MIL OSI Translation. Region: Portuguese / Latin America –
Source: Republic of Brazil
The Government of the Federative Republic of Brazil
the Government of the United States of America
(individually a “Party” and collectively the “Parties”),
having signed the Trade and Economic Cooperation Agreement on March 19, 2011 (hereinafter referred to as the Agreement):
STRENGTHEN its bilateral economic partnership;
FACILITATE trade, investment and good regulatory practices;
ENSURE efficient and transparent customs procedures, which reduce costs and ensure predictability for importers and exporters;
STIMULATE cooperation in the area of trade facilitation and application of customs legislation;
MINIMIZE unnecessary formalities at the border;
IMPROVE regulatory processes;
PROMOTE measures against corruption; and
PROVIDE transparency to the public and to economic agents of all sizes and in all sectors; and
AFFIRMING the pre-existing rights and obligations of each party in relation to the other in the Marrakesh Agreement establishing the World Trade Organization, done in Marrakesh on 15 April 1994 (the “WTO Agreement”), the Agreement and other agreements that the United States and Brazil are parties,
HAVE AGREED as follows:
This Protocol and its Annexes are hereby incorporated and form an integral part of the Agreement.
The parties may include supplementary annexes by amending this Protocol, in accordance with the provisions of Article 5.
The Parties shall review the implementation and operationalization of the Annexes by calling the Economic and Commercial Relations Committee within a period not exceeding 90 days after the date of entry into force of the document and, subsequently, when necessary, but at a frequency less than one per year.
Before reviewing, each Party may, where appropriate, solicit opinions from the public, through, for example, advisory committees on the implementation of the Annexes.
If, at any time, a Party has doubts about the implementation of a provision of the Annexes by the other Party, the Party may request consultations with the other Party in writing. The Parties must make the best effort to reach a mutually satisfactory resolution.
The parties recognize the importance of implementing each Annex to this Protocol both for the development of the Agreement’s work program and for the mutual objectives of promoting trade and investment.
This Protocol does not require a Party to provide or authorize access to information the disclosure of which is contrary to its law, or which prevents compliance with the law, or which is contrary to the public interest, or which harms the legitimate commercial interests of specific, public or private companies. .
Entry into force, Amendment and Termination
Each Party shall notify the other Party, in writing, once it has completed the necessary internal procedures for the entry into force of this Protocol. This Protocol shall enter into force on the day following the last notification.
This Protocol may be amended by written agreement between the Parties. The amendments shall come into force in accordance with the procedures set out in paragraph 1.
Each Party may terminate this Protocol or one or more Attachments by written notification to the other Party. The denunciation will take effect on a date agreed by the Parties or, if the Parties cannot agree on a date, 180 days after the date of delivery of the notification.
IN WITNESS WHEREOF, the signatories signed the present Protocol in two copies, in the Portuguese and English languages, both equally authentic.
SIGNED at Brasilia, DF and Washington, DC on October 19, 2020.
FOR THE GOVERNMENT OF THE FEDERATIVE REPUBLIC OF BRAZIL
Minister of State for Foreign Affairs
Minister of State for the Economy
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA
Robert E. Lighthizer
United States Trade Representative
ANNEX I: FACILITATION OF TRADE AND CUSTOMS ADMINISTRATION
Article 1: Publication on the Internet
Each Party shall make the following information available on a free and publicly accessible website, and shall update it as necessary:
(a) an information resource that describes the procedures and practical steps that an interested person must follow to import, export or transit through the Party’s territory;
(b) the documentation and data it requires for import, export or transit through its territory;
(c) its laws, regulations and procedures for import, export or transit through its territory;
(d) all taxes, duties, fees and customs charges in force that are applied on or in connection with imports, exports or transit, including when the fee or tax is due, and the amount or rate;
(e) contact information for your information center or contact points established or maintained in accordance with Article 3 (Information Centers);
(f) its laws, regulations and procedures for becoming a customs broker, for issuing customs broker licenses and on the use of customs brokers;
(g) information resources that assist an interested person in understanding his obligations when importing, exporting or transiting goods through the Party’s territory, such as being in compliance, and any additional facilities available based on a compliance record, such as through a compliance program. authorized economic operators; and
(h) procedures to correct an error in a customs transaction, including the information to be submitted and, if applicable, the circumstances in which penalties will not be imposed.
Article 2: Communication with Merchants
To the extent possible and in accordance with its laws, each Party shall:
(a) publish in advance the regulations of general application that regulate trade and customs matters that [the Party] proposes to adopt;
(b) to provide interested persons with an opportunity to comment before the Party adopts such regulations; and
(c) take such comments into account, as appropriate.
Changes in tax or tariff rates, measures that have a relief effect, measures whose effectiveness would be impaired as a result of complying with paragraph 1, measures applied in urgent circumstances or minor changes in legislation and the national legal system are all excluded from the paragraph 1.
Each Party shall adopt or maintain a mechanism to communicate regularly with traders within its territory regarding its procedures related to the import, export and transit of goods. Such communications should ensure that traders have the opportunity to raise new issues and present their views to the customs administration and other government agencies on such procedures.
Article 3: Information Centers
Each Party shall establish one or more information centers to respond to inquiries by interested persons on procedures for import, export and transit.
No Party shall require the payment of a fee or charge to respond to inquiries through the information centers set out in paragraph 1.
For the sake of clarity, a Party may require payment of a fee or tax on consultations that require the search for documents, duplication, reviews and the processing of large volumes of documents and information related to requests made in accordance with its laws and regulations that ensure public access to government records.
Each Party shall ensure that its information center responds to inquiries within 20 days.
Notwithstanding paragraph 4, a Party may allow its information center to take more than twenty days to respond to inquiries that require documentary research, duplication, review or the processing of large volumes of documents or information.
Article 4: Anticipated Solutions
Each Party shall, through its customs administration, issue an advance solution, in writing, before the import of a good into its territory in which it determines the treatment that Party will give to the good at the time of its import or export, in the case of eligibility for the drawback regime or for the postponement of tax payments.
Each Party shall allow a person from the other Party who is an exporter, importer, producer or other person who has a justifiable cause, or its representative, to request an advance solution in writing.
No Party shall require as a condition for requesting an early settlement that a person from the other Party enters into or maintains a contractual or other relationship with a person located in the territory of the importing Party.
Notwithstanding paragraph 3, each Party may require that the person of the other Party requesting an early settlement presents a commercially issued or government-issued document that is publicly available and provides assurance about that person’s merchant status.
Each Party shall issue advance solutions with respect to:
(a) tariff classification;
(b) the application of the customs valuation criteria for a specific case in accordance with the Agreement on the Implementation of Article VII of the General Agreement on Tariffs and Trade, provided for in Annex 1A of the WTO Agreement (“Customs Valuation Agreement”);
(c) the origin of the good;
(d) whether the good is subject to a quota or a tariff quota; and
(e) eligibility for a drawback program or postponement of payment of taxes.
Each Party shall adopt or maintain uniform procedures throughout its territory for issuing advance solutions, including a detailed description of the information required to process a solution request.
Each Party shall ensure that its customs administration:
(a) may, at any time during the assessment of a request for an early settlement, demand additional information from the applicant or a sample of the asset for which the early settlement was requested;
(b) when issuing an early solution, take into account the facts and circumstances provided by the applicant;
(c) issue the solution as soon as possible and, in no case, after 150 days after obtaining all the necessary information from the applicant; and
(d) provide the applicant with the reasons for such a solution, together with its factual and legal basis.
Each Party shall ensure that its advance solutions take effect on the date they are issued, or at a later date specified in the solution, and that they remain in effect unless the advance solution is modified or revoked.
Each Party shall ensure the applicant the same treatment as that accorded to another person to whom it has issued an early solution, provided that the facts and circumstances are identical in all material respects.
An early settlement issued by a Party shall be applied throughout its territory to the person to whom the settlement is issued.
After issuing an early solution, the Party may modify, revoke or invalidate it if:
(a) there are changes in legislation, facts or circumstances on which the solution was based;
(b) the solution was based on false or inaccurate information; or
(c) the solution was based on an error.
A Party may refuse to issue an early settlement if the facts and circumstances on which the early settlement is based are subject to a post-customs clearance audit or review or administrative or judicial appeal. A Party that refuses to issue an early settlement shall promptly notify the applicant in writing and state the relevant facts and circumstances and the justification for its decision.
No Party shall retroactively implement a revocation, modification or invalidation to the detriment of the person who requested an early solution, unless that person has not acted in accordance with its obligations or the solution has been based on inaccurate, misleading or false information provided by the applicant.
Each Party shall ensure that, unless it retroactively implements a modification, revocation or invalidation, as described in paragraph 13, any modification, revocation or invalidation of an early solution must take effect on the date the modification, revocation or invalidation is issued. , or at a later date specified in the decision.
Each Party shall, in accordance with its laws, regulations and procedures, make its advance solutions, complete or edited, available on a free and publicly accessible website.
Article 5: Documents and Electronic Systems for Merchants
Except under limited circumstances provided for by law, the Parties shall, by electronic means, make available and accept for processing any documents required for import, export and transit of goods. In particular, the Parties should:
(a) make available electronically any declarations or other forms required for the import, export or transit of goods through its territory; and
(b) allow the customs declaration and related documentation to be submitted in electronic format.
Except under limited circumstances provided for by law, when an electronic or digital version or copy of a document is submitted to a Party for the import, export or transit of goods, the Party must accept it as the legal equivalent of its paper version. Under such circumstances, a Party may not request the presentation of the paper version of the document required for import, export or transit of goods.
Each Party shall:
(a) allow access to electronic systems for importers, exporters, persons involved in the transit of goods through the territory and other users of customs to send and receive information;
(b) promote the use of its electronic systems to facilitate communication between traders and their customs administration and other related agencies; and
(c) endeavor to allow an importer, through its electronic systems, to correct multiple import declarations previously submitted to the Party on the same issue through just one operation.
Recognizing that the use of international standards for the use of electronic documents can facilitate trade, each Party shall issue, accept and exchange at least the following documents in accordance with those standards:
Parties shall consult on additional documents for use in accordance with relevant international standards, including CITES electronic licenses (eCITES) for the implementation of the Convention on International Trade in Endangered Species of Wild Flora and Fauna. Parties should also consult on the exchange of electronic health certificates.
Article 6: Use of Technology for the Clearance and Customs Clearance of Goods
Each Party shall use information technology that streamlines procedures for the release of assets, including:
(a) ensure that the information and electronic documents provided for in Article 5 (Electronic Documents and Systems for Merchants) are submitted to the Party before the goods arrive; and
(b) ensure that the risk assessment and processing of this information and documents takes place before the goods arrive in its territory.
Each Party shall, where practicable, use available information, provided by information technology systems or sensors embedded in vehicles, containers, packaging materials or otherwise in shipping for:
(a) perform risk analysis for customs controls and other border controls;
(b) expedite the release of low-risk shipments.
Each Party shall consult with interested parties on opportunities for the use of embedded technology to facilitate the processing of goods by the customs administration and other border agencies.
Each Party shall use electronic risk analysis systems in accordance with best practices.
Each Party shall use data analysis methodologies in its risk analysis management systems for customs control.
Each Party shall regularly update, as appropriate, risk profiles in its risk assessment management systems, taking into account emerging and dynamic trade trends and the results of previously performed customs control activities.
Each Party shall endeavor to employ appropriate emerging technologies, such as machine learning and other artificial intelligence technologies, to improve the efficiency of its risk management systems. Parties are encouraged to share information about these technologies and their uses in risk management.
Each Party shall endeavor to use information technology in risk management systems for trade-related controls carried out by other government agencies, such as those in charge of sanitary, phytosanitary, quality control and conformity assessment.
If the need for physical cargo controls is determined by the customs administration or other government agencies, each Party shall, when feasible, employ non-intrusive or remote technologies to expedite the release of goods.
Each Party shall, as far as possible, use non-intrusive technologies for the processing of express shipments and other small shipments.
Nothing in paragraphs 9 and 10 shall affect a Party’s right to employ traditional physical inspections.
Parties are encouraged to cooperate with interested persons from the private sector, such as authorized economic operators and customs warehouses, on the use of non-intrusive or remote technologies to assist with cargo inspection carried out by customs or other government agencies.
Article 7: Electronic Payments
Each Party shall adopt or maintain procedures that permit the electronic payment of taxes, duties, fees or charges levied on or in connection with [import or export operations] and collected by the customs administration or other related agencies.
Article 8: Authorized Economic Operator (OAS)
Each Party shall maintain a trade facilitation partnership program for operators that meet the specified security criteria, known as the OAS program, in accordance with the World Customs Organization’s Normative Framework for Securing and Facilitating World Trade.
In order to seek mutual recognition of the Parties’ OAS programs and to provide the benefits of each Party’s OAS program to qualified participants in the other Party’s OAS program, the Parties, through their customs administrations, shall cooperate through a joint work plan. The joint work plan must include at least the following:
(a) sharing of mutual information that allows for the examination of the compatibility of each Party’s OAS program, including the exchange of publicly available criteria for the applicant and how they relate rationally and proportionally to the trade facilitation benefits that are expected to the OAS program provides;
(b) comprehensive and rigorous assessment of each Party’s respective validation processes, whereby the Party ensures that applicants and current participants comply with the published criteria, in particular those related to security and that involve remote inspection, non-inspection -intrusive, as well as physical controls;
(c) joint development of written operational procedures for mutual recognition that include the implementation of a valid mutual assistance agreement in customs matters to ensure the proper functioning of information exchange and mutual recognition; and
(d) any additional elements mutually agreed upon by the Parties that may enhance the strength of a mutual recognition agreement, expand its scope or provide additional benefits to the merchants of the respective Parties.
The Parties shall regularly consult on the status of the joint work plan described in paragraph 2. In the event of delays related to the joint work plan, the Parties shall work expeditiously to identify and address the reasons for the delay.
After each Party has completed the joint work plan and taken into account its results, each Party shall determine whether the two OAS programs are sufficiently compatible with each other. If the Parties agree that their respective OAS programs are sufficiently compatible, a mutual recognition agreement should be sought.
Article 9: Single Window
Each Party shall establish or maintain a single window system that allows electronic sending, through a single entry point, of the documentation and information that the Party requires for import, export or transit through its territory.
Each Party shall, in due course, inform, through the single window system, the user of its single window system about the status of the release of assets.
In developing and maintaining its unique window system, each Party shall:
(a) incorporate, as appropriate, the World Customs Organization Information Model for data elements;
(b) endeavor to implement standards and data elements for import, export and transit that are identical to the other Party’s single window system;
(c) continuously optimizing its single ticket system, including through the addition of features to facilitate commerce, improve transparency and reduce release times and costs; and
(d) endeavor to implement a reference number to uniquely identify data related to individual transactions.
In implementing paragraph 3, the Parties shall:
(a) share with each other their respective experiences regarding the development and maintenance of their single window systems; and
(b) work towards harmonizing, as far as possible, data elements and customs processes that facilitate the use of a single transmission of information to the exporting and importing Party.
Each Party shall endeavor to allow merchants and other interested parties to use the services of private entities to exchange data with the single window system.
Each Party shall take into account the specific interests of small and medium-sized enterprises when allowing them to use authorized private service providers to send data to the single window.
Article 10: Transparency, Predictability and Consistency in Customs Procedures
Each Party shall implement its customs procedures related to the import, export and transit of goods in a manner that is transparent, predictable and consistent throughout its territory.
Nothing in this Article prevents a Party from differentiating its import, export and transit procedures, and documentation and information requirements:
(a) based on the nature and type of goods, or their means of transport;
(b) based on risk management;
(c) to provide total or partial relief from an asset from customs duties, taxes, fees or charges;
(d) to allow petition, processing or electronic payment; or
(e) in a manner consistent with the Agreement on the Application of Sanitary and Phytosanitary Measures, set out in Annex 1A of the WTO Agreement (SPS Agreement).
Each Party shall review its import, export and transit procedures and its documentation and information requirements and, based on the results of the review, ensure, as appropriate, that such procedures and requirements are:
(a) adopted and implemented for the purpose of quick release of assets;
(b) adopted and implemented in a way that seeks to reduce the time, administrative burden and cost of complying with these procedures and requirements;
(c) the least restrictive of any alternative measures that are reasonably available to meet the Party’s political objectives; and
(d) withdrawn, including parts thereof, that are no longer needed to comply with the Parties’ [public] policy objectives.
If a Party has the original version of a document presented for import, export or transit through its territory, the Party shall not request a new presentation of the same document.
Each Party shall take into account, to the extent practicable and appropriate, relevant international standards and instruments of international trade for the development of its customs procedures related to the import, export and transit of goods.
Each Party shall adopt or maintain measures with the objective of ensuring consistency and predictability for traders in the application of their customs procedures throughout their territory, including decisions on tariff classification and customs valuation of goods. Such measures may involve the training of customs officials or the issuing of documents to serve as a guide for customs officials. If an inconsistency in the application of its customs procedures is discovered, including decisions on tariff classification or customs valuation of goods, the Party shall seek to resolve the inconsistency, if feasible.
Article 11: Agricultural and other Vulnerable Goods to Deterioration (BAOVD)
To avoid deterioration of BAOVD, each Party shall, for imports of BAOVD:
(a) make the electronic submission of all documents of the entry process available, including any necessary license, permission, market authorization and registration;
(b) automate its quota management procedures;
(c) promptly disseminate information over the internet on quota availability, including eligibility requirements and allocated quota amount;
(d) provide for reasonable hours of inspection services at ports; and
(e) give due priority when scheduling any inspections that may be necessary to determine whether the product can be marketed.
Each Party shall identify opportunities to provide inspection services outside its border in order to facilitate the release of BAOVD. Such opportunities may include pre-authorization of BAOVD and provision of services outside ports, which may include authorization for the importer to provide adequate storage of BAOVD in air-conditioned storage facilities pending clearance.
If a Party limits the number of air-conditioned storage facilities within or close to the port, that Party shall take into account, as appropriate, the need for sufficient storage for BAOVD in its management of inspection activities and in decisions on the number of facilities.
Considering the specific costs for BAOVD trade, each Party shall review its entry process requirements, including the use of stamps, signatures, certificates and paper requirements, with the aim of reducing or automating requirements and reducing the time and charges for processing. The review of these requirements should include the opportunity for interested persons to submit comments, including persons from the other Party and any non-Party. Each Party shall make publicly available instructions for making comments.
Each Party shall endeavor to share with the other Party information on the review carried out under paragraph 4, in particular on the contribution of interested parties involved in trade between the Parties, and to exchange views on how to implement the results of the review to improve their respective processes for the release of BAOVD.
Article 12: Consular Transactions
A Party shall not require a consular transaction, including any related fees or charges, in connection with the import of any goods.
Consular transaction means the requirement that the goods of a Party intended for export to the territory of another Party must first be subject to the supervision of the consul of the importing Party in the territory of the exporting Party, or in the territory of a non-Party, for the purpose of obtaining a consular invoice, certificate of origin, manifest, export declaration from the sender, or any other customs documentation related to the import of the goods.
Article 13: Review or Appeal of Administrative Decisions
In order to provide effective, impartial and easily accessible procedures for reviewing or appealing administrative decisions on customs matters, each Party shall ensure that any person for whom a customs administration issues a decision has access to:
an administrative review or appeal of the decision by a higher administrative authority or independent of the official or agency that issued the decision; and
a review or judicial appeal of the determination or decision taken at the highest level of administrative review.
A Party is not required to provide administrative review under this Article for early remedies under Article 4.
Each Party shall present to the person to whom it has issued an administrative decision the reasons for the administrative decision and access to information on how to submit requests for review or appeal.
Each Party shall ensure that the authority conducting the review or appeal under paragraph 1 notifies the person, in writing, of its determination or decision in the review or appeal, in addition to the reasons for the determination or decision.
Each Party shall ensure that, if a person receives a determination or decision under review or administrative or judicial appeal, pursuant to paragraph 1, that determination or decision shall apply in the same way to that person throughout the Party’s territory.
In order to ensure predictability for traders and the consistent application of their customs laws, regulations and procedural requirements, each Party shall implement the decisions of its highest administrative administrative authority to customs administration practices throughout its territory.
Each Party shall allow traders to submit, electronically, requests for review or administrative appeal to be analyzed by customs authorities.
Article 14: Administrative Guidance
Each Party shall adopt or maintain an administrative procedure whereby a customs office in its territory may request that the appropriate authority in the customs administration provide guidance on the proper application of laws, regulations and procedures relating to import, export and transit through its territory for a specific customs transaction, regardless of whether the transaction is prospective, pending or has already been completed.
The appropriate authority of a Party shall provide guidance in response to the request under paragraph 1 if the customs treatment adopted or proposed by the customs office for the transaction is inconsistent with the customs treatment adopted for transactions that are identical in all material respects, including by another customs office in the Party’s territory.
Each Party shall make available on a free and publicly accessible website the guidance provided in response to a request under paragraph 2.
If a person with an interest in the transaction disagrees with the customs office submitting a request under paragraph 1, the Party shall provide the opportunity for the person to provide additional documentation and supporting information in writing to the appropriate customs administration authority before it issues its request. guidance.
The customs office shall take into account the guidance received in response to a request submitted under paragraph 1 for the transaction that is the subject of that request, as long as there is no decision or determination issued on the transaction and the facts and circumstances remain unchanged.
Nothing in this Article obliges the customs administration to provide guidance on transactions on which a decision has been made, or on which a decision has been applied consistently throughout its territory; on transactions for which a decision is pending; if an importer or exporter has requested an advance solution or has received a decision that has been applied consistently throughout the territory; or for transactions whose decision or determination is under review.
Article 15: Penalties
Each Party shall adopt or maintain measures that permit the imposition of a penalty by the Party’s customs administration for violation of its customs laws, regulations or procedural requirements, including those that provide for tariff classification, customs valuation, transit procedures, country of origin or claims for priority treatment. Each Party shall ensure that such measures are administered uniformly throughout its territory.
Each Party shall ensure that a penalty imposed by its customs administration for the violation of its customs laws, regulations or procedural requirements is imposed only on the person legally responsible for the violation.
Each Party shall ensure that any penalty imposed by its customs administration for violation of its customs laws, regulations or procedural requirements depends on the facts and circumstances of the case, including any previous violations by the person receiving the penalty, and is proportional to the degree and severity of the penalty. violation.
Each Party shall ensure that a minor error in a customs transaction, as defined in its laws, regulations or procedures, published in accordance with Article 1 (Publication on the Internet), can be corrected without determining a penalty, unless the error is part of a consistent pattern of errors by that person.
Each Party shall adopt or maintain measures to avoid conflicts of interest in the analysis and collection of penalties and taxes. No portion of a government official’s remuneration shall be calculated as a fixed portion or percentage of the determined or collected penalties or taxes.
Each Party shall ensure that, when its customs administration applies a penalty for the violation of its customs laws, regulations or procedural requirements, it shall provide a written explanation to the person on whom the penalty is applied, specifying the nature of the violation, including the law customs, regulation or specific procedural requirement, and the basis for determining the penalty amount, if this is not specified in the law, regulation or procedural requirement.
Each Party shall ensure that the person can rectify an error in a customs transaction that is a potential violation of a customs law, regulation or procedural requirement, excluding fraud, prior to the discovery of the error by the Party, if the person does so in accordance with laws, regulations or procedural requirements of the Party and pay any taxes, duties, taxes and customs fees due, including interest. The rectification should include the identification of the transaction and the circumstances of the error. The Party may not use this error to determine a penalty for violating a customs law, regulation or procedural requirement.
Each Party shall specify a fixed and determined period within which it may initiate procedures related to the violation of a customs law, regulation or procedural requirement.
Article 16: Standards of Conduct
In addition to Article 15 (Penalties), each Party shall take or maintain measures to prevent its customs officials from engaging in any action that may result in, or reasonably creates the appearance of, using their position as a public servant to obtain advantages including any financial gain.
Each Party shall provide a mechanism for importers, exporters, transporters, customs brokers and other interested parties to submit complaints regarding behavior that is perceived as inappropriate or corrupt by members of the customs administration in their territory, including at ports of entry and other customs offices. Each Party shall take appropriate action regarding a complaint in a timely manner and in accordance with its laws, regulations or procedural requirements.
Article 17: Protection of Merchant Information
The customs administration and other government agencies of each Party shall implement measures providing for the collection, protection, use, disclosure, retention, correction and disposal of the information they collect from traders.
The Customs administration and other government agencies of each Party shall protect, in accordance with their legislation, confidential information of use and disclosure that could harm the competitive position of the trader to whom the confidential information refers.
Notwithstanding paragraph 2, a Party may use or disclose confidential information only for the purpose of administering or complying with its customs laws or as provided for in the law of the Party, including in administrative or judicial proceedings.
If confidential information is used or disclosed, except in accordance with this Article, the Party shall assess the incident, in accordance with its laws, regulations or procedural requirements, and endeavor to prevent its recurrence.
Article 18: Shipping Containers and Other Large Containers
Each Party shall adopt or maintain procedures, such as for temporary admission, that allow a container or other large container to be used or to be used for the transport of goods in international traffic, arriving full or empty, of any size, volume or dimension:
(a) is released from customs control without a customs declaration and without the determination of duties, taxes, fees or charges; and
(b) remains in the Party’s territory for at least 364 consecutive days.
For the purposes of this Article, a shipping container or other large container includes any container, tank, cube, barrel, box, container, winding core, pallet, crate or cylinder, foldable or not, constructed of durable and usable material repeated, such as plastic, wood or steel, and used to transport goods in international traffic.
Each Party shall include in the treatment of any shipping container or other large container that has an internal volume of one cubic meter or more the accessories or equipment that accompany it.
Article 19: Cooperation
After the entry into force of this Annex, the Parties shall continue to explore and, when feasible and appropriate, promote the administration of measures that seek to facilitate trade in addition to the obligations contained in the WTO Agreement on Trade Facilitation and this Annex. Accordingly, the Parties shall cooperate on customs and other matters related to trade between their respective authorities.
Cooperation may include:
(a) the identification of customs initiatives to promote trade facilitation, as provided for in this Annex;
(b) facilitating the exchange of information between the Parties regarding their respective experiences regarding the development and implementation of a single window, including information on the participating border agencies of each Party and the automation of their forms, documents and procedures ;
(c) facilitating the exchange of information between the Parties about the design and implementation of, and experiences with, the measures of each Party to promote voluntary compliance by traders;
(d) the identification and cooperation in the development and support of joint action initiatives by their respective customs administrations and other government agencies in those cases where joint action could facilitate trade between the Parties, taking into account the priorities and experiences of their customs administrations and other government agencies;
(e) strengthening their cooperation in international organizations and initiatives in the areas of customs and trade facilitation;
(f) providing a forum for the sharing of views on individual cases involving issues of tariff classification, customs valuation and other customs treatments, in addition to discussing trends and emerging issues in the industry, with the aim of reconciling inconsistencies, supporting a competitive business environment and facilitate trade and investment between the parties;
(g) exchanging experiences on national trade facilitation committees, their functions and their work to facilitate domestic coordination and the implementation of WTO commitments;
(h) the identification of areas for future work in facilitating trade;
(i) the sharing of information to promote cooperation between their respective customs administrations and other interested agencies, with the aim of strengthening internal and cross-border compliance with trade laws, including those related to trade defense;
(j) the exchange of experiences and the promotion of cooperation in the development and implementation of digital commerce information solutions, with special consideration for the interests of small and medium-sized companies; and
(k) initiatives to create conditions for the exchange of documents mentioned in Articles 5.4 and 5.5 (Documents and Electronic Systems for Merchants).
Each Party shall designate and notify a point of contact for matters arising under this Annex. A Party shall promptly notify the other Party of any material changes to its point of contact.
Each Party shall provide opportunities for people to contribute with issues related to this Annex.
Article 20: Bilateral Cooperation to Ensure Compliance with Standards
The Parties agree to strengthen and expand their efforts and cooperation in ensuring compliance with customs and trade standards.
Each Party shall, in accordance with its laws and regulations, cooperate with the other Party to ensure, or assist, compliance with its respective measures relating to customs offenses in trade in goods between the Parties.
In order to facilitate bilateral trade with each other, the Parties shall:
(a) encourage cooperation with the other Party on customs matters affecting goods traded between the Parties; and
(b) endeavor to provide the other Party with advance notice of any significant administrative change, change of law or regulation edition, or other measure related to its laws and regulations that provide for imports, exports or transit procedures that may affect the effective implementation and compliance with the customs and trade laws and regulations of the other Party.
Each Party shall take appropriate measures, such as legislative, administrative or judicial actions to ensure effective compliance with its laws, regulations and procedural requirements relating to customs offenses, to improve coordination between its customs administration and other relevant agencies and cooperation with the other Party.
The measures in paragraph 4 should include:
(a) specific measures, such as actions to detect, prevent or address customs offenses, especially regarding priorities defined by customs, taking into account trade data, including patterns of imports, exports and transit of goods, to identify potential sources or of these infractions;
(b) penalties for the purpose of deterring or penalizing customs offenses; and
(c) the provision of legal authority to the government officials of a Party to fulfill the objectives of ensuring due compliance with the laws, in accordance with its legislation, and for cooperation on the matter with the other Party.
Article 21: Transition periods
Notwithstanding Article 5.1 of this Protocol, each Party shall implement paragraph 4 (b) and (c) of Article 5 (Documents and Electronic Systems for Merchants) within one year of the date of entry into force of this Protocol.
Notwithstanding Article 5.1 of this Protocol, paragraph 4 of Article 4 (Advance Solutions) shall expire after a period of two years from the date of entry into force of this Protocol. Before the end of this period, the Parties should discuss whether it is appropriate to extend the duration of this provision. Any extension agreed between the Parties must comply with Article 4 and must not exceed one year.
ANNEX II: GOOD REGULATORY PRACTICES
Article 1: Definitions
For the purposes of this Annex:
regulation means a normative act of general application adopted, edited or maintained by a regulatory authority whose compliance is mandatory;
regulatory authority means an administrative authority or agency at the federal level of government of the Party that develops, proposes or adopts a regulation and does not include bodies from the Legislature, the Judiciary or, in the case of the United States of America, the President and, in the case of Brazil , presidential decrees; and
Regulatory cooperation means an effort between the two parties to prevent, reduce or eliminate unnecessary regulatory differences, to facilitate trade and promote economic growth, while maintaining or improving public health and safety and environmental protection standards, among others.
Article 2: Scope and General Provisions
The Parties recognize that the implementation of government practices to promote regulatory quality through greater transparency, objective analysis, accountability and predictability can facilitate international trade, investment and economic growth, contributing to the capacity of each Party to achieve its objectives public policy (including health, safety and environmental objectives) at the level of protection it considers appropriate. The application of good regulatory practices can support the development of compatible regulatory approaches between the Parties and reduce or eliminate unnecessarily onerous, redundant or divergent regulatory requirements. Good regulatory practices are also critical to effective regulatory cooperation.
Accordingly, this Annex establishes specific obligations and other provisions with respect to good regulatory practices, including practices related to the planning, design, edition, implementation and review of the respective regulations of the Parties, subject to paragraph 3.
For clarity, this Annex does not prevent a Party from:
(a) pursue its public policy objectives (including health, safety and environmental objectives) at the level it deems appropriate;
(b) determine the appropriate method for implementing its obligations under this Annex within the framework of its own legal system and institutions; or
(c) adopt good regulatory practices in addition to those established in this Annex.
Article 3: Central Regulatory Coordination Body or Mechanism
Recognizing that institutional arrangements reflect the specificity of each Party’s governance system, the Parties note the important role of central regulatory coordination bodies and mechanisms in promoting good regulatory practices in the performance of key consultation, coordination and review functions to improve the quality of regulations and the development of improvements in their regulatory systems. The Parties intend to establish or maintain their respective bodies or central regulatory coordination mechanisms, in accordance with their respective mandates and in accordance with their laws.
Article 4: Internal Consultation, Coordination and Review
The Parties recognize that internal processes or mechanisms that provide consultation, coordination and review within national authorities and among them in the development of regulations can increase regulatory compatibility between the Parties and facilitate trade. Thus, each Party shall adopt or maintain these processes or mechanisms to pursue, among others, the following objectives:
(a) promote the adherence of the entire government to good regulatory practices, including those established in this Annex;
(b) identify and develop improvements in regulatory processes across the government;
(c) identify potential overlap or duplication between proposed regulations and existing regulations and avoid creating inconsistent requirements between national authorities;
(d) reviewing regulations early in the development process to support compliance with the international trade and investment obligations assumed by the Party, including, as appropriate, consideration of relevant international standards, guidelines and recommendations;
(e) promote consideration of regulatory impacts, including burdens for small businesses on information collection and implementation; and
(f) encourage regulatory approaches that avoid unnecessary restrictions and burdens on innovation and competition in the market.
Each Party shall make publicly available on the Internet a description of the processes or mechanisms referred to in paragraph 1.
Article 5: Quality of Information
Each Party recognizes the need to base regulations on reliable, high-quality information. To this end, each Party shall adopt or maintain publicly available guidelines or mechanisms that encourage its regulatory authorities to, when developing a regulation:
(a) seek the best reasonably obtainable information, including scientific, technical, economic or other information relevant to the regulation that is under development;
(b) be based on information appropriate to the context in which it is used and
(c) identify sources of information in a transparent manner, as well as identify any significant assumptions and limitations.
If a regulatory authority systematically collects information from members of the public through identical questions in a survey for use in the development of regulation, each Party shall ensure that the authority must:
(a) use sound statistical methodologies before drawing general conclusions about the impact of regulation on the population affected by it, and
(b) avoid unnecessary duplication and minimize unnecessary burdens on research participants.
Article 6: Regulatory Agenda
Each Party shall make publicly available on the Internet, at least every two years, a list of regulations that it reasonably expects to adopt or propose to adopt. Each regulation identified in the list must be accompanied by:
(a) a concise description of the planned regulation;
(b) a point of contact in the regulatory authority responsible for regulation; and
(c) an indication, if known, of the sectors to be affected and whether there is any significant expected effect on international trade or investment.
List items should also include, as far as possible, timelines for subsequent actions, including those where opportunities for public comment will be offered under Article 9 (Transparent Regulatory Development).
The Parties are encouraged to make the information contained in paragraphs 1 and 2 available on the website described in Article 7 or through links on that website.
Article 7: Dedicated Electronic Site
Each Party shall maintain a single free and publicly available website that, as far as possible, contains all information whose publication is required in accordance with Article 9 (Transparent Development of Regulations).
With respect to each regulatory authority at the federal level of government that has responsibility for implementing or complying with regulations, the Party shall make a description of that regulatory authority publicly available on the internet, including the specific responsibilities of the regulatory authority. Each Party shall, without undue delay, notify the other Party of any material changes to such information and update the information on the Internet, as appropriate.
A Party may comply with paragraphs 1 and 2, making information available to the public and allowing comments to be sent via more than one website, provided that the information can be accessed and submissions can be made through a single portal. internet that connects to other websites.
Article 8: Use of Simple Language
Each Party must ensure that proposed regulations and final regulations are drafted in simple language to ensure that these regulations are clear, concise and easy to understand by the public, recognizing that some regulations address technical issues and specific knowledge may be necessary to understand them or apply them.
Article 9: Transparent Regulatory Development
During the period described in paragraph 2, when a regulatory authority is developing regulation, the Party should, under normal circumstances, publish:
(a) the proposed regulation text together with its regulatory impact analysis, if any;
(b) an explanation of the regulation, including its objectives, how the regulation achieves these objectives, the justification for the material aspects of the regulation and the main alternatives under consideration;
(c) an explanation of: the data, other information and analysis that the regulatory authority used to endorse the regulation; and
(d) the name and contact information of an individual employee of the regulatory authority with primary responsibility for the development of the regulation, who can be contacted regarding regulatory issues.
At the same time that the Party publishes the information listed in subparagraphs from (a) to (d), the Party shall also make publicly available data, other information and scientific and technical analysis in which it used to endorse the regulation, including any risk assessment.
With respect to the items that are to be published under paragraph 1, each Party shall publish them before the regulatory authority finishes its work on regulation and at a time that allows the regulatory authority to take into account the comments received and, as appropriate, revise the text of the published regulation in accordance with paragraph 1 (a).
After the publication of the items identified in paragraph 1, the Party shall ensure that any interested person, regardless of domicile, has the opportunity, on terms no less favorable than those granted to a person of the Party, to send written comments on the items identified in paragraph 1 for consideration by the Party’s competent regulatory authority. Each Party shall allow interested persons to send any comments and other contributions electronically and may also permit written submissions by post to a publicly available address or by means of other technology.
If a Party expects a proposed regulation to have a significant impact on trade, the Party should, under normal circumstances, provide a period for submitting written comments and other contributions on items published in accordance with paragraph 1 which is:
(a) not less than 60 days from the date on which the items identified in paragraph 1 are published; or
(b) a longer period of time, as appropriate due to the nature and complexity of regulation, in order to provide interested persons with an adequate opportunity to understand how regulation may affect their interests and to develop informed responses.
In relation to regulatory proposals not covered by paragraph 4, a Party shall endeavor, under normal circumstances, to grant a time limit for submitting written comments and other contributions on information published in accordance with paragraph 1 that is not less than four weeks from the date on which the items identified in paragraph 1 are published.
In addition, the Party shall consider reasonable requests to extend the comment period in paragraph 4 or 5 to send written comments or other contributions on a proposed regulation.
Each Party shall, without undue delay, make any written comments it receives publicly available on the Internet, except to the extent necessary to protect confidential information or retain personally identifiable information or inappropriate content. If it is not feasible to make all comments on the website provided for in Article 7 (Dedicated Electronic Site) publicly available on the Internet, the regulatory authority of one of the Parties shall endeavor to make these comments publicly available on its own website. Each Party should also normally make a list, summary or other form of compilation publicly available on the Internet, identifying the people who have sent public comments.
Before finalizing its work on regulation, a Party’s regulatory authority should assess any relevant information provided in the written comments received during the comment period.
When a Party’s regulatory authority has finalized its work on a regulation, the Party shall, without undue delay, make the regulation’s text, any final impact analysis and other items publicly available on the Internet as set out in Article 12 (Final Publication).
Parties are encouraged to make government-generated items identified in this Article publicly available on the Internet in a format that can be read and processed digitally through word searches and data mining using a computer or other technology.
For the purposes of paragraphs 1, 4 and 5, “normal circumstances” do not include, for example, situations in which publication in accordance with those paragraphs would render regulation ineffective in dealing with the particular damage to the public interest that the regulation seeks to deal with; if urgent problems (for example, safety, health or environmental protection) arise or threaten to arise for a Party; or if the regulation has no substantive impact on members of the public, including people from the other Party.
Article 10: Expert Advisory Groups or Bodies
The Parties recognize that their respective regulatory authorities may seek expert advice and recommendations from groups or bodies that include persons other than government officials with regard to the preparation or implementation of regulations. The Parties also recognize that obtaining this advice and recommendations should be a complement to, and not a substitute for, procedures for seeking public comment in accordance with Article 9.3 (Transparent Regulation Development).
For the purposes of this article, a group or body of experts means a group or body:
(a) established by a Party at the federal level of government;
(b) whose members include persons who are not employees or contractors of the Party; and
(c) whose function includes providing advice or recommendations, including those of a scientific or technical nature, to a Party regulatory authority in relation to the preparation or implementation of regulations.
This article does not apply to a group or body established to improve intergovernmental coordination or to provide advice related to international issues, including national security.
Each Party shall encourage its regulatory authorities to ensure that members of any group or body of experts understand a variety and diversity of views and interests, as appropriate to the specific context.
Recognizing the importance of keeping the public informed about the purpose, members and activities of groups and bodies of experts, and that these groups or bodies of experts can provide important additional perspective or experience on issues concerning government operations , each Party shall encourage its regulatory authorities to provide public notices on:
(a) the name of any group or body of experts you create or use, and the names of the members of the group or bodies and their affiliations;
(b) the mandate and functions of the expert group or body;
(c) information about upcoming meetings;
(d) a summary of the outcome of any meeting of a group or body of experts; and
(e) a summary of the final result on any substantive topic considered by the group or body of experts.
Each Party shall endeavor, as appropriate, to make publicly available on the Internet any documentation made available or prepared for or by the group or body of experts.
A group or body of experts can seek public contributions related to any topic under its mandate and should provide a means for interested persons to provide contributions.
Article 11: Regulatory Impact Analysis
The Parties recognize that the regulatory impact analysis is a tool to assist regulatory authorities in assessing the need for the regulations they are drafting and their potential impacts. Each Party should encourage the use of regulatory impact analyzes in appropriate circumstances when developing proposals for regulations whose anticipated costs or impacts exceed certain levels established by the Party.
Each Party shall maintain procedures that promote the consideration of the following points when carrying out a regulatory impact analysis:
(a) the need for a proposed regulation, including a description of the nature and importance of the problem that the regulation seeks to resolve;
(b) viable and appropriate regulatory and non-regulatory alternatives that meet the need identified in subparagraph (a), including the non-regular alternative;
(c) the anticipated positive and negative impacts of the selected alternatives and other viable alternatives (such as economic, social, environmental, public health and safety effects), as well as the risks and distributional effects over time, recognizing that qualitative analyzes may be appropriate when costs and benefits are difficult to quantify or monetize due to inadequate information. The Party’s analysis of such impacts may vary according to the complexity of the problem and the data and information available; and
d) the reasons for concluding that the selected alternative is preferable.
Each Party should consider whether a proposed regulation could have significant adverse economic effects on a significant number of small businesses. In this case, the Party should consider potential measures to minimize these adverse economic impacts, while enabling the Party to achieve its objectives.
Article 12: Final Publication
When a Party’s regulatory authority has completed its work on a regulation, the Party shall publish, without undue delay, in the regulation text, in the final regulatory impact analysis or in another document:
(a) the date from which compliance is mandatory;
(b) an explanation of how the regulation achieves the Party’s objectives, the justification for the material aspects of the regulation (insofar as it differs from the explanation provided for in article 9 (Transparent Development of Regulations), the nature of any significant revisions made since the provision of regulation for public comment and the reasons for the said revisions;
(c) the regulatory authority’s position on any substantive issues presented in the comments presented in due course;
(d) main alternatives, if any, that the regulatory authority considered when developing the regulation and the reasons underlying the selected alternative;
(e) the relationship between the regulation and the main evidence, data and other information that the regulatory authority considered when completing its work on regulation;
(f) as far as possible, a reference to any forms or documents required to comply with the regulation and indication of their estimated availability; and
(g) the name and contact information of an individual employee of the regulatory authority with primary responsibility for implementing the regulation and who can be consulted on issues related to regulation.
Each Party shall ensure that all regulations in force and any forms and documents necessary for compliance are published on a free and publicly available website. On the website, each Party shall endeavor to organize regulations by regulatory authority or by regulatory area, in order to facilitate searches.
Article 13: Review of Current Regulations
Each Party shall adopt or maintain procedures or mechanisms to conduct reviews of its current regulations to determine whether it is appropriate to modify or revoke them. A review may be initiated, for example, in accordance with the law of the Party, on the initiative of a regulatory authority or in response to a suggestion submitted under Article 14 (Suggestions for Improvement).
When conducting a review, each Party shall consider, as appropriate and applicable, among other elements:
(a) the effectiveness of regulation in meeting its stated objectives, for example, by examining its real social or economic impact;
(b) any circumstances that have changed since the development of the regulation, including the availability of new information;
(c) new opportunities to eliminate unnecessary regulatory burdens;
(d) ways to resolve unnecessary regulatory differences that may adversely affect trade, including trade between the Parties; and
(e) any relevant suggestions from members of the public submitted in accordance with Article 14 (Suggestions for Improvement).
Each Party shall include, among the procedures or mechanisms adopted in accordance with paragraph 1, provisions dealing with impacts on small businesses.
Each Party is encouraged to make any official plans and results of a review publicly available on the Internet, as available and appropriate.
Article 14: Suggestions for Improvement
Each Party shall guarantee to any interested person the opportunity to submit written suggestions to any Party’s regulatory authority for the publication, modification or revocation of a regulation. The basis for these suggestions may include, for example, that, in the opinion of the person concerned, regulation has become ineffective in protecting health, well-being or safety, has become more costly than necessary to achieve its objective ( for example, with respect to its impact on trade), it does not take into account changes in circumstances (such as fundamental changes in technology, relevant scientific and technical developments, relevant international standards), or is based on incorrect or outdated information.
Article 15: Information on Regulatory Processes and Regulatory Authorities
Each Party shall make publicly available on the Internet a description of the processes and mechanisms employed by its regulatory authorities to prepare, evaluate or revise regulations. The description should identify the applicable guidelines, rules or procedures, including those related to opportunities for the public to provide contributions.
Each Party shall also make publicly available on the Internet:
(a) a description of the functions and organization of each of its regulatory authorities, including the appropriate sectors through which it is possible to obtain information, submit documents or requests or obtain decisions;
(b) any procedural requirements or forms promulgated or used by any of its regulatory authorities;
(c) the legal authority for verification, inspection and compliance activities by its regulatory authorities;
(d) information about the judicial or administrative procedures available to challenge the regulations; and
(e) any fees charged by a regulatory authority for a person of a Party for services provided in connection with the implementation of a regulation, including licensing, inspections, audits and other administrative actions required by the Party’s legislation to import, export, sell, trade or use one as well.
Each Party shall, without undue delay, make any material changes to that information publicly available on the Internet.
Article 16: Annual Report
Each Party shall prepare and make free and publicly available on the internet, annually, a report establishing
(a) as far as possible, an estimate of the relevant impacts of economically significant regulations, as established by the Party, issued in that period by its regulatory authorities, on an aggregate or individual basis; and
(b) any changes or proposed changes to its regulatory system.
Article 17: Encouraging Regulatory Compatibility and Cooperation
The Parties recognize the important contribution of the dialogues between their respective regulatory authorities in promoting regulatory compatibility and cooperation where appropriate, with a view to increasing mutual understanding of their respective systems and improving the implementation of good regulatory practices and in order to facilitate the trade and investment and achieve regulatory objectives. Accordingly, each Party should encourage its regulatory authorities to engage in mutually beneficial regulatory cooperation activities with relevant counterparts of the other Party in circumstances appropriate to achieve these objectives.
The Parties recognize the valuable work of the bilateral cooperation forums and intend to continue to work together on mutually beneficial bases in these forums or under the terms of this Annex. The Parties also recognize that effective regulatory cooperation requires the participation of regulatory authorities that have the authority and technical knowledge to develop, adopt and implement regulations. Each Party should encourage contributions from members of the public to identify promising alternatives for cooperative activities.
The Parties recognize that a wide range of mechanisms, including those established in the WTO Agreement, exist to help minimize unnecessary regulatory differences and to facilitate trade or investment, while contributing to each Party’s ability to meet its policy objectives. public.
Article 18: Points of Contact
Each Party shall designate and notify a point of contact for matters related to this Annex. The Party shall, without undue delay, notify the other Party of any material changes to its point of contact.
Contact points should coordinate communication and collaboration on matters related to this Annex, including encouraging regulatory cooperation, with a view to facilitating trade between the Parties.
Activities related to this Annex may include:
monitor the implementation and operation of this Annex, including through updates to each Party’s regulatory practices and processes;
exchange information on effective methods for the implementation of this Annex, including with regard to regulatory cooperation approaches and relevant work in international forums;
consult on topics and positions prior to meetings in international forums related to the work of this Annex, including opportunities for workshops, seminars and other relevant activities to support the strengthening of good regulatory practices and to support improvements in approaches to regulatory cooperation.
consider suggestions from interested parties on opportunities to strengthen the application of good regulatory practices;
identify areas for the future work of the Parties; and
take any other measures that the Parties consider will assist them in implementing this Annex.
Each Party shall provide opportunities for the people of that Party to provide opinions on the implementation of this Annex, and points of contact shall exchange information on those opinions.
Article 19: Transition periods
Notwithstanding Article 5.1 of this Protocol, Brazil shall implement its obligations with respect to the following articles two years after the date of entry into force of this Protocol:
(a) Article 6 (Regulatory Agenda);
(b) Article 7 (Dedicated Electronic Site);
(c) paragraphs 1, 2, 3, 7 and 9 of Article 9 (Transparent Development of Regulations);
(d) Article 12 (Final Publication);
(e) Article 15 (Information on Regulatory Processes and Regulatory Authorities); and
(f) Article 16 (Annual Report).
ADDITIONAL PROVISIONS CONCERNING THE SCOPE OF “REGULATIONS” AND “REGULATORY AUTHORITIES”
The following measures are not regulations for the purposes of this Annex:
for Parties, general policy statements or guidelines that do not prescribe legally mandatory requirements;
for Brazil, a measure relating to:
a military or foreign relations function in Brazil,
public sector management, human resources, wealth, loans, budget execution, concessions, benefits or contracts,
public sector organization, procedure or practice,
financial services or anti-money laundering measures,
tax measures, or
monetary and exchange rate policies.
for the United States, a measure relating to:
a United States military or foreign affairs function,
management of agency, personnel, public property, loans, grants, benefits or contracts,
agency organization, procedure or practice,
financial services or anti-money laundering measures, or
ANNEX III: ANTI-CORRUPTION
Article 1: Scope and general provisions
Articles 1 to 6 apply to legislative and other measures to prevent and combat corruption in any matter that affects international trade and investment. This Annex does not apply to conduct outside the competence of federal law and, whenever an obligation involves preventive measures, it should only be applied to measures established by federal law that bind federal, state and local authorities.
Each Party affirms its determination to prevent and combat corruption in matters affecting international trade and investment.
Each Party recognizes that it is necessary to develop integrity in the public and private sectors and that each sector has complementary responsibilities in this regard.
Each Party recognizes the importance of regional and multilateral initiatives to prevent and combat corruption in matters affecting international trade and investment and is committed to working together with the other Party to encourage and support appropriate initiatives to prevent and combat corruption.
The Parties recognize that their respective competent anti-corruption authorities have established working relationships in many bilateral and multilateral forums and that cooperation under this Annex can enhance the Parties’ joint efforts in these forums and help produce results that prevent and combat corruption in matters that affect international trade and investment.
Each Party affirms its obligations under the Convention on Combating the Corruption of Foreign Public Officials in International Business Transactions, concluded in Paris on December 19, 1997; the United Nations Convention against Corruption, adopted in New York, on October 31, 2003; and the Inter-American Convention against Corruption, concluded in Caracas on March 29, 1996.
Article 2: Measures to prevent and combat corruption
Each Party shall adopt or maintain the legislative and other measures that may be necessary to establish as criminal, civil or administrative infractions, in accordance with its legislation, in matters affecting international trade and investment, when intentionally committed by any person subject to its jurisdiction:
the promise, offer or assignment to a public official, directly or indirectly, of undue advantage to the official or another person, so that the official acts or refrains from acting in relation to the performance or exercise of official functions;
the request or acceptance by a public official, directly or indirectly, of an undue advantage to the employee or another person, so that the employee acts or refrains from acting in relation to the performance or exercise of official functions;
the promise, offer or assignment to a foreign public official or to an official of an international public organization, directly or indirectly, of undue advantage to the employee or another person, so that the employee acts or refrains from acting in relation to performance or exercise official functions, to obtain or maintain business or any other improper advantage in relation to the conduct of international business; and
complicity, including incitement and assistance, or conspiracy to practice any of the offenses described in subparagraphs (a) to (c).
Each Party shall adopt or maintain legislative and other measures that may be necessary in relation to the maintenance of books, records and internal controls, disclosure of financial statements and accounting and auditing standards, to prohibit or prevent the following acts perpetrated by issuers to commit any of the following: infractions described in this Article:
the establishment of accounts not registered in the accounting books;
carrying out unregistered or inadequately identified transactions;
the non-existent expense record;
the entry of liabilities with incorrect identification of their objects;
the use of false documents; and
the willful destruction of accounting documents before the term provided by law.
Each Party shall adopt or maintain the legislative and other measures that may be necessary to establish as criminal, civil or administrative infractions, in accordance with its legislation, in matters affecting international trade and investment, when intentionally committed by any person subject to its jurisdiction:
embezzlement, embezzlement or other misuse by a public official, for his or her benefit or for someone else, of any assets and rights, public or private values, or securities or any other asset entrusted to the public official because of his or her duties;
the conversion or transfer of assets and rights, knowing that they are products of crime, with the purpose of hiding or disguising their illegal origin or helping any person involved in the practice of the previous offense to evade the legal consequences of their action ;
the concealment or disguise of the true nature, origin, location, disposition, movement or belonging of goods and rights or ancillary rights, knowing that these are products of crime;
acquisition, possession or use of goods and rights, knowing, at the time of receipt, that these are criminal products; and
collaboration, association or conspiracy, assistance, encouragement, facilitation and counseling for the practice, even attempted, of any of the infractions established in accordance with subparagraphs (a) to (d).
Each Party shall adopt or maintain effective, proportionate and dissuasive sanctions and procedures to enforce the measures it adopts or maintains in accordance with paragraphs 1, 2 and 3.
Each Party shall prohibit the tax deductibility of products of corruption and other expenses deemed illegal by the Party incurred in promoting the practice of an offense described in paragraphs 1 and 3.
Each Party shall adopt or maintain measures that allow the identification, tracking, blocking, seizure and confiscation, in criminal, civil or administrative proceedings, of:
products, including any goods and rights, derived from the infractions described in paragraphs 1 and 3; and
goods and rights, equipment or other instruments used or intended for use in these offenses.
Each Party shall adopt or maintain measures in accordance with its laws and regulations that allow it to impose visa restrictions on any foreign public official who has been involved in the offense described in paragraphs 1 and 3 or any other person who assisted him in his commission.
Article 3: People who report acts of corruption
Each Party shall identify the competent authorities responsible for applying the measures it adopts or maintains in accordance with Article 2.3 (Measures to prevent and combat corruption) and make the information publicly available.
Each Party shall adopt or maintain publicly available procedures for informing its competent authorities, including anonymously, of any incidents that may be considered an offense described in Articles 2.1 and 2.3 or an act described in Article 2.2.
Each Party shall adopt or maintain measures to protect against discriminatory or disciplinary treatment of any person who reasonably reports to the competent authorities any suspicious incidents that may be considered an offense described in Articles 2.1 and 2.3 or an act described in Article 2.2.
Each Party should require that external auditors of the issuer’s financial statements who discover evidence of a suspected incident, which may be considered an offense described in Articles 2.1 and 2.3 or an act described in Article 2.2, report this finding to management and, as appropriate, to the governing bodies. corporate inspection. Each Party should also encourage the issuer to receive information from external auditors to respond in an active and effective manner.
Each Party should consider requiring the external auditors of an issuer’s financial statements to report to the competent authorities any suspicious incident that could be considered an offense described in Articles 2.1 and 2.3 or an act described in Article 2.2. Each Party shall ensure that any external auditor who reasonably informs the competent authorities of any of these suspicious incidents is protected from lawsuits.
Article 4: Promotion of integrity among public officials
This Article applies only to the federal level of government.
To prevent and combat corruption in matters affecting international trade and investment, each Party must promote, among others, integrity, honesty and responsibility among its public officials. To this end, each Party shall adopt or maintain legislative and other measures to:
provide adequate procedures for the selection and training of public officials for positions considered by the Party to be particularly vulnerable to corruption;
promote transparency and accountability for public officials in the exercise of public functions;
require senior officials and other public officials, as deemed appropriate by the Party, to provide competent authorities with statements regarding, inter alia, their external activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result in relation to their functions as civil servants; and
facilitate and demand that public officials report acts of corruption to the competent authorities, when such acts come to their knowledge in the performance of their duties.
Each Party will also adopt or maintain appropriate public policies and procedures to identify and manage actual or potential conflicts of interest for public officials.
Each Party shall adopt or maintain codes or standards of conduct for the correct, honorable and adequate performance of public functions and to avoid conflicts of interest by public officials. Each Party will also adopt or maintain measures that provide for disciplinary or other actions, if justified, against a public official who violates the codes or rules established in accordance with this paragraph.
Each Party shall establish procedures whereby a public official accused, convicted or officially sanctioned for an offense described in this Annex may be dismissed, suspended or removed by the competent authority, taking into account the respect for the principle of the presumption of innocence.
Without prejudice to judicial independence, each Party shall adopt or maintain measures to strengthen integrity and prevent opportunities for corruption by public officials who are members of its judiciary in matters affecting international trade and investment. These measures may include rules regarding the conduct of public officials who are members of their judiciary.
Article 5: Participation of the Private Sector and Civil Society
Each Party must take appropriate measures to promote the active participation of individuals and groups outside the public sector, such as companies, civil society, non-governmental organizations and community organizations, in preventing and combating corruption in matters affecting trade and investment. and to increase public awareness of the existence, causes, seriousness and threat posed by corruption. To that end, a Party may, for example:
conduct public information activities and public education programs that contribute to intolerance of corruption;
encourage professional associations and other non-governmental organizations, where appropriate, to encourage and assist companies, in particular small and medium-sized enterprises, in developing codes, standards of conduct and compliance programs to prevent and detect corruption;
encourage corporate management to make statements in their annual reports or otherwise publicly disclose internal control programs, including those that contribute to preventing and detecting corruption; and
respect, promote and protect the freedom to seek, receive, publish and disseminate information related to corruption, in matters that affect international trade and investments.
Each Party will encourage companies, taking into account their size, legal structure and the sectors in which they operate, to:
adopt or maintain sufficient internal accounting controls, compliance programs or monitoring bodies, independent of management, such as audit committees of boards of directors or fiscal councils, to assist in the prevention and detection of violations that violate the measures adopted or maintained in the terms of Articles 2.1 and 2.3 or acts that violate measures adopted or maintained in accordance with Article 2.2 (Measures to prevent and combat corruption); and
ensure that your required accounts and financial statements are subject to appropriate audit and certification procedures.
Article 6: Application and enforcement of measures adopted or maintained to prevent and combat corruption
Each Party affirms its commitment to increase the effectiveness of law enforcement actions to prevent and combat the offenses described in Articles 2.1 and 2.3 or the acts described in Article 2.2 (Measures to prevent and combat corruption).
In accordance with the fundamental principles of its legal system, a Party will not fail to effectively apply the measures adopted or maintained to comply with Articles 2 (Measures to prevent and combat corruption), 3 (People who report acts of corruption) and 4 ( Promotion of integrity among public officials), through a continuous or recurring course of action or omission.
In accordance with the fundamental principles of its legal system, each Party retains the right of its police, prosecuting and judicial authorities to exercise discretion with respect to the application of the Party’s measures adopted or maintained to prevent and combat corruption in matters affecting trade. and international investment. Each Party reserves the right to make decisions in good faith regarding the allocation of its resources in relation to the application.
Article 7: Definitions
For the purposes of this Annex:
company means an entity constituted or organized according to the applicable law, with or without profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, individual property, joint venture, association or similar organization;
foreign public official means an individual who holds a legislative, executive, administrative or judicial position in a foreign country, at any level of government, whether appointed or elected, permanent or temporary, paid or unpaid, and regardless of the seniority of that person; and an individual who exercises public function for a foreign country, at any level of government, including for a public agency or public company;
individual means natural person;
for the Federative Republic of Brazil, issuers are defined by the applicable laws and regulations of the Federative Republic of Brazil.
for the United States of America, issuers who have a class of securities registered under 15 U.S.C. 78l or who are required to report under 15 U.S.C. 78o (d).
official of an international public organization means a public official of an international public organization or an individual authorized by an international public organization to act on its behalf;
person means an individual or company;
public company means a company over which a government or governments can, directly or indirectly, exercise dominant influence. “Dominant influence” will be considered to exist, “inter alia”, if the government or governments hold a majority of the company’s subscribed capital, control the majority of votes linked to the shares issued by the company or are able to nominate the majority of the members of the management body or management or fiscal council of the company; and
public official means:
any individual holding a legislative, executive, administrative or judicial position in a Party, whether appointed or elected, permanent or temporary, paid or unpaid, and regardless of the seniority of that individual;
any other individual who performs public function for a Party, including for a public agency or public company, or provides public service as defined in that Party’s legislation and as applied in the relevant area of law in that Party; or
any other individual of a Party defined as a “civil servant” under that Party’s law.
EDITOR’S NOTE: This article is a translation. Apologies should the grammar and / or sentence structure is not perfect.