| CONTACT: |
| Supreme Court of the Philippines Library Services, Padre Faura, Ermita, Manila, Philippines 1000 |
| (632) 8524-2706 |
| libraryservices.sc@judiciary.gov.ph |
(NAR) VOL. 16 NO. 4 / OCTOBER - DECEMBER 2005
[ PSB ADMINISTRATIVE ORDER NO. 06, S. 2005, November 23, 2005 ]
PHILIPPINE SHIPPERS' BUREAU (PSB) – REVISED RULES ON FREIGHT FORWARDING
Rule I
General Principles and Objectives; Definition of Terms
SEC. 1. General Principles and Objectives
WHEREAS, it is the declared policy of the State to facilitate and assist the development and growth of the Philippine trade and the national economy by enhancing the legitimate interests of the Philippine shippers;
WHEREAS, RA No. 7844 – The Export Development Act, Section 3(f), provides among others, that urgent attention must be given to policies affecting infrastructure in order to ensure the adequate supply and quality of transportation (e.g. shipping and cargo handling) to support the flow of goods and services in the context of the national export drive.
WHEREAS, Executive Order No. 913 and its implementing rules and regulations under Ministry Order No. 69 strengthen the rule making and adjudicating powers of the Secretary of Trade and Industry by providing the procedures under which juridical person and DTI initiated complaint may be availed of;
WHEREAS, Executive Order No. 514 provides for the registration and accreditation of non-vessel operating common carriers, freight forwarders, cargo consolidators and breakbulk agents in accordance with existing agreements and charge reasonable fees thereof;
WHEREAS, PSB Administrative Order No. 2, Series of 1996 requires adopting appropriate measures to promote and develop the Philippine trade and commerce through the economical and efficient carriage of merchandise;
NOW, THEREFORE, the following rules and regulations are hereby provided for the information, guidance and compliance of all concerned:
In pursuance of these policies and principles, the PSB shall maintain and operate a reasonable accreditation and regulation system for the covered firms, with the following objectives:
a. Lay down the minimum standards and requirements under which covered firms may legally do business;
b. Upgrade the quality of services, capabilities, resources and expertise of the covered firms in order that they may meet the demands of the Philippines' new global trade and upsurging domestic trade; and
c. Curtail acts and practices inimical to the fast growth of the freight forwarding industry and prejudicial to the interests of Philippine shippers.
SEC. 2. Definition of terms – The following terms shall be defined as follows:
a. Accreditation – a legal recognition conferred by the Philippine Shippers' Bureau-Department of Trade and Industry (PSB-DTI) upon an entity authorizing it to engage in seafreight forwarding business.
b. Certificate of Accreditation – a document issued by PSB officially authorizing the entity named therein to engage in the specific seafreight forwarding functions and/or category/ies it can operate.
c. Non-Vessel Operating Common Carrier (NVOCC) – an entity, without owning or operating a vessel, providing a point to point service which may include several modes of transport and/or undertakes groupage of Less Container Load (LCL) shipments and issuing a corresponding transport document.
d. International Freight Forwarder – a local entity that acts as a cargo intermediary and facilitates transport of goods on behalf of its client without assuming the role of a carrier. It can also perform other forwarding services, such as booking cargo space, negotiating freight rates, preparing documents, advancing freight payments, providing packing/crating, trucking and warehousing, engaging as an agent/representative of a foreign NVOCC/cargo consolidator named in a Master Bill of Lading as consignee of a consolidated shipment, and other related undertakings.
e. Domestic Freight Forwarder – an entity that facilitates and provides the transport of cargo and distribution of goods within the Philippines on behalf of its client.
f. Shipper – the person whose name appears in the Bill of Lading or other transport document as the party contracting with the carrier for the carriage of goods by sea, such as the exporter, importer, cargo owner, freight forwarder, and cargo consolidator.
g. Consignee – the person whose name appears in the Bill of Lading or other transport document as the party to whom the goods are to be delivered by the carrier.
h. PSB – the Philippine Shippers' Bureau.
i. Director of PSB – includes the Officer-in-Charge of PSB.
j. RAD – Registration and Accreditation Division of PSB.
k. Person – a natural person or juridical person.
l. This Order – this PSB Administrative Order.
m. Working days – working days of PSB.
n. Subsisting Certificate of Accreditation – one that is existing and has not expired, not cancelled, not under suspension, not automatically/deemed revoked, and not acquired by way of transfer/alienation/inheritance.
Rule II
Covered Firms; Documentary Requirements for Accreditation
SEC. 3. Covered Firms – The five (5) categories namely: Non-Vessel Operating Common Carrier (NVOCC), Cargo Consolidator (CC), International Freight Forwarder (IFF), Breakbulk Agent (BBA) and Domestic Freight Forwarder (DFF) are hereby simplified into three (3) namely: Non-Vessel Operating Common Carrier (NVOCC), International Freight Forwarder (IFF) and Domestic Freight Forwarder (DFF) which are defined above. Non-Vessel Operating Common Carrier includes the functions of a Cargo Consolidator; International Freight Forwarder includes the functions of a Breakbulk Agent. These three (3) categories are referred to as "covered firms" under this Order; hence they must be accredited first before they can legally engage in the said functions and/or operations.
SECTION 4. Documentary requirements for accreditation. – The applicant shall file with the PSB a written application under oath, in the prescribed form (in one copy only), together with a clear copy of each of the following documents:
A. For Corporations and Partnerships:
1. Company profile documents, namely:
A photocopy of the SEC Certificate of Incorporation and the Articles of Incorporation/Partnership and By-Laws.
The category being applied for by the applicant must be specifically provided in the Primary Purpose portion of its Articles of Incorporation/partnership. However, if the application is for NVOCC category and there is no specific provision in applicants' Articles of Incorporation/partnership allowing it to engage in NVOCC operations, the applicant shall be required to file with SEC an amendment for that purpose. Upon submission to SEC of the application for amendment, an accreditation shall be granted by PSB subject to the condition that within ninety (90) days from the issuance of the Certificate of Accreditation, a copy of the duly approved Amended Articles of Incorporation/Partnership shall be submitted by the applicant to PSB.
2. Audited Financial Statement (latest Income Statement & Balance Sheet with supporting schedules), which must show a minimum paid-up capital as certified by the Securities and Exchange Commission (SEC) according to the category as follows:
Category Minimum paid-up Capital Requirement a. NVOCC b. International Freight Forwarder c. Domestic Freight Forwarder
When the applicant is just a division of a company composed of two or more divisions, it shall submit, in addition to the financial statements applicable to the entire company, a statement of income and expenses applicable only to its freight forwarding operations as a separate Profit Center.
For newly organized companies, an audited pre-operating balance sheet is required:
The applicant's net equity shall be equal to or greater that the above-prescribed minimum paid-up capital for each category, and the amount shall not be impaired by the operating losses, the long term liabilities, or other operating aspects affecting the net equity of the firm upon application for accreditation.
3. Copy of the latest Mayor's Permit, BIR Certificate of Registration and SSS Certificate of Membership.
4. Board or Partnership, Resolution, as the case may be, authorizing the company to apply for accreditation with the PSB and identification of key officers authorized to sign, follow-up and receive the accreditation certificate.
5. List of Corporate Officers and Key Operating Personnel with corresponding bio-data and passport size pictures of its key officers.
Any one (1) of the key operating officers must have at least three (3) years experience in shipping, freight forwarding, and/or related activities, and must submit a certification or proof of employment from previous employers.
6. List of agents/principals/offices abroad and/or domestic agents with their respective company profile, and a copy of the existing contract and/or agency agreement. The applicant is given sixty (60) days in which to submit said requirement.
7. For NVOCC, original blank specimen of own House/Forwarder's Bill of Lading and Principal/Agent House/Forwarders Bill of Lading. The applicant is given sixty (60) days in which to submit at least one (1) original copy of Principal/Agent House/Forwarders Bill of Lading.
8. Proofs of cargo insurance coverage, namely, a photocopy each of the policy and the official receipt showing payment of the premium.
The type of cargo insurance required for accreditation under this Order is either the Merchandise in Transit (Floater) Insurance which shall cover Truck Risks Plus Robbery and Hijacking (Standard Coverage) plus losses and damages due to loading and unloading and losses and damages whilst the vehicle is on stop overnight at an allowed territory; or any standard global comprehensive cargo liability insurance for freight forwarders and transport operators covering destinations between the Philippines and worldwide.
Entities with global comprehensive cargo liability coverage must show proof that its domestic insurance representative is authorized to process claims on behalf of its principal insurer.
The minimum amount of insurance coverage shall be as follows:
Category Minimum Amount of Insurance Coverage a. NVOCC b. International Freight Forwarder c. Domestic Freight Forwarder
9. Inventory of Office Equipment and, if any, a list of transport equipment and/or photocopies of contracts with trucking company/s. For vehicles owned by the applicant, a photocopy each of the vehicle registration papers shall also be submitted.
10. Location and Map of Office.
11. In the prescribed form, (1) an authority to verify and inspect the applicant's office/s, warehouse/s, equipment, and documents/records; and to verify from whatever sources, even after the Certificate of Accreditation has been issued, the veracity of the entries/statements in the application form and supporting documents as well as the genuineness of the said documents; and (2) an authority to conduct the visitorial activities mentioned in Sections 33 and 34 hereof for the life-span of the Certificate of Accreditation.
12. For NVOCC, a copy of the freight tariff and transshipment fees.
13. PSB duly prescribed itemized service charges.
B. For Sole Proprietorships:
1. A photocopy of the subsisting Certificate of Business Name Registration.
2. Audited Financial Statement (latest Income Statement & Balance Sheet with supporting schedules). For newly organized companies, an audited pre-operating balance sheet is required. The capitalization must be equivalent to the minimum paid-up capital and net equity requirement stated in Subsection (A) (2) of this Section.
3. Proofs of financial resources:
a. Copy of Bank Certificate reflecting the minimum amount of capitalization required.
b. Proof of Tangible Assets and submission of undertaking in the PSB-prescribed format, indicating its Fair Market Value which should be equal to or greater than the required minimum capitalization.
4. Latest Income Tax Return for two (2) preceding years.
5. Proprietor's Authorization identifying the key officers authorized to sign, follow-up and receive the accreditation certificate.
6. List of Key Operating Officers, which includes the Owner, Chief Operating Officer, Operations Manager or equivalent and corresponding bio-data with passport size pictures.
Any one (1) of the key operating officers must have at least three (3) years experience in shipping, freight forwarding, and/or related activities, and must submit a certification or proof of employment from previous employers.
The following items of Subsection (A) of this Section shall be applicable to Sole Proprietorships:
Item 3 – re – Mayor's Permit, BIR and SSS Registrations
Item 6 – re – agents/principals/offices abroad and/or domestic agents; contracts
Item 7 – re – B/L specimen
Item 8 – re – insurance
Item 9 – re – office equipment/contracts/vehicle registration papers
Item 10 – re – location map
Item 11 – re – authority to verify and inspect; authority to conduct visitorial activities
Item 12 – re – freight tariff
Item 13 – re – local service charges
Notwithstanding the above, the PSB may require the submission of other documents as may be necessary in the evaluation of the application.
SEC. 5. Additional categories. – If the applicant is applying, on a single occasion, for more than one category, his main category shall be charged the filing and processing fee of P5,000.00 for Non-Vessel Operating Common Carrier, P4,000.00 for International Freight Forwarder or P3,000.00 for Domestic Freight Forwarder, and every additional category shall be charged a filing and processing fee of P1,500.00 only. The same rule shall be applied when a firm which has already an accredited category later on applies for additional category/s. Provided however, that the lifespan of the Certificates of Accreditation for the additional categories shall be coterminous with that of the main/first accredited category, and consequently all shall be renewed simultaneously and considered as one renewal application entitling the applicant to pay only a single filing and processing fee (including surcharge if applicable).
SEC. 6. Branch offices must be accredited. – Every branch of the covered firms must be accredited first before said branch can legally engage in business. For this purpose, the applicant shall file an application under oath, in the prescribed form (in one copy only), together with a clear copy of each of the following documentary requirements:
a. Information regarding the branch office;
b. Bio-data and recent passport-size ID picture of the Branch Manager (BM) – the BM should meet the experience requirements for Operations Manager as provided in Section 4 hereof;
c. Latest Mayor's Permit;
d. Insurance policy coverage:
- Territorial limits – should include a clause specifying the coverage of branch office's area of operations
e. Visitorial/Inspection Authority;
f. Tariff and local service charges Ex-Port nearest to the branch office's area of operations; and
g. Other documents as may be necessary in the evaluation of the application, when required by the PSB.
RULE III
Processing of Application for Accreditation
(Original or Renewal)
SEC. 7. When application is deemed filed. The application for accreditation (original or renewal) shall be deemed filed upon submission of all documentary requirements and payment of the filing and processing fee and surcharge (if applicable).
SEC. 8. Action on the application. – Within fifteen (15) working days from the date the application is deemed filed, the RAD shall: (1) verify, inspect and evaluate the office/s, warehouse/s, equipment, and pertinent documents of the applicant; and (2) recommend to the Director of PSB the approval or denial of the application, as the case may be. The latter, in his discretion, may refer the application to the RMC for comment.
SEC. 9. Automatic accreditation. – The application shall be processed (including approval or denial) within a period of twenty-one (21) working days reckoned from the date it is deemed filed. After said period if no action has been taken on the application or the processing thereof has not been completed, the application shall be deemed approved and the applicant shall be entitled to the issuance and release of a Certificate of Accreditation upon payment of the Accreditation Certificate Fee.
SEC. 10. Suspension of the running of the 21-working day period. During the processing of the application, clarificatory question/s may be posed by PSB to the applicant which must be answered in writing within five (5) days from receipt of notice thereof, or PSB may require the submission of additional document/s necessary in the evaluation of the application, which must be submitted by the applicant within five (5) days from receipt of notice thereof. The running of the 21-working day period shall be deemed suspended when said question/s are thus posed or when said additional document/s are required. The suspension shall begin from the date said notice is actually received by the applicant and shall stop from the date PSB actually receives the written answer/s or document/s from the applicant. For non-compliance of rules and documentary requirements, the entity's application for accreditation shall be disapproved.
SEC. 11. Ocular inspection. – The inspection mentioned in Section 8 hereof shall be conducted by a duly authorized Inspection Team. It shall be conducted in the manner provided in Section 33 and 34 hereof. An Inspection Report (in the prescribed form) shall be submitted to the PSB Director within twenty-four (24) hours after the inspection.
RULE IV
Renewal of the Accreditation
SEC. 12. Renewal period: renewal applications classified. – Renewal applications are hereby classified as follows:
1. Regular application – if filed at any time on or before the expiry date of the Accreditation.
2. Late application:
a) From one (1) to fifteen (15) days after the expiry date.
b) From sixteen (16) to thirty (30) days after the expiry date.
c) From thirty-one (31) to forty-five (45) days after the expiry date.
d) Form forty-six (46) days after the expiry date and onwards.
In case the processing time of a regular application reaches or goes beyond the expiry date of the Certificate being renewed, the Certificate being renewed shall be deemed existing during the said processing time and up to the date of release of the renewal certificate or date of actual receipt by the applicant of the written notice of denial of his application, as the case may be. This is in order to avoid a hiatus and disruption of private business (per Section 18, Book VII of the Administrative Code of 1987). And in case of approval of this type of application, the effectivity of the renewal Certificate shall retroact to the expiry date of the Certificate being renewed.
The firm whose application for renewal is filed from the day after the expiry date to onwards shall be delisted from the list of PSB Accredited Freight Forwarders until upon a renewal and Certificate is issued to the applicant. If said application is approved, the effectivity of the renewal Certificate shall be based on the date it was approved by the Director of the Bureau.
SEC. 13. Processing of the renewal application. – The renewal application shall be subject to the standards and documentary requirements provided in Rule II hereof, and shall undergo the processing procedure provided in Rule III hereof.
RULE V
Certificate of Accreditation
SEC. 14. Certificate of Accreditation, when issued and released. – When the applicant meets all the standards and requirements for accreditation, and has paid the prescribed filing and processing fee (including surcharge if applicable), the Director of PSB shall approve the application and issue the Certificate.
The Certificate shall be signed by the Director of PSB, sealed with the seal of PSB, and shall state:
a. The name of the accredited firm, stating whether it is the main/sole/branch office, and stating its address;
b. The specific freight forwarding operations it is authorized by the PSB to engage in;
c. The date of issue;
d. The life span of the Certificate, and the exact inception date (date the Certificate shall start to be effective) and the exact expiry date;
e. The statement that it is non-transferable and cannot be used by another;
f. The statement that the original copy of the Certificate must be displayed in a conspicuous place in the accredited firm's main/sole/branch office, as the case may be;
g. The Certificate Number;
h. The number and date of the Official Receipt of the Accreditation Certificate Fee; and
i. Other pertinent data as may be required by the PSB.
The original copy of the Certificate shall be released to the applicant upon payment of the Accreditation Certificate Fee. A photo copy thereof shall be kept by PSB for record purposes.
SEC. 15. Life span of the Certificate. – The Certificate of Accreditation shall have a life-span of two (2) years unless sooner cancelled under Rule XI hereof. Its life-span may also be cut short when it is automatically/deemed revoked.
SEC. 16. Non-transferability of the Certificate. – The Certificate of Accreditation is issued only after carefully evaluating the technical, financial, and other qualifica tions of the applicant vis-à-vis the standards herein. Hence, the grantee of said Certificate shall not transfer or alienate in whatever manner, nor authorize another to use, said Certificate. Neither can the Certificate be inherited.
SEC. 17. Display of the Certificate. – The original copy of the subsisting Certificate of Accreditation shall be displayed in a conspicuous place in the accredited firm's main/sole/branch office, as the case may be.
However, when the original copy is lost or destroyed, the grantee shall file an application under oath for the issuance of a substitute certified copy of the Certificate. Said substitute copy shall be displayed as provided in this Section.
SEC. 18. Right of accredited firms. - Firms with subsisting Certificate of Accreditation shall have the right to state in their advertisements through the print media, television, radio, brochures, posters, and the like and in its letters, contracts, bills of lading, receipts, signboards, stickers or signs in their vehicles the term –
"ACCREDITED BY PSB, CERTIFICATE OF ACCREDITATION
NO. ––––––––, EXPIRING (state expiry date)"
RULE VI
Schedule of Fees Payable
SEC. 19. Accreditation Fees. – The following fees shall be paid to PSB:
A. For the Main/Sole Office:
1. Original application for accreditation:
a. Filing and Processing Fee NVOCC IFF DFF b. Accreditation Certificate Fee 2. Renewal application for accreditation:
Category Filing and Processing Fee Surcharge Regular application NVOCC P5,000.00 P 0.00 IFF 4,000.00 DFF 3,000.00 Late application a) If filed from one (1) to NVOCC P5,000.00 2,000.00 fifteen (15) days after IFF 4,000.00 the expiry date. DFF
3,000.00 b) If filed from sixteen NVOCC P5,000.00 4,000.00 (16) to thirty (30) days IFF 4,000.00 after the expiry date. DFF 3,000.00 c) If filed from thirty-one NVOCC P5,000.00 8,000.00 (31) to forty-five (45) days IFF 4,000.00 after the expiry date. DFF 3,000.00 d) If filed from forty-six NVOCC P5,000.00 12,000.00 (46) days after the IFF 4,000.00 expiry date and onwards. DFF 3,000.00 Accreditation Certificate 200.00
Fee (Whether regular or Late application)
B. For the Branch Office:
1. Filing and Processing Fee – shall be 25% of the Filing and Processing Fee stated in (A) (1) or (A) (2) above, as the case may be, plus 25% of the corresponding surcharge if applicable.
2. Accreditation Certificate Fee P200.00
(Whether original or renewal
regular or late application)
SEC. 20. Other fees. The following fees shall also be paid to PSB:
a. For the issuance of a substitute certified copy of a lost or destroyed Certificate of Accreditation. P200.00 b. For the issuance of a PSB ID 200.00 c. For the issuance of a substitute PSB ID (in case of loss or destruction) 200.00 d. For the issuance of a Certification that a certain firm has or has no pending case with PSB 200.00 e. For the issuance of any other Certification 200.00
SEC. 21. Crediting of money paid by mistake. Money paid to PSB by mistake, such as payment in excess, shall be credited to payor's account for future financial obligations to PSB.
RULE VII
Certain Obligations of Accredited Firms
SEC. 22. Manifest of Consolidated Shipments. – Accredited firms shall submit to PSB photocopies of all inward and outward manifests covering consolidated shipments, when required by PSB in protecting the interest of shippers and consignees.
SEC. 23. Change in the List of Directors. Every change in the List of Board Directors shall be reported in writing to PSB within fifteen (15) days from the date the change occurred (e.g., death) or was decided or approved.
SEC. 24. Change of Operations Manager or Chief Operating Officer or equivalent or Branch Manager. – The resignation, termination of services, or appointment of the accredited firm's Operations Manager or Chief Operating Officer or equivalent or Branch Manager shall be reported in writing to PSB within fifteen (15) days from the date the resignation/termination/appointment was made.
SEC. 25. Change of overseas officers/agents/key personnel. – Every change of officers/agents/key personnel abroad shall be reported in writing to PSB within thirty (30) days from the date the resignation/termination/appointment was made.
SEC. 26. Other obligations of accredited firms. – In addition to the obligations stated above and elsewhere in this Order, every accredited firm shall have the following obligations:
a. To renew without delay its cargo insurance coverage, and submit to PSB the proofs of said renewal Subsection A (8) of Section 4 hereof is applicable within thirty (30) days from receipt of the renewal policy.
b. To submit to PSB a quarterly cargo statistics report within thirty (30) days after the lapse of the quarter covered by the report.
c. To submit to PSB annual financial statements within thirty (30) days after the required filing date set by the Bureau of Internal Revenue (BIR) for corporate/individual tax returns.
d. To submit to PSB a copy of the Amended Articles of Incorporation/Partnership (if any) within thirty (30) days from the date the firm received from SEC the said document.
e. To report in writing to PSB the change of address of the Office or warehouse of the firm, within five (5) days from the date the change was made.
RULE VIII
Sundry Provisions
SEC. 27. Register: Monthly List. – (a) the PSB shall establish, maintain and operate a Register of accredited firms.
(b) PSB shall also issue monthly an updated list of accredited firms containing the following data:
1. The names of said firms;
2. The expiry date of their respective Certificate of Accreditation; and
3. Other pertinent data as may be required by PSB.
(c) PSB shall furnish with copies of said list the Bureau of Customs and government and private entities needing copies thereof.
(d) Firms not included in the said list of which have been delisted therefrom shall not be allowed by the Bureau of Customs, Philippine Ports Authority, and other government agencies to transact business with them.
(e) It shall be the duty of delisted firms to surrender their PSB IDs to PSB within five (5) days from receipt of notice of delisting.
SEC. 28. PSB Identification Cards. – PSB shall issue Identification Cards to official representatives of the accredited firm who are authorized to transact business in its behalf. For this purpose, the accredited firm shall file an application under oath (in the prescribed form) stating the name, position in the firm, and other pertinent data as may be required by the PSB, together with photocopies of records proving that the said representative is really an employee of the accredited firm (e.g., SSS remittance records), and bio-data and two (2) recent passport-size ID pictures of said representative, and pay the PSB ID Fee provided in Section 20 (b) hereof.
A maximum of three (3) IDs shall be issued for every category. The ID shall state/contain:
a. The name, position in the firm, signature, and picture of the person to whom the ID is issued;
b. The name and address of the accredited firm he is representing;
c. The ID number;
d. The exact inception and expiry dates;
e. The signatures of the Director of PSB and RMC members from the government; and
f. Other pertinent data as may be required by the PSB.
The life-span of the PSB ID shall be coterminous with the life-span of the Certificate of Accreditation. Thus, the cancellation, suspension, expiration, or automatic/deemed revocation of the Certificate of Accreditation shall result in the automatic cancellation, suspension, expiration, or revocation of the PSB ID.
SEC. 29. Initialing of application and documents. – When an application for accreditation, or an application for the issuance of a PSB ID, or any other application is filed with PSB, the very person signing the application shall also initial every page of the application (except the page where his signature is) and every page of all supporting documents, on the lower margin of said application and documents.
SEC. 30. Bio-data. – PSB shall prescribe the form of the bio-data for Board Directors, principal officers (including the Operations Manager or Chief Operating Officer or equivalent), Sole Proprietors, Branch Managers, and authorized representatives to be issued PSB IDs. Every person mentioned in this Section must disclose in the sworn bio-data all of his present residential addresses in the Philippines as well as the names of the province and municipality of which he is a native, and any conviction in a criminal case involving dishonesty (e.g. estafa) and any pending criminal case against him involving dishonesty.
SEC. 31. Automatic revocation of Certificate - The Certificate of Accreditation is automatically revoked in case of a change in the relationship of the partners in a partnership which materially interrupts the course of business or results in the actual dissolution of the partnership.
SEC. 32. Transfer/change of ownership of a sole proprietorship. – When the ownership of an accredited firm, which is a sole proprietorship, is transferred or changed, the new owner must apply for the transfer in his name of the Certificate of Accreditation and submit requirements which are necessary for the adjustment of the records of the accredited firm on file with PSB. Said application must be filed within thirty (30) days from the date the transfer/change of ownership took effect, otherwise the Certificate of Accreditation shall be deemed revoked provided that the new owner is given the opportunity to show cause why it should not be deemed revoked.
RULE IX
Visitorial Power
SEC. 33. Purposes and extent of visitorial power. – In order that PSB can effectively enforce and check compliance with this Order and the circulars and orders which may be issued under this Order, it may exercise, through a duly authorized Inspection Team its inherent and necessary visitorial power to enter, whenever necessary, any establishment, office, and premises which is being used by a covered firm, accredited or not, as its office, warehouse, garage, or for any of its business operations, and conduct therein one or more of the following visitorial activities.
a. Require the presentation of and inspect any pertinent books of account, record, document, paper, drawing, sketch, contract, and the like;
b. Inspect any pertinent facility, equipment, vehicle, furniture, and the like;
c. Inspect any pertinent work/activity being undertaken thereat;
d. Take pictures/video recordings or make sketches of the premises or of any of the real or personal properties and of the work/activity mentioned above;
e. Secure photo copies of the things mentioned in paragraph (a) above; and
f. Interview any person who may be found at the premises entered.
SEC. 34. Manner of conducting visitorial activities. – The Inspection Team duly authorized to conduct any of the visitorial activities mentioned in the preceding Section shall conduct the same in the following manner:
a. Before entering the property, the Inspection Team shall exhibit their Mission Order and Office IDs to the owner, or person who has charge of said property at the time entrance is to be made, or to the lawful occupant thereof. The Inspection Team shall ascertain the danger areas in that place (e.g., high voltage area, no smoking area, dangerous equipment area, toxic area, etc.) for their safety.
b. The visitorial activities shall be conducted in the presence of the owner, or person who has charge of said property at the time entrance is to be made, or lawful occupant thereof, or their respective authorized representative.
c. The visitorial activities shall be conducted at the reasonable hours, with promptness, in a professional manner, and without undue disturbance to any legitimate work/activity being undertaken thereat.
d. A receipt shall be issued for photo copies of the things mentioned in paragraph (a) of Section 33 hereof which are taken by the Team.
e. After conducting the visitorial activities, the witness to said conduct shall sign a certificate as to the manner the visitorial activities were conducted. Said certificate, in the prescribed form, shall contain a space where the witness can write briefly his complaints, if any, regarding the manner the visitorial activities were conducted (e.g., irregularities, discourtesy, things damaged, and things taken for personal purposes) . Said certificate shall state/contain: a brief description of the premises, its address, name of witness and whether he is owner, occupant, etc., the date the visitorial activities were conducted and the precise time of entrance and egress. The Team Leader shall also sign it. A Copy of the certificate shall be furnished said witness.
RULE X
PSB Functions
SEC. 35. Functions relative to accreditation. – PSB may perform the following functions, to the extent necessary and as far as PSB resources may allow:
a. To conduct studies on the Sea Freight Forwarding Industry to determine or verify the state of the Industry; its resources, problems, and prospects; number of people dependent on it for livelihood; extent of foreign participation in the capital and management; governmental assistance needed; the practices, acts, methods, schemes, arrangements, and modus operandi used in the Industry; and the Industry's desires and recommendations; and recommend to DTI the taking of promotional//developmental/remedial/ facilitation measures for the Industry.
b. To prepare the draft policies, measures, Memoranda of Agreement, letters, Administrative Orders, Executive Orders, and Congressional Bills which may be necessary to effectuate its recommendations mentioned in the preceding paragraph, or which may be needed by PSB to carry out the objectives declared in Section 1 hereof.
c. To prescribe and promulgate Circulars and Orders.
d. To enforce and monitor compliance with this Administrative Order, and the Circulars and other Orders issued by PSB.
e. To enforce the prescribed Code of Conduct and Ethical Standards for Freight Forwarders for the covered firms.
f. To perform such other functions as maybe authorized by law, rules and regulations, Circulars and/or Orders.
SEC. 36. Means of securing data and evidence. – The data and evidence which may be necessary in the performance of the functions listed in the preceding Section may be secured by PSB through one or more of the following three (3) means:
a. Voluntary means:
1. Consultative meetings; and/or
2. Written/verbal requests.
b. Through the conduct of fact-finding investigation, hearing, and inquiry. The official/s authorized by the Director of PSB to conduct same shall have the power:
1. to administer oaths and affirmations;
2. To issue subpoena and subpoena duces tecum to compel the attendance of witness and the giving of testimony, and the production of the relevant and necessary data, records, documents, papers and the like; and
3. To take data, testimony, and evidence.
c. Require the submission to PSB periodically or otherwise, of any pertinent report, data, document, paper and the like.
The persons or firms who are covered by these three (3) means are the following:
a. Voluntary means: any person or firm, private or governmental.
b. Persons who can be subpoenaed: any person, private or governmental, who may have knowledge or be in possession of data or evidence pertinent to the matter being investigated, heard, or inquired into.
c. Persons who can be required to submit reports, data, etc.: Any covered firm, accredited or not.
RULE XI
Administrative Adjudication of Offenses Under this Order
SEC. 37. Governing System. – The following offenses shall be subject to the existing DTI Administrative Adjudication System provided under E.O No. 913, Series of 1983 and DTI Ministry Order No. 69, Series of 1983 as amended, and to the special adjudication rules provided in Sections 41 to 47 hereof, without prejudice to criminal and civil actions:
a. Unlawful acts and omissions, listed in Section 38 hereof;
b. Unlawful acts and omissions relative to the visitorial power, listed in Section 39 hereof;
c. Unlawful acts and omissions relative to the gathering of data/evidence, listed in Section 40 hereof; and
d. Other violations of this Order which are not specifically included in Sections 38, 39 and 40.
SEC. 38. Unlawful acts and omissions. – The following acts and omissions are unlawful under this Order:
a. Engaging in or transacting business by a firm, operating either as a main, sole, or branch office, without prior accreditation.
b. Misrepresentation by a firm that it has a subsisting accreditation.
c. Using a subsisting accreditation by another with authority from an accredited firm.
d. Failure to display the valid and original copy of Certificate of Accreditation as required by Section 17 hereof.
e. Transacting business through an accredited firm's representative without the required PSB I.D. as provided in Section 28 hereof.
f. Refusal/Failure to comply with any of the obligations mentioned in Rule VII hereof, or the submission under said Rule of report/s, document/s or paper/s which are false, or which contain false/misleading data.
g. Misrepresentation by the applicant, of any material fact in obtaining the accreditation, or any other certification/s or documents.
h. Transferring or authorizing of an accredited firm to another, in whatever manner, its accreditation.
i. Refusal or failure of an accredited firm to comply with lawful orders/administrative issuances and/or circulars of PSB.
j. Violation by covered firm of the Code of Conduct and Ethical Standards for Freight Forwarders mentioned in Section 35 (e) hereof.
k. Overcharging.
l. Collecting and charging of fees not prescribed by PSB.
m. Failure to deliver cargo as required in the transport document.
n. Failure to deliver cargo to its rightful owner.
o. Failure to comply with its contractual obligation to the shipper.
p. Grant of Rebates.
q. Delinquent freight forwarders.
SEC. 39. Unlawful acts and omissions relative to the visitorial power. – It shall be unlawful for any person, even though he is not a Board Director, officer, employee, owner, or agent of the covered firm (accredited or not) –
a. to refuse/prevent/obstruct/harass/delay the entrance, presentation, inspection, taking of pictures/video recordings, making of sketches, taking of copies; mentioned in Section 33 (a), (b), (c), (d), and (e) hereof; or
b. to refuse/prevent/obstruct/harass/delay the interview of himself or of another person; mentioned in Section 33 (f) hereof; or
c. to refuse/prevent/obstruct/harass/delay the signing, by himself or another person, of the certificate as to the manner the visitorial activities were conducted; mentioned in Section 34 (e) hereof.
SEC. 40. Unlawful acts and omissions relative to the gathering of data/evidence. – It shall be unlawful.
a. for any person to whom a subpoena or subpoena duces tecum has been issued, to refuse/fail to comply with the subpoena or subpoena duces tecum issued by the authorized official of PSB; or to refuse to be sworn to prior to giving of testimony; or to refuse to answer pertinent questions; or to give false or misleading testimony; or to produce records, documents, papers and the like which are false, or which contain false/misleading data on a material respect; mentioned in Section 36 (b) hereof; or
b. for any covered firm to refuse/fail to submit on time, the required report, data, document, paper or the like; or to submit a report, data, document, paper or the like which is false/incomplete/blurred, or which contains a false/misleading data on a material respect; mentioned in Section 36 (c) hereof.
SEC. 41. Schedule of Sanctions/Penalties. – the following contains a listing of the various offenses mentioned in Section 38 hereof with their corresponding sanctions/penalties taken from E.O. 913 and Ministry Order No. 69. Said Schedule may be used by PSB when conducting the Mediation Stage of an administrative case, and by the DTI Office of Legal Affairs (OLA) when conducting the Hearing and Decision Stage of the administrative case:
Penalty/Sanction: a. Engaging in or transacting business by a firm, operating either as - Issuance of cease and desist order for the non-continuance a main, sole, or branch office, without prior accreditation. of operation and a monetary fine of Php50,000.00. b. Misrepresentation by a firm that it has a subsisting accreditation. c. Using a subsisting accreditation by another with authority from an accredited firm. Penalty/Sanction: First Offense Second Offense Third Offense d. Failure to display the valid and original Stern warning from PSB Fine of Php 1,000.00 Revocation of accreditation copy of Certificate of Accreditation as and violator's submission certificate required by Section 17 hereof. of a written voluntary assurance of compliance or discontinuance of the violation committed. e. Transacting business through accredited firm's representative without the required PSB I.D. as provided in Section 28 hereof. Penalty/Sanction: Period of Delay: Amount: f. Refusal/Failure to comply with any of 1. Delay in the submission of a report P1,000.00 the obligations mentioned in Rule VII not exceeding two (2) months from due date. hereof, or the submission under said Rule of report/s, document/s or paper/s 2. Delay exceeding two (2) months 2,000.00 which are false, or which contain false/ but not exceeding four (4) months misleading data. 3. Delay exceeding four (4) months 4,000.00 but not exceeding six (6) months. 4. Delay exceeding six (6) months 6,000.00 but not exceeding eight (8) months 5. Delay exceeding eight (8) months 8,000.00 but not exceeding ten (10) months 6. Delay exceeding ten (10) months 10,000.00 but not exceeding one (1) year 7. Delay beyond one (1) year period P12,000.00 and suspension of PSB accreditation for six (6) months 8. Non-compliance or submission 10,000.00 of false/misleading reports g. Misrepresentation by the applicant, of Fine: Fine: Revocation of accreditation any material fact in obtaining the certificate accreditation, or any other certification/s If NVOCC = Php40,000.00 If NVOCC Php200,000.00 or documents. If IFF = Php 20,000.00 If IFF = Php 100,000.00 If DFF = Php 2,500.00 If DFF = Php 12,500.00 h. Transferring or authorizing of an and submission of written and suspension of accredited firm to another, in whatever voluntary assurance of accreditation for a manner, its accreditation. compliance or discontinuance minimum of 6 months of the violation committed. but not more than one year. i. Refusal or failure of an accredited firm to comply with lawful order/s administrative issuances and/or circulars of PSB. j. Violation by covered firm of the Code of Conduct and Ethical Standards for Freight Forwarders mentioned in Section 35 (e) hereof. k. Overcharging l. Collecting and charging of fees not prescribed by PSB. m. Failure to deliver cargo as required in the transport document. n. Failure to deliver cargo To its rightful owner. o. Failure to comply with its contractual obligation to the shipper. p. Grant of Rebates. q. Delinquent freightforwarders.
SEC. 42. Modes of commencing administrative adjudication proceedings. – Administrative adjudication proceedings for offenses under this Order shall be commenced either.
a. by PSB motu propio, by issuing a Formal Charge to and against the offender; or
b. by any other person, by filing with the PSB a sworn/verified Complaint.
SEC. 43. Mediation: three (3) types of decision renderable by the Director of PSB. – In either of the two (2) modes above, the PSB shall conduct a Mediation of the case. During the Mediation Stage, the Director of PSB may render the following types of Decision.
a. Decision based on a Compromise Agreement between the Complainant (PSB or any person) and the Respondent. This type of Decision is immediately executory and cannot be appealed.
b. Decision based on a Voluntary Undertaking. In this particular situation, the Respondent offers a written Voluntary Undertaking to the Director of PSB. If the latter finds the same to be meritorious, he may render decision quoting therein the Voluntary Undertaking, stating that it is accepted by PSB under Section 6 (b) of E.O. 913, and stating further that judgment is rendered in accordance with the terms and conditions of the Voluntary Undertaking. This type of decision is immediately executory and cannot be appealed.
c. Decision based on admission by the Respondent of all the allegations of the Formal Charge/Complaint. Here, the Director of PSB shall impose appropriate and reasonable sanctions/penalties provided in E.O. 913 and M.O. 69. This type of decision shall be final unless appealed to the DTI Adjudication Officer within ten (100) days from receipt of the decision. The execution of this decision shall be as provided in M.O. 69 as amended.
SEC. 44. Elevation of case – If Mediation fails or the Respondent does not admit all the allegations in the Formal Charge/Complaint, the PSB shall elevate the case, through a Memorandum of Transmittal to OLA for the conduct of the second stage (Hearing and decision Stage) of the System. In elevating the case, there is no need of filing with OLA a Statement of Violation.
SEC. 45. When summons not necessary. – When the Respondent has appeared in the Mediation Stage, either in compliance with the directive in the Formal Charge/Notice of Hearing or voluntarily even without receiving the Formal Charge/Notice of Hearing, jurisdiction over his person is already acquired, hence there is no more need for OLA to send summons to the Respondent when the case is thus elevated.
SEC. 46. Probable cause rule. – In Section 16 of M.O. 69, the "probable cause" rule shall be followed in lieu of the "prima facie case" rule.
SEC. 47. Additional powers. – In addition to the powers already vested in Bureau Directors and Mediation Officers under M.O. 69, the Director of PSB and PSB Mediation Officers shall have the power provided in Section 59 (re-contempt) of M.O. 69 and the powers to administer oaths and affirmations and issue subpoena and subpoena duces tecum.
RULE XII
Transitory Provisions; RMC; Secretary's Approval;
Repealing and Effectivity Clauses
SEC. 48. Transitory provisions. – (a) All existing Certificates of Accreditation and PSB IDs issued under PSB Administrative Order No. 2, Series of 1996 shall continue to be effective until they reach their respective expiry date. However, they shall henceforth be governed by this Order as to other matters.
(b) All applications for accreditation pending on the date this Order takes effect shall be processed on the bases of the criteria/standards, documentary requirements, and fees provided under PSB Administrative Order No. 2, Series of 1996. But the processing procedure that shall be followed is that provided in Rule III of this Order. None of said applicants shall be deemed accredited already under the "automatic accreditation" provisions of PSB AO 2.
SEC. 49. RMC. – The Registration & Monitoring Committee (RMC) shall continue to exist pending the creation by Executive Order of an advisory committee with a membership coming from both the public and private sectors: provided, however, that the RMC shall henceforth perform only purely advisory/consultative/recommendatory duties.
SEC. 50. Secretary's approval. Section 36, Book IV of the Administrative Code of 1987 requires that Administrative Orders of line bureaus like PSB shall be submitted to the Secretary concerned for approval in order that said Orders shall be effective. With the Secretary of Trade and Industry's approval of this Order it shall be deemed that the delegations contained in Sections 41 to 47 of this Order are his delegations, and that said Sections 41 to 47 are his amendments to M.O. 69, and in view thereof, this Order shall be published in two newspapers of general circulation in compliance with Section 3 of E.O. 913, and not in just one newspaper as provided in Section 18, Book I of the Adm. Code of 1987.
SEC. 51. Repealing clause. – PSB Administrative Order No. 2, Series of 1996 is hereby repealed. All other issuance of parts thereof which are inconsistent with this Order are hereby repealed or amended accordingly.
SEC. 52. Effectivity. – This Order shall take effect fifteen (15) days after its publication in full in two (2) newspapers of general circulation while compliance with the capitalization requirement mentioned in Section 4(A) (2) shall be made within two (2) years from the effectivity of this Order.
Adopted: 23 Nov. 2005
APPROVED:
(SGD.) PETER B. FAVILA
Secretary, DTI
RECOMMENDING APPROVAL:
(SGD.) USEC. ZENAIDA C. MAGLAYA
CWTRG, DTI
(SGD.) ATTY. PEDRO VICENTE C. MENDOZA
Director, PSB