Malaysia legislation
Section 10
Section 10
(a)
whether a subsidy is being provided with respect to the subject merchandise and the amount of such subsidy; and
(b)
whether injury is found to exist in any one of the following ways:
(i)
the subject merchandise, through the effects of the subsidy, is causing material injury to the domestic industry in Malaysia producing the like product;
(ii)
the subject merchandise, through the effects of the subsidy, is threatening to cause material injury to the domestic industry in Malaysia producing the like product; or
(iii)
the subject merchandise, through the effects of the
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subsidy, is causing material retardation of the establishment of such an industry in Malaysia.
(2)
The Government shall, before making a final determination, inform all interested Members and interested parties of the essential facts under consideration that form the basis for the decision whether to apply definitive measures.
(2A)
A disclosure under subsection (2) shall be made in sufficient time for all interested Members and interested parties to defend their interests.
(3)
Where the Government makes a negative final determination with regard to subsection (1), it shall—
(a)
terminate the investigation;
(b)
terminate the provisional measures applied under section 9
and release the security required by such measures; and
(c)
publish a notice of the negative final determination, stating the reasons for its negative determination.
(4)
Where the
Government makes an affirmative final determination with regard to subsection (1), it shall—
(a)
publish a notice of affirmative final determination stating the reasons for its affirmative determination, the countervailing duties applicable and the subject merchandise on which the countervailing duties apply;
(b)
impose countervailing duties in the amounts determined in accordance with subsection 3(3)
on the subject merchandise imported into Malaysia on or after the date of publication of the final determination; and
(c)
impose countervailing duties in accordance with subsections (5) and (6) on imports into Malaysia for which
Countervailing and Anti-Dumping Duties 23
provisional measures were applied.
(4A)
Where an affirmative final determination has been made, the
Government may take into consideration public interest in determining whether to impose countervailing duties and the amount of such duties.
(5)
The Government shall impose countervailing duties on the subject merchandise against which provisional measures were applied where—
(a)
the Government makes a determination of material injury under subparagraph (1)(b)(i); or
(b)
the Government makes a determination of threat of material injury under subparagraph (1)(b)(ii), it finds that the subject merchandise, in the absence of the provisional measures, would have led to a finding of material injury under subparagraph (1)(b)(i).
(5A)
Notwithstanding subsection (5), where a determination of threat of injury or material retardation is made but no injury has occurred, a definitive countervailing duty may be imposed only from the date of the determination of the existence of a threat of injury or material retardation, and any security submitted during the period of the application of provisional measures shall be released immediately.
(6)
With respect to the imposition of countervailing duties under subsection (5)—
(a)
where the countervailing duty is higher than the amount guaranteed by the security required under the provisional measures, only the amount equal to the security shall be imposed; and
(b)
where the countervailing duty is less than the amount guaranteed by the security required under the provisional measures, the full amount of the countervailing duty shall
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be imposed and the excess amount of the security shall be reimbursed or released.
(7)
Notwithstanding subsections (4) and (5), the Government may impose countervailing duties on the subject merchandise imported into Malaysia within a period of ninety days prior to the application of provisional measures if—
(a)
the Government finds injury that is difficult to repair;
(b)
such injury is being caused by massive imports of the subject merchandise in a short period of time; and
(c)
export subsidies are being provided with respect to the subject merchandise contrary to the interested foreign government’s international obligations.
(7A)
No countervailing duties shall be imposed retroactively under subsection (7) on merchandise entered for consumption before the date of initiation of the investigation.
(8)
When a countervailing duty is imposed on the subject merchandise, such countervailing duty shall be imposed in the appropriate amount in each case on a non-discriminatory basis on all imports of such merchandise into Malaysia from the country found to be subsidizing the subject merchandise causing injury.
(9)
Provisional measures and definitive countervailing duties shall only be applied to subject merchandise that enters for consumption after the time when the decision under subsection 9(1) or 10(4), as the case may be, enters into force.
Termination of investigation