RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/JAM/2
G/SCM/Q1/JAM/2
19 January 2000
(00-0223)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies to Questions Posed by the UNITED STATES1
Regarding the Notification of JAMAICA2
The following communication, dated 13 January 2000, has been received from the Permanent
Mission of Jamaica.
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Q1. Do the WTO Anti-Dumping (A-D) and Subsidies and Countervailing Measures (SCM)
Agreements have the effect of national law in Jamaica?
Reply
The WTO (A-D) and (SCM) Agreements do not have the effect of national law in Jamaica.
The Act is intended to give effect to the provisions of the Anti-Dumping Agreement and to
"connected matters" which would include the Subsidies and Countervailing Measures Agreement.
Q2. The definition of an “interested part y” in Section 2 of Jamaica’s Customs Duties
(Dumping and Subsidies) Act, 1999 (“the Act”) is both broader and narrower than the
definitions of “interested party” contained in Article 6.11 of the A-D Agreement and
Article 12.9 of the SCM Agreement.  For example,  the Act’s definition is broader in that it
includes purchasers and users of products.  The definition is narrower in that an “interested
party” in the Act is not defined specifically to include a government.  While both the A-D and
SCM Agreements specifically allow Members to expand the list of interested parties, they do not
state that the list may be narrowed.  Is a government considered an “interested party” under
Section 2 of the Act?
Reply
Jamaica intended to include a public interest fact or in its determinations hence the inclusion
of purchasers  and users .  By virtue of Section 25, a government is not excluded from the process.
Q3. Section 4(1)(a) of the Act states that the Jamaican Anti-Dumping and Subsidies
Commission (Commission) may carry out an in vestigation “on the request of any person.”
Article 5.1 of the A-D Agreement and Article 11.1 of the SCM Agreement normally require that
anti-dumping and countervailing duty investigations be initiated upon a written application
                                                     
1 G/ADP/Q1/JAM/1-G/SCM/Q1/JAM/1
2 G/ADP/N/1/JAM/2-G/SCM/N/1/JAM/2G/ADP/Q1/JAM/2
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made “by or on behalf of the domestic industry.”  How is Section 4(1)(a) of the Act consistent
with Article 5.2 of the A-D Agreement and Article 11.1 of the SCM Agreement, which require
that the application requesting initiation of an investigation be made “by or on behalf of the
domestic industry”?
Reply
The Act is consistent with these obligations in the A-D and SCM Agreements.  Jamaica is
currently reviewing the Act to determine what changes, if any, should be made to clarify this section.
Q4. If information requested by the Commission “is not furnished to its satisfaction,”
Section 4(6) of the Act permits the Commission to  “make a finding as to such facts on the basis
of the information available to it.”  This standard leaves a great deal of discretion to the
Commission as to when it may resort to facts available.  What practices will the Commission
follow to ensure consistency with Articl e 6.8 and Annex II of the A-D Agreement and
Article 12.7 of the SCM Agreement?
Reply
Where information is not furnished to the Commission's satisfaction, the Commission intends
to exercise the discretion granted to it in Section 4(6) of the Act.  In doing so, it will follow thepractices enunciated in the WTO's (A-D) Article 6.8 and Annex II, and (SCM) Article 12.7.  Jamaica
is currently reviewing its legislation with a view  to determining whether it might incorporate a
mandatory requirement that the Commission will follow WTO practices in these circumstances.
Q5. Section 7 of the Act also appears to give the Commission complete discretion to set the
time limits within which information must be pr ovided to it.  Article 6.1.1 of the A-D Agreement
and Article 12.1 of the SCM Agreement require that exporters, producers and interested
Members be given at least 30 days in which to reply.  Article 6.8 and Annex II of the A-D
Agreement state that interested parties must be given a reasonable period of time to provide
information before authorities may resort to facts available.  See also
 Article 12.7 of the SCM
Agreement.  How is the Commission’s discretion concerning time limits under Section 7 of theAct consistent with Article 6 and Annex II of the A-D Agreement and Article 12 of the SCMAgreement?
Reply
Section 7 of the Jamaican Act focuses on the Commission's general ability to obtain evidence.
The Commission's discretion concerning time under Se ction 7(b) is addressed under Section 25 and
will also be reflected in the Regulations.
Q6. Section 20(1) of the Act states that, where the Commission is of the opinion that
sufficient information has not been furnished or is not available to determine the export price,
that price shall be determined in such ma nner as the Minister may prescribe.  See also
Section 20(2) of the Act.  Article 2.3 of the A-D Agreement appears to limit, to a greater extent,
this discretion regarding when the export price may be considered unreliable and how the
authorities are to construct the export price in  such circumstances.  How is the standard for
determining the export price set forth in Section 20 of the Act consistent with Article 2.3 of the
A-D Agreement?G/ADP/Q1/JAM/2
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Reply
Section 20(1)(2) is silent on the method which the Commission will use to construct the
export price.  However this will be addressed in the Regulations.
Q7. The Act does not provide for administrative reviews of anti-dumping or countervailing
duty orders.  Are such reviews available under the Act in accordance with Article 11 of the A-D
Agreement and Article 21 of the SCM Agreement?  If so, please provide details regarding how
parties may seek such reviews, and the procedures involved.
Reply
At present, interested parties may petition the Commission for a review under Section 4(1)(b).
It is anticipated that the details and procedures will be addressed in the proposed review and
regulations.
Q8. Where does Jamaican law implement the requirements of Article 11 of the A-D
Agreement and Article 21 of the SCM Agreement, wh ich state that, in order to maintain anti-
dumping or countervailing duties past five years, a finding must be made that dumping or
subsidization would be likely to continue or reoccur in the absence of the duty?
Reply
Jamaican law is silent on this.  Under the proposed review, it is intended to take consideration
of Article 11 of (A-D) and Article 21 of the (SCM) Agreements.
Q9. Section 30 of the Act does not appear to require the Commission to provide any
explanation for a determination to impose a definitive duty.  How is this consistent with the
requirements of Article 12.2.2 of the A-D Agreement and Article 22.5 of the SCM Agreement?
Reply
The Act is being reviewed to determine how best to reflect the requirements of the A-D and
SCM Agreements.
Subsidies
Q10. The definition of subsidy in the Act largely mirrors Article 1 of the SCM Agreement,
but does not include Article 1.1(a)(1)(iv) of the Agreement.  The Act does not mention specificity
or actionable and non-actionable subsidies.  In stead, it appears to apply only to prohibited
export subsidies as defined by the Act and in Article 3 of the SCM Agreement.  Is the type of
subsidy described in Article 1.1(a)(1)(iv) of the SCM Agreement included in the definition of
subsidy in Section 2 of the Act?
Reply
(a) On actionable and non-actionable subsidies – the intention of the Commission is to
meet its WTO obligations by observing any distinction in subsidy programmes beforeit decides to initiate an investigation.  Jamaica intends to address this point in its
regulations.G/ADP/Q1/JAM/2
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(i) On the definition of subsidy – the definition of "subsidy" is not restricted to
"export subsidy".  The type of subsidy described in Article 1.1(a)(iv) of the
SCM Agreement is reflected in the definition of subsidy in Section 2 of the
Act;
(ii) Jamaica intends to fully reflect the definition of "subsidy" from the SCM
Agreement and is reviewing its legislation to ensure that it reflects the
definition.
Q11. How does Jamaica intend to treat specific actionable subsidies as defined in Articles 1.2,
2, and 5 of the SCM Agreement?
Reply
Assuming that the reference is to the requirement that subsidies be specific, as set out in
Article 1.2 of the SCM Agreement, and the requirement that specific subsidies are actionable if theycause adverse effects pursuant to Article 5 of the SCM Agreement, Jamaica's Act reflects the
principles of both sections, and Jamaica intends to honour its WTO obligations by observing any and
all distinctions in relation to subsidies.
Injury
Q12. Section 2 of the Act defines “material injury” to mean “material injury to the
production in Jamaica of like goods.”  The Act does not further specify the factors the
Commission considers in making a material injury determination.
(a) What factors does the Commission consider in making material injury
determinations?
(b) Where in Jamaican law or regulatio ns are these factors provided and, if
provided, are they consistent with the provisions of Article 3 of the A-D
Agreement and Article 15 of the SCM Agreement?
Reply
The Act does not specify the factors the Commission considers in making a material injury
determination.  The Act is currently under review and it is anticipated that the factors set out in
Article 3 of the (A-D) and Article 15 of the (SCM) Agreements will be included and regulationsdeveloped.
Q13. What producers does the Commission examine in determin ing whether there is
“material injury to the produc tion in Jamaica of like goods?”
(a) How is Jamaica’s practice in this respect consistent with the definitions of
domestic industry in Article 4 of the A-D Agreement and Article 16 of the SCM
Agreement?
(b) Does Jamaica have any provision for excluding related parties from the domestic
industry pursuant to Article 4.1(i) of the A-D Agreement and Article 16.1 of the
SCM Agreement?G/ADP/Q1/JAM/2
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Reply
Section 22 of the Jamaican Act sets out the procedures and percentages of domestic producers
which the Commission examines.  It is anticipated that the definition of Domestic Industry andRelated Parties will be addressed in the Regulations.
Q14. In an analysis of threat of material injury, how does Jamaica implement Article 3.7 of
the A-D Agreement and Article 15.7 of the SCM Agreement which specify certain factors for
the authority to examine in its analysis of thre at, and require that the threat “must be clearly
foreseen and imminent?”
Reply
Jamaica's Act refers to a category called "likely to cause material injury", which is similar to
Threat of Material Injury.  Under the proposed review, this aspect will be given consideration.
Q15. In order for the authorities to initiate an investigation, Section 22(c) of the Act requires
that the evidence “disclose a reasonable indication  that the dumping or subsidizing of goods has
caused, or is likely to cause, material injury.”  Article 5.3 of the A-D Agreement and Article 11.3
of the SCM Agreement require authorities to examine the adequacy and accuracy of the
evidence provided in the application to determine whether there is sufficient evidence of injury
to justify the initiation of an investigation.  Does the Jamaican authorities’ determination that
evidence in the application discloses a “reasonable indication” that dumping or subsidization of
goods has caused, or is likely to cause, material  injury constitute a determination that the
evidence in the application is adequate, accu rate and sufficient to justify initiation?
Reply
Section 22(c) of the Jamaican Act is intended to reflect the provisions of Article 5.3 (A-D)
and Article 11.3 (SCM).  This section is being revi ewed with a view to making any clarification that
may be appropriate.
Q16. Section 27 of the Act regarding preliminary determinations of dumping or subsidization
does not mention making an injury determination.  Similarly, Section 15 of the Act authorizes
the imposition of provisional duties “[w]here the Commission makes a preliminary
determination in respect of the dumping and subsidizing of imported goods.”  How is this
consistent with Article 7.1(ii) of the A-D Agreement and Article 17.1(b) of the SCM Agreement,
which require preliminary affirmative determinations of both subsidy or dumping and injury to
a domestic industry before provisional duties may be imposed?  (See  also  Article 30 regarding
final determinations.)
Reply
Jamaica does not intend that duties be imposed without making a prior injury determination.
Section 11 of the Act indicates that duties will be imposed on all dumped or subsidized goods if the
Commission has determined that the injury results from the dumping or subsidization.  It is intended
that the proposed review will make this clear in regard to preliminary determinations.
Q17. Section 11 of the Act states that duties will be imposed on all goods in respect of which
the Commission “has made a finding that the du mping or subsidizing of such goods has caused,
is causing, or is likely to cause material injur y.”  How is a determination pursuant to Section 11
of the Act that the dumping or subsidy “has caus ed” material injury in the past consistent withG/ADP/Q1/JAM/2
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the requirements of Article 3.5 of the A-D Agreement and Article 15.5 of the SCM Agreement
which address current or prospective injur y, but not material injury in the past?
Reply
References to "has caused material injury" refer to instances such as those set out in
Sections 13(2)(b) and 14(2)(b).  However, it is anticipated that the proposed review will address these
Sections to make any clarification that may be appropriate.
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