PRESIDENTIAL DECREE
NO. 84/2002 DATED DECEMBER 16, 2002 ON
THE SAFEGUARD OF THE DOMESTIC INDUSTRY AGAINST A SURGE IN THE IMPORT OF GOODS
THE PRESIDENT OF THE REPUBLIC OF INDONESIA
Considering :
a. that the implementation of commitment to liberalized trade under the Agreement Establishing the World Trade Organization through the reduction of tariffs and the abolition of non-tariff barriers may lead to a surge in the import of goods causing serious losses to the domestic industry;
b. that the serious losses and/or foreseeable serious losses as meant in letter a can be prevented through the National legislation on the safeguard of the domestic industry, so that the industry suffering losses can be make lawful structural adjustments based on the Agreement on Safeguards as referred to in Law No. 7/1994 on the Ratification of the Agreement Establishing the World Trade Organization;
c. that based on the considerations in letter a and letter b, it is deemed necessary to stipulate Presidential Decree on the Safeguard of the Domestic Industry against a Surge in the Import of Goods;
In view of :
1. Article 5, paragraph (2) of the 1945 Constitution as has been amended through the fourth round of amendment to the 1945 Constitution;
2. Law No. 5/1984 on Industry (Statute Book of 1984 No. 22, Supplement to Statute Book No. 3274);
3. Law No. 7/1994 on the Ratification of the Agreement Establishing the World Trade Organization (Statute Book of 1994 No. 57, Supplement to Statute Book No. 3564);
4. Law No. 10/1995 on Customs (Statute Book of 1995 No. 75, Supplement to Statute Book No. 3612); 5. Government Regulation No. 17/1986 on the Authority for the Management and Development of Industry
(Statute Book of 1986 No. 23, Supplement to Statute Book No. 3330);
DECIDES :
To stipulate :
PRESIDENTIAL DECREE ON THE SAFEGUARD OF THE DOMESTIC INDUSTRY AGAINST A SURGE IN THE IMPORT OF GOODS.
CHAPTER I GENERAL PROVISIONS
Article 1
Hereinafter referred to as :
1. Safeguard shall be the step taken by the Government to restore serious losses and/or preve nt foreseeable serious losses faced by the domestic industry as a result of a surge in the import of goods similar to or of goods directly competing with locally- made goods, with the aim of enabling the domestic industry suffering serious losses and/or foreseeable serious losses to make structural adjustments.
3. Foreseeable serious losses shall be the serious losses to be suffered by the domestic industry in the near future.
4. Domestic industry shall be all the producers manufacturing goods similar to or goods directly competing with investigated goods.
5. Goods similar to investigated goods shall be locally- made goods identical or similar to investigated goods in all cases of having the same physical, technical or chemical characteristics as the investigated goods.
6. Goods directly competing with investigated goods shall be locally-made goods similar to or serving as a substitute for the investigated goods.
7. Investigated goods shall be goods imported on a large scale causing serious losses of foreseeable serious losses to the domestic industry.
8. Interested party shall be :
a. domestic producer manufacturing goods similar to investigated goods and/or goods directly competing with investigated goods;
b. association of producers manufacturing goods similar to investigated goods and/or goods directly competing with investigated goods;
c. labour union representing the interests of workers of the domestic industry; d. importer of investigated goods in Indone sia;
e. association of importers of investigated goods; f. industry using investigated goods;
g. domestic exporter or producer of investigated goods abroad; h. association of exporters of investigated goods;
i. government of the country exporting investigated goods; and/or
j. individual or corporate body which according to the committee has interests in the results of an investigation serving as safeguard.
9. Structural adjustment shall be the improvement of the domestic industry's performance to produce goods similar to or goods directly competing with investigated goods as efficiently as possible.
10.Committee shall be the unit or body fully authorized to conduct an investigation as part of safeguard in accordance with this Presidential Decree.
11.Agreement on safeguard shall be the Agreement on Safeguards as referred to the attachment to Law No. 7/1994 on the Ratification ofAgreement Establishing the World Trade Organization.
12.WTO shall be the World Trade Organization.
13.Committee on Safeguards shall be the unit under the preview of the WTO dealing with matters related to the implementation of an agreement on safeguard.
CHAPTER II SCOPE Article 2
CHAPTER III INVESTIGATION
Article 3
(1) The interested party can file an application to the Committee to conduct an investigation into a surge in the import of goods causing serious losses or foreseeable serious losses to the domestic industry.
(2) The application as referred to in paragraph (1) shall be complete with at least : a. identity of the applicant;
b. detailed descriptio ns of investigated goods;
c. detailed descriptions of goods similar to or goods directly competing with investigated goods; d. name of the exporter and the country of the exporter and the country of origin or investigated
goods;
e. the domestic manufacturer suffering losses;
f. information on serious losses and/or foreseeable serious losses; g. information on the import of investigated goods.
(3) No later than 30 (thirty) days after the Committee accepts the application as referred to in paragraph (2), based on the results of an investigation as well as complete preliminary evidences as contained in the application, the Committee shall issue a decision on :
a. the rejection of the application if the application does not fulfill the specified requirements or b. the acceptance of the application and later conduct an investigation if the application fulfills the
specified requirements.
Article 4
(1) The committee shall notify the interested party as referred to in Article 3, paragraph (3) of a decision on whether or not it will conduct an investigation in response to the application of the interested party as well as the reasons for making the decision and announce the decision on the print media.
(2) In regard to the notification of the Committee on the reasons as referred to in paragraph (1), the interested party shall be given a chance to respond to them if they are considered untrue no later than 15 (fifteen) days after the date of the decision.
(3) The Minister of Industry and Trade shall stipulate further procedures for filing the application, notifying the interested party of the decision and announcing the decision on the print media as referred to in Article 3 and Article 4, paragraph (1).
Article 5
A delay in the completion of an investigation shall be announced on the print media by mentioning the reasons for the delay supported by facts and shall be notified to the interested party as soon as possible.
Article 6
The interested party can withdraw show application for an investigation it has already filed to the Committee.
(1) If the results of an investigation show no strong evidence that the domestic industry has suffered serious losses and/or foreseeable serious losses as a result of a surge in the import of goods, the Committee shall stop the investigation serving as safeguard.
(2) Based on the decision of the Committee on the cancellation of an investigation serving as safeguard, the total duties on the import of investigated goods subject to temporary safeguard as referred to in Article 10, paragraph (2) that have been paid by the importer of investigated goods shall be returned to the importer of investigated goods.
(3) No later than 15 (fifteen) days after the Committee has issued the decision on the cancellation of an investigation serving as safeguard, the Minister of Finance shall cancel duties on the import of investigated goods subject to temporary safeguard.
(4) Refunds on the duties as referred to in paragraph (2) shall be made as soon as possible no later than 15 (fifteen) days after the Minister of Finance has issued the decision on the cancellation of duties as referred to in paragraph (3).
Article 8
(1) The Committee shall complete an investigation no later than 200 (two hundred) days after the issuance of a decision on the start of the investigation.
(2) If extra information is needed for the purpose of authentification, the Committee can send a questionnaire to the interested party.
(3) The interested party shall answer the questionnaire as referred to in paragraph (2) no later than 15 (fifteen) days after the date of sending or 20 (twenty) days in case of a request from the interested party for certain reasons.
CHAPTER IV
TEMPORARY SAFEGUARD
Article 9
In case of a strong evidence that :
a. a surge in the import of investigated goods has inflicted serious losses or foreseeable serious losses; or b. a surge in the import of investigated goods has inflicted serious losses on the domestic industry that will be
difficult to restore if temporary safeguard is late,
the Committee can recommend temporary safeguard in the form of import duty.
Article 10
(1) The Minister of Industry and Trade can recommend the Minister of Finance a temporary safeguard.
(2) In regard to the recommendation as referred to in paragraph (1), the Minister of Finance shall set the amount of import duties as a temporary safeguard.
(3) The temporary safeguard shall be valid for not more than 200 (two hundred) days.
Article 11
(1) The temporary safeguard as referred to in Article 10, paragraph (2) shall be made public in the State Gazette and the print media and be formally notified to the interested party.
a. detailed descriptions of investigated goods, including their technical characteristics and use as well as headings;
b. detailed descriptions of goods similar to or goods directly competing with investigated goods;
c. names of domestic manufacturers known as the producers of goods similar to or goods directly competing with investigated goods;
d. name of exporters and exporting countries or countries of origin of investigated goods; e. summary and process of fixing the loss of deciding factors, finds and conclusion.
CHAPTER V THE FILING OF LOSSES
Article 12
(1) The amount of serious losses and/or foreseeable serious losses suffered by the domestic industry as a result of a surge in the import of investigated goods shall be based on the results of an objective and measured analysis of all relevant factors of the industry in question, covering :
a. the level and extent of the impact of a surge in the import of investigated goods, either absolutely or relatively, on goods similar to or goods directly competing with the investigated goods;
b. the domestic market share lost as a result of a surge in the import of investigated goods; and
c. a change in the levels of sales, production, productivity, capacity utilization, profit, losses and job opportunities.
(2) To determine a surge in the import of investigated goods leading to foreseeable serious losses, the Committee shall analyze other factors than tho se referred to in paragraph (1), including :
a. the real and potential export capacity of the country or countries of origin of investigated goods; b. the stocks of investigated goods in Indonesia and exporting countries;
(3) In case serious losses and/or foreseeable serious losses occur at the same time as a surge in the import of investigated goods due to other factors than those referred to in paragraph (1) and paragraph (2), the serious losses and/or foreseeable serious losses cannot be considered as the result of a surge in the import of investigated goods.
Article 13
A decision on the existence of foreseeable serious losses as a result of a surge in the import of investigated goods shall be based on facts rather than assumptions, predictions or possibilities.
CHAPTER VI AUTHENTIFICTION
Article 14
The Committee shall be entitled to directly ask for data and information from the interested party or other competent source, either government or private agency/institution, for the purpose of collecting evidence and authentification in performing its authority in accordance with this Presidential Decree.
Article 15
The Committee can decide evidences on its own based on the best information available if in conducting an investigation the interested party :
a. does not give any response, data or information needed as it should be within a period of time specified by the Committee; or
Article 16
(1) The Committee shall treat any piece of confidential data and information according to its characteristics. (2) The confidential data and information as referred to in paragraph (1) cannot be made public without
permission from the owner of the data and information.
(3) The interested party providing confidential data and information to the Committee shall enclose summaries of the confidential data and information.
(4) The summaries as referred to in paragraph (3) shall be non confidential summaries.
Article 17
In conducting authentification, the Committee shall give an equal or proportional chance to the interested party to provide written evidences as well as other written extra information to the Committee.
Article 18
The Committee shall verify data and information derived or obtained from the interested party in the exporting country or the count ry of origin of investigated goods and the domestic industry.
CHAPTER VII HEARINGS
Article 19
(1) In recommending a permanent safeguard, the Committee shall first hold a hearing.
(2) The interested party intending to attend a hearing shall send his/her name or the name of the person representing him/her to the Committee no later than 7 (seven) days before the date of the hearing.
(3) The Committee shall notify a hearing schedule to the interested party by providing adequate time to enable the interested party or his/her representative to attend the hearing.
CHAPTER VIII
PERMANENT SAFEGUARD Article 20
(1) The Committee shall recommend a permanent safeguard
(2) The recommended permanent safeguard as referred to in paragraph (1) can be done only after the whole procedures for conducting an investigation as part of safeguard have been implemented and there are facts and strong evidences that a surge in the import of investigated goods proves to have caused serious losses and/or foreseeable serious losses to the domestic industry.
(3) The Committee shall notify the interested party of a recommended permanent safeguard no later than 10 (ten) days after the decision is taken and announced in the State Gazette and/or the print media.
(4) The announcement in the State Gazette and/or the print media as referred to in paragraph (3) shall at least contain :
a. detailed descriptions of investigated goods, including their technical characteristics and use as well as headings;
b. detailed descriptions of goods similar to or goods directly competing with investigated goods;
c. names of domestic manufacturers known as the producers of goods similar to or goods directly competing with investigated goods;
d. names of exporters and exporting countries or countries of origin of investigated goods;
e. a summary of the process of fixing serious losses and/or foreseeable serious losses, decid ing factors, finds and conclusion;
f. the model, level and duration of safeguard;
h. quota allocation for each supplying country if the safeguard decided is not in the form of tariff; and i. a list of developing nations excepted from the safeguard.
Article 21
(1) The Committee shall send the recommendation for a permanent safeguard to the Minister of Industry and Trade.
(2) A permanent safeguard can be taken by the Minister of Finance in the form of import duty and/or by the Minister of Industry and Trade in the form of quota.
Article 22
(1) A permanent safeguard in the form of quota shall not be lower than the average import volume in the past 3 (three) years, except if there is clear reason that a lower quota or import volume is needed to restore serious losses and/or prevent foreseeable serious losses.
(2) If there are more than one countries exporting investigated goods to Indonesia, the import quotas specified shall be allocated among the exporting countries.
(3) The quotas as referred to in paragraph (1) shall be allocated on a pro rata basis in accordance with the percentage of the average import from each exporting country in the past 3 (three) years.
Article 23
(1) A permanent safeguard small only be valid where it is considered necessary to restore serious losses and/or prevent foreseeable serious losses as well as to give a chance to the domestic industry suffering serious losses or foreseeable serious losses to make structural adjustments.
(2) The validity period of the safeguard as referred to in paragr aph (1) shall be a maximum of 4 (four) years and can be extended.
(3) When a safeguard has been valid for more than 3 (three) years, the Committee shall make a study of the safeguard and notify the interested party of the results of the study no later than 6 (s ix) months before the validity period of the safeguard as referred to in paragraph (2) expires.
Article 24
(1) The validity period of a safeguard shall be extended upon the formal request of the domestic industry or at the initiative of the Committee in case of a strong reason that the losses and/or foreseeable losses suffered by the domestic industry as a result of a surge in the import of investigated goods will continue and the domestic industry still has to make structural adjustments.
(2) During the extension period a safeguard shall not be more restrictive than the previous safeguard.
(3) The validity period of a safeguard as a whole shall not exceed 10 (ten) years, including the validity period of a temporary safeguard, the validity period of a permanent safeguard and the extension period of a permanent safeguard.
(4) The safeguard as referred to in Article 21, paragraph (2) shall be eased or liberalized in stages during the validity period of the permanent safeguard.
Article 25
(1) A permanent safeguard shall not be imposed again on imported goods that were once subject to a permanent safeguard.
(2) Exception to the provision in paragraph (1), a permanent safeguard with a maximum validity period of 180 (one hundred and eighty) days may be imposed on imported goods, if :
b. the permanent safeguard has never been imposed on the same imported goods for more than 2 (two) occasions within a period of 5 (five) years shortly after the permanent safeguard is valid.
Article 26
The Minister of Finance shall stipulate further procedures for paying the import duties as referred to in Article 10, paragraph (2) and Article 21, paragraph (2), and making refunds on import duties as a result of a safeguard.
CHAPTER IX
IMPORT FROM DEVELOPING NATIONS Article 27
No safeguard shall be applicable to investigated goods originating from developing nations, provided that the import share of the investigated goods originating from the developing countries does not exceed 3% (three percent) and the total import share of investigated goods originating from the developing nations with the import share of less than 3% (three percent) altogether does not exceed 9% (nine percent) of the total import of the goods in question.
CHAPTER X
NOTIFICATION AND CONSULTATION Article 28
The Committee shall notify the Committee on Safeguards of all decisions on safeguards, including : a. decisions on the start of investigation and on the results on investigation;
b. the establishment of real losses and/or foreseeable losses as a result of a surge in the import of investigated goods;
c. decisions on the imposition of safeguards, both temporary and permanent, and on the extension of safeguards.
Article 29
(1) The Government may hold consultation meetings at the request of the countries having chief interests in investigated goods in the decisions notified by the Committee as referred to in Article 28.
(2) The results of the consultation meetings as referred to in paragraph (1) shall be notified to the Committee on Safeguards.
CHAPTER XI THE COMMITTEE
Article 30
The Committee shall be authorized to conduct investigations, postpone/stop investigations, and issue all decisions related to recommendations for the change or extension of the period of safeguards as well as other decisions related to investigations into serious losses and/or foreseeable serious losses suffered by the domestic industry as a result of a surge in the import of investigated goods.
Article 31
In carrying out its functions and tasks, the Committee shall stick to this Presidential Decree and other relevant laws and regulations.
(1) The Committee shall be led by a chairman and be made up of representatives from : a. The Ministry of Industry and Trade;
b. The Ministry of Finance;
c. The Central Bureau of Statistics;
d. Other relevant ministries or non- ministerial institutes; and e. Experts specializing in investigated goods.
(2) The number of members as referred to in paragraph (1) shall be odd.
(3) The Minister of Industry and Trade shall appoint and dismiss the members of the Committee.
Article 33
(1) In carrying out its functions and tasks, the Committee shall be independent, shall not be influenced by other parties, and shall not conceal anything which by law does not require confidential treatment as referred to in Article 16, paragraph (3) and paragraph (4) of this Presidential Decree.
(2) Any member of the Committee found disseminating confidential information shall be subject to sanction in accordance with the existing laws and regulation.
CHAPTER XII CONCLUSION
Article 34
Further provisions needed to implement this Presidential Decree are to be stipulated by the Minister of Industry and Trade.
For public cognizance, this Presidential Decree shall be announced by placing it in the Statute Book of the Republic of Indonesia.
Stipulated in Jakarta On December 16, 2002
THE PRESIDENT OF THE REPUBLIC OF INDONESIA sgd
MEGAWATI SOEKARNOPUTRI
Promulgated in Jakarta On December 16, 2002 THE STATE SECRETARY, sgd.
BAMBANG KESOWO
