The Safeguard Measures Ordinance, 2002 (Ordinance No. XXXI of 2002), Pakistan, WIPO Lex

Main text(s)

English The Safeguard Measures Ordinance, 2002 (Ordinance No. XXXI of 2002)

The Safeguard Measures Ordinance, 2002 (Ordinance No. XXXI of 2002)

ORDINANCE XXXI OF 2002

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 Pakistan.

(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);

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 Pakistan;

(v) trade or business associations a majority of the members of

which produce a domestic like or directly competitive product in

Pakistan; and

(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 Marrakesh, Morocco, on the

15th April, 1994.

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 Pakistan and

in the country of exportation;

(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 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

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

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

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 Pakistan and the exporting Members which would be affected by

such measures.

(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 subsection (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 Pakistan on pr after the date on which the measure comes into force.

(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

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 Pakistan, any quota

on imports shall be allocated among supplying countries. The Federal Government

shall attempt to reach agreement with those Members having a substantial interest

in supplying the investigated product as to the allocation of shares of the total quota

amount.

(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

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.

PART VIII

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 Pakistan and the exporting Members which would be affected by

such measure.

(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).