Safeguard Measures - emergency relief provided to a domestic industry, producing like or directly competitive product, which was seriously injured due to sudden and sharp increase in volume of imports
A Guide to General Safeguard Measures
This is a guide for Philippine producers who believe that increased imports could be injuring their industry. It provides general information about general safeguard measures and the procedures that affected industries can take to request the Philippine government to provide temporary protection by restricting imports.
This guide has also been designed to assist Philippine domestic industry in preparing a properly documented protest for a general safeguard measures investigation.
It clarifies the issues regarding the application of general safeguard measures and its effects on the local producers, importers, foreign producers and exporters, consumers and the public, in general.
It also explains the legal background, procedures in applying for an investigation, the conduct of an investigation and the action that will be taken afterwards.
Republic Act No. 8800, otherwise known as the Safeguard Measures Act (the “Act”) provides temporary protection to a Philippine industry affected by the surge in imports. It authorizes the Philippine government to restrict imports, after investigations carried out by competent authorities, establishes that imports are taking place in such increased quantities as to cause or threaten to cause serious injury to the domestic industry that produces like or directly competitive products. The measure is applied to imports of like or directly competitive products from all sources. The legislation lays down the criteria which must be considered in determining whether increased imports are causing serious injury to the domestic industry. It also sets out basic procedural requirements for the conduct of an investigation.
Applicants are strongly advised to familiarize themselves with the provisions of Republic Act No. 8800 and its Implementing Rules and Regulations
What are Safeguard Measures?
Safeguard measures are emergency reliefs provided to domestic industries to allow them time to adjust to increased competition from imports. Its primary purpose is to provide temporary increased protection to give affected industries time to prepare itself for the competition that it will have to face after the temporary protection is removed. The definitive measures including any extension are applied for a maximum period of ten (10) years.
What are the conditions for applying general safeguard measures?
A general safeguard measure shall only be applied after a positive final determination that the increased importation of a product is a substantial cause of serious injury or threat to the domestic industry. In the case of non-agricultural products it shall be first established that such safeguard measure would be in the public interest.
How do you apply for an Investigation?
Any person whether natural or juridical, belonging to or representing a domestic industry may file a written petition using the Protestant’s Application Form/Questionnaire duly supported by relevant documents which shall include evidence of (a) increased imports of like and/or directly competitive products, (b) serious injury or threat thereof and (c) causal link between the increased imports and the serious injury of threat thereof.
The application shall be filed with the Secretary of Trade and Industry in the case of non-agricultural products or with the Secretary of Agriculture in the case of agricultural products.
Properly Documented Application
The application must be complete at the time it is lodged and must contain all relevant information that is reasonably available to the protestant. Allegations made in the protest should be supported by documentation, data, or other satisfactory evidence. Additionally, where any estimates have been provided in the complaint, it is important that an explanation be provided to support the basis of the estimates.
With respect to allegations of injury, the applicant is in the best position to assess the nature of the injury. It is the applicant’s responsibility to document the injury in sufficient detail and to show that it is caused by the increased volume of imports.
A properly documented application shall contain relevant evidence and information reasonably available to the applicant as follows:
- identity of the applicant or the industry;
- volume and value of domestic production of the like product or directly competitive product;
- description of the imported product;
- country of origin or export;
- identity of each known exporter or foreign producer;
- list of known importers;
- information on volume and value of imports;
- information on the relevant industry data to support allegations of the consequent impact of the increased importation of the product under consideration;
- statement on the form and duration of the safeguard measures sought;
- statement of the efforts being taken and/or to be taken by the domestic industry to make a positive adjustment to import competition.
If provisional safeguard measures are sought, petitioner must prove that critical circumstances exist. In addition to the information mentioned above, they must also submit the following:
a) statement requesting for the imposition of a provisional measure;
b) impact on the domestic industry if imports continue within the next sixty (60) days;
c) statement on the type and rate of tariff sought or in the case of agricultural product, the type of measure and the rate of level sought.
Assistance with Protestant’s Application Form/Questionnaire
The Protestant’s Application Form/Questionnaire contains the requirements for a properly documented protest. Accordingly, the requirements, questions and notes to questions set therein must be satisfied.
The Bureau of Import Services of the Department of Trade and Industry can offer advice in preparing the application for an investigation. The Bureau will answer any questions relating to safeguard measures investigation. Official correspondence should be addressed to the Director – Bureau of Import Services. Contact details can be found at the end of this Guide.
The applicant is requested to sign the application form, prepare and submit four (4) copies of the completed questionnaire (two (2) CONFIDENTIAL and two (2) NON-CONFIDENTIAL versions). The applicant is strongly recommended to respond to all the questions asked. The absence of responses to individual questions or the lack of a response to the questionnaire will cause the Agency to return the application and request the applicant to complete it.
The application form/questionnaire is not designed to be filled in. Thus, all answers and any supplementary material provided in support of the answers, should clearly identify the questions to which they related (in sequence). Additional information may be requested from the applicant as necessary.
All information provided to the Agency in confidence will be treated accordingly. The applicant should ensure that the information provided which is confidential, is clearly marked as such, and that there is a non-confidential version (or summary) of that data. Failure to provide a non-confidential summary may result in the information being disregarded by the Department.
Non-Confidential Version of the Complaint
RA 8800 impliedly provides for the disclosure of information to certain parties that may have an interest in the proceedings. The intent is to make as much information available as possible so that all parties can understand the reasons and basis of facts upon which decision are made, while still guaranteeing the protection of confidential information. Thus, it is required that information submitted is to be clearly marked either “confidential” or “non-confidential”, and the applicant must provide two (2) copies of a non-confidential summary of any confidential information supplied and/or submitted.
The non-confidential summary must be in sufficient detail to permit a reasonable understanding of confidential information. Failure to provide a non-confidential summary may result on the information being disregarded. The non-confidential version of the submission is placed on a public file and made available to interested parties. This allows claims to be considered by the other parties who have a right to see the information relevant to the presentations of their case. Similar arrangements apply to submissions made by other interested parties.
The recommended method of satisfying the requirement for confidential and non-confidential copies is to keep the body of the application non-confidential and to place confidential data in appendices.
How is the Investigation Carried Out?
- Initiation/Preliminary Determination
The Department of Trade and Industry (DTI) through its Bureau of Import Services (BIS) initiates the preliminary determination of the protest involving non-agricultural products within five (5) days from acceptance of the properly documented application. The DTI 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 Department 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 Trade and Industry 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 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.
After a decision to initiate an investigation has been made, the DTI notifies the government of the exporting country concerned and advises the applicant of its decision. The notice of initiation is also published in two (2) newspapers of general circulation. The agency also, notifies all the interested parties i.e. the importer/s, exporter/s and foreign producer/s 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 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 application or a motu proprio initiation of the preliminary investigation, the Secretary shall on the basis of the information available makes a preliminary determination.
In a preliminary determination under critical circumstances, the Secretary shall establish that the substantial increase in the volume of imports would warrant the imposition of a provisional relief to prevent further injury to the domestic industry that would be difficult to repair.
- Application of Provisional Measures
If the preliminary findings of the Secretary are affirmative and under a critical circumstances determination where a delay would cause damage which would be difficult to repair, provisional measures in the form of a tariff increase either ad valorem on specific, or both, to be paid through a cash bond shall be imposed. The cash bond shall be set at a level sufficient to redress or prevent serious injury to the domestic industry. 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 and complete its formal investigation within one hundred (120) days from receipt of the case records. However, when the Secretary certifies that the investigation is urgent, the Commission shall complete its investigation and submit a report to the Secretary within sixty (60) calendar days.
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 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.
- Final Determination of the Secretary/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 the event, however, of a negative final determination, the Secretary shall issue through the Secretary of Finance; an order for the Commissioner of Customs to release the cash bond to the importer within ten (10) days from the date of the final decision. In addition, all the parties concerned shall also be properly notified of the dismissal of the case.
Where to File
WHERE IS THE APPLICATION FOR AN INVESTIGATION INVOLVING NON-AGRICULTURAL PRODUCTS SENT (CHAPTERS 25-96 OF THE PHILIPPINE TARIFF AND CUSTOMS CODE)
Bureau of Import Services
Department of Trade and Industry
3rd Floor, Tara Building,
389 Sen. Gil Puyat Avenue, Makati City
Contact Telephone Nos.
Questionnaire for Protestant/Petitioner (Domestic Producer)
WELCOME TO THE GENERAL SAFEGUARD MEASURES INVESTIGATION QUESTIONNAIRE
This questionnaire will help you effectively apply for a general safeguard measures investigation.
A recommendation by the Department of Trade and Industry - Bureau of Import Services to initiate investigation to justify the imposition of general safeguard measures requires adequate and accurate information about the imported product under protest and the effects on Philippine industry producing like and directly competitive products.
Please retain the worksheet after your application is lodged as it provides a valuable record of your sources if further evidence is required during a subsequent general safeguard measures investigation.
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