by a Party, or a person of a Party, from the seabed or
subsoil beneath the seabed of the territorial sea or the continental
shelf of that Party, in accordance with the provisions of the United
Nations Convention on the Law of the Sea 1982;
-
(ix)
waste and scrap derived from production in the territory of a Party,
or used goods collected in the territory of a Party, provided that
such goods are fit only for the recovery of raw materials; and
-
(x)
goods produced entirely in the territory of a Party exclusively from
the goods referred to in Sub-paragraphs (i) to (ix) above.
(o) “WTO Agreement on Customs Valuation” means the Agreement
on the Implementation of Article VII of the General Agreement on Tariff
and Trade, 1994.
1. Particular goods shall
originate in the territory of a Party if they:
- (a) are the wholly
obtained goods of the Party; or
- (b) satisfy the
requirements of Annex 2 to this Agreement as a result of processes performed
entirely in the territory of one or both of the Parties and the goods
did not enter the commerce of a non-party after export from the first
Party and before import into the other Party.
2.
Originating materials from the territory of a Party, used in the production
of particular goods in the territory of the other Party, shall be considered
to originate in the territory of the Party in which the production is
performed.
3.
Particular goods which do not satisfy a change in tariff classification
required pursuant to Annex 2 are nonetheless originating goods if:
-
(a)
the value of non-originating materials used in the production of the
goods that do not undergo the required change in tariff classification
does not exceed 10 percent of the FOB value of the goods; and
-
(b)
the goods meet all other applicable criteria of this Article.
4.
Except where goods are subject to a regional value content requirement
pursuant to Annex 2, goods produced by minimal operations or processes
shall not be treated as originating goods even where those minimal processes
or operations meet the change in tariff classification requirements of
Annex 2.
5.
Accessories, spare parts, or tools delivered with originating goods that
form part of the standard accessories, spare parts, or tools for those
goods, shall be treated as originating goods and shall be disregarded
in determining whether or not all the non-originating materials used in
the production of the originating goods undergo the applicable change
in tariff classification, provided that:
-
(a)
the accessories, spare parts, or tools are not invoiced separately
from the originating goods;
-
(b)
the quantities and value of the accessories, spare parts, or tools
are customary for the originating goods; and
-
(c)
if the goods are subject to a regional value content requirement,
the value of the accessories, spare parts, or tools shall be taken
into account as originating or non-originating materials, as the case
may be, in calculating the regional value content of the goods.
6.
Paragraph 5 does not apply where the accessories, spare parts, or tools
have been added solely for the purpose of artificially raising the regional
value content of the goods.
7.
The determination of whether fungible goods or materials are originating
goods shall be made either by physical separation of each of the goods
or materials or through the use of any inventory management method, such
as averaging, last-in, first-out, or first-in, first-out, recognised in
the generally accepted accounting principles of the Party in which the
production is performed or otherwise accepted by the Party in which the
production is performed.
8.
An inventory management method selected under Paragraph 7 for a particular
fungible good or materials shall continue to be used for those fungible
goods or materials throughout the fiscal year of the producer that selected
the inventory management method.
9.
Packaging materials and containers in which goods are packaged for retail
sale, if classified with those goods, shall be disregarded in determining
whether all the non-originating materials used in the production of those
goods have undergone the applicable change in tariff classification set
out in Annex 2. However if the goods are subject to a regional value content
requirement, the value of the packaging used for retail sale will be counted
as originating or non originating, as the case may be, in calculating
a regional value content.
10.
Packaging materials and containers in which the goods are packaged for
shipment shall be disregarded in determining the origin of the good.
11.
An indirect material shall be treated as an originating material without
regard to where it is produced and its value shall be the cost registered
in the accounting records of the producer of the good.
1.
Subject to Paragraphs 2 and 3 of this Article, where Annex 2 requires
goods to have a regional value content, the regional value content of
particular goods shall be calculated as follows:
FOB-VNM
RVC
= -------------- x 100
FOB
Where:
-
(a)
“RVC” is the regional value content, expressed as a percentage;
-
(b)
“FOB” is the FOB value of the goods; and
-
(c)
“VNM” is the CIF value of non-originating materials, in the form i
n which they were first acquired or supplied to the producer of the
goods.
2.
If the FOB or CIF values do not exist or cannot be determined pursuant
to the provisions of Article 1 of the WTO Agreement on Customs Valuation,
the values shall be calculated pursuant to the provisions of Articles
2 to 8, Article 15 and the interpretative notes of that Agreement.
3.
Each Party shall provide that, for the purposes of calculating regional
value content, the importer may use a calculation averaged over the producer's
fiscal year.
For
the purposes of this Chapter all costs shall be recorded and maintained
in accordance with the generally accepted accounting principles applicable
in the territory of the Party in which the goods are produced or manufactured.
1.
Each Party may require a declaration as to the origin of a good from the
exporter, or producer, or other competent person, public or private body
for a good for which preferential tariff treatment is claimed. The declaration
shall specify on the face of the invoice or any other document issued
in respect of the good that the goods enumerated thereon are the origin
of the exporting Party and meet the terms of this Chapter.
2.
Nothing in Paragraph 1 of this Article shall be construed to require a
producer who is not the exporter of the good to make a declaration as
to the origin of the good.
3.
Where a declaration is required in accordance with Paragraph 1, a Party
shall provide that where an exporter is not the producer of the good,
the exporter, or other competent person, public or private body may complete
and sign a declaration as to the origin of a good on the basis of:
4.
The importing Party shall grant preferential tariff treatment to goods
imported into its territory from the other Party only in cases where an
importer claiming preferential tariff treatment:
5.
When the customs administration of the importing Party has reasonable
doubt as to the authenticity or accuracy of the declaration or other evidence
as to the origin of goods, the importing Party may, in accordance with
its national legislation, request additional evidence to verify the preference
claimed. Such evidence may include accounting data in verification of
Articles 4.2 and 4.3 of this Chapter, or such other evidence as may be
required to establish the bona fides of the import declaration. In the
absence of such evidence the customs administration of the importing Party
may require payment of duties at non-preferential tariff rates or the
deposit of a security or cash deposit equivalent to the amount of duties,
taxes and charges that would be payable on the goods if preferential tariff
treatment did not apply.
6.
Each Party shall provide that, where a good would have qualified as an
originating good when it was imported into the territory of that Party
but no claim for preferential tariff treatment was made at that time,
the importer may, in accordance with the national legislation of the importing
Party, apply for a refund of any duties paid on presentation of:
7.
In accordance with its laws, regulations and policies, the importing Party
may not require a declaration for:
-
(a)
commercial and non-commercial importations which do not exceed a specified
value as determined by the importing Party; or
-
(b)
any good for which a Party has waived the requirement for a declaration.
Each
Party shall require that:
(a)
a producer or an exporter shall maintain in the territory of that Party
for such period as the Party may specify in its laws, regulations or policies,
all records relating to the origin of a good for which preferential tariff
treatment was claimed in the territory of the other Party;
(b)
an importer claiming preferential tariff treatment for a good shall, in
accordance with national legislation, maintain in the importing Party's
territory all documents relating to the importation of that good, including
a copy of the declaration as to origin made in accordance with Article
4.5 of this Chapter.
1. For
the purposes of determining whether a good imported into its territory
from the territory of the other Party qualifies as an originating good,
the importing Party may, through its customs administration, conduct a
verification of eligibility for preferential tariff treatment by means
of:
-
(a)
requests for information addressed to the importer;
-
(b)
written questions and requests for information addressed to an exporter
or producer in the territory of the other Party;
-
(c)
visits to the premises of an exporter or producer in the territory
of the other Party to review the records referred to in Article 4.6
and to observe the facilities used in the production of the good;
-
(d)
requests to the exporting Party to verify the origin of the good;
or
-
(e)
such other procedures as the Parties may agree.
2.
Where a request is made by the importing Party to the exporting Party
to verify the origin of the good:
-
(a)
such request shall only be made if the customs value for duty is sufficiently
material to warrant the request;
-
(b)
the request shall be accompanied by sufficient information to identify
the good about which the request was made;
-
(c)
the exporting Party shall, within 90 days of receiving the request,
advise the importing Party as to the origin of the good about which
the request was made; and
- (d) any costs
incurred by the exporting Party in meeting the request to verify the
origin of the good shall be mutually determined by the Parties.
3.
Prior to conducting a verification visit pursuant to Sub-paragraph 1(c)
of this Article the importing Party shall:
(i) the exporter or producer whose premises are to be visited; and
(ii) the customs administration of the exporting Party; and
1.
Notwithstanding Paragraph 4 of Article 4.5 of this Chapter, the importing
Party may suspend the application of preferential tariff treatment to
goods that are the subject of origin verification action under Article
4.7 for the duration of that action, or any part thereof.
2.
The importing Party may deny preferential tariff treatment to an imported
good or recover unpaid duties where:
-
(a)
the goods do not or did not meet the requirements of this Chapter;
-
(b)
the producer, exporter or importer of the goods fails to comply with
any of the relevant requirements of this Chapter for obtaining preferential
tariff treatment; or
-
(c)
action taken under Article 4.7 failed to verify the eligibility of
the goods for preferential tariff treatment.
Part
3
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