Updated: Sunday August 28, 2016/AlAhad
Thoul Ki'dah 25, 1437/Ravivara
Bhadra 06, 1938, at 04:51:36 PM
The Safeguard Measures Ordinance, 2002
ORDINANCE XXXI OF 2002
An
Ordinance
to provide for the imposition of safeguard measures
WHEREAS it is expedient to give effect
in Pakistan to the provisions of Article XIX of the General Agreement on
Tariffs and Trade, 1994, and to the Agreement on Safeguards to provide for the
imposition of safeguard measures in accordance therewith, to provide a
framework for investigation and determination of serious injury or threat of
serious injury caused by products imported into Pakistan and for matters
ancillary thereto or connected therewith;
AND WHEREAS the President is satisfied
that circumstances exist which render it necessary to take immediate action;
NOW, THEREFORE, in pursuance of the
Proclamation of Emergency of the fourteenth day of October, 1999, and the
Provisional Constitution Order No. 1 of 1999, read with the Provisional
Constitution Order No. 9 of 1999, and in exercise of all powers enabling him in
that behalf, the President of the Islamic Republic of Pakistan is pleased to
make and promulgate the following Ordinance:---
PART I
PRELIMINARY
1. Short title, extent and
commencement.-(1) This Ordinance may
be called the Safeguard Measures Ordinance, 2002.
(2) It extends to the whole of
(3) It shall come into force at once.
2. Definitions. In this Ordinance, unless there is anything repugnant
in the subject or context,---
(a) “Agreement
on Safeguards” means the Agreement on Safeguards included in Annex (1A) to the
Final Act of the Results of the Uruguay Round concerning the Implementation of
Article XIX of the General Agreement on Tariffs and Trade, 1994;
(b) “Commission”
means the National Tariff Commission established under the National Tariff
Commission Act, 1990 (VI of 1990);
(c) “Committee”
means the Committee on Safeguards of the WTO established pursuant, to Article
13 of the Agreement on Safeguards;
(d) “country”
means any country or territory whether a Member or not and includes a customs
union or separate customs territory;
(e) “developing
country” means a country categorized as such by the WTO;
(f) “domestic
industry” means the producers as a whole of products which are like or directly
competitive with the investigated product, operating within Pakistan or those
producers operating within Pakistan whose collective output of like or directly
competitive products constitutes a major proportion of the total production of
such products in Pakistan;
(g) “interested
party” includes-
(i) the
exporter or foreign producer of an investigated product.
(ii) the
importer of an investigated product;
(iii) trade
or business associations a majority of the members of which are producers,
exporters or importers of an investigated product;
(iv) the
producer of a domestic like or directly competitive product in
(v) trade or
business associations a majority of the members of which produce a domestic
like or directly competitive product in
(vi) such
other person or group of persons as the Commission may from time to time notify
in the official Gazette;
(h) “investigated
product” means an imported product subject to an investigation, as described in
the public notice of initiation of an investigation referred to in clause (b)
of sub-section (1) of section 10:
(i) “investigation”
means an investigation conducted under this Ordinance.
(j) “like
product” means a product which is alike in all respects to investigated product
or, in the absence of such a product, another product which, although not alike
in all respects, has characteristic closely resembling those of the
investigated product;
(k) “Member”
means a country which is a member of the WTO;
(l) “participating-interested
patties” means those interested parties that have indicated their interest in
participating in an investigation, to the Commission under section 11;
(m) “prescribed”
means prescribed by rules made under this Ordinance;
(n) ”public notice”
means a notice published in the official Gazette;
(o) ”quota”
means import quotas including tariff rate quotas;
(p) serious
injury” means a significant overall impairment in the position of a domestic
industry caused by increased imports, absolute or relative to domestic
production, of an investigated product;
(q) hreat of
serious injury” means serious injury that is clearly imminent; and
(r) ”WTO”
means the World Trade Organisation established pursuant to
the Marrakesh Agreement concluded in
PART II
SAFEGUARD MEASURES
3. Application of safeguard
measures. The Federal Government
may, by notification in the official Gazette, apply a safeguard measure on an
investigated product imported into Pakistan if, it has been determined by the
Commission pursuant to an investigation conducted by it in accordance with the
provisions of this Ordinance that as a result of unforeseen developments and of
the effect of WTO obligations assumed by Pakistan, the investigated product is
being imported in such increased quantities absolute or relative to domestic
production, and under such conditions as to cause serious injury or threat of
serious injury to domestic industry producing like or directly competitive
products.
PART III
SERIOUS INJURY OR THREAT OF SERIOUS INJURY AND
CAUSATION
4. Serious injury. A determination of serious injury or threat of
serious injury shall be based upon an evaluation, by the Commission, of all
relevant factors of an objective and quantifiable nature having a bearing on
the situation of domestic industry including, but not limited to, the
following, namely:---
(i) The
rate and amount of an increase in imports of an investigated product, in
absolute terms and relative to domestic production of like or directly
competitive products;
(ii) the share
of domestic market taken by increased imports of an investigated product;
(iii) the
impact of increased imports of an investigated product on domestic industry, as
evidenced by relevant indicators including, but not limited to, production,
productivity, capacity utilisation, kales, market share, profits and losses,
and employment; and
(iv) factors
other than increased imports of an investigated product which at the same time
are causing serious injury or threat of serious injury.
5. Threat of serious injury.-(1) In determining threat of serious injury, the
Commission shall, in addition to the factors specified in section 4, evaluate
the following, namely:---
(i) The
actual and potential export capacity of the country of production or origin of
an investigated product;
(ii) any
build-up of inventories of an investigated product in
(iii) the
probability that imports of an investigated product shall enter domestic market
in increasing quantities; and
(iv) any
other factors deemed relevant by the Commission.
6. Factors other than increased
imports. When serious injury or
threat of serious injury is being caused by factors other than increased
imports of an investigated product, such injury shall not be attributed to the
increased imports.
PART IV
INVESTIGATION
7. Initiation of investigation.-(1) An investigation to determine serious injury or
threat of serious injury may be initiated by the Commission,---
(a) upon
receipt by the Commission of a written application for initiation of an
investigation by or on behalf of domestic industry; or
(b) suo moto
by the Commission where it is satisfied that there is sufficient evidence to
justify the initiation of an investigation.
(2) The application referred to in clause
(a) of sub-section (1) shall,---
(i) be
submitted to the Commission in such manner, number and form and with such fee
as may be prescribed; and
(ii) include
such information as may be prescribed.
8. Withdrawal of application before
initiation. An application
received by the Commission pursuant to clause (a) of sub-section (1) of section
7 may be withdrawn prior to initiation of an investigation by the Commission in
which case it shall be considered not to have been made:---
Provided that upon such withdrawal of
an application and fee paid along with the application pursuant to clause (i)
of sub-section (2) of section 7 shall stars, forfeited in favour of the
Commission.
9. Initiation of investigation.-(1) The Commission shall examine the accuracy and
adequacy of the evidence given in an application received pursuant to clause
(a) of sub-section (1) of section 7 in order to determine whether it is
compliant with the requirements of sub-section (2) of section 7 and, if so,
whether there is sufficient evidence to justify initiation of an investigation.
(2) An application received by the Commission
pursuant to clause (a) of sub-section (1) of section 7 shall be rejected if the
Commission is satisfied that there is not sufficient evidence of serious injury
or threat of serious injury to justify initiation of an investigation.
(3) The Commission may seek additional
information from an applicant submitting an application pursuant to clause (a)
of sub-section (1) of section 7, before deciding whether to initiate an
investigation and such information shall be provided by the applicant to the Commission
within such time and in such manner as the Commission may direct.
(4) When the Commission is satisfied
that there is sufficient evidence of serious injury or threat of serious injury
to justify the initiation of an investigation, it shall initiate an
investigation.
(5) Where the Commission does not
consider it appropriate to initiate investigation, it shall notify its decision
by a public, notice of non-initiation of an investigation and such notice shall
contain such information as may be prescribed:
Provided that the Commission may, if it
deems fit, only publish a summary of the public notice of non-initiation of an
investigation in the official Gazette provided that a full text of such notice
is promptly placed in the public file to be maintained by it pursuant to
section 15.
(6) The Commission shall decide whether
or not to initiate an investigation within such time period as may be
prescribed
Provided that different time periods
may be prescribed for this purpose depending on the complexity of the issues
involved.
10. Notice of
initiation of investigation.-(1)
Where the Commission has decided to initiate an investigation it shall,---
(a)
immediately notify the Federal Government of its decision and the Federal
Government shall immediately notify the Committee of such decision in
accordance with any requirements established by a Committee therefor; and
(b) notify
its decision by means of a public notice of initiation of an investigation.
(2) The public notice of initiation of
an investigation referred to in clause (b) of sub-section (1) shall be in such
form and contain such information as may be prescribed and the initiation of an
investigation shall be effective .on the date on which such notice is published
in the official Gazette:
Provided that the Commission may, if it
deems fit, only publish a summary of the public notice of initiation of an
investigation referred to in clause (b) of subsection (1) in the official
Gazette provided that a full text of such notice is promptly placed in the
public file to be maintained by it pursuant to section 15.
(3) The Commission shall promptly
provide a copy of the full text of public notice of initiation of an
investigation referred to in clause (b) of sub-section (1) the Federal
Government.
11. Participation of interested
parties.-(1) Any interested party
desiring to participate in an investigation shall have a period of fifteen days
from the date of initiation of the investigation to indicate to the Commission,
in writing, of interest in participating in the investigation:
Provided that the Commission may, at
its discretion, allow any interests party to indicate its interest in
participating in an investigation after the expiry of the fifteen day time
period, upon good cause shown.
(2) Subject to the requirement to
protect confidential information pursuant to section 14 and upon payment to the
Commission of the prescribed fee, the Commission shall, after initiation of an
investigation, provide any interested-party on application the full text of the
application received by the Commission pursuant to clause (a) of sub-section
(1) of section 7.
12. Schedule for investigation.-(1) The Commission shall complete :,n investigation
within four months from the date of its initiation:---
Provided that the
Commission may extend such four months period where it deems it necessary for a
further period not exceeding two months.
(2) Where the application of a
provisional measure is to be considered by tile Commission, it shall reach its
provisional determination no later than forty-five days, from the date of
initiation of an investigation:---
Provided that the Commission may extend
such forty-five days period, where it deems it necessary, for a further period
not exceeding fifteen days.
13. Conduct of investigation.-(1) The Commission may seek from an applicant
submitting an application pursuant to clause (a) of sub-section (1) of section
7 or any or all of the participating interested parties, customs agents,
inspection companies, forwarders, or any other enterprise or entity of the
public or private sector, such data or information as it considers relevant or
necessary for performance of its functions under this Ordinance and such data
or information shall be provided to the Commission within such time period and
in such manner as the Commission may direct.
(2) The Commission may conduct
on-the-spot investigations to verify or obtain further details concerning the
information provided:---
Provided that where such investigations
are conducted, the Commission shall prepare a report describing the findings of
the verification and, subject to the requirement to protect confidential
information pursuant to section 14, a copy of such report shall be promptly
placed in the public file to be maintained by it pursuant to section 15.
14. Confidentiality.-(1) Subject to sub-section (2), the Commission shall,
during and after an investigation, keep confidential any information submitted
to it and such information shall not be disclosed without specific permission
of the party submitting it.
(2) Information which is,---
(a) by
nature confidential, because its disclosure shall be of significant competitive
advantage to a competitor, or because its disclosure would have a significantly
adverse effect upon a person supplying the information, or upon a person from
whom the information was acquired;
(b)
determined by the Commission to be of a confidential nature for any other
reason; or
(c) provided
on a confidential basis by parties to an investigation, shall, upon good cause
shown, be treated as confidential by the Commission.
(3) The following types of information
shall be deemed to be by nature confidential, unless the Commission determines
that disclosure in a particular case would neither be of
significant competitive advantage to a competitor nor have a significantly
adverse effect upon a person supplying the information or upon a person from
whom such information was acquired, namely:---
(a) business
or trade secrets concerning the nature of a product, production processes,
operations, production equipment, or machinery;
(b)
information concerning the financial condition of a company which is not
publicly available; and
(c)
information concerning costs, identification of customers, sales, inventories,
shipments, or amount or source of any income, profit, loss or expenditure
related to manufacture and sale of a product.
(4) Any party seeking any information
to be kept confidential shall request for the same at the time the information
is submitted, along with the reasons warranting confidentiality. The Commission
shall consider such requests expeditiously and inform the party submitting the
information if it determines that the request for keeping the information
confidential is not warranted.
(5) Any party submitting any
information with the request to keep it confidential shall furnish
non-confidential summary of all such information. Such summary may take the
form of ranges or indexation of figures provided in the confidential version or
marked deletions in text or in such other form as the Commission may require:---
Provided that such non-confidential
summary shall permit a reasonable understanding of the substance of the
information submitted in confidence:---
Provided further that any deletion in
text shall, unless otherwise allowed by the Commission, only relate to names of
the buyer or supplier.
(6) In exceptional circumstances, any
party submitting confidential information may indicate that much information is
not susceptible of summary, in which case a statement of the reasons why
summarisation is not possible shall be provided. If the Commission concludes
that the non-confidential summary provided fails to satisfy the requirements of
sub-section (5), it may determine, that the request for keeping the information
confidential is not warranted.
(7) If the Commission finds that a
request for keeping the information confidential is not warranted, and if the
supplier of such information is unwilling to make the information public or to
authorise the disclosure in generalised or summary form, the Commission shall
disregard such information and return the same to the party submitting it.
(8) Notwithstanding
anything contained in this Ordinance or in any other law for the time being in
force, any confidential information received or obtained, directly or
indirectly, by the Commission pursuant to or in connection with an
investigation shall not be subject to disclosure by the Commission to any
Ministry, Division, department, agency or instrumentality of the Federal
Government or a Provincial Government without the prior permission of the party
submitting such confidential Information,
15. Information to participating
interested parties.-(1) The
Commission shall establish and maintain a public file relating to each
investigation or review pursuant to this Ordinance and such file shall contain
such information as may be prescribed,
(2) The public tile to be maintained
under sub-section (1) shall be available to any participating interested party
for examination and, upon payment of the prescribed fee to the Commission for
copying, at the offices of the Commission during such time se the Commission
may notify, throughout the course of an investigation or review under this
Ordinance.
16. Written arguments and hearings.-(1) During an investigation any participating
interested party may submit written arguments to the Commission in such form
and manner and within such time period as may be prescribed
(2) During an investigation the
Commission may hold a hearing at which participating interested parties may
present information and arguments orally, in accordance with such provisions as
may be prescribed;
Provided that such information and
arguments shall be only taken into consideration by the Commission if the same
are confirmed in writing to the Commission.
17. Reliance on information
available. If, at any time during an
investigation, any interested party,---
(a) refuses
access to, or otherwise does not provide, necessary information within the
period of time as may be prescribed; or
(b)
otherwise significantly impedes the investigation, the Commission may make
determinations under this Ordinance on the basis of the available information.
PART V
APPLICATION OF PROVISIONAL SAFEGUARD DUTY
18. Application of provisional
safeguard duty.-(1) Subject to the
provisions of this Ordinance, the Federal Government may, by notification in
the official Gazette, impose a provisional safeguard duty on
an investigated product where the commission determines that,---
(a) there
are critical circumstances such that delay in taking action would cause damage
which would be difficult to repair; and
(b) there is
clear evidence of serious injury or threat of serious injury.
(2) A provisional safeguard duty
shall,---
(a) take the
form of duty on an investigated product not exceeding the amount which the
Commission considers adequate to prevent the occurrence of or facilitate
recovery from serious injury or threat of serious injury, as recommended by the
Commission pursuant to clause (a) of sub-section (3) of section 19;
(b) be
imposed in addition to any other duties levied on an investigated product under
any other law for the time being in force; and
(c) be
collected in the same manner as customs-duty under the Customs Act, 1969 (IV of
1969).
(3) A provisional safeguard duty shall
be applied for a period not exceeding two hundred days and may be suspended
before its date of expiration if so determined by the Federal Government.
19. Report of provisional
determination.-(1) Immediately upon
reaching a determination of the factors set forth in clauses (a) and (b) of
sub-section (1) of section 18, the Commission shall prepare a report of
provisional determination containing a detailed analysis of the information
obtained in an investigation and setting forth the Commission's findings and
reasoned conclusions on the existence of the factors set forth in clauses (a)
and (b) of section 17.
(2) The Commission shall submit the
report of provisional determination referred to in sub-section (1) to the
Federal Government for its consideration.
(3) Where the Commission has reached an
affirmative determination of the existence of the factors set forth in clauses
(a) and (b) of sub-section (1) of section 18, the report of provisional
determination referred to in sub-section (1) shall also include the Commission's
recommendation regarding-
(a) the
amount of provisional safeguard duty the Commission considers adequate to
prevent occurrence of or facilitate recovery from serious injury or threat of
serious injury; and
(b)
subject to the provisions of section 17, the duration of levy of the
provisional safeguard duty.
20. Notice of non-application of
provisional safeguard duty.-(1) Where
the Commission reaches a negative determination of the existence of the factors
set forth in clauses (a) and (b) of sub-section (1) of section 18, it shall
notify its decision by means of a public notice of non-application of
provisional safeguard duty and such notice shall contain such information as
may be prescribed:---
Provided that the Commission may, if it
deems fit, only publish a summary of the public notice of non-application of a
provisional safeguard measure in the official Gazette provided that a full text
of such notice is promptly placed in the public file to be maintained pursuant
to section 15.
(2) The Commission shall promptly
provide a copy of the full text of the notice of non-application of provisional
safeguard duty referred to in sub-section (1) the Federal Government.
21. Decision to apply provisional
safeguard duty by the Federal Government.-(1) Where the report of provisional determination received by the
Federal Government pursuant to section 19 contains an affirmative determination
of the existence of the factors set forth in clauses (a) and (b) of sub-section
(1) of section 18, the Federal Government shall, no later than fifteen days
after the receipt of such report from the Commission, take a decision,
affirmative or negative, regarding the imposition of provisional safeguard duty
on an investigated product, taking into account the recommendations of the
Commission set forth in the report of provisional determination.
(2) Immediately upon taking an
affirmative decision regarding imposition of a provisional safeguard duty, the
Federal Government shall notify its decision by means of a public notice of
application of a provisional safeguard duty:
Provided that the Federal Government
may, if it deems fit, only publish a summary of the public notice of
application of a provisional safeguard measure in official Gazette provided
that a full text of such notice shall be promptly placed the public file to be
maintained pursuant to section 15.
(3) The public notice of application of
a provisional safeguard measure referred to in sub-section (1) shall contain
such information as may be prescribed and a copy of the full text thereof shall
be provided by the Federal Government to the Commission.
22. Notification and consultations.-(1) Immediately upon receipt of the Commission's
report pursuant to section 19, the Federal Government shall notify the
Committee of the recommendation in conformity with any
requirements established by the Committee therefore.
(2) The Federal Government shall
immediately engage in consultations, upon a request from any Member having a
substantial interest as an exporter of an investigated product subject to the
provisional safeguard duty, in accordance with the requirements of the
Agreement on Safeguards.
PART VI
APPLICATION OF DEFINITIVE SAFEGUARD MEASURES AND
DETERMINATION REGARDING SERIOUS INJURY OR THREAT THEREOF
23. General principles governing
application of definitive safeguard measure.-(1) Subject to the provisions of this Ordinance, the Federal Government
may, by notification in the official Gazette, impose a definitive safeguard
measure where the Commission makes a final affirmative determination of the
existence of serious injury or threat of serious injury.
(2) The duration and level of any such
measure shall be no more than is necessary to prevent or remedy serious injury
and to facilitate adjustment.
24. Determination of serious injury
or threat thereof.-(1) The Commission
shall determine the existence of serious injury or threat of serious injury, in
conformity with the provisions of sections 4 and 5 and on the basis of
objective evidence obtained in an investigation.
(2) Immediately upon reaching its
determination, whether affirmative or negative, as to the existence of serious
injury or threat of serious injury pursuant to sub-section (1), the Commission
shall prepare a report of its final determination containing a detailed analysis
of the information obtained in. an investigation and setting forth the
Commission's findings and reasoned conclusions on all pertinent issues of fact
and law including a demonstration of the relevance of the factor examined by
the Commission.
(3) The Commission shall submit the
report of its final determination referred to in sub-section (2) to the Federal
Government for its consideration.
(4) Where the Commission has reached an
affirmative final determination of serious injury or threat of serious injury
pursuant to sub-section (1), the Federal Government shall, immediately upon
receipt of the report of final determination from the Commission, notify the
Committee of such affirmative final determination in conformity with any
requirements established by the Committee therefore.
(5) Where the
Commission has reached an affirmative final determination of serious injury or
threat of serious injury, its report of final determination referred to in
sub-section (2) shall also include the Commission”s recommendation regarding
the fort, level and duration of a definitive safeguard measure:---
Provided that where the Commission
recommends that a definitive safeguard measure take the form of a quota on
import of an investigated product, such recommendation shall be consistent with
the provisions of section 30.
(6) Where the Commission has reached a
negative final determination of serious injury or threat of serious injury
pursuant to sub-section (1), it shall notify its decision by means of a public
notice of negative final determination and such notice shall include such information
as may be prescribed:---
Provided that the Commission may, if it
deems fit, only publish a summary of the public notice of negative final
determination in the official Gazette provided that a full text of such notice
shall be promptly placed in the public file to be maintained pursuant to
section 15.
(7) The Commission shall promptly
provide a copy of the full text of the public notice of negative final
determination referred to in sub-section (6) to the Federal Government.
(8) Where the Commission has reached a
negative final determination, the Federal Government shall, by notification in
the official Gazette, within fifteen days of receipt of the public notice of
negative final determination referred to in subsection (5), withdraw the
provisional safeguard duty, if any, imposed on an investigated product.
(9) Where the Federal Government has
withdrawn a provisional safeguard duty imposed on an investigated product
pursuant to sub-section (8), the Commission shall promptly refund the actual
amount collected as provisional safeguard duty on the investigated product,
upon receipt of a written application from the importer in question.
(10) Where the Commission recommends
that a definitive safeguard measure take the form of a definitive safeguard
duty, it shall,---
(a) specify the
rate of definitive safeguard duty the Commission considers adequate to prevent
the occurrence of or facilitate recovery from serious injury or
threat of serious Injury;
and
(b) subject to
the provisions of section 32, the duration of levy of a definitive safeguard
duty and where the period to recommended is more than one
year, recommend a timetable for progressive liberalisation adequate to facilitate
positive adjustment of domestic Industry.
25. Decision by the Federal
Government to apply definitive safeguard measure. Where the report of final determination received by
the Federal Government pursuant to section 24, contains in affirmative determination
of serious Injury or thereat of serious Injury, the Federal Government shall,
no later than thirty days after the receipt of such report from the Commission,
stake a decision, affirmative or negative, regarding the Imposition of a
definitive safeguard measure on an Investigated product, taking into account
the re-commendations of the Commission set forth in the report of final
determination.
26. Public notice of application of
definitive safeguard measure.-(1)
Immediately upon taking a decision regarding the imposition of a definitive
safeguard measure, whether affirmative or negative, the Federal Government
shall notify its decision by means of a public notice of application of a
definitive safeguard measure.
(2) The public notice of application of
a definitive safeguard measure referred to in sub-section (1) shall contain
such information as may be prescribed and a copy thereof shall be provided by
the Federal Government to the Commission:---
Provided that where Federal Government
has taken a decision not to impose a definitive safeguard measure, the public
notice of final determination referred to in sub-section (1) shall only set
forth the factual and legal basis for the decision:---
Provided further that the Federal
Government may, if it deems fit, only publish a summary of the public notice of
final determination referred to in subsection (1) in the official Gazette
provided that a full text of such notice shall be promptly placed in the public
file to be maintained pursuant to section 15.
27. Notification and consultation.-(1) Immediately upon taking a decision to apply a
definitive safeguard measure but before such measure comes into force, the
Federal Government shall notify the Committee regarding the evidence of serious
injury or threat of serious injury, the precise description of an investigated
product, the form, level and duration of the proposed measure, the proposed
date of application of the measure, and, where applicable, the proposed
timetable for its progressive liberalisation. Such notification shall conform
to any requirements established by the Committee therefore.
(2) Where the Federal Government
proposes to apply a definitive safeguard measure it shall provide adequate
opportunity for prior consultations with those Members requesting consultations
and having a substantial interest as exporters of an investigated product
subject to the definitive safeguard measure, with a view to, inter alia,
reviewing the information notified to the Committee regarding the finding of
serious injury or threat of serious injury and regarding the
proposed measure, exchanging views about the measure, and reaching an
understanding on ways to achieve the objective set forth in sub-section (3).
(3) In applying a definitive safeguard
measure, the Federal Government shall endeavour to maintain a substantially
equivalent level of concessions and other obligations to those existing under
the General Agreement on Tariffs and Trade, 1994, between
(4) For the purposes of maintaining a
substantially equivalent level of concessions and other obligations as referred
to in sub-section (3), agreement may be reached with affected Members, through
the consultations referred to in sub-section (2), on any adequate means of
trade compensation for the adverse effects of a definitive safeguard measure on
the trade of those Members.
(5) The Federal Government shall notify
the Council for Trade in Goods of the WTO immediately, through the Committee,
of the results of any consultations undertaken pursuant to this section,
including, where applicable, any compensation granted.
28. Form and application of
definitive safeguard measure.-(1) A
definitive safeguard measure may take the form of either a definitive safeguard
duty on an investigated product or a quota on imports of the investigation
product, as may be recommended by the Commission in its report of final
determination referred to in sub-section (5) of section 24.
(2) Subject to the provisions of
section 29, a definitive safeguard measure shall be applied to all imports of
an investigated product, irrespective of source, imported into
(3) Where a definitive safeguard
measure takes the form of a definitive safeguard duty, such duty shall be,---
(a) in the
form of duty on an investigated product not exceeding the amount which the
Commission considers adequate to prevent the occurrence of or facilitate
recovery from serious injury or threat of serious injury, as recommended by the
Commission pursuant to clause (a) of subsection (10) of section 24;
(b) imposed
in addition to any other duties imposed on an investigated product under any
law for the time being in force; and
(c)
collected in the same manner as customs-duty under the Customs Act, 1969 (IV of
1969).
(4) Where a
definitive safeguard measure is in the form of a quota on imports of an
investigated product such measure shall be imposed and administered by the
Federal Government in-conformity with the provisions of section 30 and taking
into account the recommendations of the Commission set forth in the report of
final determination.
(5) Where a definitive safeguard duty
imposed by the Federal Government is lower than the amount collected as a
provisional safeguard duty, the Commission shall upon receipt of a written
application from the importer in question refund the differential.
29. Non-application of definitive
safeguard measure to certain developing countries. Notwithstanding anything contained in this Ordinance a
definitive safeguard measure shall not be applied to imports of an investigated
product originating from a developing county Member as long as such imports
account for no more than three percent of the total imports of the investigated
product into Pakistan:
Provided that if imports from
developing country Members which individually account for less than three per
cent of imports of an investigated product into Pakistan, collectively account
for more than nine per cent of imports of the investigated product into
Pakistan, a definitive safeguard measure may be applied to such imports from
those developing country Members.
30. Quota as definitive safeguard
measure.-(1) A definitive safeguard
measure in the form of a quota on imports of an investigated product shall not
reduce the quantity of those imports below the average level registered in the
most recent three representative years for which statistics are available with
the Commission.
(2) Notwithstanding the provisions of
sub-section (1), the Federal Government may, upon clear justification that a
different level is necessary to prevent or remedy serious injury or threat of
serious injury, apply a quota which reduces the quantity of imports of an
investigated product below the average level registered in the most recent
three representative years for which statistics are available.
(3) If more than one country exports an
investigated product to
(4) Where the Federal Government
determines that the method set forth in sub-section (3) is not reasonably
practical for allocation of the quota, the Federal Government shall allocate
the quota among countries having a substantial interest in supplying an
investigated product:---
Provided that such
allocation by the Federal Government shall be based upon the proportions,
supplied by such countries during a previous three years representative period,
of the total quantity or value of the investigated product:
Provided farther that in allocating the
quota among supplying countries, the Federal Government shall take due account
of any special factors which may have affected or may be affecting trade in the
investigated product.
(5) Notwithstanding the provisions of
sub-sections (3) and (4), in a case in which serious injury has been found, the
Federal Government may allocate the quota among supplying countries on a
different basis, provided that consultations have been held with supplying
Members under the auspices of the Committee, and a clear demonstration is
provided to the Committee that,---
(a) imports from
certain countries have increased in disproportionate percentage in relation to
the total increase in imports of an investigated product during the
representative period;
(b) the reasons
for the departure from the methodology for quota allocation envisaged under
sub-sections (3) and (4) are justified; and
(c) the conditions
of such departure are equitable to all suppliers of an investigated product
concerned.
(6) Notwithstanding the provisions of
section 34, a definitive safeguard measure in the form of a quota allocated on
the alternative basis provided for in subsection (5) shall not be extended
beyond the initial period of its application.
31. Termination without application
of safeguard measure. If at any
point an investigation is terminated without the application of a definitive
safeguard measure, the Federal Government shall immediately notify the
Committee, in conformity with any requirements established by the Committee
therefore.
32. Duration of definitive safeguard
measure. A definitive safeguard
measure shall be applied for a period of no more than four years, including the
period of application of any provisional measure, unless it is extended as
provided for in section 35:---
Provided that the total duration of a
definitive safeguard measure, including the period of application of any
provisional measure, the period of initial application, and any extension
thereof pursuant to section 36, shall not exceed ten years.
33.
Progressive liberalisation. A definitive safeguard measure whose
period of application exceeds one year shall be
progressively liberalised at regular intervals during the period of application, in accordance with the schedule
published in the public notice of application of a definitive safeguard measure
referred to in section 26.
PART.-VII
REVIEW OF DEFINITIVE SAFEGUARD MEASURES
34. Review.-(1) If the duration of a definitive safeguard
measure, including the period of application of any provisional safeguard duty,
exceeds three years, not later than the mid-term of the period of application
of such measure, the Commission shall examine the situation, through a review
conducted in accordance with the procedures set forth in sections 10, 11, 12,
13, 14, 15, 16 and 17, mutatis mutandis, including a review of the effects of
the definitive safeguard measure on the domestic industry concerned and of the
domestic industry's progress in implementing its adjustment plan.
(2) The results of review shall beset
out by the Commission in a report in which it shall also recommend whether to
maintain or withdraw a definitive safeguard measure under review or to increase
the pace of its liberalisation.
(3) The report referred to in
sub-section (2) shall be promptly provided by the Commission to the Federal
Government for its consideration.
(4) The Federal Government shall, no
later than thirty days of the receipt of a report under sub-section (3), notify
its decision whether to maintain or withdraw a definitive safeguard measure
under review or to increase the pace of its liberalisation, by means of a
public notice and the contents of such notice shall inform, mutatis mutandis,
to the requirements for the public notice of application of a definitive
safeguard measure referred to in section 26.
(5) The Federal Government shall notify
the results of review, including the withdrawal of any modification of a
definitive safeguard measure, to the WTO Council for Trade in Goods, through
the Committee, in conformity with any requirements established by the Committee
therefor.
(6) Any review initiated pursuant to
sub-section (1) shall be concluded by the Commission within a period not
exceeding four months from the date of initiation, of such review:---
Provided that the Commission may where
it deems necessary extend four months period by a further period not exceeding
two months.
35. Extension of definitive
safeguard measure.-(1) If domestic
industry considers that there is a continuing need to apply a definitive
safeguard measure beyond its initial period of application, it may, submit a
written application to the Commission requesting extension of the measure, not
later than four months before the end of the initial period of application of
such measure.
(2) An application under sub-section
(1) to the Commission shall include evidence that domestic industry is carrying
out its adjustment plan.
(3) Upon receipt of an application
under sub-section (1), the Commission shall conduct an investigation to
determine whether an extension is warranted.
(4) For the purpose of an investigation
and determination pursuant to subsection (3), the procedures set forth in this
Ordinance for applying an original definitive safeguard measure shall be
followed mutatis mutandis.
(5) For the purpose of extension of a
definitive safeguard measure, the procedures set for thin sections 25, 26, 27
and 28 shall be followed mutatis mutandis.
(6) Notwithstanding anything contained
in this Ordinance, the Federal Government may, by notification in the official
Gazette, extend a definitive safeguard measure only if the Commission
determines through an investigation pursuant to sub-section (3) that the
measure continues to be necessary to offset the effects of serious injury or a
threat of serious injury and that there is evidence that the domestic industry
is adjusting.
(7) The Federal Government shall notify
its decision, whether affirmative or negative, regarding the extension of a
definitive safeguard measure by means of a public notice of extension of a
definitive safeguard measure or a public notice of non-extension of a
definitive safeguard measure, as the case may be, and the provisions of section
26 or sub-section (6) of section 23 respectively shall, mutatis mutandis, apply
to such notices.
(8) Subject to the provisions of
sub-section (6) of section 30, a definitive safeguard measure may be extended
for a period of not more than six years.
(9) A definitive safeguard measure
extended pursuant to this section shall not be more restrictive than at the end
of the initial period of its application and during the extension period such
measure shall continue to be progressively liberalised in accordance with the
schedule published in a notice of extension of a definitive safeguard measure
referred to in sub-section (7).
(10) In extending a
definitive safeguard measure, the Federal Government
shall endeavour to maintain a substantially equivalent level of
concessions and other obligations to those existing under the General Agreement
on Tariffs and Trade, 1994, between
(11) The requirements pertaining to
notifications to the Committee and the Council for Trade in Goods of the WTO
set forth in sections 10, 21, 24, 27, 29, 30, and 31, and the requirements
pertaining to consultations with the exporting Members whose interests would be
affected by the measure set forth in sections 22, 27 and 30 shall apply in full
to any extension of a safeguard measure by the Commission under this section.
36. Reapplication of a safeguard
measure.-(1) No new safeguard measure
shall be applied for a period of at least two years to imports of a product
which was the subject of a definitive safeguard measure first applied after the
1st day of January, 1995.
(2) No safeguard” measure shall be
applied again to the imports of a product which has been subject to such a
measure, taken after the 1st day of January, 1995 unless a period equal to
one-half of the duration of the earlier definitive safeguard measure on that
product has elapsed and the period of non-application of a safeguard measure on
such product is at least two years.
(3) Notwithstanding the provisions or
sub-sections (1) and (2), a safeguard measure with a duration of one
hundred and eighty days or less may be applied to the imports of a product
which was the subject of an earlier safeguard measure if,---
(a) at least
one year has elapsed since the date of imposition of the earlier safeguard
measure on the imports of that product; and
(b)
a safeguard measure has not been applied on imports of the product more
than twice in the five years period immediately preceding the date on which the
new safeguard measure is to take effect.
PART IX
MISCELLANEOUS
37. Duties and fees to be held in
non-lapseable personal ledger account.-(1) The Commission shall establish and maintain a non-lapseablepersonal
ledger account in its name for the purposes of this Ordinance and all duties
and fees collected pursuant to this Ordinance shall be held in such account.
(2) The account to be established under
sub-section (1) shall lie maintained and operated in such manner as may be
prescribed.
38. Power to make
rules. The Federal Government may, by
notification in the official Gazette, make rules for carrying out the purposes
of this Ordinance.
39. Public servants. The employees and other persons authorized to perform
or exercise any function or power under this Ordinance or rendering services to
the Commission as consultant or adviser shall be deemed to be public servants
within the meaning of section 22 of the Pakistan Penal Code, 1860 (Act XLV of
1860).
40. Failure to disclose correct
information. Any person who knowingly
and willfully provides false, misleading or incorrect information to the
Commission whether in an application received under this Ordinance or,
otherwise in connection with an investigation under this Ordinance, shall be
guilty of an offence and shall on conviction be liable to imprisonment for a
term which may extend to three years, or a fine not exceeding five million
rupees, or both.
41. Cognizance of offences.-(1) Notwithstanding anything contained in the Code of
Criminal procedure, 1898 (Act V of 1898), no court other than the court of
sessions shall have jurisdiction to try any person charged with an offence
under section 40.
(2) No court of sessions shall take
cognizance of an offence under subsection (1) except on a complaint in writing
made by the order of, or authority from the Commission signed by any two
members of the Commission.
42. Protection to persons prejudiced
in employment because of assisting the Commission.-(1) An employer shall not,---
(a) dismiss
an employee, or prejudice an employee in his employment, because the employee
has assisted the Commission in connection with an investigation or inquiry
under this Ordinance ; or
(b) dismiss
or threaten to dismiss an employee, or prejudice or threaten to prejudice an
employee in his employment, because the employee proposes to assist the
Commission in connection with an investigation or inquiry under this Ordinance.
(2) For the purposes of sub-section
(1), a person shall be taken to assist the Commission in connection with an
inquiry if the person,---
(a) gives
information, whether orally or in writing, or gives documents, to the
Commission in connection with an inquiry or investigation under this Ordinance;
(b) gives
evidence or produces documents, at an inquiry, investigation of hearing held
under this Ordinance.
43. Appointment
of advisers and consultants.-(1)
Subject to subsection (2), the Commission may, employ and pay consultants and
agents, and technical, professional and other advisers, including bankers,
economists, actuaries, accountants, lawyers and other persons to do any act
required to be done in the exercise of its powers, the performance of its
functions of for the better implementation of the purposes of this Ordinance.
(2) The decision to employ and the
terms and conditions of employment of external advisers and consultants
pursuant to sub-section (1) shall be made by the Commission in accordance with
such policy guidelines as may be established by the Federal Government, in
consultation with the Commission, from time to time.
44. Indemnity. No suit, prosecution or other legal proceedings shall
lie against the Commission, the Chairman or any member of the Commission or any
employee, consultant, agent or adviser of the Commission for anything which is
done in good faith or intended to be done under this Ordinance or rules made
there under.
45. Removal of difficulties. If any difficulties arise in giving effect to any of
the provisions of this Ordinance, the Federal Government may make such order,
not inconsistent with the provisions of this Ordinance, as may appear to it to
be necessary for the purpose of removing the difficulty:---
Provided that no such power shall be
exercised after the expiry of two years from the commencement of this
Ordinance.
46. Ordinance to override other
laws. The provisions of this
Ordinance shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force, including, without
limitation, the National Tariff Commission Act, 1990 (VI of 1990), and the
Customs Act, 1969 (IV of 1969).
43. Appointment
of advisers and consultants.-(1)
Subject to subsection (2), the Commission may, employ and pay consultants and
agents, and technical, professional and other advisers, including bankers,
economists, actuaries, accountants, lawyers and other persons to do any act
required to be done in the exercise of its powers, the performance of its
functions of for the better implementation of the purposes of this Ordinance.
(2) The decision to employ and the
terms and conditions of employment of external advisers and consultants
pursuant to sub-section (1) shall be made by the Commission in accordance with
such policy guidelines as may be established by the Federal Government, in
consultation with the Commission, from time to time.
44. Indemnity. No suit, prosecution or other legal proceedings shall
lie against the Commission, the Chairman or any member of the Commission or any
employee, consultant, agent or adviser of the Commission for anything which is
done in good faith or intended to be done under this Ordinance or rules made
there under.
45. Removal of difficulties. If any difficulties arise in giving effect to any of
the provisions of this Ordinance, the Federal Government may make such order,
not inconsistent with the provisions of this Ordinance, as may appear to it to
be necessary for the purpose of removing the difficulty:---
Provided that no such power shall be
exercised after the expiry of two years from the commencement of this
Ordinance.
46. Ordinance to override other
laws. The provisions of this
Ordinance shall have effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force, including, without
limitation, the National Tariff Commission Act, 1990 (VI of 1990), and the
Customs Act, 1969 (IV of 1969).
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