or their successors;
safeguard measure means all tariff measures applied in accordance with the provisions of this Chapter;
domestic industry means, with respect to an imported good, the aggregate of producers of like or directly competitive goods operating in the territory of a Party, or those producers whose collective output of like or directly competitive goods constitutes a major proportion of the total domestic production of such good; and
transition period means a period of ten (10) years from the date of entry into force of this Agreement. For those products in which the relief period is longer, the transition period shall be equivalent to the Tariff Reduction Schedule of the Party applying the measure, in which case "transition period" means the period established in the indicated schedule.
Article 7.2. General Provisions
Except as provided in this Chapter, each Party shall be governed by its national legislation, Article XIX of the GATT 1994 and the Agreement on Safeguards.
Article 7.3. Imposition of a Safeguard Measure
1. A Party may apply a safeguard measure only during the transition period if, as a result of the reduction or elimination of a customs duty under this Agreement, an originating good is imported into the Party's territory in such increased quantities in absolute terms or relative to domestic production and under such conditions as to constitute a substantial cause of serious injury, or threat thereof, to the domestic industry producing a like or directly competitive good (1).
2. If the conditions referred to in the preceding paragraph are met, a Party may, to the extent necessary to prevent or remedy serious injury or threat thereof and to facilitate adjustment, apply a safeguard measure:
(a) suspend the future reduction of any tariff rate provided for in this Agreement for the good; or
(b) increase the tariff rate for the good to a level that does not exceed the Most Favored Nation (MFN) tariff rate applied at the time the measure is imposed (2).
Article 7.4. Duration and Extension
1. No Party may maintain a safeguard measure:
(a) except to the extent and for the period necessary to prevent or remedy serious damage and to facilitate adjustment;
(b) for a period exceeding three (3) years; except that this period may be extended for an additional period of one (1) year, if the competent authority determines, in accordance with the procedures set forth in Article 7.5, that the measure continues to be necessary to prevent or remedy serious injury and to facilitate adjustment and that there is evidence that the domestic industry is adjusting; or
(c) after the expiration of the transition period.
2. A safeguard measure may be reapplied for a second time provided that the period of non-application is at least half of that during which the safeguard measure was first applied.
3. Upon termination of the safeguard measure, the rate of duty shall not be higher than the rate of duty that, according to the Party's Schedule to Annex 3.4 (Tariff Discharge Schedule), would have been in effect one (1) year after the commencement of the measure. As of January 1 of the year immediately following the year in which the measure ceases, the Party that has adopted the measure shall apply the tariff rate set out in the Party's Schedule to Annex 3.4 (Tariff Discharge Schedule) as if the safeguard measure had never been applied.
Article 7.5. Investigation Procedures and Transparency Requirements
1. A Party may apply a safeguard measure only after an investigation by the Party's competent authority, in accordance with its domestic law and Articles 3, 4.2 (b) and (c) of the Agreement on Safeguards and for this purpose, Articles 3, 4.2 (b) and (c) of the Agreement on Safeguards are incorporated into and made part of this Agreement, mutatis mutandis.
2. In the investigation described in paragraph 1, the Party shall comply with the requirements of its domestic law and Article 4.2(a) of the Agreement on Safeguards and for this purpose, Article 4.2(a) is incorporated into and made part of this Agreement, mutatis mutandis.
3. For the purposes of this Article, all information which by its nature is confidential shall be treated in accordance with the domestic legislation of each Party and in accordance with the provisions of Article 3 of the Agreement on Safeguards.
Article 7.6. Provisional Safeguard Measures
1. A Party may adopt a provisional safeguard measure, in critical circumstances in which any delay would cause damage difficult to repair to the domestic industry of like or directly competitive goods, pursuant to a preliminary determination of the existence of clear evidence that increased imports have caused or are threatening to cause serious injury.
2. The duration of the provisional measure shall not exceed two hundred (200) days and shall take the form of tariff increases, which shall be promptly refunded if the investigation does not determine that the increased imports have caused or threatened to cause serious injury to a domestic industry.
Article 7.7. Notification and Consultation
1. A Party shall promptly notify the other Party in writing, when:
(a) initiate a safeguard procedure in accordance with this Chapter; and
(b) adopt a decision to apply or extend a provisional or definitive safeguard measure.
2. A Party shall provide to the other Party a copy of the public version of the report of its competent investigating authority referred to in the preceding paragraph, in accordance with Article 7.5.
3. Upon request of a Party whose good is subject to a safeguard proceeding under this Chapter, the Party conducting the proceeding shall initiate consultations with the requesting Party to review the notifications under paragraph 1 of this Article, or any public notice or report issued by the competent investigating authority in connection with such proceeding.
Article 7.8. Global Safeguard Measures
1. This Agreement confers no additional rights or obligations on the Parties with respect to actions taken pursuant to Article XIX of the GATT 1994 and the Agreement on Safeguards, except that the Party imposing a global safeguard measure may exclude imports of a good originating in the other Party, if such imports are not a substantial cause of serious injury or threat thereof.
2.No Party shall apply, with respect to the same good, and during the same period:
(a) a safeguard measure; and
(b) a measure under Article XIX of GATT 1994 and the Agreement on Safeguards.
Chapter 8. ANTIDUMPING AND COUNTERVAILING MEASURES
Article 8.1. Sole Provision
Each Party retains its rights and obligations under the WTO Agreement with respect to the application of antidumping and countervailing duties.
Part THREE. TECHNICAL BARRIERS TO TRADE
Chapter 9. SANITARY AND PHYTOSANITARY MEASURES
Article 9.1. Definitions
1. For the purposes of this Chapter:
SPS Agreement means the Agreement on the Application of Sanitary and Phytosanitary Measures, which is part of the WTO Agreement.
2. The Parties recognize the definitions contained in Annex A of the SPS Agreement and, in addition, the definitions recommended by the competent international organizations: World Organization for Animal Health - OIE, International Plant Protection Convention - IPPC, Codex Alimentarius and those that may be lacking, shall be established by mutual agreement between the Parties.
Article 9.2. General Provisions
1. The Parties confirm their rights and obligations under the SPS Agreement. In addition to the foregoing, the Parties shall be governed by the provisions of this Chapter.
2. The Parties agree to make joint efforts for the effective implementation of the SPS Agreement, with the purpose of facilitating trade.
3. Competent authorities are those legally responsible for ensuring compliance with the sanitary and phytosanitary requirements set forth in this Chapter.
4. Through mutual cooperation, the Parties shall facilitate trade, endeavor to prevent the introduction or spread of pests and diseases, and improve plant health, animal health and food safety.
5. Disputes arising in connection with the application of this Chapter shall be resolved through the provisions of the General Dispute Settlement Mechanism of this Agreement. The Parties may use the WTO Dispute Settlement Understanding for those provisions that are contained in the SPS Agreement.
Article 9.3. Rights and Obligations of the Parties
Without prejudice to the provisions of the SPS Agreement, the Parties shall ensure that plants, animals, products and by-products are subject to sanitary and phytosanitary monitoring to ensure compliance with the requirements of the sanitary and phytosanitary measures established by the importing Party.
Article 9.4. Harmonization
Without prejudice to the provisions of Article 3 of the SPS Agreement, the Parties may develop criteria and procedures for the harmonization of sanitary and phytosanitary measures, including, among others, methods of sampling, diagnosis, inspection and certification of animals, plants, their products and by-products.
Article 9.5. Equivalence
1. Without prejudice to the provisions of Article 4 of the SPS Agreement, the Parties may enter into sanitary and phytosanitary equivalence agreements, the objectives of which shall be to facilitate trade in goods subject to sanitary and phytosanitary measures and to promote mutual confidence. To this effect:
(a) equivalence may be determined for measures applied to a given product or category of products. By mutual agreement, Agreements on Recognition of Equivalence of sanitary and phytosanitary measures or systems may be established at the request of a Party; and
(b) when an equivalence agreement is being negotiated and until an understanding on such recognition is reached, the Parties may not apply more restrictive sanitary or phytosanitary measures than those in force in trade in the good(s) subject to the equivalence agreement, except those arising from sanitary or phytosanitary emergencies.
Article 9.6. Risk Assessment
Without prejudice to the provisions of Article 5 of the SPS Agreement:
1. In assessing the risk and establishing the appropriate level of protection, the Parties shall take into account, among other factors:
(a) epidemiology of pests and diseases of quarantine interest;
(b) analysis of critical control points in sanitary (food safety) and phytosanitary aspects;
(c) physical, chemical and biological hazards in food; (d) the structure and organization of sanitary and phytosanitary services;
(e) protection, epidemiological surveillance, diagnosis and _ treatment procedures to ensure food safety;
(f) the loss of production or sales in the event of the entry, establishment, spread or dissemination of a pest or disease;
(g) the applicable quarantine measures and treatments that satisfy the importing Party as to risk mitigation; and
(h) the costs of pest or disease control or eradication in the territory of the importing Party and the cost-effectiveness of other possible methods to reduce the risk.
2. Where there is a sound technical reason for a new risk assessment in situations where there is regular and fluid trade in agricultural commodities between the Parties, this should not be a reason to interrupt trade in the commodities in question, unless the outcome of the risk assessment has not been overcome or in cases of sanitary or phytosanitary emergency.
3. When scientific information is insufficient to carry out the risk analysis, the Party may adopt provisional sanitary or phytosanitary measures, based on available information, including that from the competent international organizations mentioned in this Chapter. In such circumstances, the Parties shall seek to obtain the additional information necessary for a more objective risk analysis and review the sanitary or phytosanitary measures within a reasonable period of time for this purpose:
(a) the importing Party shall allow the exporting Party to submit its comments and shall take them into account for the conclusion of the risk assessment;
(b) the importing Party may request clarification of the information submitted by the exporting Party after having received the same;
(c) the adoption or modification of the provisional sanitary or phytosanitary measure shall be immediately notified to the other Party through the information centers established in accordance with the SPS Agreement; and
(d) if the outcome of the risk assessment implies the non-acceptance of the The scientific basis for the decision shall be notified in writing.
4. Where a Party has reason to believe that a sanitary or phytosanitary measure established or maintained by the other Party restricts or may restrict its exports and such measure is not based on relevant international standards, guidelines or recommendations, or no such_ international standards, guidelines or recommendations exist, it may request an explanation of the reasons for such sanitary and phytosanitary measures and the Party maintaining such measures shall provide such explanation within a reasonable period of time.
5. The Parties may take into account risk assessments or scientific information, including proposals for mitigation measures that the exporting Party may wish to provide, in order to support the importing Party's risk analysis process and risk management alternatives.
Article 9.7. Recognition of Free Zones and Low Prevalence Zones
Without prejudice to the provisions of Article 6 of the SPS Agreement:
1. The Party interested in obtaining the recognition of a pest or disease free area shall make the request and provide the corresponding scientific and technical information to the other Party.
2. The Party receiving the request for recognition may carry out inspections, tests and other verification procedures. In case of non-acceptance, it shall state in writing the technical basis for its decision.
Article 9.8. Procedures of Control, Inspection, Approval and Certification
Without prejudice to the provisions of Article 8 of the SPS Agreement:
1. When the competent authority of the exporting Party requests for the first time to the competent authority of the importing Party the inspection of a production unit or of a production process in its territory, the competent authority of the importing Party after review and complete evaluation of the necessary documents and data, will give the date to practice the inspection, without damage of the arranged thing in Annex 9.8. Once the inspection has been carried out, the competent authority of the importing Party shall issue a substantiated decision on the result obtained in the inspection and shall notify it to the exporting Party, without prejudice to the provisions of Annex 9.8.
2. Compliance with the recommendations made as a result of the inspection process shall be verified, certified and notified by the competent authority of the exporting Party.
3. In the case of production units or production processes that have a certification in force in the importing Party, they must request its renewal at least ninety (90) calendar days before the date of its expiration. The productive units or productive process units that comply with the term stipulated in this paragraph and have not yet received from the importing Party the approval for the renewal of the certification, shall be allowed to continue exporting until the competent authority of the importing Party completes the inspection procedures and issues the corresponding renewal certification.
4. Those productive units or productive process units that do not request their renewal within ninety (90) days, shall be governed by the procedure established in paragraph 1 of this Article.
5. Certifications of production units or production processes issued by the competent authority of the importing Party shall be valid in accordance with national legislation.
6. The Parties shall provide the necessary facilities for the evaluation of sanitary and phytosanitary services, through the procedures in force for the verification of controls, inspections, approval procedures, application of sanitary and phytosanitary measures and programs based on the guidelines and recommendations of the competent international organizations.
Article 9.9. Technical Cooperation
The Parties agree to provide reciprocal cooperation and technical assistance, as well as to promote its provision through the competent international organizations, in order to strengthen activities aimed at:
(a) the application of this Chapter;
(b) the implementation of the SPS Agreement;
(c) the participation more active participation at the organizations organizations and their reference bodies; and
(d) supporting the development and implementation of international and regional standards.
Article 9.10. Transparency
Without prejudice to the provisions of Article 7 of the SPS Agreement:
1. Each Party, when proposing the adoption or modification of a sanitary or phytosanitary measure of general application, shall notify the following:
(a) It shall also provide information on such measures, in accordance with the provisions of Annex B of the SPS Agreement, and shall make the pertinent adaptations;
(b) changes or modifications to sanitary or phytosanitary measures that have a significant effect on trade between the Parties, at least sixty (60) days prior to the entry into force of the new provision, to allow the other Party to comment. Emergency situations shall be exempted from the above time limit, in accordance with the provisions of Annex B of the SPS Agreement;
(c) changes occurring in the field of animal health, such as the emergence of exotic diseases and notifiable diseases on the OIE List of diseases, within twenty-four (24) hours of confirmation of the disease;
(d) changes in the phytosanitary field, such as the emergence of quarantine pests and diseases or the spread of pests and diseases under official control, within seventy-two (72) hours after verification;
(e) diseases scientifically proven to be caused by the consumption of foodstuffs; and
(f) report on the status of the admissibility processes and measures in process.
2. The Parties shall use the notification and information centers established in accordance with the SPS Agreement as a channel of communication. In the case of emergency measures, the Parties, through the competent national institutions, undertake to communicate in writing immediately, briefly indicating the objective and rationale of the measure, as well as the nature of the problem.
Article 9.11. Technical Consultation
1. Nothing in this Chapter shall prevent a Party, when in doubt as to the application or interpretation of its contents, from initiating consultations with the other Party.
2. When a Party requests consultations and so notifies the Committee, the Committee shall facilitate the consultations, and may request the opinion of a group of experts for technical advice or recommendations.
3. When the Parties have resorted to consultations pursuant to this Article without satisfactory results, such consultations shall constitute the consultations provided for in Chapter 18 (Dispute Settlement).
Article 9.12. Committee on Sanitary and Phytosanitary Measures
1. The Parties agree to establish the Committee on Sanitary and Phytosanitary Measures, the composition of which is set forth in Annex 9.12. The Committee shall be established no later than thirty (30) days after the entry into force of this Agreement through an exchange of letters identifying the representatives of each Party to the Committee and the respective principal representatives.
2. The Committee at its first meeting shall establish the rules and procedures for its operation.
3. The Committee shall hear matters relating to this Chapter and shall serve, inter alia, to promote consultation and cooperation on sanitary and phytosanitary measures and as a forum for the solution of practical problems identified by the Parties.
4. The Committee shall have the following functions:
(a) promote the implementation of this Chapter;
(b) promote the improvement of sanitary and phytosanitary conditions in the territory of the Parties;
(c) develop and recommend procedures for the recognition of equivalence of sanitary and phytosanitary measures, for risk assessment, including that of interim measures, and for the recognition of free zones and low prevalence zones. This work to develop the procedures may begin no later than nine (9) months after the Committee is constituted;
(d) promote technical assistance and cooperation between the Parties for the development, application and enforcement of sanitary and phytosanitary measures;
(e) seek, to the greatest extent possible, the technical assistance and cooperation of competent international organizations, in order to obtain scientific and technical advice;
(f) to conduct, attend to and promote consultations on specific matters related to sanitary or phytosanitary measures;
(g) promote the necessary facilities for the training and specialization of technical and scientific personnel;
(h) create technical working groups in the areas of animal health, plant health and food safety, among others, and establish their objectives, guidelines, functions and the deadlines within which they must submit their reports or resolve requests; and
(i) approve the results of the working groups.
5. The technical groups will report the outcome and conclusions of the work to the Committee.
6. The Committee shall seek to promote communication and foster present or future relations between the institutions of the Parties with responsibility for sanitary and phytosanitary matters.
7. All decisions of the Committee shall be made by consensus, unless the Committee decides otherwise.
8. The Committee may meet and adopt recommendations to address matters of bilateral interest to the Parties, provided that all Parties are notified sufficiently in advance so that they may participate in the meeting.
Recommendations adopted by the Committee under this paragraph shall have no effect with respect to a Party that did not attend the meeting.
9. The Committee shall report annually to the Commission on the implementation of this Chapter and shall meet ordinarily once a year or extraordinarily when the Parties so agree.
10. The Committee may also consult and carry out its work, when so agreed, through the means of communication agreed by the Parties, such as e-mail, videoconferences or others, through its principal representatives.
The Instituto Nacional de Vigilancia de Medicamentos y Alimentos (INVIMA); The Instituto Colombiano Agropecuario (ICA); and
The National Planning Department; or its
successors.
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Chapter 10. TECHNICAL
BARRIERS TO TRADE
Article 10.1. Definitions for the Purposes of this Chapter:
TBT Agreement means the Agreement on Technical Barriers to Trade, which is part of the WTO Agreement;
to make compatible means to bring different standardization measures, approved by different standards bodies, but with the same scope, to such a level that they are identical, equivalent or have the effect of allowing the goods to be used interchangeably or for the same purpose;
standardization measures means technical regulations or mandatory technical standards, conformity assessment procedures applicable thereto, approval or authorization procedures and metrology;
standard means a document approved by a recognized institution that provides, for common and repeated use, rules, guidelines or characteristics for related goods or processes and production methods, compliance with which is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labeling requirements applicable to a commodity, process or production method;
international standard means that standard, guide, recommendation or normative specification that is adopted by an international standardizing body, in accordance with the guidelines and recommendations established in the TBT Agreement, as well as the provisions of this Chapter;
legitimate objectives means the imperatives of national security, the prevention of practices that may mislead consumers, the protection of human health or safety, animal or plant life or health, or the environment;
international standardizing and metrology body means a standardizing body open to participation by the relevant bodies of at least all Members of the TBT Agreement, including the International Organization for Standardization (ISO), the Intemational Electrotechnical Commission (IEC), the Codex Alimentarius Commission, the Intemational Organization of Legal Metrology (OIML) and the Intemational Commission on Radiological Units and Measurements (ICUMR) or such other body as the Parties may designate;
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approval or authorization procedure means any mandatory administrative process for obtaining a registration, permit, license or any other authorization, other than customs procedures and border inspections and controls, in order for a good to be produced, marketed or used for defined purposes or in accordance with established conditions;
conformity assessment procedure means any procedure used, directly or indirectly, to determine whether relevant requirements established by technical regulations or mandatory technical standards or standards are met, comprising, inter alia, sampling, testing and inspection, evaluation, verification and assurance of conformity, registration, accreditation and approval, either separately or in various combinations;