General safeguard measures

 

The general safeguard investigation has four (4) distinct stages:

 

●    Prima Facie Determination

 

The DTI-BIS or DA, upon acceptance of the properly documented petition, has five (5) calendar days to decide whether a prima facie case exists to merit the initiation of a preliminary investigation.

 

The DTI/DA evaluates the accuracy and adequacy of the evidence presented to justify initiation of investigation. During this period, the applicant maybe asked to clarify the information they have provided or to submit additional evidence/documents. The DTI/DA may also take into account other information available to it in order to check the accuracy and adequacy of the information provided. The Secretary of DTI/DA may also initiate action upon the request of the President or a resolution of the House or Senate Committee on Trade and Commerce.  The Secretary of DTI/DA may also motu proprio initiate a preliminary investigation without having received a verified petition by or on behalf of the domestic industry if there is evidence that increased imports are a substantial cause of or threatens to substantially cause serious injury to the domestic industry.

 

If no prima facie case exists, the application is denied.

 

●    Preliminary Determination

 

Once a prima facie case has been established, DTI-BIS initiates the preliminary determination.

 

Within two (2) calendar days after the decision to initiate the preliminary investigation is made, DTI-BIS or DA notifies all known interested parties and the government of the exporting country about the initiation of the investigation and sends a proforma respondent’s questionnaire to all the interested parties (importers, domestic manufacturers, exporters, etc.), and requires them to answer and submit, within five (5) working days from receipt of such notice, the response to the questionnaire and other submissions. If the respondents fail to cooperate or did not provide the necessary information within the prescribed period, a decision may be based on the available pertinent data. The DTI/DA conducts a thorough evaluation of all the data submitted or provided by the applicant, importer/s, foreign producer/s and exporter/s and, together with the information obtained independently, conducts an investigation to determine whether or not a case exists as to warrant a formal investigation.

 

Not later than thirty (30) calendar days from receipt of the properly documented petition, the Secretary shall, on the basis of the petition, the answers of the respondents and the supporting documents or information, make a preliminary determination that increased imports of the product under consideration are a substantial cause of, or threaten to substantially cause, serious injury to the domestic industry.

 

In case of preliminary affirmative findings, the Secretary of either DTI or DA advises, within three (3) calendar days from making a decision, the Secretary of Finance to instruct the Bureau of Customs to impose the provisional safeguard measure. Such measure shall take the form of a tariff increase either ad valorem or specific, or both, to be paid through a cash bond. In the case of agricultural products, where the tariff increase may not be sufficient to redress or to prevent serious injury to the domestic producers, a quantitative restriction may be applied.

 

The preliminary affirmative findings by the DTI-BIS or DA, together with the records of the case, shall be transmitted to the Commission for its immediate formal investigation of the case within three (3) calendar days from adopting the decision. However, if the preliminary findings are negative, the DTI or DA Secretary shall terminate the investigation.

 

Note: In the case of non-agricultural products, the Secretary shall first establish that the imposition of the provisional measure would be in the public interest. 

 

The provisional measure will only be imposed for 200 calendar days

 

●    Formal Investigation

 

Within five (5) working days from the receipt of advice of a PRELIMINARY DETERMINATION together with the pertinent records from the Secretary that the protest merits formal inquiry, the Tariff Commission shall conduct the formal investigation to determine:

 

-    if the domestic product is a like product or a product directly competitive to the imported product under consideration;

 

-    if the product is being imported into the Philippines in increased quantities (absolute or relative to domestic production);

 

-    the presence and extent of serious injury or threat thereof to the domestic industry that produces like or directly competitive product; and

 

-    the existence of a causal relationship between the increased imports of the product under consideration and the serious injury or threat thereof to the affected domestic industry.

 

During the investigation, the Commission visits the protestant in order to verify information provided in the application and in any subsequent submission. Protestant should, therefore, retain worksheets supporting all data submitted for Commission’s consideration. In addition, the Commission will send questionnaires to the interested parties, domestic and foreign. Detailed information will be requested from the domestic manufacturers supporting the protest as well as from other interested parties.

 

The Commission also receives representations and holds consultations. It is important to note that during the consultations conducted by the Commission, it is the responsibility of the protestant(s) to prove its injury allegations. For this purpose, protestants usually retain the services of counsel with expertise in safeguard investigation.

 

In the course of its investigation, the Commission shall notify the representatives of the concerned domestic industry or other concerned parties to submit an adjustment plan to import competition within forty-five (45) days upon receipt of notice (or within thirty (30) days if investigation is urgent).

 

The Commission shall conclude its formal investigation and submit a report of its findings and conclusions to the Secretary within one-hundred-twenty (120) calendar days from receipt of the request from the Secretary, except when the Secretary certifies that the same is urgent, in which case the Commission shall complete the investigation and submit the report within sixty (60) calendar days.

 

The Commission shall submit its recommendations to the DTI/DA Secretary. It shall also give notice to interested parties of the summary of its findings as submitted to the Secretary by publication in two (2) newspapers of general circulation.

 

●    Decision/Imposition of the Duty

 

Within fifteen (15) days after receipt of the recommendations of the Commission, the Secretary of DTI/DA shall make a decision taking into consideration the measures recommended by the Commission. Provided, however, that in the case of non-agricultural products, the Secretary shall first establish that the imposition of the safeguard measure will be in the public interest. 

 

If the decision is affirmative, he shall issue within two (2) days a written instruction to the heads of the concerned government agencies to immediately implement the appropriate safeguard measures. He shall furnish the Secretary of Finance with the copy of the Order and request the latter to direct the Commissioner of Customs to collect the definitive safeguard duty, or in the case the definitive safeguard measure is in the form of a tariff rate-quota or quantitative restriction, to require the importer to present the relevant import clearance or authority for the product under consideration. The general safeguard measure shall be imposed for a maximum of four (4) years including the period in which the provisional relief was in effect.

 

The Order of the Secretary shall be published in two (2) newspapers of general circulation. The parties litigants, the Tariff Commission, the Bureau of Customs and other proper government agencies shall be furnished with a copy of the decision.

 

In case of a negative final determination or if the cash bond is in excess of the definitive safeguard duty assessed, the Secretary shall immediately issue, through the Secretary of Finance, a written instruction to the Commissioner of Customs, authorizing the return of the cash bond or the remainder thereof, as the case may be, previously collected as provisional general safeguard measure within ten (10) days from the date the final decision had been made. In addition, all the parties concerned shall also be properly notified of the dismissal of the case.

 

Special safeguard measures

 

●    Verification

 

The DA Secretary shall verify if the cumulative import volume of an "SSG"-denominated agricultural product in a given year has exceeded its trigger volume or, but not concurrently, its actual c.i.f. import price is less than its trigger price.

 

●    Findings

 

The Secretary shall come up with a finding within five (5) working days from the receipt of a request.

 

●    Imposition of special safeguard measure

 

The Secretary shall issue a Department Order requesting the Commissioner of Customs through the Secretary of Finance to impose an additional special safeguard duty.

 

 

Source: Tariff Commission of Philippines