Wt/tpr/M/313/Add. 1 31 July 2015

Page 58 Para 3.85 - safeguards

EU Question 27: Could India provide justification of its high number of initiation of investigations and imposition of safeguard measures? Could India provide information on the value of trade affected by the safeguard measures in place?

Reply: In accordance with the provisions of Rule 5 of Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997,Safeguard Investigation are initiated only against those cases where on examination of the application, it is found that there is prima facie evidence of increased imports and such increase in imports has caused irreparable damage to the domestic industry. However, if after completing the investigation upon analyzing the multiple parameters and taking into account the views and evidences produced by the various interested parties, Director General (Safeguards) feels that the case does not warrant recommendation for imposition of Safeguard duty, the investigation so initiated may be terminated.

Page 60, para 3.94 - TBT notifications

EU Question 28: India appears to have notified relatively few, 11 TBT measures to the WTO between 2011 and 2014. The EU had requested India – via the India WTO-TBT enquiry point - in several cases to notify Indian measures that fell under the scope of the WTO TBT Agreement. Those were not notified or in some cases, the TBT notification was carried out only after the adoption of the measure (such as in IND/47). Could India clarify if there is a systematic approach in the government that aims at ensuring that all relevant TBT measures are notified at an early stage in order to allow other WTO members to comment on? Does India have plans to improve the timeliness and frequency of its notification procedures?

Reply: Since few products have been brought under technical regulation, the notification to WTO TBT Committee has also been few. It is a continuous process and as and when TRs are adopted, it is being notified to WTO Secretariat.

Page 60 para 3.95 - conformity assessment and certification

The report states that a number of products are subject to BIS compulsory registration scheme (e.g. electronics) or to mandatory BIS certification. Both schemes entail third party conformity assessment procedures.

EU Question 29: Does India intend to allow, in the future, lower risk products (e.g. electronics) to be placed in the Indian market on basis of a Suppliers Declaration of Conformity (SDoC) combined with a market surveillance system?

Reply: The Department of Electronics and Information Technology, Ministry of Communication and Information Technology, Govt. of India has notified 30 Electronic and IT products under Compulsory Registration Scheme (CRS) of BIS. The Govt. of India in consultation with BIS may bring more low risk products under the CRS scheme which is similar to SDoC.

EU Question 30: Can India confirm that as regards the compulsory registration scheme for electronic and information technology goods (IND/44 and IND/47), that testing certificates issued by foreign laboratories accredited by members of the ILAC/IAF schemes or issued by members of the IECCB scheme will continue to be accepted?

Reply: As on date, BIS is accepting test reports of laboratories recognized by BIS within India. However, there is a provision of acceptance of test reports of laboratories of other countries only in case there is a mutual agreement with such countries. For components of Electronic and IT equipment, the test reports of IECEE CB and certification of foreign certification bodies are accepted by BIS and BIS recognized laboratories.

Page 60 para 3.96 – certification and conformity assessment

The report states that 92 types of products are subject to the mandatory BIS certification mark. The Indian authority's state that fees are fixed based on the cost of operations.

EU Question 31: Could India provide clarification regarding the cost structure of certification that appears to be based on the number of products marketed (whether marketed in India or not)? In particular, can India explain why it charges a marking fee per product with the BIS mark (unit fee)? Can India explain why it charges the BIS mark fee also on products with the BIS mark even when not sold in the Indian market? Could India provide explanations on how the varying fees are considered to be covering only the cost of certification of a product? Could India provide further information if the budget of BIS is segregated depending on its different functions i.e. certification and standardization in order to check if certification fees only cover the cost of certification services provided? Could India explain what is the rationale for the "advance minimum marking fee for the production likely to be marked", especially in the light of the fact that it depends on the product to be marked?

Reply: The cost structure of product certification is based on the Marking Fee Policy and based on this policy the advance minimum marking fee for a licence is charged by BIS to partly cover its administrative expenses, cost of market samples, cost of testing of samples and other overhead expenses. The calculated marking fee or the minimum marking fee whichever is higher is to be paid by the manufacturer every year. Based on the quantum of production, sampling can be done for more number of samples, however no extra charge is levied upon the manufacturers for the same. The marking and overall fees are equal to the fees levied by BIS to its domestic manufacturers and there is no disparity. Even if domestic manufacturers are exporting product with BIS mark to outside India they have to pay making fee to BIS. This fee is charged to cover the travelling and other costs in case complaint is received from outside India for a BIS marked product.

The marking fee is based on the quantum of product marked with the BIS standard mark. In case the BIS standard Mark has been used on the product it is imperative that the manufacturer shall pay the marking fee for all such products, as per practice at international level.

The cost varies from product to product since the cost of sample and testing charges vary from product to product.

Even though there is separate budgeting, the cost of Standardization is recovered from certification fees since BIS is a self supporting organization.

The marking fee is taken in advance since cost of certification in a year (which includes cost of purchase of sample, analysis of samples drawn from factory as well as market) is borne out of the advance marking fee submitted by the manufacturer. This advance marking fee is adjusted on completion of operative period of licence as per the actual production covered with BIS Standard Mark.

The last TPR in 2011 highlighted that there were 81 products subject to the mandatory BIS certification mark, now 92. One of them, planned by that time, has already been implemented. It is the case of import pneumatic tyres into India which according to mandatory certification must bear an ISI logo on each tyre and pay a fee for it; their manufacturers must deposit a bank guarantee not required to nationals; the certification cannot be done in European facilities in compliance with EU or UN norms.

EU Question 32: Does India consider adhering to the 1958 UN-ECE agreement, which defines harmonized vehicles safety requirements widely accepted worldwide? Would such membership not spare extra administrative and financial burden on importers and reduce uncertainty to economic operators?

Reply: No. India would not recognize regulations under the 1958 agreement administered by World Forum for Harmonization of Vehicle Regulations (WP.29) of UNECE as international regulations. India is already a member of 1998 agreement.
Page 61 para 3.98– certification and conformity assessment

EU Question 33: Does India contemplate raising any additional fees related to market surveillance for compliance with BIS standards and, if so, could India elaborate on their rationale?

Reply: Under BIS Product Certification Scheme, BIS does not charge any fee other than the marking fee based on production or minimum marking fee, whichever is higher.

EU Question 34: Could India indicate if it plans to expand the list of products subject to mandatory BIS certification (and in particular but not only) for steel products? If so, for which ones? In that case, could India provide further information regarding those additional products would be subject to such BIS certification and an indicative timeline? For those products, could also India indicate which potential risks it intends to tackle that would justify introducing a third party conformity assessment procedure such as the BIS certification?

Reply: The relevant Ministry of the Government of India, in consultation with BIS, decides about the products to be brought under mandatory certification. For steel products, please refer to www.steel.gov.in, the official website of Ministry of Steel. An advance notification is provided to all stakeholders with time lines whenever it is intended to bring any product under mandatory certification.
EU Question 35: Does the Bureau of Indian Standards (BIS) have any plans for issuing new certification guidelines for the steel/metal industry?

Reply: The BIS formulates standards for products including steel products. Technical Regulations/Quality Control Orders are issued mainly to protect consumer interest. Several steel products have been covered by this. There is a standard process of certification of the products. Once certified, there is no restriction on selling these products obtained from domestic producers or import. For further details, the official website of Ministry of Steel- www.steel.gov.in may be referred.

Page 60 para 3.97- foreign producers' mandatory certification

EU Question 36: In order to obtain a BIS license, a foreign manufacturer must set up a liaison/branch office in India. Taking into account the requirement that a foreign manufacturer must have a legal representative in India, could India give the rationale for requiring a bank guarantee (which is an additional requirement that is only applicable for foreign manufacturers, not for domestic ones)?

Reply: The performance bank guarantee is intended to protect the Bureau of Indian Standards (BIS) during the tenure of the licence and is invoked only in case of breach of any condition of the agreement signed between BIS and licensee. Rationale for bank guarantee is preventive security measure to cover the loss of revenue which may arise out of any liability/unpaid fee, penalty etc. on part of foreign manufacturers and also takes care of legal expenses if any, on account of supply of standard mark product in a country other than India. The marking and overall fees are comparable to the fees charged by other members of similar schemes and are equal to the fees levied by BIS to its domestic manufacturers. In case of breach of Marking Fee by domestic manufacturers there are other national laws and legal framework for recovery of dues, penalties, liabilities etc., the provision of bank guarantee has not been imposed for domestic manufacturers. However, this Law of land cannot be enforced in foreign countries. Therefore, to protect BIS interest, Performance Bank Guarantee is sought which is approved by Law Ministry.

Page 62 para 3.102- accreditation

The report states that 14570 laboratories are recognized under the BIS Laboratory Recognition Scheme.

EU Question 37: Can India indicate how many of those laboratories are foreign laboratories? Can India clarify if there are specific conditions applied to foreign laboratories in order to be recognized by BIS (e.g. local branch in India) or if accreditation by an accreditation body member of ILAC/IAF is a sufficient condition for a laboratory to be recognized by BIS?

Reply: It is informed that the number of laboratories that are recognized under the BIS Laboratory Recognition Scheme is 145 only and not 14,570. At present, no foreign laboratory is recognized under the Laboratory Recognition Scheme of BIS. At present, the same provisions, as are applicable in case of Indian laboratories, are applicable in the case of foreign laboratories as well. The details are available on the BIS website www.bis.org.in. Accreditation by an accreditation body, which is member of APLAC/ILAC is one of the pre-conditions for considering a laboratory, whether Indian or Foreign, for recognition under the Laboratory Recognition Scheme of BIS.

Page 62 para 3.103 – labelling

The license number and FSSAI logo can indeed be added in an affixed label. However, other essential information (list of ingredients, expiration date –given for illustration-) cannot be added and have to be printed in English or Hindi directly on the package because FSSAI regulations prohibit the use of stickers. This restricts market access to India and nullifies reciprocity, as most Indian trade partners, including the EU and the US, allow the use of stickers.

EU Question 38: Could India provide justifications of its divergence from CODEX (CODEX STAN 1 1985) and international practice regarding the use of stickers for labelling of food products? Could India further explain if it had identified technical impediments to the use of stickers as a means for providing all mandatory food labelling information, bearing in mind that India accepts stickers for labelling India specific information?

Reply: Codex does not prescribe that the labelling requirement can be met through additional sticker(s). The core information regarding product ingredients, composition, nutrition values, Best Before or Use by dates etc. can only be provided by the manufacturer and none else. The label has to be an inseparable part of the container/ package. Hence, permitting additional stickers as a means of information from any other source or even the manufacturer is likely to compromise with the sanctity of information which is the basic requirement for a consumer for making informed choices.

EU Question 39: What is the present Indian position on the requirement that the packaged products which are subject to the provisions of the Legal Metrology Act from 2009 must be labelled with the Maximum Retail Price (MRP) before they are imported to India?

Reply: The importer have to ensure following declarations on the pre-packaged commodities; before release of products in market for sale.

1. 
   Name and address of the importer;
   
2. 
   Name of the commodity;
   
3. 
   Net quantity in the form of standards weights & measures in SI system of unit;
   
4. 
   Month and year of import;
   
5. 
   Retail sale price in the form of MRP : Rs.-----inclusive of all taxes;
   
6. 
   Consumer care details;
   

These declarations may be either in English or Hindi language. Other additional languages are optional.
Wherever necessary declarations may be made on a sticker at the principal display panel of the pre-packaged commodity as per Amendment Order No. GSR-385(E) dated 14.5.2015
EU Question 40: Are there any plans to relax this requirement as this considerably increases the importers' burdens, (calculations are normally based on several factors including freight, insurance and internal taxes?

Reply: There are no such plans. The sticker provision itself is a big relaxation for importers.
Page 62 para 3.104 requirement regarding the use of methyl bromide in food. Food safety.

The EU is concerned because India requires imported goods in particular fruit and vegetable destined for human consumption to be treated with internationally banned chemical known as methyl bromide. In addition, India requires fumigation to take place at the port of entry for a high fee. The impact is that India sanctions exporters from countries that have decided not to expose their consumers to the negative health effects of methyl bromide. In some cases, the Indian authorities grant import licenses only if both fumigation and an alternative treatment take place simultaneously rendering the food unviable or extremely costly to export without any scientific justification for such requirements.

EU Question 41: Does India consider reforming the current system to ensure that requirements are compatible with its international obligations and for wine and spirits, will India reform the current requirements o as to adjust to the OIV recommendations?

Reply: It may be noted that Codex does not take ownership for OIV. However, the standards for wine and spirits are at final stages of approval and in the process of draft notification. The same will be notified in the WTO-SPS as soon as these are draft notified.

EU Question 42: What is India's intention regarding the use of alternatives substances to methyl bromide (given the health and environmental damages that it causes). Would India provide guidance on the technical assurances of efficacy of the alternative treatments to be provided by exporting countries to India?

Reply: There is no ban on use of Methyl Bromide for quarantine and pre-shipment application. This fact is evident as recorded under para 6, Article - 2 H of Montreal protocol where the production and use of Methyl bromide is not controlled by Montreal protocol. The Methyl bromide treatment at point of entry is done as per Plant Quarantine regulations in imports to safeguard the Indian agricultural bio-security where pre-export conditions of treatment is not fulfilled by exporting countries. The treatment requirements are based on Pest Risk Analysis (PRA). Moreover the exporting partners are free to suggest the alternative treatment with proven efficacy."

Page 62 para 3.106 - SPS

EU Question 43: Does India consider exempting products accompanied by certification from an ILAC-accredited laboratory from sampling?

Reply: It depends on each regulator and it is not automatic. For example, for components of electronics and IT equipment, test reports of IECEE CB and registration of foreign certification bodies are accepted by BIS and BIS recognised laboratories.

EU Question 44: The EU would like to seek clarity from the Government of India whether the WTO SPS (Sanitary and Phytosanitary) committee is notified to all cases regarding import conditions (food safety/standards) raised by the FSSAI (Food Safety and Standards Authority of India), and whether the full 60 days is allowed for commenting? Can India confirm that consideration is given to any comments made by Members? Could India share the number of days in which it would generally issue the final notification to public after receiving & considering the comments of WTO members? Does India consider applying the regionalisation principles of the SPS committee without delay?

Reply: If the regulations/rules and procedures are of SPS nature, all rules/regulations made under the Food Safety and Standards Act, 2006 are sent to the WTO-SPS Committee and also published giving 60 days' time period for comments as per the provisions of WTO SPS Agreement. The rules and regulations are finally notified after due consideration of the comments received from the WTO members. Normally, every endeavour is made to notify the final regulation within a period of six months if the comments are not substantial requiring re-assessment by the scientific bodies. The principle of regionalization would be governed as per Article 6 of the SPS Agreement.

FSSAI authorities maintain they are aligning to Codex as regards standards. As India is a signatory of Codex since 1964, they should comply with it. Just the adoption of Codex, instead of the alignment to it, would be easier and quicker and would allow resources to be used in any other field. Furthermore, India has even adopted their own standards for certain products without having any production of them. That is the case of table olives. While being very active in the discussions taken around this product in the Codex meeting held in Jamaica in October 2012, India has not introduced Codex standards for table olives which were adopted in that occasion and enter into force a year later. As a consequence of that, several EU containers of table olives, which have been entering into the Indian market for the last 25 years, were blocked for non being compliance with Indian standards despite the conformity with Codex.

EU Question 45: The lack of alignment of the import requirements with those of the Codex Alimentarius is disrupting trade unnecessarily (e.g. table olives; dried, heat-treated and cured meat products, whole-wheat pasta). FSSAI authorities maintain that they align their standards to Codex. Could Indian authorities explain under which parameters is the review of the current system going to be produced? Is India considering adopting the Codex Alimentarius? For labelling through stickers, is India working on solutions that are viable and practical for economic operators?

Reply: Harmonisation of standards for table olives with Codex standards is in the process. As regards blind adoption or harmonisation with Codex Standards, India has to consider harmonisation keeping in view its own ground realities and local requirements/adaptations.
Page 63, para 3.109 - SPS
With regard, specifically, to pork products, India has been considering only heat treatment, ignoring other processing methods (e.g. curing by various means) that also provide an adequate measure of safety, as has been scientifically demonstrated and recognised by all major importing countries. Thus cured products, while identified in the Customs Tariff (HS021011-021020), have not been envisaged in the Indian sanitary regulations. A new draft certificate submitted recently to the WTO considers salt treatment but applied only to deboned meat which is not in line with international practices.
Furthermore, some of the sanitary requirements included in the Indian sanitary certificates are not in line with the international standards. Regarding fresh pork meat, India only allows the imports of this product from countries that are free from Aujeszky's disease. This requirement doesn't meet the OIE recommendations, nor the regionalisation principle.

EU Question 46: Is India considering to align in particular to the standards of the World Animal Health Organisation (OIE) for SPS matters? Could India provide a scientific justification for its requirements, in the health certificates, of freedom from animal diseases that are not listed in the OIE?

Reply: Yes, India is considering aligning in particular to the standards of the World Animal Health Organisation (OIE) for SPS matters. The requirement of Enterovirus Encephalomyelitis, Transmissible Gastro Enteritis, Porcine Brucellosis, and Anthrax in the health certificate has been made as these diseases are enlisted in the Terrestrial Manual or in Terrestrial Animal Health Code of OIE.
Page 63 para 3.110 - plant pest risk

EU Question 47: Could India provide a list of quarantine pests and general import conditions?

Reply: The list of Quarantine Pests and general import conditions are available on the following web link: http://plantquarantineindia.nic.in/POISPub/pdffiles/pqorder2015.pdf.

EU Question 48: Are Indian authorities considering the simplification of the Plant Quarantine by means of producing a negative list (which means same treatment for the same pest)?

Reply: The Indian Plant Quarantine regulations are in line with IPPC provisions.