WORLD TRADE  
ORGANIZATION  TN/TF/W/78 
13 February 2006 
 (06-0596) 
Negotiating Group on Trade Facilitation Original:   English 
  
 
COMMUNICATION FROM INDIA 
  
 The following communication, dated 9 February 2006, from the Delegation of India, is being 
circulated in advance of the Negotiating Group meeting of 15-16 February. 
 
 
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PROPOSALS ON GATT ARTICLE X 
 
 
1. The ongoing negotiations on trade facilitation gi ve Members an opportunity to improve 
transparency of some measures which may not be in  content laws, regulations, judicial decisions and 
administrative rulings themselves, but still have a si gnificant contribution to improve predictability for 
traders. This relates to transparency of import al erts/rapid alerts and of detention of cargo. The 
negotiation also provides an opportunity to have a predictable appeal mechanism at the level of 
customs union for food consignments rejected at the level of a member state of a customs union. 
Similarly the negotiation also provides an opportunity  to have a kind of appeal mechanism against a 
first test result of an import consignment by providing for a second confirmatory test. 
2. The Annex D modalities under the July Framework puts special emphasis on identification of 
needs and priorities of developing countries as an in tegral part of the trade facilitation negotiations. 
India has attempted to identify the needs and priorities of its exporters through surveys. Based on the feedback received, India has identified those issues re lating to transparency which are not yet part of 
the negotiating proposals. These proposal s are covered under GATT Article X. 
I. IMPORT ALERTS/RAPID ALERTS 
3. Some countries and customs unions have a bor der control mechanism for monitoring and 
ensuring the quality of imported food products by issuing a notification in case of detection of contaminated imports or of products not meeting th e required standards. The notification is made to 
all members of a customs union/or to all ports of a country as well as to the exporter. This is called a system of import alerts/rapid alerts. As a result of such alert, a predetermined number of subsequent 
export consignments of the same exporter are subject  to hundred per cent inspection at the border of 
that country/every port of a customs union.  
4. There are basically two issues of concern:  
(i) It is observed that the alert may be imposed for a parameter for which different 
requirements have been adopted by differe nt member states of a customs union. 
Therefore, implementing an alert, applicable to all member states of a customs union, 
based on such rejections where requirements are non-harmonized is not a correct approach, and, TN/TF/W/78 
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(ii) The process of termination of an alert is  often far more onerous than its institution, 
thus creating a trade barrier. For instance, it is noticed that detection of contamination 
in one consignment at one port triggers a rapid alert across all ports of a customs 
union and, even after the required number of consecutive consignmen ts are cleared at 
the first port which caused the issuance of ra pid alert, the alert notification continues 
to be in effect across the customs union due  to an onerous requirement that the same 
prescribed number of consignments should be cleared at every port of the customs union.   This, at times, is almost impossible to achieve as a country/exporter may not 
trade with all member states of a customs union, or not have the same volume of trade 
with all member states. Furthermore, termination of a rapid alert is a slow process and 
there is considerable delay in sending co mmunications to all Customs ports. This 
does not also get the same publicity as its institution in the first place and leads to a continued trade chilling effect for the expor ters. Trade facilitation requires that any 
system of administration of alert should not by itself create barriers to trade.   
 
Proposal 
 
5. In order to address the aforementioned problems of traders, the following proposals are made: 
(i) In order to ensure that application of a system of import/rapid alert does not by itself 
create a barrier to trade, it should be imposed all across a customs union only if 
uniform standards are applied by all of its member states.  
 (ii) A system of import/rapid alert should not be applied with a view to, or with the effect 
of, creating unnecessary obstacles to internati onal trade. For this purpose, application 
of import/rapid alert systems shall not be more trade restrictive than necessary to 
pursue a legitimate objective, taking account of the risks that non-fulfilment would 
create.  
 (iii) A notification against a country/exporter under a system of import/rapid alert 
restricting or prohibiting imports shall not be issued unless it has been established on the basis of positive evidence that imports from the country/exporter concerned have 
not fulfilled the prescribed objective standards. 
 (iv) A notification issued under a system of import/rapid alert restricting or prohibiting 
imports shall not be maintained if circumstan ces giving rise to it no longer exist, or if 
changed circumstances can be addressed in a less trade restrictive manner. 
Circumstances giving rise to import/ rapid alert would be deemed to no longer exist if 
[x] successive consignments imported from th e country/exporter concerned, after the 
import/rapid alert has been issued, fulf il the prescribed objective standards.  
 (v) The speed and standard of publicity of denotification of such alert shall be of the 
same level as its issuance. Termination of an import/rapid alert shall be made through 
a public notice to be issued no later than tw o weeks after a decision has been taken to 
terminate the import/rapid alert. 
 
II. DETENTION 
6. Surveys indicate that exporters face difficulty on account of lack of information of a 
consignment detained for detailed inspection particularly when such detention leads to delay of 
clearance of a consignment. The present negotiation gi ves an opportunity to improve the transparency 
requirements of cargo detained for inspection at the border.  TN/TF/W/78 
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  Proposal 
 
7. When goods are detained for inspection by customs or any other authority, there should be a 
mechanism to inform the importer regarding such detention. This can be done through different 
methods like issuance of a detention memo to the impor ter or his authorized agent or by having an on-
line system of indicating the status of clearance of a consignment. 
III. TEST PROCEDURES 
8. Studies and surveys indicate that lack of a sy stem of a second reconfirmatory testing of a 
sample leads to unjustified denial of market access to goods. The first test result of a sample may at 
times be inaccurate. The first test  may also lead to adverse resu lt on account of several factors like 
lack of sensitivity of equipment, testing in a non-accredited laboratory, use of non-validated 
procedures, human error, a problem in size of sample, etc. It is therefore important that importers should have an opportunity to get their consignment re tested for a confirmatory test result. This can be 
regarded as a kind of an appeal procedure for testing of samples. 
Proposal 
 9. It is proposed that each Member should allo w importers or exporters a right of a second 
confirmatory test of a sample where the first test result has given an adverse finding. A clear procedure be laid down for such confirmatory test including a validated test method and a list of accredited laboratories be published where confirmatory tests can be carried out. For a customs union, the results of a confirmatory test carried out in one member state of a customs union should be valid 
and acceptable in all other member states of the customs union. 
IV. APPEAL MECHANISM 
10. Surveys and studies indicate that any adverse finding of inspection authorities at the level of a 
member state of a customs union takes a long time fo r redressal because an a ppeal process has to be 
first completed at the level of the member state of a customs union before an appeal can be filed to the 
authorities at the customs union level. Particularly, in case of dispute concerning inspection decisions 
of food items, a quick resolution of the dispute would help to facilitate trade.  
Proposal 
 
11. Mechanisms for redressal of adverse findings of inspection authorities at the import point 
should be so designed that quick and uniform deci sions are provided without inordinate increase in 
cost/ time. Necessary arrangements that allow appeals to be heard and decided at the final decision- 
making levels in the shortest possi ble time-frame should be ensured.  
V. TECHNICAL ASSISTANCE 
12. Some proposals would require establishing new procedures or an institutional system to 
improve transparency. Some of these requirements can be met in tandem with implementation of 
other proposals. We are open to a discussion on need s of Technical Assistance and Capacity Building. 
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