A.

Definition of Terms

1. What is an anti-dumping duty?

An anti-dumping duty is a trade remedy measure adopted by government to protect a

domestic industry against the unfair trade practice of dumping.

2. What is dumping?

Dumping occurs when foreign producers sell their products to an importer in the
domestic market at prices lower than in their own national markets, or at prices below cost of
production, the sale or importation of which injures or threatens to injure a domestic industry
producing like or comparable products or retards the establishment of a potential industry.

Dumping is a form of price discrimination between two national markets.

3. What is a country of export?

Country of export refers to the country from where the allegedly dumped product was
shipped to the Philippines, regardless of the location of the seller. The country of export and
the country of origin may be the same, but not in all instances.

4. What is a country of origin?

Country of origin is the country where the allegedly dumped product either was
wholly obtained or where the last substantial transformation took place. The country of origin
and the country of export may be the same, but not in all instances. In case of a
transshipment where a product is shipped from a third country that is not the country where
the product was manufactured or processed, the country of origin would be different from the
country of export.

5. When does transshipment occur?

There is transshipment when the allegedly dumped product is not imported directly
from the country of origin but is physically shipped through a third country without, however,
entering into the commerce thereof.

6. What is meant by non-market economy?

Non-market economy refers to the country of export or origin where the government
(i) has a monopoly, or substantial monopoly, of trade; and (ii) determines, or substantially
influences, the domestic prices of the products in that country.

7. What is an arm’s length transaction?

Arm’s length transaction refers to a transaction where the price is not affected by any
relationship between the buyer and the seller, or if there is no compensation,
reimbursement, benefit, or other consideration given in respect of the price.

8. What is a comparable price?

Comparable price means the domestic price of the product 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.

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9. Who is a new foreign exporter?

New foreign exporter is an exporter who did not export the allegedly dumped product
during the investigation period.

10. What is meant by non-selected foreign exporter or producer?

Non-selected foreign exporter or producer refers to a foreign exporter or producer

who has not been initially selected for the purpose of computing the individual margins of
dumping.

B. Scope and Coverage

11. What articles may be covered by an anti-dumping protest?

A dumping protest may cover any specific kind or class of a foreign product which is
being imported, 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 products in the Philippines.

12. Are there any importations exempt from anti-dumping protest?

Yes. The following shipments and/or consignments shall not be subject to anti-
dumping protest:

 Products 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 articles as would stabilize and/or supplement
shortages; and

 Conditionally duty-free importations enumerated under Section 105 of the Tariff

and Customs Code of the Philippines (TCCP), as amended.

C. The Legislation

13. What is the “Anti-Dumping Act of 1999”?

Republic Act (RA) No. 8752, otherwise known as the “Anti-Dumping Act of 1999” was
signed on August 12, 1999 and took effect on September 4, 1999. It amended Section 301
of the TCCP, which provides protection to a domestic industry which is being injured, or is
likely to be injured, by the dumping of products imported into or sold in the Philippines. The
provisions of RA 8752 were adopted in Section 711 of the Customs Modernization and Tariff
Act (CMTA).

14. What was the rationale for the passage of RA 8752?

 To transform the domestic anti-dumping law into a more workable and simple
piece of legislation providing safety nets against the inflow of cheap dumped
imports;

 To strengthen the rules governing the investigation of anti-dumping cases; and

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  To align the domestic law with the World Trade Organization (WTO) Agreement
on Anti-Dumping Practice (Article VI of the General Agreement on Tariffs and
Trade, or GATT, 1994).

15. What issuances were promulgated to implement RA 8752?

 Joint Administrative Order No. 01, series of 2000 - Implementing Rules and
Regulations of RA 8752 which took effect on July 10, 2000.

 Tariff Commission (TC) Order No. 00-01 - prescribes the internal rules and
regulations governing the conduct of formal investigation by the Tariff
Commission under Section 301 of the TCCP, as amended by RA 8752. The
Order took effect on July 5, 2000.

16. Which government agencies administer the anti-dumping legislation?

a. Department of Trade and Industry-Bureau of Import Services (DTI-BIS) or

Department of Agriculture (DA) - receives the properly documented application
(DTI for industrial goods and DA for agricultural products); determines whether or
not a prima facie case exists to warrant initiation of investigation; and conducts
preliminary investigation to determine whether or not provisional measures
(dumping bond) may be imposed.

The Secretary of either Department issues the Department Order on the results
of investigation and implementation thereof.

b. Tariff Commission - conducts the formal investigation and makes the final
determination for purposes of the imposition of the definitive anti-dumping duty

c. Bureau of Customs – takes charge of the imposition of anti-dumping duty

D. Procedures

17. Who may file an anti-dumping protest?

A protest may be filed by, or on behalf of, the domestic industry, in writing and
embodied in a notarized form.

Under the law, the applicant (protestant) is required to post a surety bond to answer
for any damages which the importer/protestee may sustain by reason of the filing of frivolous
petition, to be released only upon affirmative preliminary determination.

18. How is domestic industry defined/determined?

Domestic industry refers to the domestic producers of like products as a whole or to

those whose collective output of the products constitutes a major proportion of the total
domestic production of those products in the industry concerned.

When producers are related to the exporters or importers or are themselves

importers of the alleged dumped articles, the term domestic industry may be interpreted as
referring to the rest of the producers.

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19. What is the threshold of support by producers for a protest to be accepted?

 Support by domestic producers whose collective output constitutes more than

50% of the total production of the like product produced by the domestic industry;
and

 Support by producers accounting for at least 25% of the total domestic production
of the product alleged to be dumped.

20. Under what condition an anti-dumping investigation can be initiated without a

written application from the domestic industry?

In special circumstances, DTI or DA may, on its own motion, initiate an anti-dumping

investigation without having received a written application by or on behalf of a domestic
industry. The concerned authorities should have sufficient evidence of dumping, injury and a
causal link to justify the initiation of the investigation.

21. What information is required when applying for the levy of anti-dumping duty?

 Volume of the domestic production of the producers making the application;

 Description of the alleged dumped product;

 Names of the exporting countries, each known exporter or foreign producer, and
a list of the importers of the products; and

 Information on dumping such as (i) prices at which the product is sold in the
domestic market of the exporting country, and export prices; (ii) injury and
causality; (iii) volume of dumped imports; and (iv) adverse effects of such imports
on domestic prices and on the domestic industries.

22. What are the stages in an anti-dumping investigation?

a. Prima Facie Determination. The DTI-BIS or DA, upon acceptance of the properly
documented protest/application, has 5 working days to decide whether the facts
would constitute a dumping case.

b. Preliminary Determination. Once a prima facie case has been established, DTI-
BIS or DA initiates the investigation which includes notification to the government
of the country of export or origin and all known interested parties, and distribution
of questionnaire to all concerned parties. DTI or DA has 30 working days from
receipt of the answer to the questionnaire to make its preliminary determination of
the need for the imposition of a provisional anti-dumping duty.

c. Final Determination. In the conduct of its formal investigation, the Commission

notifies all interested parties; receives representations and/or other submissions;
holds preliminary conference and public consultations; and conducts on-site
investigation/data verification both foreign and domestic. The Commission has
120 days from receipt of the advice from either Secretary of DTI or DA to
complete its investigation and submit its report of findings to the Secretary.

d. Issuance of Department Order. Within ten (10) days from receipt of the
affirmative final determination by the Commission, the Secretary of DTI or DA
issue a Department Order for the imposition of an anti-dumping duty, unless the

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 Secretary has earlier accepted an undertaking from the foreign exporter to
increase prices or cease exportation at dumped prices.

In case of a negative determination, either Secretary shall issue, through the

Secretary of Finance, after the lapse of the period for the petitioner to appeal to
the Court of Tax Appeals, an Order for the Commissioner of Customs to
immediately release the anti-dumping bond to the importer.

23. Under what circumstances may a petition be rejected and the investigation
terminated?

 Margin of dumping is de minimis, i.e. less than 2% of the export price;

 Volume of imports from a particular country is negligible, i.e., less than 3% of all
imports of like products into the importing country. However, this rule does not
apply when countries with individual shares of less than 3% collectively account
for more than 7% of imports of the product under investigation; or

 Injury is negligible.

24. What is meant by disclosure of essential facts?

Before making the final determination, the Commission is required to disclose to the
interested parties (e.g., exporters or producers under investigation, their governments, and
importers) the essential facts on which the decision to apply the duty is made. The parties
are given five (5) days from the date of receipt of the essential facts to defend their interests
in writing.

25. What can the investigating authorities do if the exporting enterprises, who
have been accorded the right to defend their interests during the investigation,
refused to cooperate, impede an investigation or make incorrect/incomplete
information?

The authorities can decide on the basis of the best information available.

E. Elements

26. What are the four elements of dumping?

a. Like product - product produced by the domestic industry which is identical or

alike in all respects to the article under consideration, or in the absence of such a
product, another product which, although not alike in all respects, has
characteristics closely resembling those of the product under consideration.

b. Price difference - amount by which the normal value (the price prevailing in the
exporting country) exceeds the export price (selling price to an importer in the
Philippines).

c. Injury - means “material” injury to a domestic industry, threat of material injury or

material retardation of the establishment of a domestic industry. Injury test must
be based on positive evidence and shall involve an objective examination of both
(i) the volume of the dumped imports; (ii) effects of dumped imports on prices in
the domestic market for like product; and (iii) the consequent impact of these
imports on the domestic producers of such products.

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 d. Causal link - refers to a finding that the material injury suffered by the domestic
industry is the direct result of the importation of the dumped product. It must be
clear that the injury suffered is directly attributable to the alleged dumping.

27. What is normal value?

Normal value is the foreign producer's domestic selling price of the article. It is the
comparable price in the ordinary course of trade for the like product when destined for
consumption in the country of export or origin.

28. What are the instances that the foreign producer’s domestic selling price
cannot be used as basis for normal value?

 No domestic sales of like product;

 Sales in the domestic market of the exporting country are not made in the
ordinary course of trade (e.g. , sales are made below the cost of production); or

 Volume of sales in the domestic markets is low, i.e., less than 5% of investigated
imports.

29. What are the bases for alternative normal value?

 Comparable price charged for the like product when exported to a appropriate
third country; or

 Constructed value in the exporting country, calculated on the basis of the

production costs of imported product, plus general, selling and administrative
cost, and profit.

30. What is export price?

Export price is the price at which such product has been purchased or agreed to be
purchased, at arm’s length transaction, by the person by whom or for whose account the
product is imported, excluding any post-exportation charges such as ocean freight and
overseas insurance. Normally, export price is (i) the ex-factory price at the point of sale for
export; or (ii) the price assessed at the free-on-board level (at the point of shipment) of the
allegedly dumped product.

31. When is an alternative export value used?

 No export price as defined; or

 Export price is unreliable because of a relationship or a compensatory

arrangement between the foreign exporter and the importer or a third party.

32. What are the bases for alternative export price?

 Constructed or deductive price based on the price at which the imported product
are first resold to an independent buyer less all costs incurred between
importation and resale, i.e., customs duty, sales tax, selling and administrative,
and profit; or

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  Reasonable price as may determined by the Secretary of Trade and
Industry/Agriculture or the Commission.

33. What exchange rate should be used for conversion purposes?

The exchange rate prevailing on the date of sale should be used for conversion
purposes. However, if the transaction is based on an exchange rate stated in a forward
contract, that rate should be used.

34. What factors are considered in determining material injury to the domestic
industry?

 Actual or potential decline in output, sales, market share, profits, productivity,

return on investments, or utilization of capacity;

 Effects on domestic prices; and

 Actual or potential effects on cash flow, inventories, employment, wages, growth,

and ability to raise capital or investments.

35. What are the three modalities in determining the price effects of dumped
imports?

 Price depression - refers to the extent by which the domestic producer reduces its
selling price in order to compete with the allegedly dumped product.

 Price suppression - refers to the extent by which the allegedly dumped product
prevents the domestic producer from increasing the selling price of its own like
product to a level that will allow full recovery of its cost of production.

 Price undercutting - is the extent by which the allegedly dumped product is

consistently sold at a price below the domestic selling price of the like product.

36. What factors are considered in determining the existence of a threat of material
injury?

 Significant rate of increase in the importation of the dumped product into the
domestic market indicating the likelihood of substantially increased importations;

 Sufficient freely disposable, or an imminent, substantial increase in, production

capacity of the foreign exporter indicating the likelihood of substantially increased
dumped exports in the domestic market, taking into account the availability of
other export markets to absorb any additional exports;

 Whether dumped products are entering at prices that will have a significantly
depressing or suppressing effect on domestic prices, and will likely increase
demand for further importation of the dumped products; and

 Inventories of the product being investigated.

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37. What other causes of injury not related to dumping are considered in
determining causation?

 Volumes and prices of imports not sold at dumped prices;

 Contraction in demand or changes in the patterns of consumption;

 Trade restrictive practices of, and competition between foreign and domestic
producers;

 Developments in technology; and

 Export performance and productivity of the domestic industry.

F. Measures

38. What are the remedies/measures imposed against dumping?

a. Provisional measure - takes the form of a provisional duty or, preferably, a

security by cash deposit or bond equal to the estimated difference between the
normal value and the export price of the protested article, the former being higher
than the latter. It is applied only after the DTI-BIS or DA has made a preliminary
affirmative determination no sooner than 60 days from the initiation of the case.

b. Definitive duty - final anti-dumping duty imposed, in addition to the regular duty
and other charges, on a protested product imported from a specific country
following an affirmative final determination.

39. What is the duration of imposition of anti-dumping measures?

 Provisional measure - four (4) months, extendable to six (6) months upon request
by the exporter.

 Definitive anti-dumping duty - five (5) years from the date of imposition.

40. What is a price undertaking?

Price undertaking is a voluntary commitment by the exporter to increase his price or

to cease exporting to the Philippines at a dumped price, thereby eliminating the material
injury to the domestic industry. Offer of price undertaking shall be made only after a
preliminary affirmative determination of dumping and injury to the domestic industry. An
undertaking to increase prices or cease exportation at dumped prices may be rejected if its
acceptance is impractical, e.g., the number of actual or potential foreign exporters is too
large, or other reasons, including reasons of general policy.

Price undertaking is effective for a period of five (5) years unless the foreign exporter
proves to the satisfaction of the authorities that the undertaking is no longer necessary.

41. What is the lesser duty rule?

Lesser duty rule is the imposition of anti-dumping duty in amounts lower than the
calculated margin of dumping, if such a lesser duty is adequate to remove the injury to the
domestic industry.

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G. Reviews

42. What are the reviews available to the affected parties of anti-dumping
measures?

a. Administrative reviews

 Sunset review - may be initiated by any interested party or upon own motion
of the Commission before the sunset date (i.e., the 5th year) to determine
whether the expiry of the anti-dumping duty would likely lead to a continuation
or recurrence of dumping and injury.

 Interim review - conducted by the Commission motu proprio, or upon the

direction of the Secretary, or upon petition of any interested party to
determine whether (i) the need for the continued imposition of the anti-
dumping duty is no longer necessary to offset dumping taking into
consideration the need to protect the existing domestic industry; or (ii) the
existing duty is not sufficient to counteract the dumping which is causing
injury. At least one (1) year should have elapsed since the imposition of the
anti-dumping duty before an interim review can be made.

 Newcomer review - carried out on an accelerated basis for the purpose of

determining individual margins of dumping for new exporters (new shippers)
in the exporting country in question which have not exported the product
during the period of investigation on which the measures were based. The
new foreign exporters requesting for such review must not be related to any
foreign exporter who is subject to the anti-dumping duty.

b. Judicial Review – Any aggrieved and/or interested party may file a petition for
review with the Court of Tax Appeals within thirty (30) days from receipt of notice
of the final ruling on the imposition of an anti-dumping duty. Filing of such petition
for review shall not in any way stop or suspend the imposition and collection of
the anti-dumping duty.

H. Summary of Cases

43. What cases/products have been investigated by the Tariff Commission under
RA 8752?

Year of Country of
Description TC Final Determination
Investigation Origin
Positive; measure was not
Cold rolled steel
2000 Russia imposed for reason of public
coils and sheet
interest
Cold rolled steel Negative; negligible volume
2000 Ukraine
coils and sheet of imports
Hot rolled steel Negative; material injury was
2000 Russia
coils and sheet not established
Positive; imposition of
measure was terminated. The
Polypropylene Korean Government elevated
2000 South Korea
resins the case before the Dispute
Settlement Body of the WTO
and agreed to an amicable

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 Year of Country of
Description TC Final Determination
Investigation Origin
settlement with the Philippine
Government.
Positive; measure was not
2000 Steel billets Russia imposed for reason of public
interest
2000 Clear float glass Indonesia Positive
Negative; material injury was
2000 Tinted float glass Indonesia
not established
2000 Clear float glass Malaysia Positive
Positive; measure was not
Cold rolled steel
2001 Malaysia imposed for reason of public
coils and sheet
interest
Cold rolled steel Negative; material injury was
2001 Taiwan
coils and sheet not established
Negative; dumping was not
2001 Clear figured glass China
established
Case dismissed; domestic
Sodium industry withdrew its petition
2007 China
Tripolyphosphates for expiry review and parties
settled the case amicably
Negative; de minimis
2010 Mosquito Coil Indonesia
dumping margin
Positive; measure was
2014 Wheat Flour Turkey imposed for a period of five
(5) years

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