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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere
I. Final Determinations
Where the Commission makes a preliminary determination of dumping or subsidizing in respect of goods, the Commission shall
(a) publish notice of its determination as provided in section 25;
(b) give written notice of its determination to the Minister, stating the reasons therefore, together with such other material relating to the determination as may be necessary.
Within ninety days after making a preliminary determination of dumping or subsidizing in respect of goods, the Commission shall make a final determination of the matter
(a) upon being satisfied, in relation to each importation of the goods, that the conditions specified in subsection (2) apply; and
(b) after taking action in accordance with subsection (3).
The conditions mentioned in subsection (1)(a) are that
(a) the goods have been or are being dumped or subsidized; and
(b) neither the margin of dumping of or the amount of the subsidy on the goods, nor the actual or potential volume of dumped or subsidized goods is negligible.
The Commission shall specify in relation to each importation the following
(a) in the case of dumped goods, the goods to which the determination applies and the margin of dumping of the goods;
(b) in the case of subsidized goods
(i) the goods to which the determination applies;
(ii) the amount of the subsidy on the goods; and
(iii) where the whole or any part of the subsidy is an export subsidy, the amount of the export subsidy on the goods.
Where the Commission makes a final determination of dumping or subsidizing, the Commission shall notify the Minister accordingly and shall cause notice of such determination to be published as provided in section 25.
J. Maximum Length of Investigation
All complaints referred to the Board must normally be concluded within 6 months of the initiation of the investigation. (Sec. 23).
K. Maximum Duration of Antidumping and Countervailing Duty Orders
An AD/CVD order may not exceed 12 months. (Sec. 4(3A)).
M. Best Information Available (or "Facts Available")
Where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period or significantly impedes the investigation, the Commission may make such determination as it thinks appropriate on the basis of the facts available and, for the purposes of this subsection, the Commission shall have regard to the provisions of Annex II of the Anti-Dumping Agreement.
N. Consumers as Interested Parties
"Interested party" means a person
(a) engaged in the production, purchase, sale, export or import of any goods that are the subject of an investigation;
(b) engaged in the production, purchase or sale of any goods produced in Jamaica that are like goods in relation to goods that are the subject of an investigation;
(c) acting on behalf of any person referred to in paragraph (a) or (b);
(d) who is a user of any goods that are like goods in relation to any goods that are the subject of an investigation.
O. Public Interest
P. Undertakings or Commitments
"Undertaking" means an undertaking with respect to goods that are the subject of a dumping or subsidizing investigation under this Act, that is to say
(a) in the case of dumped goods, an undertaking given by an exporter where the exporter undertakes
(i) to increase, in the manner specified in his undertaking, the price at which he sells the goods to importers in Jamaica in order to eliminate the margin of dumping; or
(ii) to cease dumping the goods in Jamaica; and
(b) in the case of subsidized goods an undertaking given by
(i) an exporter who undertakes to increase, in the manner specified in the undertaking, the price at which he sells the goods to importers in Jamaica; or
(ii) the government of a country which undertakes in the manner specified in the undertaking
(A) to eliminate the subsidy on goods exported to Jamaica from that country;
(B) to limit the amount of the subsidy on goods exported to Jamaica from that country; or
(C) otherwise to eliminate the effect of the subsidizing on the production in Jamaica of like goods.
Subject to subsection (2), the Commission may, in any investigation relating to the dumping or subsidizing of goods, accept an undertaking with respect to dumped or subsidized goods where it is of the opinion that observance of the undertaking will eliminate
(a) the margin of dumping of or of the subsidy on the goods
(i) where the undertaking is given by an exporter, if they are sold by the exporter to importers in Jamaica; and
(ii) where the undertaking is given by the government of a country from which the goods are exported to Jamaica, if they are exported to Jamaica from that country pursuant to sales thereof by exporters to importers in Jamaica; or
(b) any material injury that is being or is likely to be caused by the dumping or subsidizing.
The Commission shall not accept an undertaking with respect to dumped or subsidized goods
(a) unless it is of the opinion that observance of the undertaking will not cause
(i) where the undertaking is given by an exporter, the price at which the goods are sold to importers in Jamaica by the exporter; or
(ii) where the undertaking is given by the government of a country, the price at which the goods will be sold to importers in Jamaica when exported to Jamaica from that country, to increase by an amount which is not less than the estimated margin of dumping of the goods or the estimated amount of the subsidy thereon;
(b) where it has made a preliminary determination of dumping or subsidizing with respect to the goods; or
(c) where it is of the opinion that it would not be practicable to administer the undertaking.
The Commission shall, where practicable, provide to the exporter the reasons which have led it to consider acceptance of an undertaking as inappropriate and shall, to the extent possible, give the exporter an opportunity to make comments thereon.
V. Review of Antidumping and Countervailing Duty Determinations
A. Annual Reviews
B. Duty Refund Review
The importer of any goods chargeable with an AD/CVD duty and are originating in or exported from a specified country may apply to the Minister for relief of the duty on those goods within 6 months after the duty has been paid on the goods.
An application must include information and evidence as the Minister requires in order to determine the export price or fair market price.
If the Minister determines that the export price of the goods from that country with the amount of the duty added to it exceeds the fair market price of the goods in that country, the Minister will then notify the Commissioner of Customs and Excise of the amount of the excess.
Upon notice, the Commissioner will remit or repay the duty up to that amount. (Sec. 5).
C. Sunset Review
D. Changed Circumstances Review
E. New Shipper Review
3. Judicial, Administrative or Other Review
An application may be made to the Supreme Court to review and set aside
(a) a final determination of the Commission under section 30;
(b) a decision of the Commission under section 31 to review or not review an undertaking;
(c) any order, finding, ruling or determination of the Commission.
An application may be made on the grounds that the Commission has
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise the jurisdiction of the Commission;
(b) erred in law in making the determination, order or finding, whether or not the error appears on the face of the record; or
(c) based on the determination, order or finding or an erroneous finding of fact that was made in perverse or capricious manner or without regard to the material before the Commission.
An application may be made under this section by any person directly affected by the determination, or finding.
F. Procedures for Due Process
1. Notification of Initiation of Investigation
Where the Commission decides to proceed with an investigation in respect of the dumping or subsidizing of goods
(a) the Commission shall give notice of that decision to
(i) the Minister; and
(ii) the exporter, the importer, the government of the country of export, the complainant (if any), and such other person as may be prescribed; and
(b) a copy of the notice shall be published in the Gazette and in a daily newspaper circulating in Jamaica.
A notice shall
(a) specify the goods being investigated;
(b) specify the country or countries in which the goods originated or from which they are exported;
(c) give a summary of the information received;
(d) invite representations regarding the investigation to be made to the Commission;
(e) specify a period within which interested parties may present their views in writing to the Commission or make arrangements with the Commission to be heard, which period shall, in the case of an exporter of or the government or person giving a subsidy affecting the goods in question, be not less than thirty days from the commencement of the investigation.
2. Questionnaires (Distribution, Response Time, Extensions, Supplements)
3. Publication of Antidumping and Countervailing Duty Determinations
Where the Commission makes a preliminary determination of dumping or subsidizing in respect of goods, the Commission shall – publish notice of its determination in the Gazette and in a daily newspaper circulating in Jamaica. Where the Commission makes a final determination of dumping or subsidizing, the Commission shall notify the Minister accordingly and shall cause notice of such determination to be published in the Gazette and in a daily newspaper circulating in Jamaica.
4. Access to Public Information
The Commission shall provide timely opportunities for all interested parties to examine all information other than confidential information used by the Commission in an investigation and relevant to the presentation of their cases. Where a person submits to the Commission a statement referred to in that subsection, that person shall also submit to the Commission a summary of the evidence to which the statement relates in sufficient detail to convey a reasonable understanding of the evidence.
5. Access to Confidential Information
The Commission shall not disclose confidential information supplied to it by an interested party to the other interested parties unless the party submitting the information agrees to such disclosure.
Information is considered confidential if
(a) because of the nature of the information, disclosure of it would be of significant competitive advantage to a competitor; or
(b) its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information.
Information treated as confidential under this section shall not be disclosed by anyone who received such information by virtue of the provisions of this Act otherwise than in the discharge of his functions under this Act. Any person who contravenes the provisions shall be guilty of an offence and shall be liable on summary conviction before a Resident Magistrate to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment. Where a person who provides the Commission with evidence pursuant to the provisions of this Act wishes some or all of the evidence to be kept confidential, the person shall submit, at the time the evidence is provided, a statement identifying the evidence that he wishes to be kept confidential and stating the reason therefore.
6. Decision Making Process (Ministerial Approval, Commission Vote, etc.)
The competent authority for initiating, conducting and making recommendations in anti-dumping, subsidies and countervailing duty investigations is the Antidumping and Subsidies Commission. the Commission may
(a) summon and examine witness;
(b) call for and examine documents;
(c) administer oaths;
(d) require that any document submitted to the Commission be verified by affidavit;
(e) adjourn any investigation from time to time.
The Commission may, enter into arrangements with any body or person recognized by the Commission as having specialized knowledge of any matter being investigated by the Commission, to assist it in an advisory capacity in its investigation of that matter.
The Minister may make regulations subject to affirmative resolution generally for giving effect to the provisions of the Customs Duties (Dumping and Subsidies) Act.
G. Application and Collection of Duties
1. Suspension of Liquidation
2. Use of Bonds or Cash Deposits
Where provisional duties are imposed in respect of any goods, the importer of those goods shall, at his option post or cause to be posed security in a prescribed form and in an amount or to a value not greater than the estimated margin or estimated amount of subsidy on those goods.
3. Methods of Liquidation
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