DEPARTMENT OF FINANCE
DEPARTMENT ORDER NO. 150 - 95
 RULES AND REGULATIONS FOR THE IMPLEMENTATION OF
SECTION 301 OF THE TARIFF AND CUSTOMS CODE
AS AMENDED BY RA 7843

Republic of the Philippines

In view of the amendments brought about by the provisions of R.A. 7843, otherwise known as the ANTI-DUMPING ACT OF 1994, and by authority of Section 301 (p) thereof, as amended, the following rules and regulations are hereby promulgated for the guidance of all concerned:

Section 1. Scope - The provisions of this Department Order shall apply to any specific kind or class of foreign article which is being imported into, sold or is likely to be sold into 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.

Section 2. Definition of Terms. - For purposes of this Order, the following terms shall mean:

  1. COMMISSION shall refer to the Tariff Commission.

  2. SPECIAL COMMITTEE shall refer to the Committee specially created to decide whether the importation of the article in question is in violation of Section 301 of the Tariff and Customs Code, as amended, and as further amended by R.A. 7843.

    The Special Committee shall be composed of three 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 in question is a non-agricultural product.

  3. The PURCHASE OR 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 and whenever necessary to obtain a comparable price at the same level of trade:

    1. 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;

    2. The amount of any import duties imposed by the country of exportation which have been rebated, or which have not been collected by reason of the exportation of the article to the Philippines; and

    3. 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 reason of the exportation of the articles to the Philippines.

      The purchase or export price shall not include any additional costs, charges and expenses incident to bringing the articles from the place of shipment in the country of exportation to the place of delivery in the Philippines, and the Philippines customs duties imposed thereon.

  4. COMPARABLE PRICE shall mean the domestic price of the article in question in the exporting country at the same level of trade which is sold or offered for sale at wholesale on the date nearest to the date of exportation to the Philippines.

  5. 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 means for purposes of this section, the country of production or manufacture.

  6. COST OF PRODUCTION of an imported article shall be the sum, of:

    1. 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; reasonably available data including elements of comparable cost of local domestic production such as material, energy, labor usage per unit of production and depreciation may be utilized to determine costs of materials and fabrication.

    2. The actual administrative, selling and general expenses or at least ten percent (10%) of production costs incurred by the exporter or producer of articles and/or like articles; and

    3. 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

    4. A reasonable amount for profit not less than eight percent (8%) of the sum of the amounts referred to in the preceding sub-paragraphs i, ii, and iii.

  7. DOMESTIC INDUSTRY shall refer to the domestic producers of like articles as a whole, or to those whose collective output of the products constitute at least a significant share of the total domestic production of those products in the industries concerned. When producers are related to the exporters or importers, the term domestic industry may be interpreted as referring to the rest of the producers.

    Related parties may be excluded from the term domestic industry. Parties are related when any or a combination of the following conditions exists:

    1. If the producer directly or indirectly controls either the exporter or the importer;

    2. If the exporter or the importer directly or indirectly controls the producer;

    3. If a third party directly or indirectly controls the producer and the exporter or importer;

    4. If the producer and the exporter or importer directly or indirectly control a third party; and

    5. If there is reason to believe that the relationship causes the producer to act differently than an unrelated producer would act.

  8. LIKE ARTICLES 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.

  9. STATE-CONTROLLED ECONOMIES shall include countries whose production, export, marketing and distribution of the product in question are effectively controlled by their governments.

  10. "PROXY COUNTRY at the same stage of economic development" shall refer to a country which is a proven or established producer of like products.

  11. EXPORTING COUNTRY shall mean the country of production or manufacture.

  12. TRANSSHIPMENT shall refer to a case where the goods are not imported directly from the country of production but passed through a third country without however entering into the commerce thereof.

Section 3. Shipments and/or consignments outside the scope of this Department Order. - The following shipments and/or consignment shall not be subject to anti-dumping protest:

  1. Articles imported by or consigned to government agencies not organized for profit and particularly designated by law or proper authorities to import, directly or through awardees, such commodities as would stabilize and/or supplement shortages.

  2. Conditionally duty-free importations allowable under Section 105 of the Tariff and Customs Code, as amended.

Section 4. Initiation of Dumping Protest:

  1. Where to file

    An anti-dumping protest shall be filed with the Department of Finance which shall determine whether or not the petition is proper in form and substance and whether the documentary requirements are complied with after which the case shall be referred to the Department of Trade and Industry for preliminary investigation.

    If after the lapse of twenty (20) days from receipt of the protest, the Department of Trade and Industry fails to act on the same, the parties in interest may have recourse to the Department of Finance which, after consultation with the former Department, shall act accordingly.

  2. Requirements for filing

    1. FORM - Protest shall be in writing containing the following material allegations:

      1. Specific description of goods being protested;
      2. Country of production or manufacture;
      3. Country of last export sale and/or origin of shipment;
      4. Purchase or export price of protested goods or C & F Philippine Port less shipping/transport costs;
      5. Normal value of imported goods;
      6. Actual or likelihood or threat of injury to the domestic industry or retardation of establishment of an industry in conjunction with Section 8 of this Order;
      7. Name and address of importer;
      8. Identity and profile of protestant domestic industry or if the protestant is an association or federation, the names and addresses of its current principal officers;
      9. Volume & value of alleged dumped products;
      10. Actual production and production capacity of protestant for the like product for the last twelve (12) months;
      11. Audited financial report for the preceding three (3) years.

Section 5. Prima Facie Determination

  1. In the determination of prima facie case of dumping, the investigation shall not be limited to the issue of price difference but shall include an overall evaluation of available documents and pertinent data sufficient to sustain a presumption that the article subject of the protest is imported at dumping price.

  2. Within twenty (20) working days from receipt of DOF's referral of an anti-dumping protest, the Secretary of Trade and Industry shall evaluate the data submitted/gathered and determine whether or not a prima facie case of dumping exists as to warrant a formal investigation. Provided, however, that upon the request and presentation of adequate justification by either party, shipments which are not imported at dumped prices may be excluded from he investigation.

  3. Within five (5) working days from receipt of Dumping Protest (DOF Form No.5), the Secretary of Trade and Industry shall notify the Protestee-Importer and require him to submit within ten (10) working days of 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, a resolution may be made based on available pertinent data. A conference with the protestant and the importers may be convened, if necessary.

  4. Pending determination of a prima facie case of dumping, the petitioner may file a request that the release from the Bureau of Customs of the alleged dumped product be withheld. If the Secretary of Trade and Industry determines that on the face of the petition and documents presented, there exists an imminent danger or injury to a particular industry as a result of the alleged dumping, he shall advise the Secretary of Finance to 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 of Trade and Industry finds that there is no prima facie case of dumping. However, the petitioner's liability for damages shall not exceed the amount of his bond. This bond shall be canceled once a prima facie case of dumping has been determined. The Commissioner of Customs shall not lift the "Hold Order" unless the importer posts an equivalent cash counter bond.

  5. If a prima facie case of dumping is found to exist, the Tariff Commission shall conduct an investigation and at the same time advise the Secretary of Finance of the DTI's findings. The Secretary of Finance shall in turn instruct the Commissioner of Customs not to release the articles involved unless a cash bond, in an amount not less than the provisionally estimated dumping duty is filed plus the applicable regular duty based on the documentary evidence submitted with the dumping protest.

  6. A prima facie determination shall clearly specify the article to be covered by the protest and by the anti-dumping bond, the pertinent tariff heading and product description, the exporting country and/or countries of origin and the basis and reason for thereof.

  7. For purposes of a prima facie case determination, information on normal values furnished by the Philippine Trade Service Officer or Diplomatic Officers, the Bureau of Customs, pre-shipment inspection CRF reports and/or SGS data, or any invoice or document or information, from newspapers, magazines or publications or trans-lations thereof by any reliable language translator and/or other reliable sources and/or values based on the higher of values determined from any of the following methods such as but not limited to:

    1. The normal value of like articles in a proxy country at the same stage of development of the industry producing like products; or

    2. The cost of production in the exporting country; or

    3. The estimated landed costs in the exporting country which is based on C & F price of such articles including duties, surcharges, and taxes, when imported from a third country;

    may be considered sufficient basis of normal values to establish the price difference.

Section 6. Appraisement and Delivery of Articles upon filing of Cash Bond. - Upon receipt by the Commissioner of Customs of instructions from the Secretary of Finance to impose the anti-dumping bond, he shall instruct the Collector of Customs to collect the regular or additional regular duties, taxes and other charges if any, on the shipment involved so that such regular duties could be paid together with the anti-dumping bond. The Commissioner of Customs may only authorize the release of the articles involved in accordance with the instruction of the Secretary of Finance and after the Cash/Check have been deposited and regular duties and taxes and charges have been paid.

Upon determination of a prima facie case of dumping and pending investigation by the Tariff Commission, and final decision by the Special Committee, all like articles imported and released from Customs custody within one hundred fifty (150) days from the filing of the protest shall be ordered returned to the Bureau of Customs. These goods may be released only after a cash bond has been deposited with the Commissioner of Customs. No other forms of security or undertaking or guaranty shall be accepted in lieu of the cash bond.

In the event that such goods are not returned within thirty (30) days of notice, the Commissioner shall file a claim on the importers assets or impose a levy in the amount not less than the estimated duties on the importations covered. After the existence of dumping is established, the claim on assets or levy of dumping duty shall be enforced. On the claim of assets, the Commissioner may, at his option, enforce the lien on the importers subsequent importation of whatever kind or country of origin.

If the protest is dismissed, the cash deposit shall be returned to the importer within ten (10) working days from finality of the Order, or, in case of levy or lien, the same shall be canceled and the importers assets released from the encumbrance.

Section 7. Action of the Tariff Commission on Dumping Cases. - Upon receipt of advice that a prima facie case of dumping is found to exist, the Tariff Commission shall conduct a formal investigation to:

  1. Verify if the kind or class of article in question is being imported into, or sold into or is likely to be sold to the Philippines at a price less than its normal value.

  2. Ascertain the difference, if any, between the purchase or export price and the normal value of the article.

  3. Determine if, as a result thereof, a domestic industry producing like article in the Philippines suffers or will be threatened with injury or will suffer a material retardation of the establishment of a domestic industry.

In determining whether the domestic industry has suffered or is being threatened with injury, the Commission shall determine whether the wholesale price at which the domestic articles are sold are reasonable taking into consideration the cost of the raw materials, labor, overhead, a fair return on investments and the overall efficiency of the industry, and whether a further importation of such articles or like articles are clearly foreseen and imminent.

Within five (5) working days from receipt of the advice to conduct a formal investigation, the Commission shall identify all parties concerned and shall require them to appear for consultation on the procedure of investigation, nature of the administrative and fact-finding proceedings, non-applicability of the technical rules of procedures provided by the rules of court, non-availability of confidential information and other related matter, relative to the speedy disposition of the case and shall require them to submit their respective initial memoranda within fifteen (15) working days from notice.

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.

In furtherance of its investigative powers, the Commission may send questionnaires to the foreign producers and/or exporters and the protestant designed to gather transactional data and other information that may be useful in the overall evaluation of the case.

All interested parties shall be afforded consultations AND PRE-HEARING CONFERENCE with the Commission and shall avail of any NON-CONFIDENTIAL technical information and data necessary to sustain its case.

The Commission shall motu proprio 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 from a particular country is considered negligible if it accounts for less than three percent (3%) of the average monthly imports of like articles, unless, countries which individually account for less than three percent (3%) of the average monthly imports of like articles collectively account for more than seven percent (7%) of the total average.

Section 8. Determination of Sales at Less Than Normal Value, Fictitious Purchase or Export Prices, and Determination of Injury.

  1. In considering the fact or likelihood of sales at less than normal value, the export price to the Philippine market should be compared with the calculated normal value. In comparing the two prices, simple calculation in arithmetic and/or by logical business and economic reasoning shall be used. Other factors to be considered are credit terms, quantity discounts, quantity of products, market requirements, packing charges, advertising and selling costs, and differences in methods of production and manufacture.

  2. The determination of normal value shall be based on the following consideration:

    Price in the country of production for its domestic consumption, on or about, the date of export or agreement to export such article, or in case the article is brought into the Philippines on consignment basis and ultimately sold to the domestic market, the date of the exportation thereof;

    If the normal value cannot be determined with reasonable certainty because:

    1. The like article is not being sold in the ordinary course of trade in the domestic market of the exporting country; or

    2. The sale does not allow a fair comparison; or

    3. 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 of the exporting country; or

    4. The 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:

    1. The normal value of like articles in a proxy country at the same stage of development of the industry producing like products;

    2. The cost of production or manufacture as determined or calculated from reasonably available data.

    3. The estimated landed cost in the exporting country based on C & F price of such articles including duties, surcharges, and taxes.

    For purposes of determining "normal value" transactions directly or indirectly between persons herein below enumerated and the prices (purchase price or exporter's sales price) agreed upon between them may be disregarded as not reflecting the true price obtaining in the market under consideration:

    1. Members of a family, including brothers and sisters (whether by whole or half blood), spouses, ancestor and lineal descendants;

    2. Any official or director of an organization and the organization itself;

    3. Partners;

    4. Employer and employees;

    5. Any person directly or indirectly owning, controlling or holding five per centum or more of the outstanding voting stocks or shares with right to vote of any organization and the organization itself;

    6. Two or more persons directly or indirectly controlling, controlled by, or under common control, with, any person.

    If a transaction is disregarded and there are no other transactions available for consideration, then the determination of the price shall be based on the best evidence obtainable of the transactions between persons not specified above.

  3. In determining whether or not the purchase or export price is fictitious, and when a reasonable doubt exists because of continuing sales within the Philippines at a price ten percent (10%) lower than the landed cost, then it shall be the prevailing domestic wholesale selling price of such or similar imported article, on the date the article was appraised in the ordinary course of trade, minus;

    1. not more than twenty-five percent (25%) thereof for expenses and profits; and

    2. Duties and taxes paid therein

  4. In determining whether the domestic industry has suffered or is being threatened with injury, the following shall be considered:

    1. Whether or not the imported articles under consideration are identical or alike in all respect or substantially of the same material or although of different material or composition serve the same or similar purpose such as a substitute produced in quantities sufficient to supply at least ten percent (10%) of local consumption for the immediately preceding three (3) months prior to the filing of dumping preceding three (3) months prior to the filing of dumping protest.

    2. Whether a further importation of such articles and/or like articles are clearly foreseen and imminent considering such relevant factors as:

      1. 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

      2. Reasonable likelihood of increased importation; or

      3. Freely disposable or increased capacity of the exporter of such imported articles; or

      4. Import prices which will have a significant depressing or suppressing effect on domestic prices.

    3. The Commission shall determine the consequent impact of the volume of dumped imports and their effects on prices on the domestic market for like articles by considering relevant economic factors and indices such as:

      1. Five percent (5%) decline in sales volume or decline in sales prices of at least two percent (2%) as compared with the average monthly sales for the immediately preceding three (3) months; or

      2. Five percent (5%) decline in the volume of production as compared with to the average monthly volume of production for the immediately preceding three (3) months; or

      3. Actual and potential negative effects on employment and inventories of the subject articles.

    4. 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 products are sold are reasonable, taking into account the cost of raw materials, labor, overhead, a fair return on investment and the over-all efficiency of the industry.

    5. In determining the forthcoming establishment of the industry, the following factors shall be looked into:

      1. The necessary machineries have already been installed already for production,

      2. an order for raw materials has been made and

      3. that the estimated production capacity of such industry is at least ten percent (10%) of local consumption.

    6. The factors enumerated in this Section are not exhaustive and do not have the effect of limiting the scope of the investigation in determining injury, nor can one or several of factors enumerated in this Section necessarily give decisive guidance; Provided, That factors other than the alleged act of dumping which are causing the injury shall also be looked into.

  5. The period of investigation for determination of injury shall cover no less than twelve (12) months prior to the filing of the protest for purposes of determining dumping trend, and other aberration relative to the industry.

Section 9. Report of the Tariff Commission - The Commission shall terminate its investigation within ninety (90) working days from receipt of advice to investigate an anti-dumping protest and shall submit its findings and recommendations to the Special Committee within sixty (60) working days after the submission of the principal memoranda of the parties which will not be later than fifteen (15) days after the termination of the public hearing. The report shall include, among others a concise statement of the facts of the case, the main question at issue, and recommendation including the amount of dumping duty to be levied, collected or paid.

Section 10. Decision of the Special Committee. - Within fifteen (15) working days after receipt of the report from the Tariff Commission, the Special Committee shall decide whether or not there is dumping. The Special Committee shall direct the Commissioner of Customs to collect the dumping duty to be levied, collected and paid, in addition to any other duties, taxes and charges imposed by law on such articles and on the articles of the same specific kind or class subsequently imported from the specific country. The decision of the Special Committee shall be published in the official Gazette and/or a newspaper of general circulation. The party litigants, the Tariff Commission, the Bureau of Customs and other proper government agencies shall each be furnished with a copy of the decision.

In the event that the Special Committee fails to decide within the period prescribed thereon, the Secretary of Finance shall notify the parties, the Commission and the Commissioner of Customs that the recommendation of the Commission is deemed approved and must be implemented within the period prescribed by this regulation.

Section 11. Levy and Collection of Dumping Duty. - Upon receipt of the decision of the Special Committee declaring a finding of dumping, the Commissioner of Customs shall order the Collector of Customs concerned to proceed with the final appraisement of the articles covered by the dumping decision.

The consignee, importer or his agent, may at his option and expense request in writing the re-exportation of the subject article upon 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. The bond shall be released only upon the presentation of a landing certificate issued by a Consular Officer of the Philippines at the country of destination.

The Collector of Customs concerned shall make quarterly reports through the Commissioner of Customs to the Special Committee of collection of dumping duties on all foreign articles affected by decisions in dumping cases.

Section 12. Method of Computing Duty. - The dumping duty shall be equal to the difference between the actual export or purchase price prescribed in Section 8(c), as the case may be, and the normal value of the articles in question at the same time of importation as determined in the dumping protest investigation.

Section 13. Motion for reconsideration. - 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) working 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. The filing of such motion shall not, however, suspend the enforcement of the dumping decision.

Section 14. Discontinuance of dumping duty. - An application for the discontinuance of the dumping duty shall be filed with the Special Committee by any interested party.

Section 15. Appeal from finding or dumping duty by the Special Committee. - Any aggrieved party may appeal only the amount of the dumping duty to the Court of Tax Appeals within thirty (30) working days from the receipt of the Anti-dumping decision. Failure to appeal with the period set for appeal shall render the Anti-Dumping decision conclusive upon all the parties.

Section 16. Adjustment of Dumping Duty. - The established dumping duty shall be subject to adjustment after one year based on whichever is higher of the prevailing normal values as defined in Section 2 (f). The Tariff Commission shall conduct quarterly examination and/or verification of the normal value and shall report its findings to the Special Committee. If the Special Committee finds from such report that there is a need for an adjustment in the amount of dumping duty, after a public hearing, it shall direct the Commissioner of Customs to effect the necessary adjustment.

The Special Committee shall advise the Finance Attach? or if there is none in the place concerned, the Philippine Commercial Attach?or Trade Attach?or in the absence thereof, the diplomatic or consular official of the decision of the Special Committee imposing dumping duty on the article or articles involved and shall require said official to submit a quarterly report on normal values of said article/articles to the Special Committee thru his/her home Office

Section 17. Effectivity of dumping decision, Extension of effectivity of same. - Dumping decisions promulgated by the Special Committee shall be effective for a period of five years from the time of its promulgation.

Section 18. Repealing Clause. Department of Finance Order No. 111-91 dated September 20, 1991 is hereby considered superseded by this Order.

Section 19. Effectivity. - This Order shall take effect fifteen (15) days from publication in the Official Gazette or in at least two newspapers of general circulation.

ROBERTO F. DE OCAMPO
Secretary