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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:
"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;
"(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:
"ii. The volume of dumped imports and their effects on prices in the domestic market for like articles: Provided, That the Commission shall determine the consequent impact of these imports on domestic producers by considering relevant economic factors and indices such as:
"(c) Actual and potential negative effects on employment and inventories of the subject articles.
"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:
"2. "Cost
of
production" of an imported article shall be the sum of:
"(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.
"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:
"(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.
"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.
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.
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