Regulatory provisions related to the reactivation, continuity and efficiency of operations linked to the foreign trade logistics chain are established
On February 11, 2021, Supreme Decree 001-2021-MINCETUR was published, establishing regulatory provisions related to Legislative Decree No. 1492, which established important measures related to the reactivation, continuity and efficiency of operations linked to the foreign trade logistics chain.
The main regulatory measures provided for in this regulation are the following:
1. Continuity of foreign trade logistics operations
2. Digitization of foreign trade processes in the public sector
During physical inspection proceedings, public entities do not require the submission of original documents, but only the verification of documentation or information received through the VUCE or interoperability platforms of the State. Exceptions are those cases where an international agreement requires the submission of original documents.
Public entities maintain their competence to request original documents during the inspection procedures, and therefore, the parties involved must keep these documents on file.
3. Digitalization of foreign trade processes in the private sector
This obligation relates to the following FTOs: shipping agents, customs agents, international freight forwarders, shipping lines, customs brokers, airlines, air customs warehouses, express delivery companies, postal service companies, international land freight forwarders, international multimodal transport operators, aircraft equipment beneficiaries, guarantee associations and shipping associations.
A maximum period is established for the digitalization of the processes in charge of each of the above mentioned FTOs.
Through the MIIO, and under this endorsement, the owner, consignee or consignor of the cargo grants the customs agent the power to represent it before airlines and their representatives, international freight forwarders customs warehouses, in order to obtain commercial authorization for delivery of the goods entered on the bill of lading. For these purposes, cargo owners or consignees, shipping lines and their representatives, customs agents, international freight forwarders and customs warehouses must authenticate themselves at MIIO.
This endorsement is in line with the provisions of the Securities Act and in no case implies the transfer of ownership of the goods.
The use of MIIO is mandatory for those FTOs that do not have electronic mechanisms to perform or verify the electronic endorsement, the procurement endorsement and/or the commercial authorization of delivery of the cargo.
4. Transparency of the foreign trade logistics chain.
5. Provisions are established on the inspection processes that correspond to MINCETUR in its capacity as the entity that controls the provisions of Legislative Decree No. 1492 and regulatory standards, as well as in relation to the applicable infringement and sanctioning framework.
6. In line with the aforementioned, Supreme Decree NO. 029-2012-PCM published on February 19, 2021, established the obligation to implement non-face-to-face digital services by public entities that require or generate documents or information related to the processes linked to the foreign trade logistics chain.
Provisions related to the entry into and exit from the national territory of Chemical Supplies and Controlled Products are enacted
Law No. 31124 published on February 17, 2021 amended provisions related to the inspection of Chemical Supplies and Controlled Products, machinery and equipment used for the manufacture of illicit drugs.
The provisions related to the entry and exit of these goods from the country are the following:
1. SUNAT grants exceptional permission to carry out unusual activities with controlled goods to the importer of samples of chemical inputs when their purpose is to demonstrate their characteristics. Such samples may or may not have commercial value.
The regulations to be issued in relation to these provisions will establish, among others, the procedure, requirements, time limits, quantities, frequencies, volumes and degree of concentration, and other aspects necessary to carry out these activities.
The import operations of samples with or without commercial value shall comply with the provisions on customs valuation related to the determination of the taxable base of import taxes.
2. Users whose controlled goods have been legally abandoned may not obtain new authorizations for the entry and exit of this type of goods from the national territory, unless they meet the costs required for their transportation, chemical neutralization or disposal in accordance with the provisions of the General Customs Act.
The user may rectify the authorizations for the entry and exit of goods from the national territory, provided that there are reasons of fortuitous event or force majeure duly verified by SUNAT. The procedure, requirements and conditions for the rectification of the authorization granted shall be established by means of a Superintendence resolution.
It should be taken into consideration that legal abandonment occurs after the expiration of the deadlines established in the General Customs Act for: i) assigning the goods coming from abroad to a customs regime; and ii) completing the customs procedures within the applicable customs regime. The situation of legal abandonment is a de facto consideration that does not require the issuance of a declaratory administrative act and is produced by the simple passage of time (expiration of deadlines).
3. The controlled goods must have the Customs Declaration of Goods or the corresponding authorizing document in order to be transferred to a Customs Warehouse. Said transfer must be carried out through the established Tax Route. The regulations to be issued shall establish the authorizing documents required for this shipment.
When SUNAT detects, in the Primary Customs Zone, the commission of administrative infringements or finds prima facie evidence of the possible commission of a crime regarding the activities carried out with the controlled goods, it must seize the goods, intern them from the means of transportation that transport them and communicate such facts to the National Police of Peru and the Public Prosecutor’s Office for the corresponding actions.
It should be noted that a Primary Customs Zone is understood as the part of the customs territory that includes ports, airports, land terminals, border service centers for the disembarkation, embarkation, mobilization or clearance of goods and offices, premises or units intended for the direct service of a customs office. In addition, this concept may include customs areas, aquatic or terrestrial spaces, premises or roads enabled or authorized for the above-mentioned operations. This includes warehouses and goods deposits that comply with the requirements established in the regulations in force and have been authorized by the Customs Administration.
Provisional safeguard on imports of clothing is not applied
On February 18, 2021, Supreme Decree No. 002-2021-MINCETUR was published provided for the non-application of the provisional safeguard measure on imports of clothing recommended in Report No. 009-2021/CDB-INDECOPI of the Commission on Dumping, Subsidies and Elimination of Non-Tariff Trade Barriers of INDECOPI (the Commission), in accordance with the provisions of the WTO Agreement on Safeguards and national regulations.
In this regard, it should be noted that through Resolution No. 146-2020/CDBINDECOPI published in the Official Gazette El Peruano, on November 1, 2020, the Commission had decided to initiate ex officio an investigation procedure on imports of clothing in safeguards, as it had been established that there would be prima facie evidence of threat of serious injury to the domestic clothing industry. The basis for this decision was the alleged significant increase of imports of such product in absolute terms and in relation to the domestic production.
Concerning the initiation of this proceeding, Report No. 009-2021/CDB-INDECOPI was issued, recommending the imposition of provisional safeguard measures on imports of clothing
Through Supreme Decree No. 002-2021-MINCETUR, which is the subject of commentary, it was indicated that the investigation carried out by INDECOPI does not allow to prove the existence of essential requirements of the procedure (lack of clear evidence of the causal relationship between the increase in imports and the alleged injury to the domestic industry), which was the reason why the provisional safeguard on imports of clothing was not applied.
The United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules) was ratified
Through Supreme Decree N° 006-2021-RE, published on February 26, 2021, the Peruvian State ratified the “United Nations Convention on the Carriage of Goods by Sea, 1978“, known as the Hamburg Rules.
In general terms, this Convention regulates aspects related to the responsibility of the maritime carrier with respect to the cargo transported, information on the documentation required to carry out the maritime transport, ways to file claims and disputes, etc.
It should be noted that the provisions of the Convention in reference apply to the commercial relationship between the carrier and the shipper (the contracting party). The person with the obligation to contract the international carriage of goods is normally determined based on the use of the Incoterms agreed in the contracts of international sale of goods. Thus, for example, whoever imports under the CIF Incoterm and exports under the FOB Incoterm will not have the obligation to contract the freight, while whoever imports under the FOB Incoterm and exports under the CIF Incoterm will have the obligation to contract the freight.
The direct antecedent of this rule is the denunciation that, by means of Supreme Decree N° 012-2020-RE published on May 12, 2020, the Peruvian government had previously provided with respect to the “International Convention for the Unification of Certain Rules Relating to Bills of Lading of 1924, known as the Hague Rules.
Amendment of the Montreal Protocol on rules for the international carriage of goods by air is adopted
On February 12, 2021, Montreal Protocol No. 4 was published, which amends the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on October 12, 1929. These amendments are mainly related to the responsibilities of the carrier, the shipper and the consignee, as well as to the information and formalities of the documentation supporting this transport.
