FTAA - Free Trade Area of the Americas
Draft Agreement
Chapter on Market Access
(Continuation)
Section Four. Other measures
[Article 15.]
[Distinctive products]
[15.1. The Parties recognize “seco” and “molas” as distinctive products of Panama. Consequently, the Parties shall not permit the sale of any product under the names “seco” or “mola”, unless they were produced in Panama in accordance with that country’s laws and regulations.]
[15.1. Parties shall recognize Bourbon Whiskey and Tennessee Whiskey, which is a straight Bourbon Whisky authorized to be produced only in the State of Tennessee, as distinctive products of the United States. Accordingly, Parties shall not permit the sale of any product as Bourbon Whiskey or Tennessee Whiskey, unless it has been manufactured in the United States in accordance with the laws and regulations of the United States governing the manufacture of Bourbon Whiskey and Tennessee Whiskey.]
[The Parties shall recognize Tequila and Mezcal as distinctive products of Mexico. Accordingly, the Parties shall not permit the sale of any product as Tequila or Mezcal, unless it has been manufactured in Mexico in accordance with the laws and regulations of Mexico governing the manufacture of Tequila and Mezcal.]
[Other]
Section Five. Institutional provisions
[Article 16. Committee on Trade in Goods]
[16.1. The Parties shall create a Committee on Trade in Goods, made up of representatives of each Party, which shall meet at least once a year or at the request of one of the Parties.]
[16.2. The Committee shall be established within six months of the Agreement coming into force. Any decision adopted by the Committee shall be by [common agreement] [consensus].]
[16.3 The Committee shall have the following duties:
a) To monitor the application and administration by the Parties of the [principles][rights and obligations ] contained in this [Chapter];
b) To coordinate the activities and ensure the proper functioning of the Non-Agricultural Goods Sub-committee.
c) To examine the proposals regarding [accelerated] tariff reduction that are submitted by the Parties.
d) To assess any proposed modification, amendment or addition to the relevant provisions in order to improve the application of what is set forth in this [Chapter] and to recommend the pertinent changes to the Commission.
e) To coordinate the exchange of commercial information between the Parties.
f) To submit an annual report to the Commission regarding its activities.]
[16.4. The Parties shall establish an Agricultural Sub-committee and a Non-Agricultural Goods Sub-committee, whose duties shall be:
a) To act as a consultation panel for issues relating to the market access of agricultural and non-agricultural products.
b) To recommend to the Committee the adoption of measures that encourage free trade between the Parties.
c) To meet at least once a year or at the request of any of the parties or the Committee.
d) To submit to the Committee any issue over which they have not reached an agreement within sixty (60) days of when they became aware of said issue; and
e) To submit an annual report to the Committee on the agreements reached and activities carried out.]
[Article ___. Publication and Notification]5
[[16.5] [17.1] Publication and notification. Each Party shall identify, in terms of the tariff classification items and their related nomenclature {in accordance with their respective tariffs} {measures}, restrictions or prohibitions on the import or export of goods for reasons of national security, public health, preservation of flora or fauna, environment, sanitary or phytosanitary standards, labeling, technical regulations, international commitments, requirements of public order or any other regulations.]
[a) Prior to official publication {in accordance with the above}, no Party shall apply any {general} measure adopted by that Party which has the effect of increasing a customs tariff or other charge against the importation of goods of the other Party by virtue of established and uniform usage, or which imposes new or more onerous {measures,} restrictions or prohibitions on the importation of goods of the other Party or the transfer of funds for same.]
[b) In view {of the debilitating effects of} {that} sudden devaluations{,} {and} changes in exchange systems {and monetary policies} {on} {may undermine the} trade flow{s} and {the} initiative{s} {for the establishment of} {to establish a} free trade area{s}, the Parties undertake to notify each other whenever such events occur.]
[Article 17. Definitions]
[17.1. The following definitions shall be used for the purposes of this [Chapter]:]
[advertising films: [recorded visual media, with or without soundtrack, that essentially are made up of images that show the nature or functioning of goods or services being sold or leased by a person established or resident in the territory of one of the Parties, provided that the films are suitable to be shown to potential clients, but not for general broadcast. They are to be imported in packets which contain no more than one copy of each film and that are not part of a larger consignment.]]
[[commercial] samples [of negligible] [or] [without
commercial] value: [commercial samples having a value, individually or in the aggregate as shipped, of not more than one U.S. dollar, or the equivalent amount in the currency of another Party, or so], [[those that are] marked, broken, perforated or [otherwise treated that they are unsuitable for sale or for use except as commercial samples;] [that have been treated in a way that disqualifies them from being sold or from any use other than as samples.]]]
[consular transactions: requirements that goods of a Party intended for export to the territory of another Party must first be submitted to the supervision of the consul of the importing Party in the territory of the exporting Party for the purpose of obtaining consular invoices or consular visas for commercial invoices, certificates of origin, manifests, shipper’s export declarations or any other customs documentation required on or in connection with importation.]
[consumed: (a) actually consumed, or (b) further processed or manufactured so as to result in a substantial change in value, form or use of the good or in the production of another good.]
[customs duties: [the duties that would be applicable to a good that is imported to be used in the customs territory of {one of} the Parties if the good were not exported to the territory of the other Party;][a tax, duty or levy on imports and charges of any kind] [any customs or import duty and a charge of any kind] [imposed in connection with the importation of a good, including any form of surtax, surcharge or markup in connection with such importation, except:
a) Any charge equivalent to an internal tax imposed consistently with Article III:2 of the GATT 1994], [or the equivalent provision in a successor agreement to which the Parties are signatories] [in respect of like, directly competitive or substitutable goods of the Party, or in respect of goods from which the imported good has been manufactured or produced in whole or in part;
b) any antidumping or countervailing duty that is applied pursuant to a Party’s domestic law; and
c) any fee or other charge in connection with importation commensurate with the cost of services rendered.], [and
d) any premium offered or collected on imported goods under all systems of tendering, for the administration of import volume restrictions or either import or preferential tariff quotas.]]
[deferral or suspension of tariffs programs: [the measures that govern foreign trade zones, temporary importation under, bonded warehouses, inward processing programs and other export processing programs, among others.]]
[duty-free: free of customs duty;]
[printed advertising materials: those goods classified in Chapter 49 of the Harmonized System, including brochures, pamphlets, leaflets, trade catalogues, yearbooks published by trade associations, tourist promotional materials and posters, that are used to promote, publicize or advertise a good or service, are essentially intended to advertise a good or service, and are supplied free of charge.],
[fungible goods: [goods that are interchangeable in accordance with the definition in [Chapter] ___ (Rules of Origin);]]
[goods used for display or demonstrations: [goods used for exhibitions or demonstrations, including their component parts, ancillary apparatus and accessories;]]
[goods imported or brought in for sports purposes: [sport equipment for use in competitions, sports events or training in the territory of the Party to which it is imported;]]
[goods of a Party: domestic products as these are understood in GATT 1994 or such goods as the Parties may agree, and includes originating goods of that Party.]
[identical or similar goods: [those which are completely equal, including their physical characteristics, quality and commercial standing, together with goods that, although they are not completely equal, have similar characteristics and composition, which allow them to fulfill the same function and be commercially interchangeable.]]
[import licensing: administrative procedures requiring the submission of an application or other documentation (other than that generally required for customs clearance purposes) to the relevant administrative body as a prior condition for importation into the territory of the importing Party.]
[material: [a material in accordance with the definition in [Chapter] ___ (Rules of Origin);]]
[performance requirement: a requirement that:
a) a given level or percentage of goods be exported;
b) domestic goods or services of the Party granting a waiver of customs duties or an import license be substituted for imported goods;
c) a person benefitting from a waiver of customs duties or an import license purchase other goods in the territory of the Party granting the waiver of customs duties or the import license, or accord a preference to domestically produced goods;
d) a person benefitting from a waiver of customs duties or an import license produce goods in the territory of the Party granting the waiver of customs duties or the import license; or
e) relates in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows.]
[remanufactured goods: goods that have been cleaned, tested and examined for wear, fitted as necessary with replacement component parts, retested and repackaged such that they function in the original manner intended.]
[repair or alteration: does not include an operation or process that either destroys the essential characteristics of a good or creates a new or commercially different good. For purposes of this definition, it shall be understood that an operation or process which forms part of the production or assembly of an unfinished good, in order to convert it into a finished good, does not constitute the repair or alteration of the unfinished good; a component of a good is a good which can {by} {be} subject to repair or modification.]
[CHAPTER ON] SAFEGUARD MEASURES] 6
[Part I. Hemispheric
Safeguards] [Part I. FTAA Safeguards]
Article 1. Scope of Application
1.1 [The Parties] [A Party] may, [on a temporary and exceptional basis and on the terms set forth in this [Chapter],] apply [a] [bilateral] [plurilateral] [hemispheric] [FTAA] safeguard [measures] [measure under this Part only] pursuant to the terms of this [Chapter], on imports of [originating][products] [goods] [benefiting] [benefitting] from the trade liberalization program under this Agreement, [at any time that the aforementioned Agreement is in force] [only during the transition period] [7] [only during the tariff elimination period]. [Such a measure shall be applied to all imports of such goods originating in the territories of the Parties to this Agreement.][Said measure shall be applied to the imports of a Party to this Agreement when its imports considered individually represent a substantial share of total imports and contribute significantly to the injury caused to the domestic production.]
[1.2 [The States party to]A customs union [duly accredited as such] may apply safeguard measures as a single entity or on behalf of a party State:
a) As a single entity, in which {case} the requirements for the determination of serious injury or threat of serious injury shall be based on the conditions existing in the customs union as a whole.
b) On behalf of one of its Party States, in which case the requirements for the determination of serious injury or threat of serious injury shall be based on the conditions existing in the Party State of the customs union and the measure shall be limited to that Party State.]
[1.3 A Party may adopt or maintain a [bilateral] [hemispheric] [FTAA] safeguard measure subsequent to the termination of the [exemption] [transition] period, provided that the purpose is to deal with cases of serious injury or threat of serious injury that might arise due to the application of this Agreement [and only when the exporting Party expressly authorizes it].]
[1.4 Safeguard measures shall not be applied to a product [originating] in a Party when that Party’s share of total imports of the product in question does not exceed [....] [5] or [....] [percent in the case of the smaller economies and/or economies in different levels of development.]][Safeguard measures shall not be applied to originating goods from a Party when that Party's share of imports of originating goods does not exceed [....] per cent or [....] per cent in the case of smaller economies.]
[1.5 In order to apply plurilateral safeguard measures, an investigating authority shall follow the provisions of this [Chapter] and, in addition, the provisions of Article XIX of the GATT 1994, the Agreement on Safeguards and the respective legislation.]
Article 2. Conditions for Application
2.1 [The Parties] [A Party] may [adopt and ] apply [safeguard measures] [a safeguard measure] where, [as a consequence of unexpected developments and][as a result of tariff preferences accorded under this Agreement,][as a result of the tariff reduction program] the imports of [an originating][a] [product] [good] [from [another Party] ] [the other Parties] have increased {[at a rate]} {in such an amount} , [in absolute terms,] [in relation to domestic production] [in absolute terms or [ [in relation to] {relative to} domestic production8] {[relative to domestic production]},] [in absolute terms and in relation to domestic production,] [and] [or] under conditions such as to {[constitute a substantial] cause [of] serious injury or threat thereof to the} {[cause or threaten to cause] [constitute a substantial cause of] serious injury [or threat thereof]} to the domestic {production} {industry} producing like or directly competitive goods. [In determining whether imports have increased, a Party shall cumulatively consider imports from the territories of all other parties to this Agreement.][that has determined that they individually represent a substantial share of total imports and that they significantly contribute to the injury caused to the domestic production.]
[An FTAA Member may adopt and apply, following prior investigation, safeguard measures to the imports of a product that benefits from the trade liberation program established in this Agreement, when the imports under the preferential tariffs for this product have increased {[at a rate]} {in such an amount}, in absolute terms or in relations to domestic production, and under conditions such as to cause serious injury or threat thereof to the branch of domestic industry of like or directly competitive goods.]
[2.2 Such measures may [only] [be adopted] [be applied] [when [strictly] necessary and] [only] to the [degree] [extent] necessary to [counteract] [prevent or remedy] [prevent or repair] the serious injury, [or threat thereof], and facilitate the adjustment of the [branch of] domestic production affected.]
[2.3 [For the purpose of] [Before imposing a] [definitive] safeguard measure[s], each Party [shall ensure that the [domestic production [or branch of production]] [domestic branch of production] [benefiting] [benefitting] from the measure present an] [shall examine and determine the feasibility of the] adjustment plan [or [a] plan to overcome the circumstances alleged to cause serious injury or the threat of serious injury] [, provided that these circumstances are variables that can be controlled by the industry involved] [presented by the branch of domestic industry]. The Party that applies the measure shall provide the other Parties a non-confidential summary of the plan[and a duly founded report on its determination].]
Article 3. Nature of the Measures
3.1 [Applicable] Safeguard measures shall [only] consist of tariff measures [or of quantitative restrictions]. [Neither tariff rate quotas nor quantitative restrictions shall be a permissible form of safeguard measure.]
3.2 Tariff [-based] measures shall consist of:
a) the suspension of further reductions of any rate of duty provided for under this Agreement for the good; [the suspension of the increase in preferences programmed in the Agreement] or
b) an increase in the rate of duty [the reduction or suspension of the agreed margin of preference] for the good to a level not to exceed the lesser of:
i. the most-favored nation applied rate of duty in effect [applied] at the time the measure is [taken] [applied]; [or]
ii. the most-favored nation applied rate of duty [based on paragraph .... of Article....]in effect on the day immediately preceding the date of entry into force of this Agreement. [; or]
[c) in the case of a duty applied to a good on a seasonal basis, increase the rate of duty to a level not to exceed the MFN applied rate of duty that was in effect on the good for the corresponding preceding season or for the corresponding season immediately preceding the date of entry into force of this Agreement, whichever is less.]
[3.3 [When the safeguard measure consists of a quantitative restriction] The preference applicable at the time the safeguard measure is adopted [this] shall remain in place for a quota of imports, which shall be the average of imports made over the last [....] [three] representative years [for which statistics are available, unless there is clear justification] [preceding] [corresponding to] the period during which it was determined there was serious injury or a threat of serious injury, unless [the Parties involved agree that there exists]the need to set a different level so as to prevent or remedy serious injury [is proven].]
Article 4. Period of Application of the Measures
[4.1 Safeguard measures may not be applied before the preference has been in force for one year.]
4.2 Safeguard measures may be applied for a maximum period of [....] [one year] [and …., for the smaller economies and/or economies in different levels of development] [including the period in which provisional measures may have been in force] [three years, which shall include the period of the application of any provisional measure. Regardless of its duration, such measures shall terminate at the end of the transition period.]
[In order to facilitate adjustment in a situation where the expected duration of a [hemispheric] [bilateral] safeguard measure is over one year, the Party applying the measure shall progressively liberalize it at regular intervals during the period of application.]
[4.3 Safeguard measures may be extended [only once] for [a] [an equal and consecutive] period of [....] [one year], [and [for a period of]… for the smaller economies and/or economies in different levels of development], when it has been determined that, in accordance with the procedures set out in this [Chapter], they continue to be necessary to prevent or remedy serious injury and that there is evidence that the branch of domestic industry [is in the process] [has complied with the program] of readjustment.]
[4.4 When the safeguard action is terminated, [the rate of duty] [margin of preference] that will apply is the rate that would have been in effect on that date according to the [trade liberalization] [ tariff elimination] program.]
[The following conditions and limitations shall be observed in the procedure that may result in the application of a safeguard measure, pursuant to the provisions of Article 2:]
a) [that one Party shall notify the other Party, without delay and in writing, of the initiation of the procedure that could result in the application of a safeguard measure on a good originating in the territory of the other Party;]
b) [All safeguard measures shall enter into effect by no later than one (1) year after the date on which the procedures are initiated;]
c) [The period during which a provisional safeguard measure is applied shall be computed in order to determine the duration of the definitive safeguard measure established in paragraph 2;]
d) [Provisional measures that do not become definitive shall be excluded from the limitation stipulated in paragraph 5;]
e) [During the extension period of a safeguard measure, the tariff rate must be phased out until it reaches the corresponding rate, in accordance with the trade liberalization program; and]
f) [When the period of application of the safeguard action is terminated, the tariff rate that will apply is the rate that would have been in effect on that date according to the trade liberalization program.]
[On the termination of a hemispheric safeguard measure, the rate of duty shall be no higher than the rate that, according to Schedule .... of this Agreement, would have been in effect one year after the initiation of the measure. Beginning on January 1 of the year following the termination of the measure, the Party that has applied the measure shall:
a) apply the rate of duty set out in Schedule .... of this Agreement as if the hemispheric safeguard measure had never been applied, or
b) eliminate the tariff in equal annual stages ending on the date set out in Schedule .... of this Agreement for the elimination of the tariff.]
[4.5 Regarding a same good imported under the [trade liberalization] [tariff elimination] program, none of the Parties may apply safeguard measures [against the same good] [more than once during the transition period] [unless a period of .... has elapsed since the termination of the previous measure] [more than once during the transition period, unless the [importing] [exporting] Party[ies] expressly authorize[s] it and until at least a period not less than that of the duration of the measure elapses][ more than …. occasions during the transition period. A safeguard measure may be applied on …. occasions, provided at least a period equivalent to half of the period during which the safeguard measure would have been applied for the first time has elapsed].]
[4.5 The {developing countries} {smaller economies} may apply safeguard measures to the importation of a product that has been subject to such a measure, provided that a period equal to that of the previously imposed measure has elapsed.]
[4.6 The maximum duration of a safeguard measure will not exceed [{of} ....] [two years], including the period of application of the [potential provisional measure and/or the] [possible] extension.]
[Part II. Global Safeguards]9
[Part III. Procedures and Common
Provisions]
[Article 5. Investigation Procedures and Transparency Requirements]
[5.1 A Party may only [adopt] [apply] a safeguard measure on the imports of [another Party] [other Parties] [a specific product] after an investigation has been carried out in conformity with the procedures established in this [Chapter]. [A Party may apply a safeguard measure only following an investigation by the competent authorities of that Party pursuant to procedures previously established and notified to the other Parties.]]
[5.2 Each Party shall [establish or maintain transparent, effective and equitable procedures for the adoption and] [ensure the] consistent, impartial and reasonable [application of the safeguard measures in their legislation.] [administration of its laws, regulations, decisions, and rulings governing all proceedings under this [Chapter].]]
[5.3 Each Party shall entrust the investigation to determine serious injury or threat of serious injury to the competent authority it has designated for that purpose. The purpose of the investigation shall be to:
a) assess the volume and conditions in which the imports of the good in question take place;
b) confirm the existence of serious injury or threat of serious injury to the branch of domestic industry; and
c) confirm the existence of a [direct] causal relationship between the increase in the imports of the good and the serious injury or threat of serious injury to the branch of domestic industry.]
[5.3 In the investigation to determine whether increased imports constitute a substantial cause of serious injury or threat thereof to a domestic industry under the terms of this Agreement, the competent authorities shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of that industry, in particular, the rate and amount of the increase in imports of the good concerned in absolute and relative terms, the share of the domestic market taken by increased imports, changes in the level of sales, production, productivity, capacity utilization, profits and losses, and employment.]
[The determination referred to in the preceding subarticle shall not be made unless this investigation demonstrates, on the basis of objective evidence, the existence of the causal link between increased imports of the good concerned and serious injury or threat thereof.]
[5.4 Investigations in the realm of safeguards may be initiated [ex officio or] at the request of a party. [If] the petition for an investigation [is made at the request of a party, the petition] shall be made by [or on behalf of] [companies or entities that represent] the branch of domestic industry of the similar or directly competitive good. [Safeguard investigations may be initiated at the request of companies or the entities that represent them.] The application will be considered to have been made by the branch of domestic industry or on its behalf when it is supported by domestic producers whose combined production represents more than [....] [50] per cent of the total production of the like or directly competitive good.]
[5.4 An investigation may be instituted on the basis of a petition or complaint filed on behalf of a domestic industry. Such petition or complaint shall provide a description of the imported good concerned and such information with respect to each of the factors as is reasonably available to the petitioner or complainant. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph. A Party may also institute a proceeding on its own motion or request the competent authorities to conduct a proceeding.]
[A public version of any petition or complaint, with any confidential information deleted or summarized in accordance with Article .... of this [Chapter], shall promptly be made available for public inspection upon being filed.]
[5.5 The petition should contain information on the petitioner and his/her representativeness, a description of and information on the good concerned, data on imports, data on domestic output, data demonstrating injury or threat of injury, and cause of the injury or threat of injury [and an adjustment plan proposal].]
[5.5 The request to initiate an investigation must include the following data:
a) description of the goods: name and description of the imported good in question, the tariff subheading under which it is classified and the current tariff treatment, as well as the name and the description of the like domestic or directly competitive good;
b) representivity;
i) the names and domiciles of the entities that submit the request, as well as the location of the establishments where the domestic good in question is produced;
ii) the percentage of the domestic production of the like or directly competitive good of such entities and the reasons that lead them to state that they are representative of the domestic industry; and
iii) the names and location of all the other domestic establishments where the like or directly competitive good is produced.
c) import figures: importation data for each of the complete three (3) years immediately prior to the initiation of the procedures on the application of a safeguard measure, which constitute the basis for the statement that the good in question is imported in increasingly larger amounts, whether in absolute or relative terms vis-à-vis domestic production, as the case may be;
d) figures on domestic production: data on total domestic production of the like or directly competitive good, for each of the last complete three (3) years immediately prior to the initiation of the procedures on the application of a safeguard measure;
e) data that demonstrates the injury or threat of injury: quantitative and objective indicators that denote the nature and scope of the injury caused or the threat of injury to the domestic industry in question, such as those that show changes in the levels of sales, prices, production, productivity, use of the installed capacity, market share, profits or losses and employment;
f) cause of injury: a list and description of the presumed causes of the injury or threat of serious injury, and a summary of the basis for alleging that the increase in imports of that good, with relation to the domestic industry, is the cause of serious injury or threat of serious injury, supported by pertinent information; and
g) criteria for inclusion: the quantitative and objective information that indicates the share of imports from the territory of another Party, and considerations of the applicant on the degree to which such imports make a major contribution to the serious {damage} {injury} or threat of serious {damage} {injury}.]
[5.6 When carrying out the investigation to determine whether the increase in [preferential-tariff] imports [stemming from the tariff elimination program] has caused or threatens to cause serious injury to the [area] [branch] of domestic production, the competent authority shall evaluate all {relevant} {objective} and quantifiable factors relating to the situation of the affected branch of domestic industry, particularly the following:
a) the rate and quantity of the increased imports of the product in question, in [absolute] and relative terms;
[b) the ratio between preferential-tariff imports provided for in this Agreement and non-preferential tariff imports of any other origin, and the increase ratio;]
c) the portion of the domestic market absorbed by the increase in imports;
d) changes in the level of sales, production, productivity, use of installed capacity, profits and losses, employment, domestic prices and market share;
[e) specific conditions under which the imports were made that contribute to the injury or threat of injury; and]
f) other economic factors, such as changes in prices and inventories, and the ability of firms in the industry to generate capital.]
[5.7 In order to determine the appropriateness of the safeguard measures, the existence of a {clear} {direct} causal link between increased imports of the good concerned and serious injury or threat of serious injury to domestic production must be demonstrated, on the basis of objective evidence.]
[5.8 If there are factors other than the increased importation of the goods that simultaneously injure or threaten to injure a branch of domestic industry, the injury may not be attributed to imports made under preferential tariffs.]
[5.9 The interested parties [who demonstrate that they may, in fact, be affected by the findings of the investigation and have special reasons for being heard] shall have the opportunity to participate in the investigation to present evidence, state their opinions, reply to communications from the other party and, moreover, present their opinions as to whether or not the application of a safeguard measure would be in the public interest. [In that regard, they should accredit their legal representatives in writing.] To this end, the competent authority [shall] [may] hold hearings.]
[5.9 In the course of each investigation, the competent authority shall hold a public hearing at which the interested parties shall have an opportunity to appear in person or through counsel or other representatives, and to present and address evidence, respond to the allegations, and express their views.]
[5.9’ Except under critical circumstances and when it is a question of global safeguard measures for perishable agricultural goods, before issuing an affirmative ruling in a procedure to adopt safeguard measure, the investigating authority shall grant sufficient time to gather and examine the pertinent information, hold a public hearing and give all interested parties the opportunity to prepare and express their points of view.]
[5.9’’During the course of each procedure, the investigating authority:
a) without prejudice to the provisions of the legislation of the Party, after giving reasonable notice, shall hold a public hearing so that importers, exporters, consumer associations and other interested parties may appear in person or through representatives, to present evidence and be heard, in relation to the serious injury or threat of serious injury and the appropriate remedy; and
b) shall give all interested parties the opportunity to appear at the hearing and question the interested parties who present arguments during the hearing.]
[5.10 All information that is confidential due to its nature or which is supplied on a confidential basis, subject to prior substantiation of this condition, shall be treated as such by the competent authorities. The interested parties supplying confidential information shall be required to furnish non-confidential summaries thereof or, if they contend that said information cannot be summarized, they should state the reasons why it is not possible to submit such summary. However, if the competent authorities conclude that a request for information to be considered confidential is not justified, and if the interested party does not want to publish it or authorize its disclosure in general or in abridged terms, the authorities through a duly founded and justified decision, may not to take this information into account, {unless they are offered convincing proof } {unless it can be convincingly demonstrated} by a proper source that the information is accurate.]
[5.10 Any information which is by nature confidential or which is provided on a confidential basis shall, upon cause being shown, be treated as such by the competent authorities. Such information shall not be disclosed without permission of the party submitting it. Parties providing confidential information may be requested to furnish non-confidential summaries thereof or, if such party indicates that such information cannot be summarized, the reasons why a summary cannot be provided. However, if the competent authorities find that a request for confidentiality is not warranted and if the party concerned is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the authorities may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.]
[5.11 [A public file shall be established.] Interested parties may access the information in the administrative records of the investigation, except in the case of confidential information.[, in sufficient time to defend their interests.]]
[5.12 The importing Party shall publish in its official journal [or other daily newspaper of national circulation][without prejudice to its publication in other daily newspapers of national circulation]:
a) [rulings] [notices] on the opening [or] [and] the conclusion of a [procedure tending to the adoption of a {[definitive]} safeguard measure] [safeguard investigation] [. The ruling to initiate the procedure must be published within thirty (30) days, counting from the submission of the request];
b) [the ruling on the adoption of a] [notice of the decision to apply a provisional or definitive] {definitive} safeguard measure [and of a provisional safeguard measure] [and the amount and duration of the measure; and];
[c) [the ruling on] [notice of a proceeding relating to] the extension of [the] [a] safeguard measure [and of any decision to extend a measure].]]
[The information published [in the notice] shall contain a summary of the criteria that served as the basis for the corresponding ruling.]
[5.13 The competent authority will publish a report that sets out its findings and reasoned conclusions on all pertinent issues of law and fact. The report will be promptly notified to the other Party.]
[5.14 Disagreements between the Parties concerning the merits and justification for the application [or extension] of a safeguard measure shall be analyzed and settled following the procedures established under the framework of this [Agreement] [Chapter], based on information and evidence [sent to] [obtained by] the competent authority [or any others they deem necessary] [during the investigation].]
[5.15 The Parties shall guarantee that the decisions of the competent authorities issued in accordance with the stipulations of this [Chapter] may be subject to judicial or administrative review, as laid down in their internal legislation.[Negative rulings on the existence of serious injury or threat of serious injury may not be modified ex oficio by the investigating authority. The investigating authority that is authorized by domestic legislation to carry out these procedures shall be given all the means needed to carry out its duties.]]
| Continuation:
[Article 6. Notification and Consultations] |
Return to the Index |
5 One delegation proposes to separate paragraph 16.5 and its subparagraphs a) and b) as a separate Article.
6 Square brackets [ ] indicate that different points of view do exist on the text included between them. Wiggly brackets { } indicate that differences in translation may exist on texts included between them.
7 [The transition period is still to be defined.]
8 Some delegations propose to substitute the term “producción nacional” in Spanish for “producción doméstica” throughout the text. This change only applies to the Spanish version.
9 A delegation proposes to move Part II: Global Safeguards, composed of Article 10. Global Safeguards, after Article 4.
|
countries
