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Outcome Budget 2013 and 14
Outcome Budget 2011-2012
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Development of Imported Foods Monitoring and Guidance Plan for FY 2006
Progress of MAI project on Medicinal and Aromatic plants by BIFT
India and WTO Newsletter
Report on Conference of Head of Indian Missions/Commercial Representatives in Sub-Saharan African Countries
Final report on Conference of Commercial Representatives of India based in select W A N A countries
Report of the India Russia Joint Study Group
Report of the Task Force on Pharmaceuticals
India and Australia Joint Free Trade Agreement Feasibility Study
Guidelines issued by PESB ACC for Board Level appointments in CPSEs Appointment of a Nodal Officer in the Department of Commerce
 
Annual Report 2009-2010
International Trade Organization


Activities relating to the World Trade Organization (WTO)

Currently, there are 153 member nations of the WTO. The state of play of multilateral negotiations in the WTO on various issues covered by the Doha Work Programme is elaborated in the subsequent paragraphs.

I. Agriculture

The Chair of the Committee on Agriculture (Special Session) brought out a fourth revision of Draft Modalities for Agriculture on 6th December 2008. Discussions on this text began in September 2009.

The agriculture negotiations apply to the products covered under the Agreement on Agriculture (AOA) of the World Trade Organization (WTO), namely, all basic agricultural products, the products derived from them and all processed agricultural products. This also includes wines, spirits, tobacco products, fibres such as cotton, wool and silk and raw animal skins for leather production. Fish and fish products and forestry products are not included.

The three main elements or “pillars” of the Agreement on Agriculture (AOA) and the negotiations are: (i) market access, (ii) domestic support and (iii) export competition. The Doha Ministerial Declaration of November 2001 committed Members to comprehensive negotiations aimed at substantial improvements in market access; reductions of, with a view to phasing out, all forms of export subsidies; and substantial reductions in trade-distorting domestic support. Special and differential treatment for developing Members is also intended to be an integral part of the modalities.

Market Access

The customs tariff is the duty charged on the import of any good into the domestic territory of a country. The negotiations at the WTO are on bound customs tariffs, which are the ceiling rates notified to the WTO, while the tariffs which are actually applied by the customs authorities on imports into a country are the applied customs tariffs. The applied tariffs cannot ordinarily exceed the bound customs tariffs in the WTO Member countries.

Reduction of Bound Tariffs: Developed countries are required to reduce their bound tariffs in equal annual installments over five years with an overall minimum average cut of 54%. Developing countries, on the other hand would have to reduce their final bound tariffs in equal annual installments over ten years effecting a maximum overall average cut of 36%.

Both developed and developing Members would have the flexibility to designate an appropriate number of tariff lines as Sensitive Products (SEPs), on which they can undertake lower tariff cuts. Even for these products, however, there has to be “substantial improvement” in market access, and the smaller cuts would have to be offset by tariff quotas allowing greater access for imports. The three issues being negotiated, therefore, are the number of Sensitive Products, the tariff cuts they are to take and the compensatory access through tariff quotas.

While this flexibility is available to both developing and developed countries, it is particularly important for developed countries to be able to protect their commercially sensitive tariff lines.

Special Products (SP): This is a Special and Differential (S&D) treatment provision that allows developing countries some flexibility in the tariff cuts that they are required to make on a designated number of products. This is critical for countries such as India to meet their food and livelihood security concerns and rural development needs.

The Fourth Revised Draft Modalities of 6th December 2008 proposes an average tariff cut of 11% for a 12% of total tariff lines to be designated as Special Products (SPs) with 5% of tariff lines taking zero or no tariff cuts.

Self-designation’ is a fundamental aspect of the mandate on SPs. Members are not required to reveal which agricultural products they would designate as SPs or SEPs at this stage. They will only decide on the number of such products and the tariff cuts to be taken on these products. Later, after the modalities are agreed and adopted, members would list such products in their Schedules and notify them to the WTO.

Special Safeguard Mechanism (SSM): This is another Special & Differential (S&D) treatment provision of the WTO exclusively for developing countries that gives them the right to have recourse to a Special Safeguard Mechanism (SSM) based on import quantity and price triggers. The SSM is important for developing countries in order to protect their poor and vulnerable farmers from the adverse effects of an import surge or price fall.

The safeguard duties under the proposed SSM would be triggered by either an import quantity trigger or a price trigger. However, if the import quantity trigger is set too high, the SSM loses all efficacy because it can then only be used in the most exceptional circumstances. The same holds true if the price trigger is set too low.

The main issues currently being discussed under SSM are:

  • the trigger: i.e. when the mechanism would be applicable,

  • the size of the remedy: i.e. how high overall duties can go above the MFN tariff and

  • duration of the remedy and whether safeguard duties could be applied in consecutive years.

 

Union Minister of Commerce and Industry, Shri Anand Sharma along with Commerce Secretary, Dr. Rahul Khullar addressing the inauguration of the Opening Session of the “Ministerial Meeting on Re-energising Doha: A Commitment to Development”, in New Delhi on September 03, 2009.

 

In July 2008, discussion was essentially centred on the second part, namely, the circumstances in which the Uruguay Round bound rates could be breached. Countries having major agricultural exports wanted an initial trigger of 40% i.e imports had to be at least 140% of the imports in the previous period before the country would impose a safeguard duty. The G-33 (and India) argued that this was far too high a trigger, effectively denying them recourse to the SSM.

Unreasonable restrictions on the SSM in terms of very high triggers and inadequate remedies defeat the very objective of protecting poor, vulnerable farmers in developing countries. Given its objectives, it must be a simple and effective mechanism. The exporting countries on the other hand are seeking to ensure market access into developing countries by trying to limit such provisions. India and its coalition parties in G-33 have been striving to ensure an effective safeguard instrument.

Tariff Capping: This is primarily a developed country concern, particularly some countries belonging to the G-10, namely, Japan, Iceland, Switzerland and Norway. Some of these countries impose prohibitively high tariffs on some agricultural products. Tariff capping would bring down these very high tariffs, over and above what would be required by the tariff reduction formula.

Tariff Simplification: This is an entirely developed country concern, particularly for the EU, Norway, Switzerland and Canada. These countries use a large number of non-ad valorem (NAV) tariffs on their agricultural imports. Developing countries, on the other hand, rely predominantly on ad valorem (AV) duties. NAV duties act as an additional layer of non-transparent protection. As these are used mainly by developed countries, they act as a barrier to market access for developing country exports.

Tropical and Diversification Products and long-standing preferences: This involves the European Commission (EC), the US and 10 Latin American countries and the African-Caribbean-Pacific (ACP) Group. The mandate of achieving the fullest liberalization of trade in tropical agricultural products comes into direct conflict with the demand for slower liberalization for products with long-standing preferences. The Tropical Products Group comprising Latin American countries want the fullest liberalization of trade in tropical agricultural products while the ACP Group that have had tariff-free access to the developed country markets (mainly the EU and US) for a long time are apprehensive about the effect of the preference erosion on their own producers.

Domestic Support

The Agreement on Agriculture (AOA) distinguishes between support programmes that stimulate production directly, and those that are considered to have no direct effect. Domestic support that has a direct effect on production and trade has to be cut back. The Draft Modalities propose cuts in the Overall Trade-distorting Domestic Support (OTDS) as well as cuts or caps on the individual categories of domestic support, referred to as Amber Box, Blue Box and Green Box support.

The proposals presently under discussion refer to a 70% cut in OTDS by the US and 80% by the EU. A 70% cut would actually bring US OTDS to about US$ 14.5 billion, down from their current ceiling of US$ 48.2 billion. This is still well above their estimated applied level of US$ 7 billion in 2007.

Cotton: This issue is of prime importance to Burkina Faso, Benin, Mali and Chad (the Cotton 4). The Cotton-4 proposal on the table implies an 82.2% cut in domestic support for cotton by the US. Apart from the C-4, it is of significance to Brazil and India which are both major exporters of cotton. In India, cotton is also a politically sensitive subject. This issue has seen very little multilateral discussion at the WTO.

Export Competition

In terms of the draft proposals, developed countries are required to eliminate all forms of export subsidies by 2013. Developing countries could have to do so by 2016. In terms of the AOA, developing countries had the flexibility to provide certain subsidies, on export marketing costs, internal and international transport, freight charges etc. According to the current proposals,

Box 9.1

India’s Priorities in the Agriculture Negotiations

Safeguarding the interests of low income and resource poor agricultural producers remains paramount for India. In this context, the following issues are vital:

  • Overall tariff reductions on bound rates of not more than 36%;

  • Self-designation of an appropriate number of Special Products guided by indicators based on the three fundamental and agreed criteria of food security, livelihood security, and rural development needs;

  • An operational and effective Special Safeguard Mechanism to check against global price dips and import surges, which is more flexible than the existing special safeguard available mainly to developed countries; and

  • Substantial and effective cuts in OTDS by the US and the European Commission (EC) and tighter disciplines on product-specific limits on AMS and the Blue Box.

India has been working constructively with its coalition partners in developing country groupings such as the G-20 and the G-33 in order to achieve an outcome in the agricultural negotiations that would fully reflect the level of ambition of the Doha mandate and the interests of developing countries.

this provision would continue to be available to developing countries till 2021 i.e. 5 years beyond the year 2016 when they would be required to phase out all other forms of export subsidies.

II. Non Agriculture Market Access (NAMA)

Non Agricultural Market Access (NAMA) relates to trade negotiations on non-agricultural or industrial products. In the NAMA negotiations, WTO Members discuss the terms or modalities for reducing or eliminating customs tariff and non tariff barriers on trade in industrial products. The product coverage under NAMA includes marine products, chemicals, rubber products, wood products, textiles and clothing, leather, ceramics, glassware, engineering products, electronics, automobiles, instruments, sports goods and toys.

On tariffs, the negotiations take place on bound tariffs which are the bindings taken during the negotiations at the WTO. The bound tariffs are the upper limit of the applied customs tariff which are the tariffs actually applied by the Customs authorities on imports into any country. In the NAMA negotiations there are tariffs on which no bindings have been taken and these are known as the unbound tariff lines. Based on the commitments taken by India, at the commencement of the Doha Round in 2001, India has more than 31% of its NAMA tariff lines as unbound.

 

Box 9.2

India’s priorities in NAMA

  • Formula reductions that respect the principle of less than full reciprocity in reduction commitments

  • Appropriate and adequate flexibilities to protect the sensitive tariff lines

  • Participation in sectoral agreements to be on a non mandatory basis on a good faith basis without any pre-judgment of the final outcome.

 

The main elements of the NAMA negotiations are:-

(a) Formula for tariff reductions

At the WTO Ministerial Meeting at Hong Kong during December, 2005, the Trade Ministers adopted a Swiss formula with coefficients that would reduce or eliminate tariff peaks, high tariffs and tariff escalation. The simple Swiss formula with coefficients is as under:

Tf = (Ti x A)/(Ti + A)

where Tf is the final bound customs tariff , Ti is the initial bound customs tariff and A is the Swiss coefficient.

The Swiss formula is a non linear formula. Since most developing countries have higher average bound customs tariff than developed countries, the same Swiss coefficient would lead to higher percentage reductions for developing countries than developed countries. All the final bound customs tariffs would be below the Swiss coefficient “A”.

The Ministerial Mandate also mention the need to take into account the special needs and interests of developing countries, including through less than full reciprocity (LTFR) in reduction commitments. This is a clear indication that developing countries would not undertake the same reduction commitments as developed countries. Therefore, the issue of two coefficients, a lower for developed countries and the higher for developing countries has been proposed in the negotiations.

During the WTO Mini Ministerial Meeting from 21-29 July, 2008, Mr Pascal Lamy, Director General of the WTO had brought out an informal text on 25 July, 2008 proposing a coefficient of 8 for developed countries and a 3 tiered coefficient of 20, 22 and 25 linked to flexibilities for developing countries. These numbers are also reflected in the NAMA modalities of 6th December, 2008.

(b) Flexibilities

Flexibilities under NAMA are intended to protect the sensitive industrial products of the developing countries both from the Swiss formula cuts and from taking a binding commitment. In the Doha Round negotiations, one of the options for the developing countries is to take at least half the formula cuts on a specified percentage of tariff lines subject to a limitation of imports. The other option is take no formula cuts or binding commitments on a specific percentage of tariff lines subject to a limitation on imports.

Flexibilities are integral to the concept of Special & Differential treatment for developing countries in all WTO Agreements. For India, flexibilities are important for protecting its infant and vulnerable industries. These include the micro, small and medium enterprises (MSMEs), employment intensive sectors, industries employing socially and economically vulnerable sections such as women, traditional artisans and fishermen, as well as industries in the rural, semi urban, economically disadvantaged and geographically inaccessible regions of the country.

The Ministerial mandate was reflected in paragraph 8 of the July, 2004 Framework Agreement where developing countries were given the flexibility to ‘apply at least half the formula cuts on up to [10] percent of the tariff lines provided these tariff lines did not exceed [10] percent of the total value of a Member’s imports during 1999-2001; or keep, as an exception, tariff lines unbound, or not apply formula cuts for up to [5] percent of tariff lines provided they do not exceed [5] percent of the total value of a Member’s imports during 1999-2001.’

Anti Concentration Clause on Flexibilities

The flexibilities provision could be used by developing countries to group theirsensitive tariff lines under specific NAMA product groups. With a view tosafeguarding against such a possibility, it was agreed in the Framework Agreement of8th July 2004 that flexibilities could not be used to exclude entire HS Chapters.This clause is also known as the Anti-concentration Clause since the
clause prevents a developing country from concentrating its flexibilities under a specific HS Chapter.

During the WTO Mini Ministerial Meeting from 21-29 July, 2008, the informal text on 25 July, 2008 proposed a three tiered coefficient linked to flexibilities for developing countries as under:

Coefficient

Flexibilities


20


apply at least half the formula cuts on 14% tariff lines subjectto not exceeding 16% of 1999-2001imports; or keep, as anexception, tariff lines unbound, or not applyformula cuts on6.5% tariff lines subject to not exceeding 7.5% of 1999-2001imports


22


apply at least half the formula cuts on 10% tariff lines subjectto not exceeding 10% of 1999-2001imports; or keep, as anexception, tariff lines unbound, or not apply formula cuts on5% tariff lines subject to not exceeding 5% of 1999-2001imports


25


No flexibilities

The Anti-concentration Clause for flexibilities mandated that a minimum of either 20% NAMA lines or 9% of the imports within an HS Chapter must take the full formula cuts. For the tariff lines bound at 40%, the final bound rates would be in the range of 13.3% to 14.2% depending on whether the Swiss coefficient was 20 or 22 respectively.

(c) Sectoral Initiatives

Sectoral Initiatives refer to the proposals for the elimination of customs tariffs in specific NAMA sectors by WTO Members who comprise a specific percentage of total trade in that sector (also known as the critical mass). Sectoral initiatives allow members to focus on specific sectors of their interest and ensure greater market opening than that achieved through the formula approach.

The December, 2005 Hong Kong Ministerial Declaration states that participation in sectoral initiatives should be on a non mandatory basis. However, developed countries have highlighted the importance of large developing countries like India joining sectoral initiatives.

In the NAMA text of 6 December, 2008, 14 sectoral proposals are annexed to the draft modalities which includes automotive and related parts; bicycle and related parts; chemicals; electronics/ electrical products; fish and fish products; forest products; gems and jewellery; hand tools; enhanced healthcare; industrial machinery; raw materials; sports equipment; textiles clothing and footwear; and toys. In terms of the number of proponents, the sectoral initiatives on chemicals, industrial machinery and electrical/ electronics have the maximum support. The new text spells out that participation in sectoral initiatives is on a non mandatory basis without pre-judging the outcome. Further, specified group of countries are to agree to participate on a self-identified basis in negotiating the terms of sectoral tariff initiatives, with a view to making them viable.

During the subsequent negotiations, United States and some other developed countries have been insisting that large developing countries

 

Union Minister of Commerce and Industry, Shri Anand Sharma with the Ministers and Delegates at the “Ministerial Meeting on Re-energising Doha: A Commitment to Development”,
in New Delhi on September 04, 2009

like Brazil, China and India participate in sectoral initiatives of their interest namely chemicals, industrial machinery, health care products (medical devices), electrical and electronics .

(d) Non-tariff barriers

Non Tariff Measures (NTMs) refer to those measures on international trade that are not in the form of a tariff or a tax. These measures include trade related procedures such as documentation, certification and inspections; technical regulations; standards; import related measures such as restrictions, prohibitions, seasonal duties; tariff rate quotas; foreign exchange controls including artificial exchange rates; public procurement practices etc. Certain NTMs such as imposition of anti-dumping and safeguard duties do have the effect of imposition of tariffs. Of course, countries tend to impose some restrictions on imports that some measures are intended to protect human, animal and plant life and health. These are known as Sanitary and Phytosanitary (SPS) measures. Non Tariff Barriers (NTBs) are a sub-set of NTMs. NTBs are considered unfair measures discriminating against imports and therefore violative of the obligations under the Agreements of the WTO.

The NAMA negotiations focussed on the listing of NTBs by countries. Subsequently, the Negotiating Group went into text based negotiations on various proposals. In the draft NAMA modalities of 6th December, 2008, there were 13 NTB textual proposals listed in Annex 5. These are as follows:

i. Horizontal proposals (those related across sectors)

  • Ministerial Decision on Procedures for the Facilitation of Solutions to Non-Tariff Barriers (known as the Horizontal Mechanism)

  • Decision on the elimination of Non-Tariff Barriers imposed as unilateral trade measures

  • Ministerial Decision on Trade in Remanufactured Goods

ii. Vertical proposals (related to specific sectors)

iii. Export related proposals

  • Revised submission on Export Taxes

  • Protocol on Transparency in Export Licensing to the General Agreement on Tariffs and Trade 1994

  • TBT (Technical Barriers to Trade) related proposals

  • Understanding on the Interpretation of the Agreement on Technical Barriers to Trade as Applied to Trade in Fireworks

  • Understanding on the Interpretation of the Agreement on Technical Barriers to Trade as Applied to Trade in Lighter Products

  • Understanding on the Interpretation of the Agreement on Technical Barriers to Trade as Applied to Trade in Electronics

  • Decision on non-tariff barriers affecting forestry products used in building construction

  • Agreement on Non-Tariff Barriers Pertaining to the Electrical Safety and Electromagnetic Compatibility (EMC) of Electronic Goods

  • Negotiating Proposal on Non-Tariff Barriers in the Chemical Products and Substances Sector

Box 9.3

NTM related proposals under intense discussion at WTO

  • “Ministerial Decision on Procedures for the Facilitation of Solutions to NTBs” known as the Horizontal Mechanism: This Horizontal Mechanism was originally mooted by the NAMA 11 (of which India is a Member) and European Communities (EC) with the support of more than 100 Members namely the African Group, Canada, LDCs, New Zealand, Norway, Pakistan and Switzerland. The Mechanism is an informal dispute resolution mechanism that explores trade solutions without affecting the rights and obligations under the WTO Agreements. It operates through the existing WTO Committee’s, takes the help of an expert in the respective field and enables faster and more economical resolution of NTBs especially those on products of export interest for developing countries.

  • Ministerial Decision on Trade in Remanufactured Goods: The salient features of the proposal driven by the US are that it seeks to enhance market access opportunities for remanufactured goods, it seeks a review of the non tariff measures on importation of remanufactured goods so that they are in compliance with multilateral obligations and putting in place an institutional framework for consultations as well as discussing progress in reduction or elimination of non tariff barriers on remanufactured goods.

  • TBT related proposals: Nine out of the 14 NTB proposals are vertical in nature relating to specific NAMA sectors. They would also have a legal relationship with the Agreement on Technical Barriers to Trade (TBT Agreement) and would affect some of the provisions of the latter. It was in this context that India took a decision to seek a horizontal solution to specific NTB in NAMA sectors while retaining some elements of the vertical solutions wherever it was applicable. This was to ensure that specific carve outs for sectors did not create a cobweb of provisions that could otherwise be addressed through a horizontal treatment. The EC later joined India and a joint submission on a “Framework for Industry Specific proposals” was made in September, 2009. Work is now going on to convert this into a negotiating text.

 

  • Understanding on the Interpretation of the Agreement on Technical Barriers to Trade with respect to the Labelling of Textiles, Clothing, Footwear, and Travel Goods

  • Agreement on NTBs pertaining to standards, technical regulations and conformity assessment procedures for automotive products.

While listing these 13 proposals, the NAMA text states that 7 of the proposals merit particular attention which includes the proposals on the horizontal mechanism; remanufactured goods; TBT proposals on electronics (2 in number); vertical proposals on automotives; labelling in textiles, clothing, footwear and travel goods; and chemical products. Subsequently, the EC came out with its proposal on automobiles thereby putting 14 NTB proposals on the table.

(e) Preference Erosion

An issue affecting smaller developing countries is the erosion of their market access dueto the reduction in MFN tariff levels. All developed countries have established schemes that allow smaller developing countries duty free or low duty access for their export products.  These schemes are largely responsible for the export performance of these countries, despite their lack of a general competitive industry. To allow these 

 

Box 9.4

Duty Free Tariff Preference Scheme For LDCs

  • The Government of India announced the Duty Free Tariff Preference (DFTP) Scheme for the Least Developed Countries (LDCs) on the occasion of the India-Africa Forum Summit of African Heads of States/Governments and their official representatives in New Delhi on April 8, 2008.

  • The DFTP Scheme provides for: Duty-free market access on 85% of India’s total tariff lines to be implemented over a 5 year period with 20% cut in each year; Margins of preference (MOP) on 9% tariff lines – the MOP would come into force from the date the Scheme becomes effective; an Exclusion List of 6% of India’s total tariff lines; preferential market access on tariff lines that comprise 92.5% of global exports of all LDCs; products of immediate interest to Africa which are covered include cotton, cocoa, aluminium ores, copper ores, cashew nuts, cane-sugar, ready-made garments, fish fillets and non-industrial diamonds.

  • The Scheme is open to all 49 LDC members including 33 LDCs in Africa. The Scheme provides that in order to avail benefits under this Scheme, individual LDC members submit a Letter of Intent to the Government of India. The Scheme further provides that in order to enjoy tariff preference, the beneficiary country submits a Certificate of Origin along with the consignment.

  • The Positive List (items having MOP) and the Exclusion List (items having no tariff preference) are available at Indian Customs website (http://www.cbec.gov.in/customs/cs-act/notifications/notfns-2k8/cs-notfns-tarr08.htm)

  • As on November, 2009; 21 LDCs (Bangladesh, Benin, Burkina Faso, Cambodia, Eritrea, Ethiopia, Gambia, Lao PDR, Lesotho, Madagascar, Maldives, Malawi, Mali, Mozambique, Myanmar, Rwanda, Samoa, Senegal, Sudan, Tanzania and Uganda) have submitted letters of intent. 19 of these LDC’s (except Bangladesh and Maldives), have already been notified as beneficiary countries through Customs notifications issued by Department of Revenue. However, only 11 LDCs (Benin, Burkina Faso, Cambodia, Ethiopia, Lao PDR, Malawi, Maldives, Myanmar, Senegal, Tanzania and Uganda) have submitted details of agencies which would be responsible for issuing Certificates of Origin as required under the Scheme. The Scheme has been fully operationalised for these 11 LDCs.

small developing countries time to restructure and improve their competitiveness, developed countries will be granted a longer period to phase in their tariff commitments on such products. On the other hand, there is also recognition that some developing countries would be disproportionately affected since some of these affected tariff lines are of export interest to them. The tariff cuts would be accelerated for these disproportionately affected countries for the specific lines of export interest for them.

In the NAMA text of 6th December, 2008 57 tariff lines of the EC and 29 tariff lines of the US have been identified as being affected by erosion of preferences. Bangladesh, Cambodia, Nepal, Pakistan and Sri Lanka are listed as countries disproportionately affected.

III. Services

India has been a demander in services. It has also offered substantial sectoral and modal coverage in its Initial Offer (January, 2004) and the First Revised Offer (August, 2005) of the ongoing Services negotiation. At the Signalling Conference (July 2008) some further improvements were also conveyed. However, our offers / signals are conditional on receiving satisfaction in respect of our Modes 1/2 and Mode 4 requests.

As a part of the plurilateral (where more than two countries are involved) process, 22 plurilateral groups have been formed at the WTO in service sectors/modes. India has received plurilateral requests for greater liberalisation in 14 different services sectors, including Telecom, Finance, Maritime, Environment, Education, Air Transport, Energy, Audio Visual and Retail. India is the coordinator of the plurilateral requests on Mode 1 (cross border supply) and Mode 4 (Movement of Natural Persons) - the core areas of its interest on the services negotiations. India is also a co-sponsor of plurilateral requests on Computer and Related Services (CRS) and Architectural, Engineering and Integrated Engineering Services.

India has received Requests for liberalisation of services from 27 countries. These Requests coverall the major service sectors such as express delivery services, telecommunication services, audio visual services, financial services, distribution services, legal services, energy services, environmental services etc. and are in all modes of supply of service. The core interest of most of India’s trading partners, as evident from their requests, is in Mode 3, in which the request is either for binding the presently applicable FDI policy, or for offering a more liberal policy than is currently prevailing or for opening up new sectors. Negotiations are ongoing and it is India’s endeavour to maximize gains in respect of Modes 1 and 2 and Mode 4 requests.

 

Union Minister of Commerce and Industry, Shri Anand Sharma addressing the Plenary Session of WTO Ministerial Conference, in Geneva on November 30, 2009.

One of the areas of crucial interest to India is development of disciplines in Domestic Regulations involving qualifications and licensing requirements and procedures, without which Mode 4 access gets severely impeded. Negotiations on this subject are proceeding on the basis of the Chairman’s text of March 2009. Development of disciplines on Domestic Regulations is a very crucial area of negotiations, since as per the Hong Kong Ministerial Declaration members should develop disciplines on domestic regulation pursuant to the mandate under Article VI: 4 of the GATS, before the end of the current round of negotiations.

In order to take the negotiations forward, a fresh round of Offers would need to be tabled at the WTO by Member countries. A timeline for the submission of the Second Revised Offers in Services would be decided after a breakthrough is achieved in Agriculture and NAMA. An ambitious outcome in Services has to be an essential part of any breakthrough package. India has stated repeatedly that any future work in Services must be anchored in Annex C of the Hong Kong Ministerial Declaration. Members need to spell out clearly how they intend to meet the modal objectives outlined in Annex C. In particular, developed countries need to provide clear signals of market openings in sectors and modes of interest to developing countries, particularly in Modes 1 and 4.

India continued to participate sincerely in all bilateral/plurilateral meetings through 2009. India has also actively participated in the Services Clusters held in March, April, June, October, November and December of 2009 and February, 2010. In these meetings bilateral discussions have also been held with our important trading partners on market access issues. The Domestic Regulation Text is also being discussed in detail at the WPDR. India is actively participating in these discussions as disciplining of DR is our key area of interest.

Unlike agriculture and NAMA where modalities are yet to be finalized, in Services the modalities have been agreed upon. Members need to finalize their schedule of commitments, which are linked to the outcome of Agriculture and NAMA negotiations. As and when these are finalized, the process of services negotiations would also move for conclusion under the current round.

 

Box 9.5

India’s major interests in Services

  • India is the coordinator of the plurilateral requests on Mode 1 (cross border supply) and Mode 4 (Movement of Natural Persons) - the core areas of its interest in the services negotiations.

  • One of the areas of crucial interest to India is development of disciplines in Domestic Regulations involving qualifications and licensing requirements and procedures, without which Mode 4 access gets severely impeded.

IV. Rules negotiations 

As per the mandate of the Doha Declaration in para 28, Members are engaged in negotiations aimed at clarifying and improving disciplines under the Anti Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (ASCM), while preserving the basic concepts, principles and effectiveness of these agreements and their instruments and objectives.

The Chair of the Negotiating Group on Rules (NGR) had issued first draft texts of the Anti dumping Agreement and the Subsidies and Countervailing Measures Agreement including the fisheries subsidies on 30 November 2007. The draft text had several elements which did not reflect consensus views of Members. In Anti Dumping Agreement such issues are: the prohibition on use of zeroing in dumping margin calculations, strengthening the sunset review provisions, new rules on anti circumvention, non-attribution analysis for causal link, lesser duty rule, public interest examination, etc. In the Subsidies Agreement, the amendments proposed by the Chair included those relating to interpretation of benefit conferred and specificity of a subsidy, provision of goods or services at regulated prices, certain financing by loss making institutions, provisions relating to export credits and market benchmarks, etc.

The Chair issued new draft texts on 18th December 2008 on Rules negotiations wherein he identified issues where there is considerable disagreement among Members in the Anti dumping and Subsidies Agreements. During the current year, the Chair continued the negotiations on his revised texts by holding discussions on identified topics in Anti Dumping Agreement and the Subsidies Agreement (ASCM) under three broad categories viz. (a) topics in the Chair’s unbracketed text, (b) topics in the Chair’s bracketed text and (c) unaddressed issues.

India has been asking for strengthening of rules in Anti Dumping so as to prohibit the use of zeroing in dumping margin calculation, strengthening of the Rules for Conduct of sunset reviews including automatic sunset after certain agreed period. India had also moved proposal for mandatory application of lesser duty. In the Subsidies Agreement, India has not been supportive of proposals to expand the prohibited subsidies with a view to retain the policy space for the development objectives of the national economic policy. In view of these considerations, India did not support the proposal related to using external bench marks for calculation of subsidies in the case of inputs provided at regulated prices.

In Fisheries Subsidies, the Chair’s text of 30th November 2007 prescribed several unwarranted conditions for availing the Special and Differential (S&D) treatment by the developing countries. India has been seeking effective S&D treatment for the developing countries in the light of employment and livelihood concerns for small, artisanal fishing communities and for retaining sufficient policy space to enable us to develop our fisheries infrastructure. India along with Indonesia and China proposed revised fisheries subsidies text in the papers submitted to the Negotiating Group of Rules (NGR) in April and May 2008.

The Chair did not table a revised text in fisheries subsidies but instead suggested a road map for further discussions on the identified issues. During the current year, the Chair held discussions in the NGR on the questions posed in the road map on the main elements of fisheries subsidies text viz. subsidies covered by the prohibited list, general exceptions, special and differential treatment to developing countries, general disciplines, fisheries management, transparency (notification requirements), dispute settlement, implementation and transition rules. India maintained its position to safeguard the interests of fish workers in the coastal regions as well as to encourage fishing operations in the EEZ and keeping in view this objective sought exception from prohibition of subsidies meant to support the fishing operations in coastal regions and EEZ.

 

Box 9.6

India’s stand on Rules Negotiations

  • Strengthening of disciplines in anti-dumping including prohibition of zeroing, stronger rules on reviews- including sunset reviews, mandatory application of lesser duty rule.

  • India is opposed to the enlargement of the scope of prohibited subsidies in the Agreement on Subsidies and Countervailing Measures (ASCM) and /or limit the existing flexibilities for the developing countries.

  • India is seeking effective special and differential treatment (S&D) for the developing countries in the new disciplines on fisheries subsidies, particularly in the light of employment and livelihood concerns for small, artisanal fishing communities and for retaining sufficient “policy space” so as to enable it to develop its infrastructure.

V. TRIPS Related Issues 

Trips - CBD

India and other developing countries have been raising the issue of protection of traditional knowledge and the relationship between the Convention on Bio-Diversity (CBD) and the TRIPS Agreement for the last few years in the WTO. India had submitted a proposal (IP/C/W/474 dated 5th July 2006) to amend the TRIPS agreement by incorporating a new provision, Article 29 bis that would make it mandatory for patent applicants to disclose the use of any biological resources or associated traditional knowledge (TK) in their invention. The thrust areas of the Disclosure Groups proposal (comprising of Brazil, China, Colombia, Cuba, India, Pakistan, Peru, Thailand and Tanzania) are:

  • Source and country of origin of the biological resource and of the traditional knowledge used in the invention should be disclosed,

  • Evidence of prior informed consent (PIC) under the relevant national regime to be furnished,

  • Evidence of benefit sharing (BS) under the relevant national regime to be furnished.

There have been discussions on the proposals submitted in this regard by various countries including India. While some countries have expressed support for the Disclosure Group’s Proposal, some developed countries have strongly opposed the proposal and, in general, the idea of a disclosure amendment to the TRIPS Agreement. Their argument is that a new disclosure requirement would not help prevent the issuance of “bad” patents that incorporate genetic resources without proper recognition of the source or access agreements. The disclosure proposal is also viewed as being burdensome in terms of procedures and costs on patent offices.

Geographical Indications (GI) Extension

The “Friends of GIs Group” (India, Switzerland, the EC, Sri Lanka, etc.) have been demanding the removal of the disparity between two different levels of protection for GIs (one, for wines and spirits, and other for all other products). They have been demanding an expansion of the scope of protection available under Article 23 of the TRIPS Agreement to products other than wines and spirits also. The basic idea behind seeking extension of Article 23 protection to all other products is that GIs can be used to promote the export of valuable products and prevent misappropriation.

GI Register

Informal consultations are also taking place at the WTO on the issues around the GI Register. In 2007, the EC had proposed a new proposal on GIs. In these discussions, India has emphasized on the strong linkage between the issues of GIs and CBD.

 

Box 9.7

India’s Stand on Geographical Indications (GI)

  • The issues of GIs and CBD are inextricably linked.

  • India expects similar outcomes on the three TRIPS issues.

  • Without a satisfactory outcome on CBD and GI Extension, we do not envisage an independent outcome on GI register.

 

Present State of Play

During 2008 there has been a significant change in dynamics in TRIPS related issues. Around 110 countries including India, EC, Albania, Brazil, China, Colombia, Ecuador, the European Communities, Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, the former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group and the African Group have filed modalities text on the three TRIPS issues (TN/C/W/52) on July 19, 2008. 

Key elements of the draft modalities text on disclosure incorporate a TRIPS Amendment to include a mandatory disclosure requirement of country providing/source and defining the details of Prior Informed Consent (PIC) and Access and Benefit Sharing (ABS) later on. While pre-grant sanction has been included, post grant legal effects will be discussed later. On GI Extension, of which India has been one of the old proponents, the text calls for extending higher level of protection (currently available to only wines and spirits,) to all products. There is a window for including these items in the GI Register, if GI extension is agreed to.

Para 6 System

Paragraph 6 of Doha Declaration on TRIPS Agreement and Public Health had recognized that some WTO members with insufficient/no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing available under the TRIPS Agreement for accessing affordable medicines. To overcome such difficulties, WTO has in August 2003 devised a system (known as Para 6 system) for such members under which a compulsory license can be issued either by an eligible exporting country or by an eligible importing country to export/import required quantities of medicines in order to meet a public health problem under certain conditions. However, the system has been used only once in the last 6 years in Canada-Rwanda case and it took three years to complete it. In order to identify problems in the operationalisation of Para 6 system, an informal consultation was held in WTO on 12.2. 2010 on a specific request from India, Brazil, China and African group. Members shared their experiences and agreed to hold a workshop on this issue later in the year so that bottlenecks in the operationalisation of Para 6 system are identified and addressed.

VI. Trade and Environment

The Doha Ministerial Declaration had provided a negotiating mandate on certain issues relating to trade and the environment. On the important issue of identifying environmental goods and services, the developed countries had submitted a list of environmental goods. The list focuses only on goods, and does not address the issue of environmental services. Moreover, most of the goods in the “list” have dual or multiple uses and cannot be justified as pure environmental goods.

India has submitted an alternative approach, called the “Environmental Project Approach” which clearly identifies environmental benefits and eliminates, or at least reduces, benefits from accruing to dual or multiple use products. It brings in, synergy between environmental goods and services, and by linking tariff concessions to a particular project, mitigates the apprehensions caused by the “list” approach, of misuse. The approach has been supported by some developing countries. India and Argentina have recently submitted an integrated {Job (07)/77} approach on 6th June, 2007 essentially keeping the essence of the project approach along with an element of the list approach, which has received the support of some countries.

Present State of Play

The present status of the negotiation in the WTO is that in July 2008 members have been requested to prepare a work plan and make submission on environmental goods of interest to them identified across as many categories as possible; and submit a list of environmental goods exchanged with the other members under request/offer approach. Members have also been requested to submit concrete proposals on cross cutting issues such as technical assistance, capacity building, S&D treatment and transfer of technology.

In the meeting of Committee of Trade on Environment Special Session held on 19th November 2009, the developed countries and supporters of convergence list tried to justify their proposal on the ground that the list proposed by them is not exhaustive and should be taken as starting point for the discussion. The list includes the products that are critical for giving effect to environmental projects. Lately, Saudi Arabia, Philippines and Japan have come up with their own list of environment goods.

Developing countries including India opposed the list approach on the ground of dual use by giving specific HS code wise examples of dual use. The developed countries have not been able to counter this issue and rather want the developing countries to identify the single use environmental goods in the list.

Developing countries including India also raised the related issue such as issue of special and differential treatment, final tariff reduction, transitional period, NTB reduction and Transfer of Technology, etc. India stressed on triple win goal – environment, development and trade. Countries such as China, Brazil, South Africa etc supported India’s viewpoint that transfer of technology would increase the capacity of developing countries for market access in environment goods.

VII. Disputes in the WTO and negotiations under the Dispute Settlement Understanding (DSU)

Dispute Settlement is the central pillar of the rules based multilateral trading system and the WTO’s unique contribution to the stability of the global economy. It underscores the rule of law and makes the trading system more secure and predictable. The salient features of the system are:

  • It is based on clearly-defined rules,

  • There are timelines for completing a case,

  • Provisions exist for consultations, good offices, conciliation and mediation.

  • Rulings are first made by a panel and endorsed (or rejected) by the WTO’s full membership.

  • Appeals based on points of law are possible.

As per the mandate of the Doha Declaration, the WTO Members are engaged in negotiations aimed at improvements and clarifications of the Dispute Settlement Understanding (DSU). The negotiations are taking place in the Special Session of the Dispute Settlement Body (DSB). The discussions in the Special Session are primarily based on Members’ experience with the Dispute Settlement System and efforts by Members to develop areas of convergence, while maintaining the respective policy objectives. India and other developing countries have been reiterating their objective for a development oriented review of the Dispute Settlement Procedures under the Doha Development Agenda (DDA).

Keeping this objective into account India by bringing many developing countries on board is negotiating important reforms like the Litigation costs to mitigate the rising transaction costs of settling the WTO Disputes, S&D changes in the process to make the system more inclusive, and cross retaliation that allows the developing countries to retaliate in any sector/Agreement against the losing developed country, in the WTO self enforcing dispute settlement decisions. India and other developing countries could successfully convince the Chairman of the Special Session

 

Box 9.8

India and the DSU

  • During the year under Review, India sought consultations with EC with respect to its Expiry Reviews of Anti-Dumping and Countervailing Duties imposed on Imports of PET (Polyethylene Terephthalate) from India. Under the WTO Anti-dumping (ADA) and Subsidies Agreements, the anti-dumping and countervailing duties imposed in the original investigation shall be terminated on a date not later than 5 years from the date of imposition and the expiry review, if any, is to be initiated before expiry of such antidumping or countervailing duties. The EC failed to comply with this requirement and delayed in initiating the expiry reviews, which is incompatible with EC’s WTO obligations. Consultations were held in April 2009. India is reviewing the next course of action.

  • The EC has sought consultations under the DSU of the WTO in the dispute DS 380. The EC has complained regarding the alleged discriminatory taxation measures of some of the State Governments of Maharashtra, Tamil Nadu, Goa, Karnataka, Andhra Pradesh and the NCT of Delhi on imports of wines and spirits into India. In respect of the States of Tamil Nadu and Andhra Pradesh, the EC has also complained regarding the alleged discriminatory procurement and sales policy in respect of imported wines and spirits. Both India and the EC have held several rounds of consultations. India has explained the policy objectives of these measures and expressed readiness to continue dialogue with the EC on these issues. The next round of consultations recently sought by the EC is likely to be held in February 2010.

  • India has also been participating as a third party in several disputes and expressing its systemic concerns and seeking to protect its trade interests from non-compliance of negotiated multilateral rules at the WTO by some Members. Recently India has joined as third party in the following disputes:

  • DS 379 – US - Definitive anti dumping and countervailing duties on certain products (complainant: China).

  • DS 384 - US -Country of Origin Requirement- The labelling requirement program to notify country of origin of meat and meat products, and agricultural commodities introduced under the 2008 US Farm Bill impose additional costs to the processors, discouraging the retailers to buy these products from outside. These measures could be seen as TBT and SPS measures inconsistent with Member’s WTO obligations.

  • DS 391 – Korea - Measures affecting the importation of Bovine meat and meat products (complainant: Canada).

  • DS 394 – China - Measures related to exportation of various raw materials (complainant: US). China imposes certain quantitative restrictions, export duties including the requirement of prior experience for export of raw materials like Bauxite, Yellow Phosphorous, Coke and Zinc. These measures are challenged by WTO Members under Art. VIII, X and XI of GATT and China’s Protocol of Accession.

 

to reflect these proposals in the draft Legal Text of July 2008. This text is the basis for the current round of discussions among the Members. The Chair also reported progress made in the negotiations on various issues such as Third party rights, Panel composition, Remand, Mutually agreed solutions, Strictly confidential information, Sequencing, Post retaliation, Transparency and amicus curiae briefs, Time frames, Developing country interests, and Member control and Effective compliance).

Economic and Social Commission for Asia and the Pacific (ESCAP)

India is one of the founding members of ESCAP, the regional development arm of the United Nations, which serves as the main economic and social development center for the United Nations in Asia and the Pacific. Its mandate is to foster cooperation between its 53 members and 9 associate members. ESCAP provides the strategic link between global and country-level programmes and issues. It supports Governments of the region in consolidating regional positions and advocates regional approaches to meet the region’s unique socio-economic challenges in a globalizing world. The major areas of work of ESCAP include:

. Macroeconomic Policy and Development

. Trade and Investment

. Transport

. Environment and Development

. Information and Communications Technology and Disaster Risk Reduction

. Social Development

. Statistics

. Sub-regional activities for development

The 65th Annual Session of ESCAP was held in Bangkok, Thailand from 23-29 April, 2009. The theme topic for the Session was “Sustainable Agriculture and Food Security in Asia and the Pacific”.

 

United Nations Conference on Trade and Development (UNCTAD)

United Nations Conference on Trade and Development (UNCTAD) aims at integration of developing countries into the world economy. UNCTAD serves as the focal point within United Nation for the integrated treatment of trade and development and the interrelated issues in the areas of finance, technology, investment and sustainable development. Three pillars of UNCTAD’s existing mandate are: a) independent policy analysis; b) consensus building; and c) technical assistance.

The Ministerial Conference, which meets every four years, is UNCTAD’s highest decision making body and sets priorities and guidelines for the

 

Box 9.9

India and ESCAP

  • India has worked in close cooperation with ESCAP during the year. Government of India committed continued financial support to the following four regional institutions of ESCAP:

  • Asian and Pacific Centre for Transfer of Technology (APCTT), New Delhi, India;

  • Asian and Pacific Training Centre for Information and Communication Technology for Development (APCICT), Incheon, Republic of Korea.

  • Statistical Institute for Asia and Pacific (SIAP), Chiba, Japan; and

  • Asia and Pacific Centre for Agriculture and Engineering Machinery (APCAEM), Beijing, China.

organization and provides an opportunity to debate and evolve policy consensus on key economic and development issues. The UNCTAD XII Ministerial Conference Meeting was held in Accra, Ghana from 20 - 25 April, 2008. The Indian delegation was led by the Commerce & Industry Minister (CIM). The UNCTAD XII Ministerial Conference included the High-level Segment Meeting which discussed the issue of “Trade and Development for Africa’s Prosperity”. This meeting was attended by several Heads of State/ Governments. CIM addressed the High Level Segment and utilized this opportunity in highlighting the benefits of the Duty Free Tariff Preference (DFTP) Scheme, which was announced by the PM during the India - Africa Forum Summit in New Delhi in May 2008.

The theme of UNCTAD XII was “Addressing the Opportunities and Challenges of Globalization for Development”. The CIM participated in the General Debate of UNCTAD XII, which was held on 22nd April, 2008. CIM’s intervention focused largely on India - Africa relationship (as UNCTAD XII Meeting was held in Africa), status of current Doha Round trade talks and the relevance of UNCTAD in the present globalized world. The CIM held meetings with more than ten African Heads of State/Government and discussed the issues of bilateral trade and economic cooperation and increasing technical cooperation with Africa.

Global System of Trade Preferences (GSTP)

The Agreement establishing the Global System of Trade Preferences (GSTP) among Developing countries was signed on April 13, 1988 at Belgrade following the conclusion of the First Round of Negotiations. The GSTP came into being after a long process of negotiations during the Ministerial Meeting of the Group of 77, notably at Mexico City in 1976, Arusha in 1979 and Caracas in 1981. The Ministers of Foreign Affairs of the Group of 77 in New York set up the GSTP Negotiating Committee in 1982. The New Delhi Ministerial meetings, held in July 1985, gave further impetus to the GSTP negotiation process. The Brasilia Ministerial Meeting held in May 1986 launched the First Round of GSTP Negotiations. At the conclusion of the First Round in April 1988 in Belgrade, the GSTP Agreement was signed on April 13, 1988 it entered into force on 19th April 1989. Forty-four countries have ratified the Agreement and have become participants. The GSTP establishes a framework for the exchange of trade concessions among the members of the Group of 77. It lays down rules, principles and procedures for conduct of negotiations and for implementation of the results of the negotiations. The coverage of the GSTP extends to arrangements in the area of tariffs, para-tariff, non-tariff measures, direct trade measures including medium and long-term contracts and sectoral agreements. One of the basic principles of the Agreement is that it is to be negotiated step by step improved upon and extended in successive stages

The Third Round of GSTP Negotiations was launched during the Special Ministerial Session at Sao Paolo, Brazil on June 16, 2004 with the aim of invigorating and furthering the objectives of the Agreement through adoption of a package of substantial trade liberalization commitments on the basis of a mutuality of advantages in such a way as to benefit all Participants 

A Special Ministerial Session of the GSTP Negotiating Committee was held in Geneva on December 2, 2009. Shri Anand Sharma, Hon’ble Minister for Commerce and Industry participated in the Ministerial. The Ministers adopted the modalities for tariff concessions under the Third Round of Negotiations also fixed a time-line of end-May 2010 for Participants to exchange their offers and September 30, 2010 for finalization of the schedules of concessions.

Asia Pacific Trade Agreement (APTA)

The Asia-Pacific Trade Agreement (APTA), previously named the Bangkok Agreement, signed in 1975 as an initiative of ESCAP, is a preferential tariff arrangement that aims at promoting intra-regional trade through exchange of mutually agreed concessions by member countries. APTA has six members namely Bangladesh, China, India, Republic of Korea, Lao People’s Democratic Republic and Sri Lanka. ESCAP functions as the secretariat for the Agreement.

During the Second Session of the Ministerial Council at Goa on October 26, 2007 the following important decisions were taken:

  • To launch the 4th Round of Negotiations

  • To adopt modalities for extension of negotiations in other areas such as non-tariff measures, trade facilitation, services, and investment

  • A common set of Operational Procedures for the Certificate and Verification of the Origin of Goods for APTA was approved and it was decided that the same would be implemented w.e.f. January 1, 2008; and

  • To explore the possibilities of expanding the membership of the Agreement.

To move forward the 4th Round of Negotiations, the 3rd Session of the Ministerial Council and the 35th Session of the Standing Committee were held in Seoul, Republic of Korea on December 15, 2009 and December 13 – 14, 2009 respectively. The Indian delegation was led by Shri Jyotiraditya M. Scindia, Hon’ble Minister of State for Commerce and Industry.

Bay of Bengal Initiative on Multi-Sectoral Technical and Economic Cooperation (BIMSTEC)

The initiative to establish Bangladesh-India-Sri Lanka-Thailand Economic Cooperation (BIST-EC) was taken by Thailand in 1994 to explore economic cooperation on a sub regional basis involving contiguous countries of South East & South Asia grouped around the Bay of Bengal. Myanmar was admitted in December, 1997 and the initiative was renamed as BIMST-EC. It may be mentioned that the initiative involves 3 members of SAARC (India, Bangladesh & Sri Lanka) and 2 members of ASEAN (Thailand, Myanmar). BIMST-EC is visualized as a ‘bridging link’ between two major regional groupings i.e. ASEAN and SAARC. BIMST-EC is an important element in India’s “Look East” strategy and adds a new dimension to our economic cooperation with South East Asian countries.

A Free Trade Agreement between the member states of BIMSTEC is being negotiated. The BIMSTEC Trade Negotiating Committee (TNC) has had 18 sessions of negotiations. The negotiations are spread over the areas of (i) tariff concessions on trade in goods, (ii) customs cooperation, (iii) services and (iv) investments. At the 18th meeting of the TNC parties reached agreement on the text of the Agreement on Trade in Goods as well as the text of the Rules of Origin and the Operational Certification Procedures. Negotiations continue on finalizing the schedules of concessions and on the agreements on services and investment.

 

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