11. Upon entry into force of this Agreement, each Party without legislation containing provisions on global safeguards shall notify to the other Parties through Contact Points that it does not have global safeguards legislation. Thereafter, when any such Party adopts or subsequently modifies legislation containing provisions on global safeguards, upon adoption or modification of such legislation it shall promptly notify to the other Parties through Contact Points the information required to be notified under paragraph 10.
12. Thereafter, each Party with legislation containing provisions on global safeguards shall immediately notify the other Parties through Contact Points upon:
(a) initiating any investigatory process relating to serious injury or threat thereof, and the reasons for it;
(b) making a finding of serious injury or threat thereof caused by increased imports; and
(c) taking a decision to apply or extend a safeguard measure.
13. If a decision has been taken to apply a provisional safeguard measure, a notification shall be made to the other Parties through Contact Points before that measure is applied.
14. Competent authorities shall publish promptly a report setting forth their findings and reasoned conclusions reached on all pertinent issues of fact and law.
15. All information notifiable by a Party under paragraphs 10 to 13 shall be published in accordance with Article 13.
16. To the extent possible, the developed country Parties shall consider exempting products from the developing country Parties from the application of a safeguard measure under this Article. A Party shall not apply a safeguard measure against a product originating in a developing country that is a WTO Member or a non-WTO Member as long as its share of imports of the product concerned in the importing Party does not exceed three per cent, provided that the developing countries that are a WTO Member or a non-WTO Member with less than three per cent import share collectively account for not more than nine per cent of total imports of the product concerned.
Article 8. Transitional Safeguard Measures
Definitions
1. For the purposes of this Article:
(a) domestic industry means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating within the territory of a Party, or those producers whose collective production of the like or directly competitive good constitutes a major proportion of the total domestic production of that good;
(b) transitional safeguard measure means a measure described in paragraphs 2 to 4 (Imposition of a Transitional Safeguard Measure);
(c) serious injury means a significant overall impairment in the position of a domestic industry;
(d) threat of serious injury means serious injury that, on the basis of facts and not merely on allegation, conjecture or remote possibility, is clearly imminent; and
(e) transition period means, in relation to a particular good, the three-year period beginning on the date of entry into force of this Agreement, except where the tariff elimination for the good occurs over a longer period of time, in which case the transition period shall be the period of the staged tariff elimination for that good.
Imposition of a Transitional Safeguard Measure
2. A developing country Party may apply a transitional safeguard measure described in paragraph 3, during the transition period only, if as a result of the staged elimination of a customs duty pursuant to this Agreement:
(a) an originating good of one other Party is being imported into the Party’s territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions, as to cause or threaten to cause serious injury to the domestic industry that produces a like or directly competitive good; or
(b) an originating good of two or more Parties, collectively, is being imported into the Party’s territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions, as to cause or threaten to cause serious injury to the domestic industry that produces a like or directly competitive good, provided that the Party applying the transitional safeguard measure demonstrates, with respect to the imports from each such Party against which the transitional safeguard measure is applied, that imports of the originating good from each of those Parties have increased, in absolute terms or relative to domestic production, since the date of entry into force of this Agreement for those Parties.
3. If the conditions in paragraph 2 are met, the Party may, to the extent necessary to prevent or remedy serious injury and facilitate adjustment:
(a) suspend the further reduction of any rate of customs duty provided for under this Agreement on the good; or
(b) increase the rate of customs duty on the good to a level not to exceed the lesser of:
(i) (A) in the case of a WTO Member, the most-favoured-nation applied rate of customs duty; or
(B) in the case of a Party that is not a WTO Member, the general non- preferential applied rate of customs duty;
at the time the measure is applied; and
(ii) (A) in the case of a WTO Member, the most-favoured-nation applied rate of customs duty; or
(B) in the case of a Party that is not a WTO Member, the general non- preferential applied rate of customs duty;
in effect on the day immediately preceding the date of entry into force of this Agreement for that Party.
4. No Party shall apply a tariff rate quota or a quantitative restriction as a form of transitional safeguard measure.
Standards for a Transitional Safeguard Measure
5. A Party shall maintain a transitional safeguard measure only for such period of time as may be necessary to prevent or remedy serious injury and to facilitate adjustment.
6. That period shall not exceed two years, except that the period may be extended by up to three years, if the competent authority of the Party that applies the measure determines, in conformity with the procedures set out in paragraphs 12 and 13, that the transitional safeguard measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment.
7. No Party shall maintain a transitional safeguard measure beyond the expiration of the transition period.
8. In order to facilitate adjustment in a situation where the expected duration of a transitional safeguard measure is over one year, the Party that applies the measure shall progressively liberalise it at regular intervals during the period of application.
9. On the termination of a transitional safeguard measure, the Party that applied the measure shall apply the rate of customs duty set out in its Schedule of Commitments on Tariffs at Annex 2-A as if that Party had never applied the transitional safeguard measure.
10. The maximum amount of time that transitional safeguard measures can apply cumulatively to the same good is five years.
11. No Party shall apply or maintain at the same time, with respect to the same good, a transitional safeguard measure under this Article and a safeguard measure under Article XIX of GATT 1994 and the Agreement on Safeguards.
Investigation Procedures and Transparency Requirements
12. A Party shall apply a transitional safeguard measure only following an investigation by the Party’s competent authorities in accordance with Article 3 and Article 4.2(c) of the Agreement on Safeguards. To this end, Article 3 and Article 4.2(c) of the Agreement on Safeguards are incorporated into and made part of this Agreement, mutatis mutandis.
13. In the investigation described in paragraph 12, the Party shall comply with the requirements of Article 4.2(a) and Article 4.2(b) of the Agreement on Safeguards; to this end, Article 4.2(a) and Article 4.2(b) of the Agreement on Safeguards are incorporated into and made part of this Agreement, mutatis mutandis.
Provisional Measures
14. (a) In critical circumstances, where delay would cause damage which would be difficult to repair, a Party may take a provisional measure, pursuant to a preliminary determination that there is clear evidence that increased imports of an originating good from another Party or Parties have caused or are threatening to cause serious injury to a domestic industry.
(b) The duration of such a provisional measure shall not exceed 200 days, during which time the relevant requirements of this Article (Definitions, Imposition of a Transitional Safeguard Measure, Standards for a Transitional Safeguard Measure, Investigation Procedures and Transparency Requirements, and Notification and Consultation) shall be met. The duration of any provisional measure shall be counted as part of the initial period and any extension as referred to under Imposition of a Transitional Safeguard Measure.
(c) The customs duty imposed as a result of the provisional measure shall be refunded if the subsequent investigation referred to under Investigation Procedures and Transparency Requirements does not determine that increased imports of the originating good have caused or threatened to cause serious injury to a domestic industry.
Notification and Consultation
15. A Party shall promptly notify the other Parties through Contact Points, in writing, if it:
(a) initiates a transitional safeguard investigation under this Article;
(b) makes a finding of serious injury, or threat of serious injury, caused by increased imports, as set out in paragraph 2;
(c) takes a decision to apply or extend a transitional safeguard measure;
(d) takes a decision to modify a transitional safeguard measure previously undertaken.
16. A Party shall provide to the other Parties through Contact Points a copy of the public version of the report of its competent authorities that is required under paragraph 12.
17. When a Party makes a notification pursuant to paragraph 15(c) that it is applying or extending a transitional safeguard measure, that Party shall include in that notification:
(a) evidence of serious injury, or threat of serious injury, caused by increased imports of an originating good of another Party or Parties as a result of the staged elimination of a customs duty pursuant to this Agreement;
(b) a precise description of the originating good subject to the transitional safeguard measure including its heading or subheading under the Harmonized System, on which the commitments in respect of the duty contained in its Schedule of Commitments on Tariffs at Annex 2-A are based;
(c) a precise description of the transitional safeguard measure;
(d) the date of the transitional safeguard measure’s introduction, its expected duration and, if applicable, a timetable for progressive liberalisation of the measure; and
(e) in the case of an extension of the transitional safeguard measure, evidence that the domestic industry concerned is adjusting.
18. On request of a Party whose good is subject to a transitional safeguard proceeding under this Chapter, the Party that conducts that proceeding shall enter into consultations with the requesting Party to review a notification under paragraph 15 or any public notice or report that the competent investigating authority has issued in connection with the proceeding.
Compensation
19. A Party applying a transitional safeguard measure shall, after consultations with each Party against whose good the transitional safeguard measure is applied, provide mutually agreed trade liberalising compensation in the form of concessions that have substantially equivalent trade effects or equivalent to the value of the additional duties expected to result from the transitional safeguard measure. The Party shall provide an opportunity for those consultations no later than 30 days after the application of the transitional safeguard measure.
20. If the consultations under paragraph 19 do not result in an agreement on trade liberalising compensation within 30 days, any Party against whose good the transitional safeguard measure is applied may seek a determination on the level of compensation under the procedures of Articles 3.8 and 3.9, which shall apply mutatis mutandis.
21. The obligation to provide compensation under paragraph 19 or paragraph 20 terminates on the termination of the transitional safeguard measure.
Article 9. Industry Development
Recognising the limited number of industry development opportunities inherent in a regional grouping of countries characterised mostly by low populations, limited arable land and other natural resources, small isolated economies and high vulnerability to natural disasters; and
Taking into account the high incidence of persistent gaps between Forum Island Countries’ respective levels of per capita gross national income and those of the world’s developed countries and larger or more advanced developing countries:
1. The Joint Committee may approve a measure known as an Industry Development Measure requested by a Forum Island Country for the purpose of enabling such requesting Party to support:
(a) the establishment of a new industry or a new branch of production in an existing industry;
(b) the substantial transformation of an existing industry;
(c) the substantial expansion of an existing industry supplying a small proportion of the domestic demand; or
(d) an industry destroyed or substantially damaged as a result of hostilities or natural disaster.
2. An Industry Development Measure:
(a) shall consist of:
(i) a delay in the scheduled reductions in the requesting Party’s rate of customs duty for one or more specified goods; or
(ii) an increase in its rate of customs duty for one or more specified goods to no more than:
(A) in the case of a WTO Member, the most-favoured-nation applied rate of customs duty; or
(B) in the case of a non-WTO Member, the general non-preferential applied rate of customs duty;
effective at the time of the request;
(b) can be applied:
(i) for an initial period of seven years, which may be extended for a further three years by the Joint Committee; and
(ii) only during the period of the requesting Party’s scheduled reductions in a rate of customs duty on the affected product; (5) and
(c) shall be eligible for approval if the tariff lines subject to the requested Industry Development Measure(s) and all Industry Development Measures of a Party in force at the time of such request(s) together account for not more than eight per cent of the total exports of the affected Party to the requesting Party (6) and account for not more than three per cent of tariff lines.
3. Upon conclusion of the relevant period under paragraph 2(b), the requesting Party’s customs duties shall revert to levels not exceeding the scheduled rates that would have applied but for the Industry Development Measure.
4. The requesting Party shall compensate affected Parties on terms agreed among the interested Parties or otherwise determined under the procedures of Articles 3.8 to 3.9, which shall apply mutatis mutandis. Compensation shall be provided three years after the initial application of the Industry Development Measure. The obligation to provide compensation ceases upon the termination of the Industry Development Measure.
5. Except in the case of a new Industry Development Measure applied for the purposes of Article 9.1(d), if a new Industry Development Measure is applied to the same good:
(a) the total duration of the periods for which the requesting Party was not liable to provide compensation under previous Industry Development Measures on that good shall be counted towards the two years for which the requesting Party is not liable to provide extend compensation under paragraph 4; and
(b) not less than two years shall elapse from the date of termination of the previous Industry Development Measure to the date of initial application of the new Industry Development Measure.
6. A Party shall not simultaneously apply an Industry Development Measure and a Transitional Safeguard Measure under Article 8 to the same good. Nothing in this Article shall be construed to prevent a Party from having recourse to Articles 3.7 to 3.9 after the expiration of an Industry Development Measure.
Article 10. Fees and Charges Connected with Importation and Exportation
1. Each Party shall ensure that all fees and charges of whatever character (other than import and export duties, charges equivalent to an internal tax or other internal charges applied consistently with Article III:2 of GATT 1994 and anti-dumping and countervailing duties applied pursuant to Articles VI and XVI of GATT 1994, the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures) on or in connection with importation or exportation:
(a) are limited in amount to the approximate cost of services rendered;
(b) do not represent an indirect protection to domestic products or a taxation on imports or exports for fiscal purposes; and
(c) are otherwise in conformity with the WTO Agreement, including inter alia Articles I and VIII of GATT 1994.
2. In respect of such measures, Articles I and VIII of GATT 1994 are incorporated into and shall form part of this Agreement, mutatis mutandis.
Article 11. Import Licensing
1. In respect of import licensing procedures, the Parties, taking into account the particular trade, development and financial needs of developing country Parties:
(a) recognise the usefulness of automatic import licensing for certain purposes, and shall ensure that such licensing is not used to restrict trade between them and is otherwise in accordance with Articles 1 and 2 of the Agreement on Import Licensing Procedures;
(b) recognise that import licensing may be employed to administer measures such as those adopted pursuant to the relevant provisions of GATT 1994, and shall ensure that import licensing procedures employed for that purpose are not utilised in a manner contrary to the principles and obligations of GATT 1994 and are otherwise in accordance with Articles 1 and 3 of the Agreement on Import Licensing Procedures and other relevant WTO provisions; and
(c) recognise that trade could be impeded by the inappropriate use of import licensing procedures and, with a view to avoiding their inappropriate use, shall ensure that:
(i) import licensing, particularly non-automatic import licensing, is implemented in a transparent and predictable manner;
(ii) non-automatic licensing procedures are no more administratively burdensome than absolutely necessary to administer the relevant measure; and
(iii) administrative procedures and practices used in international trade are transparent, are as simple as possible and are applied and administered fairly and equitably.
2. To these ends, in respect of import licensing procedures, Articles 1 to 3 of the Agreement on Import Licensing Procedures are incorporated into and shall form part of this Agreement, mutatis mutandis.
3. Information related to import licensing procedures under Article 1.4(a) of the Agreement on Import Licensing Procedures shall be published in such a manner as to enable governments and traders to become acquainted with it and be so published no later than the effective date of the requirement concerned. Each Party shall notify the Contact Points of other Parties where such information is found.
4. Information exchanged between the Parties on import licensing procedures shall be otherwise notified, published and kept up-to-date in accordance with Article 14 and be supplied in the format set out at Annex 2-C.
Article 12. Other Non-Tariff Measures
1. Each Party shall not:
(a) adopt or maintain any measure within the purview of Article XI of GATT 1994, including its Interpretative Notes, except in accordance with the WTO Agreement and this Agreement; or
(b) apply to traffic in transit any measure prohibited under, or any allowable measure inconsistently with, Article V of GATT 1994 or other relevant provisions of the WTO Agreement; or
(c) apply any measure prohibited under Article 4.2 of the Agreement on Agriculture or Article 11.1(b) of the Agreement on Safeguards.
2. To these ends, in respect of the aforementioned measures, GATT 1994 (including
relevant Interpretative Notes of GATT 1994), the Agreement on Import Licensing Procedures, Articles 4.2 and 12 of the Agreement on Agriculture and Article 11.1(b) of the Agreement on Safeguards are incorporated into and shall form part of this Agreement, mutatis mutandis.
3. Each Party shall not require consular transactions, including related fees, charges, formalities and requirements, in connection with the importation of a good from another Party.
Article 13. Publication and Administration of Trade Regulations
1. Laws, regulations, judicial decisions and administrative rulings of general application, made effective by any Party, pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale, distribution, transportation, insurance, warehousing, inspection, exhibition, processing, mixing or other use, shall be published promptly in such a manner as to enable governments and traders to become acquainted with them.
2. Agreements affecting international trade policy which are in force between the government or a governmental agency of any Party and the government or governmental agency of any other country shall also be published.
3. Paragraphs 1 and 2 shall not require any Party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.
4. No measure of general application taken by any Party effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments for those purposes, shall be enforced before such measure has been officially published.
5. Each Party shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1.
6. To these ends, Article X of GATT 1994 and other provisions of the WTO Agreement relating to the publication and administration of trade regulations are incorporated into and shall form part of this Agreement, mutatis mutandis.
7. In accordance with its domestic laws and regulations, each Party shall, to the extent of its capacity, make available online laws, regulations, decisions and rulings in relation to matters within the purview of paragraphs 1, 2 and 4.
8. Each Party shall thereafter, to the extent of its capacity, ensure that all items of information that are publically available pursuant to paragraphs 1, 2, 4 and 7 are kept up-to- date in accordance with those paragraphs.
Article 14. Information Exchange In Relation to, and Publication of, Specified Measures
1. Upon entry into force of this Agreement, each Party shall provide to the other Parties through Contact Points:
(a) the existing schedules of non-preferential and preferential applied rates of customs duty that it maintains;
(b) a list of all existing fees and charges that it imposes on or in connection with importation or exportation; and
(c) information on its new or modified import licensing procedures in the form of a completed response to the questionnaire at Annex 2-C.
2. Thereafter, each Party shall ensure that all items of information provided under paragraph 1 are kept up-to-date by transmitting to the other Parties through Contact Points any modifications or additions to them:
(a) in the case of items under paragraphs 1(a) and 1(b), no later than the date on which they take effect;
(b) in the case of information on modified or new import licensing procedures provided through completed responses to the questionnaire at Annex 2-C, to the extent possible 60 days before the modified or new procedure takes effect, but in any case no later than within 60 days of publication.
3. A WTO Member shall be deemed to be in compliance with paragraphs 1(c) and 2(b) upon fulfilment of its obligations under paragraphs 5.1 to 5.3 of the Agreement on Import Licensing Procedures and upon transmitting to the other Parties through Contact Points the relevant notifications made to the WTO.
4. Each Party shall to the extent of its capacity publish the information that it provides to other Parties under paragraphs 1, 2 and 3 online with a view to public availability and ensure that the information available online is kept up-to-date.
5. A Party may fulfil its obligations under paragraphs 1, 2 and 3 by providing to the other Parties through Contact Points the details of such websites where the requisite information is posted and readily accessible to any person.
6. This Article shall not apply to measures covered by the SPS Agreement or the TBT Agreement or to import licensing regimes governing the administration of tariff rate quotas with respect to tariff rate quotas established in the WTO Schedules of Concessions and Commitments on Goods of WTO Members.
Article 15. Contact Points and Technical Discussions
1. Each Party shall provide each other Party with a Contact Point to facilitate the distribution of requests and notifications made in accordance with this Chapter.
2. Each Party shall ensure the information provided under paragraph 1 is kept up-to-date.
3. When a Party considers that any proposed or actual measure of another Party or Parties
may materially affect trade in goods between the Parties, that Party may, through Contact Points, request detailed information relating to that measure and, if necessary, request technical discussions with a view to resolving any concerns about the measure. The other Party or Parties shall respond promptly to such requests for information and technical discussions.
4. Technical discussions held under this Article do not constitute an intention to seek formal consultations under Chapter 14 (Consultations and Dispute Settlement) and are without prejudice to the rights and obligations of the Parties under that Chapter, the WTO Agreement, or any other agreement to which both Parties are party.
Article 16. Meetings on Trade In Goods Matters
1. The Parties shall, through the Joint Committee or a relevant subsidiary body, consult regularly to consider the implementation of their commitments under this Chapter.
2. The Parties, through the Joint Committee or a relevant subsidiary body, shall commence a review of this Chapter within three years of entry into force of this Agreement and submit a final report to the Joint Committee, including any recommendations, within four years of entry into force of this Agreement.
3. The Parties, through the Joint Committee or a relevant subsidiary body, shall review the operation of Articles 3.2(c) and 3.3 and Annex 2-B two years from the date of initial application of Annex 2-B, and thereafter at ten-year intervals unless otherwise agreed by the Parties, and shall submit a report to the Joint Committee, including any recommendations, within six months of the date of commencement of each review.
Article 17. Amendments to the Harmonized System
1. When a periodic amendment to the Harmonized System is published, the Parties shall prepare technical revisions to Annex 2-A to implement that version of the Harmonized System, and shall do so in accordance with this Article and the relevant procedures for technical revisions to Annex 2-A as adopted by the Joint Committee under Chapter 12 (Institutional Provisions).
2. The Parties shall mutually decide whether any other technical revisions to Annex 2-A are necessary.
3. The Parties shall ensure that technical revisions to Annex 2-A are carried out on a neutral basis and that market access conditions are not impaired by the process or the outcomes of technical revision to the Annex.
4. The Parties, through the Joint Committee or a relevant subsidiary body established by it, shall endorse and promptly publish the technical revisions that are prepared pursuant to paragraphs 1 and 2.