THE SAFEGUARD ACT
ORDER
(under section 3)
The Safeguard (Appointment of Investigating Authority) Order, 2002 L.N. 33A/2002
REGULATIONS
(under sections 5, 6, 9, 11, 14, 15, 18, 22, 24, 30 and 33)
The Safeguard Regulations, 2003 L.N I O ~ / Z O O ~
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THE SAFEGUARD ACT
ORDER
(under section 3)
(Made bv the Minister on the 23rd day ofApril. 2002)
1. This Order may be cited as the Safeguard (Appointment of
Imestigating Authority) Order, 2002.
2. The Anti-Dumping and Subsidies Commission is hereby appointed to
be the Investigating Authority for the purposes of the Act.
L.N. 33~0002
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REGULA'I'IONS
(under sections 5, 6, 9, 11, 14, 15, 18, 22, 24, 30 and 33)
(Made by the Minister on the 18th day of March, 2003) L N. 104/2003
1. These Regulations may be cited as the Safeguard Regulations, 2003.
2.-(1) A determination as to whether increased imports of an
investigated product have caused serious injury to a domestic industry under
section 5 of the Act shall be based on the following factors, that is to say-
(a) the rate and amount of increase in imports of the investigated
product, in absolute terms and relative to domestic production of
like or directly competitive products;
(b) the share of the domestic market taken by increased imports of
the investigated product;
(c) the prices of the investigated product, especially for the purposes
of determining whether the industry has suffered price effects,
including-
(i) price undercutting;
(ii) price suppressio* and
(iii) price depression;
(4 the impact of increased imports of the investigated product on the
domestic industry as evidenced by relevant economic indicators2
including--
(i) production;
(ii) utilization of production capacity;
(iii) changes in the levels of inventory;
(iv) the market share;
(v) any change in the levels of sale;
(vi) the level of employment and wages in the domestic
industry;
(vii) productivity:
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THE SAFEGUARD REGUIATIONS, 2003
(viii) profit;
(ix) return on investment; and
(x) cash flow;
(e) such other factor as the investigating 'Authority considers relevant.
(2) A determination as to whether increased imports of an
investigated product have threatened to cause serious injury to a domestic
industry under section 5 of the Act shall be based on the following factors,
that is to say-
the actual and potential export capacity of the country or
countries of origin or of export and the likelihood that this
capacity will be used for exports into Jamaica, taking into account
the availability of other export markets to absorb an increase;
the rate of increase in the import of the product under
investigation to Jamaica in absolute and relative terms;
any build-up of inventories of the investigated product in Jamaica
and in the countries of export;
evidence of the possibility of a further increase in imports;
trade restriction on exports to third country markets;
the potential impact of increased imports of the investigated
product on the domestic industry as evidenced by relevant
economic indicators, including-
(i) production;
(ii) utilization of production capacity;
(iii) changes in the levels of inventory;
(iv) the market share;
(v) any change in the levels of sale;
(vi) productivity;
(vii) profit;
(viii) return on investment;
(ix) cash flow; and
such other factors as the Investigating Authority considers
relevant.
(3) In this Regulation-
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THE SAFEGUARD REGULATIONS, 2003
"price depression" means the reduction in the domestic industry's
selling price as a result of increased imports of the investigated
product;
"price suppression" means the decline in the margin between an
organization's unit cost and selling price;
"price undercutting" means the margin between the Jamaican market
price of the investigated product and that of the domestic like or
directly competitive product.
Conduct of Investigation
3. A written request by or on behalf of a domestic industry under section
6(1) (a) of the Act shall include the following information-
the full name: business name, where applicable, and address of
the applicant;
a description of the volume and value of its domestic production
of the like or directly competitive products;
a list of all known domestic producers of the hke or directly
competitive products;
whether the request is made by or on behalf of the domestic
industry, and the percentage of domestic production of the lrke or
directly competitive products produced by the domestic industry:
a complete description of the investigated product, including its
trade name or identification technical specifications,
characteristics, uses, tariff classification and the customs duties
applicable;
a complete description of the domestic like or directly
competitive product, including its trade name or identification,
technical specifications, characteristics, uses and tariff
~ lass~ca t ion;
evidence that the domestic product is like or directly competitive
to the imported product:
the name of the country of origin and the country of export of the
imported product;
the identity and address of each known foreign producer, exporter
and domestic importer of the imported product, or his duly
authorized representative;
-
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0) infornntion, by country of origin on thc volume and value of the
imported product which shows the increase in imports of the
investigated product in absolute tenns or relative to domestic
production. or both, for each of the three calendar years preceding
the request, and any more recent parlial-year data on a monthly
basis or, where the data is unavailable: other available basis:
(it) the volume and value of the domestic like or directly competitive
product for each of the last three years and the expected volume
of production in the year in which the request is being submitted,
on a monthly basis or. wherc the data is unavailable, other
available basis:
( I ) information in support of the existence of serious injury or threat
of serious injury to the domestic industry, for each of the three
calendar years preceding the request and any more recent partial-
year data, on a monthly basis or, where the data is unavailable: on
such basis as the Investigating Authority may determine,
including-
(xiv)
the volume and value of domestic production;
utilization of production capacity;
any change in the levels of inventory;
the market share;
any change in the levels of sale;
the level of employment and wages in Ihe domestic
industry;
any change in the price level;
productivity;
profit and loss;
cash flow
the export capacity of the exporting countries;
inventories in Jamaica and in the exporting countries;
any information regarding the probability that imports
will increase, including trade restrictions on exports to
third country markets; and
any other indicator considered relevant by the applicant;
(m) an explanation, in light of the information provided and the
requirements of the Act, of the reasons why it is believed that
serious injury exists or there is a threat thereof and why it is
believed to be caused by the increased imports;
(n) a statement giving-
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THE SAFEGUARD F3CGCIL.A TIONS. 2003 9
(i) specific reasons and objectives for sceking the
application of a safegyard measure; and
(ii) the type and level of safeguard measure considered
necessary to ensure the achievement of the objects
pursued;
(0) a plan for the adjustment of the domestic industry from
competition from imports, in accordance with the reasons and
objectives set out in the statement mentioned in paragraph (17);
@) where a provisional safeguard measure is sough--
(i) information regardmg circumstances in which delay in
taking action will cause damage to the domestic industry,
which it would bc difficult to repair;
(ii) a statement indicating the level of tariff increase
requested; and
(iii) at1 economic report which quantifies the impact of the
measurc requested on the final and intermediate
consumers of thc product concerned, and on the public
interest: and
(q) such other information as the Investigating Authority may
reasonably require.
4. Every person whe-
(a) makes a written request under section 6(1) (a) of the Act; and
(b) alleges that any information containcd in or submitted along with
the request is confidential,
shall submit a confidential version along with a non-confidential summary of
the request.
5. A notice of an investigation under section 9 (2) of the Act shall contain
the following information-
(a) the datc and time of commencement of the investigation;
(b) the reasons for the investigation;
(c) a summary of information on which allegations of increased
imports and any serious injury or threat thereof caused by
increased imports are based;
(d) whether the application of a provisional measure will be
considered;
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THE U F E G CARD REG ULA TIOiVS, 2003
(e) the name. business address and telephone numbers of the contact
person at the offices of the Investigating Authority;
V) the proposed schedule for the investigation, including--
(i) the date by which interested parties desiring to participate
in the investigation must so inform the Investigating
Authority in writing;
(ii) where the application of a provisional measure will be
considered, the schedule for and the deadline pertaining
to the preliminary phase of the iavestigation;
(iii) the date by which a hearing, if desired. must be
requested: and
(iv) the proposed dates for the determination regarding the
application of a provisional measure. if relevant, for the
determination regarding serious injury.
Public Register
6.-(1) The public register established under section 16 of the Act: shall
contain-
(a) all non-confidential submissions as well as verification reports,
records of hearing and any other information which is of a public
nature;
(b) all notices and statements of reason9 relating to the investigation
published by the Investigating Authority.
(2) The public register shall be made available to members of the
public during the business hours of the Investigating Authority for the
purpose of inspection and the making of copies of extracts therefrom upon
payment of the prescribed fee.
(3) A separate register shall be kept in respect of any confidential
information submitted to the Investigation Authority and shall not be open for
inspection.
7. In order to venfy information submitted or to obtain further details, the
Investigating Authority may conduct visits and inspect facilities of an
interested party.
Safeguard Measures
8. A notice of application of a provisional safeguard measure under
section 18 of the Act shal! contain the following information-
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THE SAFEGUARD RE:GULAI'IONS. 2203
(u) the information specified in regulation 3;
(b j the country or countries of origin of the investigated product;
(c) the basis for the determination of-
(i) circumstances under which delay would cause damage
that would be difficult to repair;
(ii) the existence of clear evidence that increased imports of
the investigated product have caused or threaten to cause
serious injury;
( 4 the amount of tariff increase proposed as the provisional
safeguard measure;
(e) the duration of the provisional safeguard measure; and
V) such other information as the Investigating Authority thinks
necessary.
9. A notice upon malung a determination as to the cause of serious injury
or threat of serious injury under section 22 of the Act shall contain the
following inforrnation-
(u) the information specified in regulation 3;
(h) the country of origin of the investigated product;
(c) a summary of the information obtained in the investigation,
including-
(i) the factors considered and the relevance of those factors;
(ii) the finding and conclusions reached on the issues of
Facts and law considered;
(4 the reasons why the Investigating Authority has concluded that
the application of a definitive safeguard measure is in the public
interest; and
(e) the name, business address and telephone numbers of the contact
person at the offices of the Investigating Authority.
10. A notice of application of a definitive safeguard measure under
section 24 of the Act shall contain the following information-
(a) the information specified in regulation 3;
(h) a summary of the affirmative injury determination, including the
Factors considered and the relevance thereof, as well as of the
findings and conclusions, and the reasons therefor. on the issues
or fact and law considered;
THE SAFEGKJARLI REGULA TKINS, 2003
(c) the reasons why the Minister has concluded that the application of
a definitive safeguard measure is in the public interest;
(4 the form, level and duration of the proposed definitive safeguard
measure, and an explanation thereof in light of the domestic
industry's adjustment plan;
(a) the date of application of the definitive safeguard measures;
V) if a quantitative restriction is proposed, the allocation of the
quotas among the supplier countries, and an explanation and the
relevant information regarding the basis on which the allocation
has been made;
(g) if the duration of the measure is more than one year, a timetable
for the progressive liberalization of the measure; and
(h) the name of any developing country which is exempted from the
IllcdSUrC.
11. A notice of termination of an investigation without applying a
definitive safeguard measure under section 27 of the Act for publication in
the Gazette shall contain the following information-
a complete description of the investigated product, including its
trade name or identification, technical specifications, charac-
teristics and uses, its tariff classifications and duties applicable:
a complete description of the like or directly competitive product,
including its trade name or identification, technical specifications,
~ h d r d ~ t e f l ~ t i ~ s and uscs:
the business name and address of the applicant, if any, and all
other known producers of the domestic like or directly
compctitive products:
the country or countries of origin or export of the investigated
product;
the name, address and telephone number of contact person at the
Investigating Authority:
the reason for the termination of the investigation.
12. A notice of commencement of a review of a definitive safeguard
measure under section 30 of the Act shall-
(a) be published in the Gazette and in a daily newspaper; and
(h) contain the information specified in regulation 5.
THE SAFEGUARD REGULATIONS, 2003 13
13. A notice of the decision taken consequent on the review of a
definitive safeguard measure under section 30 of the Act shall contain the
following information---
a complete description of the investigated product, including its
trade name or identification, technical specifications, charac-
teristics and uses, its tariff classifications and duties applicable;
a complete description of the like or directly competitive
products, including its trade name or identification, technical
specifications, characteristics and uses;
the business name and address of the applicant, if any, and all
other known producers of the domestic like or direcily
competitive products;
the country or countries of origin or export of the investigated
product;
the name, address and telephone number of contact person at the
Investigating Authority;
the date of application of the definitive safeguard measure and the
form and duration of the definitive safeguard measure imposed;
the reason for the Investigating Authority's decision to either
maintain or withdraw the definitive safeguard measure or to
increase the pace of liberalization of the domestic industq.
14.-(1) The domestic industry's written request for an extension of a
definitive safeguard measure should be received by the Investigating
Authority no later than nine months before the end of the initial period of
application of the measure.
(2) In addition to the requirements set out in regulation 3 the request
shall contain details demonstrating that-
(a) an extended period of application of the measure continues to be
necessary to prevent or remedy serious injury to the domestic
industry;
(b) the domestic industry is adjusting to newly occurring circum-
stances; and
(c) the domestic industry is carrying out its adjustment plan.
Quotas
15.-(1) A definitive safeguard measure in the form of a quota on im-
ports of the investigated product, applied pursuant to section 25 of the Act,
shall not reduce the quantity of those imports below the average level
registered in the most recent three representative years for which statistics are
available (hereinafter referred to as the "representative period").
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(2) Notwithstandmg thc provisions of paragraph (1). the lnvesti-
gation Authority may, if it is satisfied that a different level is necessary to
prevent or remedy serious injury or threat thereof. apply a quota which
reduces the quantity of imports of the investigated product below the average
level registered in the representative period.
(3) Where more than one country exports the investigated product
to Jamaica the quota on imports shall be allocated among supplying
countries. on the basis of the agreement reached pursuant to section 25 (3) of
the Act.
16.-(1) Where the Investigating Authority determines that an allocation
pursuant to regulation 15 (3) is not reasonably practicable, the Investigating
Authority shall allocate the quota among Members having a substantial
interest in supplying the investigated product.
(2) An allocation under paragraph (1) shall be based upon the
proportions of the investigated product supplied by such Members during the
representative period.
17. In making an allocation of the quota among supplying countries, the
Investigating Authority shall take account of any special factors which have
affected trade in the investigated product.
18. Where the Investigating Authority determines that there is serious
injury to the domestic industry, it may allocate the quota among supplying
members on a different basis, provided that consultations have been held with
supplying members under the auspices of the Committee, and the Committee
is satisfied that-
(a) imports from certain suppliers have increased disproportionately
in relation to the total increase in imports of the investigated
product during the representative period;
(b) the reasons for the departure from the method for quota allocation
specified in regulation 15 (3) are justified; and
(cj the conditions of such departure are the most equitable to all
P concerned suppliers of the product.
' I
Hearings
19. A notice of the hearing shall be published in the Gazette and in a
daily newspaper.
20. If an interested party fails to attend a hearing, the Investigation
Authority may-
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THE SAFBC;lJARD REGIJLA TIONS. 2003
(a) proceed without the participation of the party'> and
(b ) take account of such facts and information available to it.
21 .-(I) The facts required to be submitted under section 4 (3) of the Act
shall be submitted no later than five days before the scheduled date of the
hearing.
(2) An interested party may, within five days after the hearing,
submit further written arguments and information in response to the
arguments and information presented at the hearing.
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