REPUBLIC ACT NO. 7843 - AN ACT
RATIONALIZING AND STRENGTHENING THE PROVISIONS ON ANTI-DUMPING,
AMENDING FOR THE PURPOSE Sec. 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. Sec. 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
propio, 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:
"i. Whether or not the imported articles under
consideration are identical or alike in all respect to articles
produced by the domestic industry or 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 in quantities sufficient to supply at least ten percent
(10%) of local consumption (arrived at by taking the sum of the average
local production and average importation and subtracting therefrom
average exportation) for the immediately preceding three (3) months
prior to the filing of the dumping protest;
"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:
"(a) Five percent (5%) decline in sales volume or
decline in sales prices of at least two percent (2%) as compared to the
average monthly sales for the immediately preceding three (3) months; or
"(b) Five percent (5%) decline in the volume of
production as compared to the average monthly volume of production for
the immediately preceding three (3) months; or
"(c) Actual and potential negative effects on
employment and inventories of the subject articles.
"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 reexported 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 Attaché' or, in the absence thereof, the
Commercial Attaché' or, Trade Attaché' 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 Attaché' 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. — Sec. 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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