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contains the full text ofRepublic Act
No. 7845 Anti-Dumping
Act of 1994
REPUBLIC
ACT NO. 7845 AN
ACT RATIONALIZING AND STRENGTHENING THE PROVISIONS ON ANTI-DUMPING,
AMENDING
FOR THE PURPOSE SECTION 301, PART 2, TITLE II, BOOK I OF THE TARIFF AND
CUSTOMS CODE OF THE PHILIPPINES, AS AMENDED.
Section. 1. This
Act shall be known as the "Anti-Dumping Act of 1994."
Sec. 2. It
is hereby declared the policy of the State to protect Filipino
enterprises
against unfair foreign competition and trade practices. Towards
this
end, substantive and procedural remedies available to Filipino
enterprises
shall be strengthened and made responsive to recent developments in
world
trade.
Sec. 3. Section
301, Part 2, Title II, Book I of the Tariff and Customs Code of the
Philippines,
as amended, is hereby further amended to read as follows:
Part 2.
Special Duties
"Sec. 301. Dumping
Duty. -
"a. Whenever
the Secretary of Finance or the Secretary of Trade and Industry
(hereinafter
called the 'Secretary') receives an anti-dumping petition from
the
domestic industry or the Secretary has reason to believe, from any
invoice
or other document or newspaper, magazine or information or translation
thereof by any reputable language translator made available by any
government
agency or interested party, that a specific kind or class of foreign
article,
is being imported into, or sold or is likely to be sold in the
Philippines,
at a price less than its normal value, the importation or sale of which
might injure, or retard the establishment of, or is likely to injure an
industry producing like articles in the Philippines, the Secretary
shall,
within twenty (20) days from receipt of such petition or information,
determine
a prima facie case of dumping. Within five (5) days from such
receipt,
he will notify the protestee-importer and require him to submit within
ten (10) days from such notice evidence from the producer of the
imported
article duly authenticated by the Philippine consular or trade office
to
support the normal value of such product. If no such evidence is
submitted within the prescribed period, the Secretary shall base his
decision
on the available pertinent data.
"Pending
determination
of a prima facie case of dumping, the petitioner may petition
that
the release from the Bureau of Customs of the alleged dumped product be
withheld. If the Secretary determines that on the face of the
petition
and documents presented, there exists an imminent danger of injury to a
particular industry as a result of the alleged dumping, he shall direct
the Commissioner of Customs to hold the release of the questioned
importation,
upon filing by the petitioner of a bond equal to the alleged margin of
dumping. The bond shall answer for damages which the importer may
suffer as a result of the holding of the release of the questioned
importation,
in case the Secretary finds that there is no prima facie case.
However,
the petitioner's liability for damages shall not exceed the amount of
his
bond. This bond shall be cancelled once a prima facie case has
been
determined by the Secretary. The Secretary may, motu proprio,
hold the release of the questioned articles based on his information
that
an imminent danger of injury exists to a particular industry as a
result
of the alleged dumping.
"The Secretary
upon the determination of a prima facie case of dumping shall so advise
the Tariff Commission (hereinafter called the 'Commission') and
shall instruct the Commissioner of Customs to hold the release of the
goods
or articles in question, unless the protestee/importer shall have filed
a cash bond not less than the provisionally estimated dumping duty plus
the applicable regular duty based on the documentary evidence submitted
with the dumping protest, to answer for the payment of such duties,
fees
and charges if a dumping case is established. If the protest is
dismissed,
the cash deposit shall be returned to the importer within ten (10) days
from the finality of the order.
"The Secretary
shall have the discretion to exclude related parties from the domestic
industry. A producer and an exporter or importer are related if
the
producer directly or indirectly controls either the exporter or the
importer;
the exporter or the importer directly or indirectly controls the
producer;
a third party directly or indirectly controls the producer and exporter
or importer; or the producer and the exporter or importer directly or
indirectly
control a third party and there is reason to believe that the
relationship
causes the producer to act differently than an unrelated producer would
act.
"b. The Commission,
upon receipt of the advice from the Secretary shall conduct an
investigation
to:
"1. Verify
if the kind or class of article in question is being imported into, or
sold or is likely to be sold in the Philippines at a price less than
its
normal value;
"The normal
value of an article shall be the comparable price in the ordinary
course
of trade for the like articles when destined for domestic consumption
in
the exporting country which for purposes of this section means the
country
of production or manufacture.
"If the
normal
value of an article cannot be determined, the following rules shall
apply:
"If the
like
article is not being sold in the ordinary course of trade in the
domestic
market of the exporting country or if the sale does not allow a fair
comparison
or if the normal value is not available or unreliable because of
association
or a compensatory arrangement between the exporter and the importer or
a third party or the agency providing the normal value is
state-controlled
or jointly owned by the state or the exporting country, or where
products
are not imported directly from the country of production then, the
normal
value shall be based on the higher of values determined from any of the
following methods, such as but not limited to, the normal value of like
articles in a proxy country at the same stage of development of the
industry
producing like products, or the cost of production in the country of
production
or manufacture or on the estimated landed cost in the country of
production
or manufacture which is based on C and F price of such articles
including
duties, surcharges, and taxes when imported by an importer in the
country
of production.
"2. Ascertain the
difference, if any, between the export price and the normal value of
the
article.
"3. Determine
if, as a result thereof, a domestic industry producing like articles in
the Philippines suffers, or will be threatened with, injury, or will
suffer
a material retardation in the establishment of a domestic industry in
the
Philippines: Provided, That in determining whether the domestic
industry has suffered or is being threatened with injury, the
Commission
shall determine whether the wholesale prices at which the domestic
articles
are sold are reasonable, taking into account the cost of raw materials,
labor, overhead, a fair return on investment and the overall efficiency
of the industry; and/or whether a further importation of such articles
and/or like articles are clearly foreseen and imminent considering such
relevant factors as:
"(a) Rate of
increase of importation of such articles: Provided, That in the
determination of potential injury, there should be at least three
percent
(3%) increase in the volume of importation of such articles being
dumped
relative to the average monthly volume of importation of such like
articles
for the immediately preceding three (3) months; or
"(b)
Reasonable
likelihood of increased importations; or
"(c) Freely
disposable or increased capacity of the exporter of such imported
articles;
or
"(d)
Import
prices which will have a significant depressing or suppressing effect
on
domestic prices: Provided, further, That in determining whether
a domestic industry that will produce like articles is being retarded
in
its establishment, there must be evidence of the forthcoming commercial
operation of the industry: Provided, finally, That in
determining
injury, the following shall also be considered:
"Within five (5)
days from the receipt of the advice from the Secretary of Finance, the
Commission shall identify all parties concerned and require them to
submit
their respective memoranda within fifteen (15) days from notice.
"C. The
Commission
shall terminate its investigation within ninety (90) days from receipt
of the aforesaid advice and shall submit its findings to the Special
Committee
on Anti-Dumping (hereinafter referred to as 'Special Committee')
within sixty (60) days from the termination of its investigation: Provided,
That the Commission shall give notice to interested parties of such
findings
submitted to the special committee.
"In case any
or all of the parties on record fail to submit their respective
memoranda
within the period prescribed above, the Commission shall base its
findings
on the best available evidence.
"The Commission
shall motu propio terminate its investigation if the provisionally
estimated
margin of dumping is less than two percent (2%) of export price or the
volume of dumped imports is negligible. The volume of dumped
imports
is considered negligible if the volume of dumped imports from a
particular
country accounts for less than three percent (3%) of the average
monthly
imports of the like articles in the Philippines unless countries which
individually account for less than three percent (3%) of the average
monthly
imports of the like articles in the Philippines collectively account
for
more than seven percent (7%) of total average monthly imports of that
article.
"D. The Special
Committee shall, within fifteen (15) days after receipt of the report
of
the Commission, decide whether the article in question is being
imported
in violation of this section and shall give due notice of such
decision.
In case the decision of dumping is in the affirmative, the special
committee
shall direct the Commissioner of Customs to cause the dumping duty, to
be levied, collected and paid, as prescribed in this section, in
addition
to any other duties, taxes and charges imposed by law on such article,
and on the articles of the same specific kind or class subsequently
imported
under similar circumstances coming from the specific country.
"In the event
that the Special Committee fails to decide within the period prescribed
herein, the recommendation of the Commission shall be deemed approved
and
shall be final and executory.
"E. The 'dumping
duty' as provided for in sub-section D hereof shall be equal to the
difference between the actual export price and the normal value of the
article as determined in the dumping decision. All importations
of
like articles within one hundred fifty (150) days immediately preceding
the filing of the protest are covered by the investigation.
However,
in cases of subsequent importations of same kind or class of article
from
the specific country named in the protest, the dumping duty shall be
equal
to the difference between the actual export price and the normal value
actually existing at the time of importation as determined by the
Commission
from the supporting documents submitted or from other reliable sources.
"F. Pending
investigation and final decision of the case, the article in question,
and articles of the same specific kind or class subsequently imported
under
similar circumstances, shall be released to the owner, importer,
consignee
or agent upon the giving of a cash bond in an amount not less than the
provisionally estimated difference between the actual export price and
the normal value including the applicable regular duty as prescribed in
paragraph "a" above.
"G. For
purposes
of this section, the parties concerned including the protestant,
domestic
producers/manufacturers, importers and the protestee shall be afforded
consultations with the Commission and the Secretary and shall avail of
any technical information and data necessary to sustain its case.
"H. Any interested
party of record who is dissatisfied with a decision in a dumping
protest
may file a motion for reconsideration with the Special Committee within
thirty (30) days from notice of such decision: Provided, That no
motion for extension of time to file a motion for reconsideration under
this sub-section shall be allowed.
"I. Any
aggrieved
party may appeal only the amount of the dumping duty to the Court of
Tax
Appeals in the same manner and within the same period as provided for
by
law in the case of appeal from a decision of the Commissioner of
Customs.
The findings of fact in a dumping case shall be final and conclusive;
"J. (1) The
article, if it has not been previously released under cash bonds as
provided
for in subsection 'F' hereof, shall be released after payment by the
party
concerned of the corresponding dumping duty in addition to any ordinary
duties, taxes, and charges, if any, or re-exported by the owner,
importer,
consignee or agent, at his option and expense, upon the filing of a
cash
bond in an amount not less than the provisionally estimated difference
between the actual export price and the normal value plus the
applicable
regular duty conditioned upon presentation of landing certificate
issued
by a consular officer of the Philippines at the country of destination;
or
"(2) If the
article has been previously released under cash bond, as provided in
subsection
'F' hereof, the party concerned shall be required to pay the
corresponding
dumping duty in addition to any ordinary duties, taxes, and charges, if
any.
"K. Any
investigation
to be conducted by the Commission under this section shall include a
public
hearing or hearings where the owner, importer, consignee or agent, of
the
imported article, the local producers or manufacturers of a like
article,
other parties directly affected, and such other parties as in the
judgment
of the Commission are entitled to appear, shall be given an opportunity
to be heard and to present evidence bearing on the subject matter.
"L. The established
dumping duty shall be subject to adjustment based on whichever is
higher
of the prevailing normal values as defined in paragraph b-1. The
Commission shall conduct quarterly examination and/or verification of
the
normal value to sustain the necessity of adjustment. Should the
Special
Committee, upon receipt of the report of the Commission, find that
there
is a need for an adjustment after a public hearing it shall advise the
Commissioner of Customs so that he may effect the necessary adjustment
in dumping duty.
"The Philippine
Finance Attache' or, in the absence thereof, the Commercial Attache'
or,
Trade Attache' or, in the absence thereof, the diplomatic officer or
consular
officer abroad shall be advised by the Special Committee of any article
covered by dumping decision. The concerned Attache' or the
Officer
shall submit quarterly report on normal values of said articles to the
Special Committee.
"M. Whenever
the Commission, on its own motion or upon application of any interested
party, finds after a public hearing that any of the conditions which
necessitated
the imposition of the dumping duty has ceased to exist, it shall submit
the necessary recommendation to the Special Committee for the
discontinuance
or modification of such dumping duty and shall so advise the
Commissioner
of Customs. Any decision or order made under this section by the
Special Committee shall be published in the Official Gazette and/or in
a newspaper of general circulation.
"N. Any dumping
decision promulgated by the Special Committee shall be effective for a
period of five (5) years from the time of its promulgation except upon
the representation of the interested party of the necessity to continue
the implementation of said decision, in which case, the Special
Committee
shall advise the Commission to conduct an investigation to determine
whether
any of the conditions in paragraphs b-1 and b-3 still exists. The
action for extension shall be brought before the Special Committee at
least
six (6) months before the expiration of the period.
"The findings
of the Commission shall be submitted to the special committee at least
three (3) months before the expiration of the period but in no case
shall
it exceed one (1) month after receipt of the advice from the Special
Committee.
"The period
of extension shall, in no case, exceed twenty-four (24) months or two
(2)
years.
"O. For the
purpose of this section, the term:
"1.
"Comparable
price" shall mean the domestic price in the exporting country at the
same
level of trade which is sold or offered for sale at wholesale on the
date
of exportation to the Philippines;
"2. "Cost
of
production" of an imported article shall be the sum of:
"(a) The
cost
of materials of, and of fabrication, manipulation or other process
employed
in manufacturing or producing, like articles, at a time preceding the
date
of shipment of the particular article under consideration which would
ordinarily
permit the manufacture or production of the particular article under
consideration
in the usual course of business;
"(b) The
actual
administrative, selling and general expenses at least ten percent (10%)
of production costs incurred by the exporter or producer of articles
and/or
like articles;
"(c) The
cost
of all containers and coverings, and all other costs, charges and
expenses
incident to placing the particular article under consideration in
condition,
packed ready for shipment to the Philippines but not less than one
percent
(1%) of production costs; and
"(d) A
reasonable
amount for profit not less than eight percent (8%) of the sum of the
amounts
referred to in the preceding sub-paragraphs a, b, and c.
"3. 'Domestic
industry' shall refer to the domestic producers of like articles as
a whole or to those whose collective output of the products constitute
a significant share of the total domestic production of those products
in the industry concerned, except, when producers are related to the
exporters
or importers, the term "domestic industry" may be interpreted as
referring
to the rest of the producers;
"4. 'Export
price' of an imported article shall be the price at which such
article
has been purchased or agreed to be purchased, prior to the time of
exportation,
by the person by whom or for whose account the article is imported,
plus,
when not included in such price:
"(a) The cost
of all containers and coverings and all other costs, charges and
expenses
incident to placing the article in condition, packed ready for shipment
to the Philippines;
"(b) The
amount
of any import duties imposed by the country of exportation which have
not
been collected, by reason of the exportation of the article to the
Philippines;
and
"(c) The
amount
of any taxes imposed in the country of exportation upon the
manufacturer,
producer or seller, in respect to the manufacture, production, or sale
of the article which have been rebated, or which have not been
collected
by reasons of the exportation of the articles to the Philippines.
"Any additional
costs, charges and expenses incident to bringing the article from the
place
of shipment in the country of exportation to the place of delivery in
the
Philippines, and Philippine customs duties imposed thereon shall not be
included.
"5. 'Like
article' shall mean a product which is identical or alike in all
respect
to the article under consideration or one substantially of the same
material
or although of different composition or material serves the same or
similar
purpose, such as a substitute, as the articles produced in the
Philippines;
"6. A special
committee on anti-dumping is hereby created to decide whether the
article
in question is being imported in violation of this Act, and shall be
composed
of three (3) members: the Secretary of Finance, as chairman; the
Secretary
of Trade and Industry; and either the Secretary of Agriculture, if the
article in question is an agricultural product; or the Secretary of
Labor,
if the article is a non-agricultural product.
"P. The Secretary
of Finance in consultation with the special committee on anti-dumping
and
the Commission shall promulgate all rules and regulations necessary to
carry out their respective functions under this section."
Sec. 4. Separability
clause. - If, for any reason, any section or provision of this Act
or the application of such section or provision to any person or
circumstance
is declared unconstitutional or invalid, no other section or provision
of this Act shall be affected thereby.
Sec. 5. Repealing
clause. - Section 301, Part 2, Title II, Book I of the Tariff and
Customs
Code, as amended, Presidential Decree No. 1999, Executive Order No.
1073,
and all other laws, orders, decrees, issuances, rules and regulations
related
to dumping which are inconsistent with this Act are hereby repealed or
modified accordingly.
Sec. 6. This
Act shall take effect two (2) days after its publication in the
Official
Gazette or in at least two (2) national newspapers of general
circulation
whichever comes earlier.
Approved:
December 21, 1994.
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