[[CHAPTER] ON SAFEGUARD MEASURES]
 

1.1 [The Parties] [A Party] may, [on a temporary and exceptional basis and [only] on the terms set forth in this [Chapter],] apply an [FTAA] ² safeguard measure, on imports of [goods] [products] benefiting from the tariff elimination program under this Agreement, [at any time that this Agreement is in force] only during the transition period.³ [Such a measure shall be applied to all imports of such [goods] [products] originating in the territories of the Parties to this Agreement.]

[1.2 A customs union [, notwithstanding the provision set forth in paragraph 1.1 of this Article,] may apply safeguard measures as a single entity or on behalf of a State Party:

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 States Parties , in which case the requirements for the determination of serious injury or threat thereof shall be based on the conditions existing in the State Party of the customs union and the measure shall be limited to that State Party.]

[1.3 A Party may [not] [adopt or] maintain an [FTAA] safeguard measure subsequent to the termination of the 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 implementation of this Agreement [and only when the exporting Party expressly authorizes it].]

[1.4 Safeguard measures shall not be applied to a [good] [product] [originating] in a Party when that Party’s share of total imports of the [good] [product] in question does not exceed [....] [5] or [....] percent [on the last twelve months previous to the presentation of the request for which information is available]⁴ in the case of [smaller economies and/or economies in different levels of development] [smaller economies].]

2.1 [A Party may adopt and apply [following an investigation] a safeguard measure to the imports of a [product] [good] [that benefits from the tariff elimination program established in this Agreement] [from the other Parties], when [as a result of the tariff preferences granted] [under this Agreement] the imports under the preferential tariffs for this [good] [product] have increased in such an amount, in absolute terms [and] [or] in relation to [the totality of the] [domestic] production [or with the domestic consumption], [and] [or] under conditions such as to [constitute a substantial cause] cause [of] serious injury or threat thereof to the domestic industry producing like or directly competitive [goods] [products].] [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.]

[2.2 A Party shall apply safeguard measures [prior to an investigation] only to the extent necessary to prevent or remedy serious injury, [or threat thereof], and to facilitate the adjustment [of the domestic industry affected].]

[2.3 Before [imposing] [applying] a [definitive] safeguard measure, each Party [shall ensure that the domestic industry [benefiting from] [affected by] the measure present an] [shall examine and determine the feasibility of the] [adjustment plan] [presented by the domestic industry] [, provided that these circumstances are variables within the control of the industry involved]. The Party that applies the measure shall provide the other Parties with a non-confidential summary of the plan [and a report on its duly substantiated determination].]

3.1 The safeguard measures [applied] shall [only] consist of tariff measures [or may consist of quantitative restrictions]. [Neither tariff rate quotas nor quantitative restrictions shall be a permissible form of safeguard measure.]

3.2 Tariff measures shall consist [of]:

a) [the suspension of further reductions of any rate of duty provided for under this Agreement for the [good] [product]] [the suspension of the increase in preferences scheduled in the Agreement]; or

b) [an increase in the rate of duty] [the reduction or suspension of the agreed margin of preference [which corresponds to the [good] [product] according to the tariff elimination program established in this Agreement]] for the [good] [product], 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] [that corresponds to the good according to the Tariff Elimination Program established in this Agreement] at the time the safeguard measure is [adopted] [applied] [it] 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 threat thereof, unless [the Parties involved agree that there exists]] [of] the need to set a different [level] [quota] so as to prevent or remedy serious injury [is proven].]

[4.1 Safeguard measures may not be applied before [the preference has been in force for] one year [from the beginning of the tariff elimination established in this Agreement, for the [good] [product] subject to the measure].]

4.2 Safeguard measures may be applied for a maximum period of [....] [one year] [three years] [[and] [or] ….⁵ for the smaller economies and/or economies in different levels of development] [which shall include [in both cases] any period in which provisional measures had been in force].

[[In order to facilitate adjustment in a situation where] [Where] the expected duration of an [FTAA] safeguard measure is over one year, the Party applying the measure shall progressively liberalize it at regular intervals during the period of application of the safeguard.] [If the duration of the measure exceeds .... years, the Party applying such a measure shall review the situation not later than the mid-term of the measure and, if appropriate, withdraw it or increase the pace of liberalization. The extended measures shall not be more restrictive than they were at the end of the initial period, and should continue to be liberalized.]

[4.3 Safeguard measures may be extended for a period of [....] [one year], [once only ] [and […] for⁶ 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 [the first part of] this [Chapter], it continues to be necessary to prevent or remedy serious injury, and that there is evidence that the domestic industry [is adjusting] [has completed the adjustment program].]

[4.4 When the safeguard measure 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 [tariff elimination] program.]

4.5 The following conditions and limitations shall be observed in respect of [the] [any] procedure that may result in the application of a safeguard measure, pursuant to the provisions of Article 2:

a) [[The period during which the investigation procedures for the application of a safeguard measure takes place may not be longer than] [Any safeguard measure shall enter into effect no later than] one (1) year after the date on which the procedures are initiated;]

b) [The period during which a provisional safeguard measure is applied shall be computed in order to determine the duration of the definitive safeguard measure; and]

c) [During the extension period of a safeguard measure, the tariff rate shall be phased out until it reaches the applicable rate, in accordance with the tariff elimination program.]

[4.6 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.]

4.7 [A Party may [not] apply a safeguard measure against the same [good] [product] more than once during the transition period [unless the exporting Parties expressly authorize it].] [Safeguard measures may be applied to the importation of a [good] [product] that has been subject to such a measure, provided that a period equal to that of the previously imposed measure has elapsed.]

[5.1 [A Party may only [adopt] [apply] a safeguard measure on the imports of [another Party] [or] [other Parties] [a specific [good] [product]] after an investigation has been carried out in conformity with the procedures established in this [Chapter].] [A Party [may] [shall] 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] [in accordance with Articles 3.1 and 4.2(c) of the WTO Agreement on Safeguards; to this end, Articles 3.1 and 4.2(c) of the WTO Agreement on Safeguards are incorporated into and made part of this Agreement, mutatis mutandis].]]

[5.X In the investigation described in paragraph 1, a Party shall comply with the requirements of Article 4.2(a) of the WTO Agreement on Safeguards; and to this end, Articles 4.2(a) is incorporated into and made part of this Agreement, mutatis mutandis.]

[5.2 Each Party shall [establish or maintain transparent, effective, and equitable procedures [of investigation] for the adoption and] [ensure the] consistent, impartial and reasonable [application of the safeguard measures [based on the principles of transparency, non-discrimination and due process] in its 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 thereof to the competent authority it has designated for that purpose. The purpose of the investigation shall be to:

a) assess the volume of the imports of the [good] [product] and the conditions under which they occur;

b) confirm the existence of serious injury or threat thereof to the domestic industry; and

c) confirm the existence of [a] [the] [direct] causal relationship between the increase in the imports of the [good] [product] [or the conditions under which these imports are made] and the serious injury or threat of serious injury to the 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] [product] 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 sub-article 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] [product] concerned and serious injury or threat thereof.]

[5.4^A Safeguard investigations 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 domestic industry of the similar or directly competitive [good] [product]. [Safeguard investigations may be initiated at the request of companies or the entities that represent them.] The application shall be considered to have been made by the 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] [product].]

[5.4^B An investigation may be initiated 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] [product] 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] [product] 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 shall include the following data:

a) description of the [good] [product]: name and description of the imported [good] [product] concerned, the tariff subheading under which it is classified and the current tariff treatment, as well as the name and the description of the like or directly competitive domestic [good] [product];

b) representativeness;

i) the names and domiciles of the entities submitting the request, as well as the location of the establishments where the domestic [good] [product] concerned is produced;

ii) the percentage of the domestic production of the like or directly competitive [good] [product] 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 other domestic establishments where the like or directly competitive [good] [product] is produced.

c) import figures: importation data for each of the three (3) full years immediately preceding the initiation of the procedures for the application of a safeguard measure that constitute the basis for the statement that the [good] [product] 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] [product], for each of the last three (3) full years immediately preceding 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, utilization of the installed capacity, market share, profits or losses, and employment;

f) cause of injury: a list and description of the alleged causes of the serious injury or threat thereof, and a summary of the basis for alleging that the increase in imports of that [good] [product], 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 contribute significantly to the serious injury or threat of serious injury.]

[h) presentation of the adjustment plan proposal.]

[5.6 When carrying out the investigation to determine whether the increase in [preferential tariff] imports [or the conditions under which these imports are made] [stemming from the tariff elimination program] has caused or threatens to cause serious injury to the domestic industry, the competent authority shall evaluate all objective and quantifiable factors relating to the situation of the affected domestic industry, in particular the following:

a) the rate and amount of the increase in imports of the [good] [product] concerned, in [absolute] [and relative] terms [or in relation to the totality of the production or of the domestic consumption];

[b) the ratio [between preferential-tariff imports provided for in this Agreement and non-preferential tariff imports of any other origin] [between the imports of the FTAA member countries and the imports of the other origins], and the increase ratio;]

c) the share of the domestic market taken by increased imports;

d) changes in the level of sales, production, productivity, utilization 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 thereof; 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 [direct] causal link between increased imports of the [good] [product] concerned [or the conditions under which these imports are made] and serious injury or threat thereof 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] [products] that simultaneously injure or threaten to injure a domestic industry, the injury may not be attributed to imports made under preferential tariffs.]

[5.9 During the course of each procedure, the [investigating] [competent] 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 [who demonstrate that they may, in fact, be affected by the findings of the investigation and have special reasons for being heard] may appear, in person or through representatives [duly accredited in writing], [to present evidence and be heard] [to present and address evidence, respond to the obligation, and express their views], with regard to the serious injury or threat of serious injury, and the appropriate remedy, [and as to whether or not the application of a safeguard measure would be in the public interest]; 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. [Except under critical circumstances and in the case of global safeguard measures for perishable agricultural goods,] before issuing an affirmative ruling in a procedure to adopt safeguard measures, 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.]

[5.11 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 shall be required 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.]

[5.12 [A public file shall be established by the [investigating] [competent] authority.] 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.]]

[5.13 The importing Party shall publish in its official journal [or other daily newspaper with national circulation][without prejudice to its publication in other daily newspapers with national circulation]:

a) [rulings] [notices] on the opening [or] [and] the conclusion of a [procedure for the adoption of a safeguard measure] [safeguard investigation] [. In the case of the ruling to initiate the procedure, such ruling must be published within thirty (30) days, of 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.]

[5.14 The competent authority shall publish a report setting out its findings and reasoned conclusions on all pertinent issues of law and fact. The report shall be promptly notified to the other Party.] [The statement of reasons shall provide a description of the imported good concerned, the standard applied, and the findings made, including the information supporting a finding that each of the requirements for imposing a hemispheric safeguard measure pursuant to Article __ is met.]

[5.15 The Parties shall guarantee that the decisions of the [investigating] [competent] authorities issued in accordance with the stipulations of this [Chapter] are subject to judicial or administrative review, as laid down in their domestic legislation.[Negative rulings on the existence of serious injury or threat of serious injury may not be modified ex oficio by the [investigating] [competent] authority. The [investigating] [competent] authority authorized by domestic legislation to carry out these procedures shall be given all the means needed to carry out its duties.]]

[6.1 [The importing] [A] Party shall give [prompt] written notification [to the other Part[y] [ies]] [without delay] of [its intention to [start] [initiate]] [the initiation of] a safeguard investigation [under Article ___]. The notification shall [include] [be made in writing by the competent authority in [a period of ….] [the day following] [[after] [as of] publication] [as of the initiation of the investigation]. It shall contain [the main features of the facts under investigation, such as] [sufficient background information to support the [application of the measures] [opening of the investigation], including]]:

[a) [if the investigation is initiated on the basis of a petition or complaint,] the names and available addresses of the applicants [,their share in the domestic industry of that [good] [product],] and the reasons leading them to claim that they are representatives of the domestic industry;]

[b) a clear, comprehensive description of the [good] [product] subject to the proceeding, including its tariff classification, and the current tariff treatment thereof, as well as a description of the like or directly competitive [good] [product];]

[c) [the] import [figures] [data] [corresponding to each of the .... most recent years] supporting the argument that this [good] [product] is being imported in ever increasing quantities, [either in absolute terms or relative to domestic production];]

[d) [the] data on the domestic industry of the like or directly competitive [good] [product] [corresponding to the last .... years]; ]

[e) [the] [other] data that [demonstrates] [[was were taken into consideration to [demonstrate] [attest]] the existence of] serious injury or threat of serious injury caused by the imports to the sector concerned, in accordance with the data referred to in subparagraphs c) and d);]

[f) a list and description of the alleged causes of serious injury or threat of serious injury, based on the information required pursuant to subparagraphs a) through d), and a summary of the basis for claiming that the increase in imports of the [good] [product], [,in absolute terms or relative to the domestic production,], is the cause thereof;]

g) the deadline by which interested parties may submit evidence and set forth their opinions in writing, so that they may be taken into consideration during the investigation; [and]

h) the deadline for holding consultations.

[i) the information on the applicable statutes;]

[j) the date and place of the public hearing;]

[k) the place where the request and other documents presented during the procedure can be inspected; and ]

[l) the name, domicile and telephone number of the office where more information can be obtained.]]

[6.2 At any stage during the procedure, the Party receiving the notice may request the additional information it deems necessary from the Party that initiated the investigation. [The Party that is conducting the investigation shall, if so requested by the Party whose [goods] [products] are under investigation, afford said Party access to the public record, including the non-confidential summary of the confidential information used to initiate the investigation or during the course of same.]]

[6.3 [The Parties] [A Party] may not [adopt final measures] [apply or extend a safeguard measure under this [Chapter]] [initiate an investigation] without having afforded an opportunity for consultations, the objective of which shall be a mutual knowledge of the facts, the exchange of opinions, and possible clarification of the problem that has arisen. The time period for such consultations shall be .... .]

[[The Parties may not apply or extend a safeguard measure without affording adequate opportunity for consultations to determine compensation.] [The main] [An] objective of the consultations shall be to arrive at an understanding regarding the maintenance of a level of concessions substantially equivalent to the measure applied.]

[Countries with smaller economies shall not grant any compensation.]

[6.3’ Without prejudice to the obligation to provide adequate opportunity to hold consultations, the provisions on consultations are not intended to prevent the authorities of any Party from proceeding without delay to initiate an investigation or to formulate preliminary or definitive, positive or negative determinations, nor to prevent them from applying measures in accordance with the provisions of this [Chapter].]

[6.4 The [ruling by which a decision is made to adopt or extend] [determination to apply] a safeguard measure shall be published [, as applicable] and the other [Party] [Parties] shall be notified within a period of .... The [notice] [notification] shall contain [the findings of the investigation and the reasoned conclusions regarding all the pertinent questions of fact and law, including a description of]:

[a) evidence of the existence of serious injury or threat of serious injury;]

b) a precise description of the [product] [good] in question (including its tariff classification according to the HS );

c) description of the measure proposed or [adopted] [applied];

d) date of its entry into force and its duration; [and]

[e) when applicable, the criteria and objective information that show that the circumstances laid down in this [Chapter] for the application of a measure [to the other Party] are met; [the time period for holding consultations [to determine compensation]; and in the case of extension of a measure, information should also be furnished to show that the industry in question is adjusting.] [has complied with the adjustment program] [;]]

f) [the domestic industry that has suffered or is threatened by serious injury.]]

[6.5 If a [definitive] safeguard measure is not called for, the investigation shall be closed, [the records thereof shall be filed,] [and the temporary measures imposed as provided for in Article .... of this [Chapter] shall be lifted, and an order issued for the return of amounts [with the corresponding interest] deposited for such purpose or the respective bonds shall be released, as the case may be].]

[6.6 If [, in a period not exceeding three years,] [the importing] [a] Party determines that the reasons that gave rise to the application of [the bilateral] [a] safeguard measure continue to exist, it shall notify the [competent authority of the] other Part[y] [ies] of its intention to extend the safeguard measure [at least ninety (90) days] prior to [its] [the scheduled] expiration [date], and it shall provide the evidence that the causes that led to [its] adoption [of the measure] persist, with a view to initiating the respective consultations, which shall be conducted pursuant to the stipulations of this article. [The notifications of extension and of compensation shall be made pursuant to the terms provided in this Article, prior to the expiration of the measures adopted.]]

[7.1 In critical circumstances where delay would cause damage to [a] [the] domestic industry producing a like or directly competitive [good] [product] which it would be difficult to repair, a Party may apply a provisional safeguard measure pursuant to a preliminary determination that there is clear evidence that imports have increased [or the conditions under which these imports are made] as a result of the reduction or elimination of a duty pursuant to this Agreement and are causing or threatening to cause serious injury.]

[The Parties shall not apply provisional measures to smaller economies.]

[7.2 A provisional safeguard measure may only be applied after a period of …. has elapsed from the [initiation of the investigation] receipt of the request from the petitioner.]

[7.3 The duration of a provisional safeguard measure may not exceed .... .[and shall adopt one of the forms provided for in article 3.2] [200 days during which time the pertinent requirements of Article 5 shall be met.]]

[7.4 [Immediately after] [Before] [adopting a] [applying] a provisional safeguard measure, [the other Parties shall be notified] [a Party shall notify all other Parties] [within a period of ….], and [shall begin] consultations [shall begin [immediately] [promptly] after application of the measure] [with any Party that is a substantial supplier of the [good] [product] subject to the measure]. Said [notice] [notification] shall include the main features of the facts, including the evidence showing the need for the provisional safeguard, and a precise description of the [products] [goods] subject thereof.]

[7.5 If the subsequent investigation [were to] show[s] that the increase in preferential-tariff imports or the conditions of said imports [have not caused or threatened to cause serious injury to the branch of] [are not a substantial cause of serious injury or threat thereof to the] domestic industry in question, the amount received under the temporary measures shall be reimbursed promptly or, when such is the case, the bond posted for the purpose shall be released.]

[7.6 If the imposition of a provisional safeguard results in the imposition of a rate of duty in excess of the rate of duty pursuant to Schedule .... of this Agreement, the excess duties imposed shall be promptly refunded if the subsequent investigation referred to in Article 5 does not determine that increased imports are a substantial cause of serious injury or threat thereof to a domestic industry.]

[8.1 A Party [intending to apply] [applying] a safeguard measure [will] [shall] [accord the affected Party or Parties] [, in consultation with Parties that are substantial suppliers of the [good] [product] concerned, provide to such substantial suppliers mutually agreed trade liberalizing] compensation in the form of:

a) [tariff] concessions having substantially equivalent trade effects, or

b) [concessions equivalent to the value of the additional duties [resulting from the adoption of the safeguard measure] [expected to result from the application of the safeguard measure].]]

8.2 [Compensation shall be determined at the consultation stage.] [Such consultations shall begin within 30 days of the imposition of the measure. If no agreement is reached within 30 days after these consultations commence, any Party that is a substantial supplier shall be free to suspend the application of substantially equivalent concessions to the trade of the Party applying the safeguard measure.]

[8.3 If [they] [the Party intending to apply a safeguard measure and the affected Parties] are unable to agree on a satisfactory solution, the affected [Party or] Parties may [impose] [apply] tariff measures having substantially equivalent trade effects to the measure adopted.]

[Any Party that is a substantial supplier of the [good] [product] concerned shall provide written notification to the Party applying the safeguard measure at least 30 days prior to exercising the right of suspension referred to in Article .... .]

[The obligation to provide compensation and the right of suspension of substantially equivalent concessions shall terminate upon the later of: (a) the termination of the safeguard measure, or (b) if the Party applying the safeguard measure terminates such measure in accordance with Article .... ,the date on which the rate of duty returns to the rate of duty set out in Schedule …. .]

[8.4 The Party applying the tariff measure shall do so only to the extent, and for the minimum period of time necessary, for achieving the objective being pursued.]

[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].]

[10.1 Each Party preserves its rights and obligations pursuant to Article XIX of GATT 1994 and the WTO Agreement on Safeguards, except those referring to [compensation or reprisal and the exclusion of a measure,] the period of application of a safeguard measure and to the type of measure, where such rights and obligations are incompatible with the provisions of this Article.] [This Agreement does not confer any additional rights or obligations on the Parties with regard to actions taken pursuant to Article XIX of GATT 1994 and the WTO Agreement on Safeguards.]

[10.2 The Party that decides to adopt a global safeguard measure may only apply it to the imports of another Party when it determines that said imports, taken individually, represent a substantial share of the total imports and contributes significantly to the serious injury or to the threat of serious injury.] [When a Party decides, pursuant to this Article, to apply a safeguard measure to goods originating in another Party, the measures applied to said goods shall solely and exclusively consist of ad valorem tariff surcharges.]

[10.3 No measure applied pursuant to this Article shall be maintained for a period greater than three years.]

[10.3’ In order to make this determination, the following criteria [, among others, shall be taken into account] [shall be observed]:

a) imports of [originating] [goods] [products] from the other Party shall be considered substantial if they are included among the [....] [three] [5] main supplier countries of the [good] [product] [taking as the basis their share of imports during the … immediately preceding years ]. [By way of exception, imports from another Party shall be considered substantial if they are included among the ten main supplier countries of the [good] [product] to the importing Party when, as a whole, they account for over 25 percent of said imports;]

b) a safeguard measure shall not be applied against imports from [developing countries] [the smaller economies and/or economies in different levels of development] where such imports, taken individually, do not account for more than 8% of the imports of that [good] [product] into the importing Party;

c) imports of [goods] [products] from another Party shall not be considered to contribute significantly to the serious injury or threat of serious injury, if their rate of growth during the period in which the injurious [sudden] increase thereof took place is [appreciably] lower than the rate of growth of the total imports over the same period. [Similarly, the volume of, and changes in, the Party's share in the total imports shall be taken into account to determine whether the other Party's imports contribute significantly to the serious injury or threat of serious injury.]]

[10.4 The Party applying the measures and that has initially excluded another Party's [good] [product] from it shall be entitled to include it afterwards, if the competent investigating authority determines that an increase in the imports of said [good] [product] from the excluded Party causes or threatens to cause serious injury and as a result reduces the effectiveness of the measure.]

[10.5 [A Party shall notify another Party without delay and in writing of the initiation of a procedure that may result in the application of a safeguard measure pursuant to paragraph 1.] Under no circumstances may the importing Party apply a global safeguard measure without prior notification in writing [to the FTAA administrative body and] to the other Party and without first engaging in [prior] consultations [with the other Party].]

[10.6 The Party intending to apply a global safeguard measure shall provide the Party affected by the measure with mutually agreed compensation, in the form of concessions that have trade effects [substantially] equivalent [to the impact of] [or that are equivalent to the value of the additional tariffs expected from] [to] the safeguard measure.]

[10.7 Unless the Parties agree otherwise, the compensation referred to in the foregoing paragraph shall be determined at the consultation stage.]

[10.8 If the Parties do not reach agreement regarding compensation, the Party proposing the adoption of the measure shall be authorized to do so, and the affected Party may impose measures that have trade effects [substantially] equivalent to those of the measure adopted.]

[10.9 [For the purpose of] [Before imposing] global safeguard measures, each Party shall [ensure that the domestic industry or branch of production benefiting from the measure present an] [examine and determine the feasibility of an] 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 concerned][presented by the branch of domestic industry]. The Party applying the measure shall furnish the other Parties with a non-confidential summary of the plan [and a duly substantiated report of its determination].]

[10.10 When a Party decides, pursuant to this article, to apply a safeguard measure to [goods] [products] originating in another Party, the measures applied to said [goods] [products] shall solely and exclusively consist of tariff measures.]

[No Party may request the establishment of an arbitral group, pursuant to the provisions in the [Chapter] on dispute settlement, when it is a matter of safeguard measures that have merely been proposed.]

The following definitions shall apply:

Agreement on Safeguards: the Agreement on Safeguards, which forms part of the Agreement Establishing the World Trade Organization (WTO).

Competent authority: the authority of a Party listed in Annex ...., or those who succeed them.

[Critical circumstances: those circumstances in which a delay in the application of the safeguard measure could cause injury difficult to repair;]

[Directly competitive [good] [product]: that which, while not [necessarily] similar to the one that it is compared with, is essentially equivalent for purposes of trade being put to the same use and being interchangeable with the latter. [To establish whether a [good] [product] is directly competitive, the competent authority shall also consider whether the [good] [product] makes use of the same distribution channels, is sold in the same market, and is purchased by a similar group of consumers.]]

Domestic industry: the producers as a whole of [the] similar or directly competitive [products] [goods] operating [in] [within] the territory of a Party, [or those whose collective output [of the like or directly competitive] [products] [goods] constitutes a major proportion of the total domestic production of those [products] [goods]].

GATT 1994: the General Agreement on Tariffs and Trade of 1994, which forms part of the Agreement Establishing the World Trade Organization.

[Interested [parties] [party]: the petitioner; other [domestic] producers; commercial, trade or business associations in which the majority of the members are producers of the [product] [good] under investigation; foreign producers; exporters; importers; governments of the exporting or producing Parties [; and consumers or associations representing them].]

[[Like] [Similar] [good] [product]: [includes an identical [good] [product] and] one that, although not the same in all aspects, has similar features and composition, which enables it to perform the same functions and to be commercially interchangeable with the [good] [product] it is compared with.]

[Safeguard measure: [all measures applied in accordance with the provisions of this [Chapter]. This does not include any safeguard measure derived from a procedure initiated before this Agreement entered into force.] [a hemispheric safeguard measure described in Article 3.2. A “global safeguard measure” is referred to as such in this [Chapter].]]

Serious injury: a significant overall impairment [of the situation of a branch of] [in the position of a] domestic industry.

[Substantial cause: a cause which is important and not less than any other cause.]

[Substantial supplier: any Party that for the three years preceding an investigation described in Article 5 was, on average, the territory of origin of at least ten percent, by value, of imports from the Party of the [good] [product] subject to a safeguard measure.]

Threat of serious injury: [the clear imminence of serious injury, determined on the basis of facts and not merely on allegations, conjectures, or remote possibilities.] [serious injury that is clearly imminent. Such a determination shall be made on the basis of facts and not merely on allegation, conjecture, or remote possibility.]

[Transition period: [the ten-year period beginning on the date of entry into force of this Agreement.] [the period during which a Party may adopt and maintain safeguard measure that shall cover, for each [good] [product], ....][the period of tariff elimination applicable to each [good] [product] under this Agreement.]]

 

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² The definition of FTAA safeguard is pending.

³ [The definition of transition period is pending.]

⁴ The amount of percentages to be differentiated and their levels, as well as countries benefiting from this treatment, will be determined in the course of the negotiating process, taking into account the differences in the levels of development and sizes of the economies of the Hemisphere, including those of the smaller economies.

⁵ The differentiated period would be determined in the course of the negotiations, taking into account the differences in the levels of development and sizes of the economies of the Hemisphere, including those of the smaller economies

⁶ The differentiated period would be determined in the course of the negotiations, taking into account the differences in the levels of development and sizes of the economies of the Hemisphere, including those of the smaller economies.

⁷ A delegation proposes to move Part II: Global Safeguards, comprising Article 10, Global Safeguards, after Article 4.

⁸ A delegation proposes to move Part II: Global Safeguards, comprising Article 10, Global Safeguards, after Article 4.