In forceAmendedUpdated to 1 Jan 2014Read it in Bahasa Malaysia

Contents

Act of Parliament · Updated to 1 Jan 2014 · 5 parts

Countervailing and Anti-Dumping Duties Act 1993

Feedback & supportInvestigating subsidies and dumping, and imposing duties against them

Part I

Preliminary

Official textFrom Laws of Malaysia Online, unchanged

s 1Short title and commencement

(1)

This Act may be cited as the Countervailing and Anti-Dumping

Duties Act 1993.

(2)

This Act shall come into force on such date as the Minister may, by notification in the Gazette, appoint.

s 2Interpretation

(1)

In this Act, unless the context otherwise requires—

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“country” includes a customs union or customs territory that possesses full autonomy in the conduct of its external commercial relations and of the other matters provided for in the World Trade

Organization Agreement;

“de minimis”—

(a)

in relation to subsidy means the amount of the subsidy in relation to the imports from the country under investigation is less than one per centum ad valorem; and

(b)

in relation to dumping means the margin of dumping is less than two per centum, expressed as a percentage of the export price;

“domestic industry” means—

(a)

the domestic producers as a whole of the like product;

(b)

the domestic producers whose collective output of the like product constitutes a major proportion of the total domestic production of the like product; or

(c)

where appropriate, the regional producers of the like product:

Provided that when any of the producers referred to in paragraphs

(a)

, (b) and (c) are related to the exporters or importers, or are themselves importers of the subject merchandise or, in relation to Part

II, are importers of a like product from other countries, the expression

“domestic industry” may be construed as referring to the rest of the producers referred to in paragraph (a), (b) or (c), as the case may be, other than such related producers or producers who are importers;

“dumping” means the importation of merchandise into Malaysia at less than its normal value as sold in the domestic market of the exporting country;

“dumping margin” means the amount by which the normal value of

Countervailing and Anti-Dumping Duties 9

a merchandise exceeds the export price;

“export price” means the export price of a merchandise as determined in accordance with section 17;

“exporting country” means—

(a)

the country of export of the subject merchandise; or

(b)

in cases where the subject merchandise is not exported directly to Malaysia but is transhipped through an intermediate country—

(i)

where the subject merchandise is not substantially transformed in the intermediate country, the country of origin of the subject merchandise;

(ii)

where the subject merchandise is substantially transformed in the intermediate country, the intermediate country;

“General Agreement on Tariffs and Trade 1994” means the General

Agreement on Tariffs and Trade 1994 set out in Annex 1A to the

World Trade Organization Agreement;

“Government” means the Government of Malaysia;

“injury” means material injury or threat of material injury to the domestic industry or material retardation of the establishment of such an industry;

“interested party” means—

(a)

a producer, exporter or importer of the subject merchandise;

(b)

a trade or business association of which a majority of its members are producers, exporters or importers of the subject merchandise;

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(c)

the government of a country in which the subject merchandise is produced or from which it is exported;

(d)

a producer of the like product in Malaysia;

(e)

a trade or business association of which a majority of its members produce a like product in Malaysia; or

(f)

any other party as the Government considers appropriate;

“like product” means a product that is identical or alike in all respects to the subject merchandise or, in the absence of such a product, another product that although not alike in all respects has characteristics closely resembling the subject merchandise;

“Member” means a Member to the World Trade Organization

Agreement;

“Minister” means the Minister responsible for international trade and industry;

“negligible”—

(a)

in relation to a countervailing duty action, in the case of a developing country Member, means the volume of imports of the subject merchandise, actual or potential, from a particular developing country Member into Malaysia accounts for less than four per centum of the total imports of the like product unless developing country Members that individually account for less than four per centum of the imports of the like product into Malaysia collectively account for more than nine per centum of the total imports of the like product into Malaysia; and

(b)

in relation to an anti-dumping duty action means the volume of imports of the subject merchandise, actual or potential, from a particular country into Malaysia accounts for less than three per centum of the total imports of the like product unless countries that individually account for

Countervailing and Anti-Dumping Duties 11

less than three per centum of the imports of the like product into Malaysia collectively account for more than seven per centum of the total imports of the like product into Malaysia;

“non-market economy country” means any foreign country that the

Government determines operates on a centrally-planned economy and not on market principles of cost or pricing structures or free enterprise economy;

“normal value” means the normal value of a merchandise as determined in accordance with section 16 or 19;

“officer of customs” has the same meaning as is assigned to that expression under section 2 of the Customs Act 1967 [Act 235];

“prescribed” means prescribed by the regulations;

“producer” means a producer, manufacturer or processor;

“provisional measures” means—

(a)

in relation to Part II, the requirement to post a security equal to the estimated subsidy found in the preliminary determination; and

(b)

in relation to Part III, the requirement to post a security equal to the estimated dumping margin found in the preliminary determination;

“regional producers” means the domestic producers of the like product located in a specific regional market within Malaysia where in exceptional circumstances there are two or more competitive markets within Malaysia for the production in question and in such case, the producers of the like product within each market may be regarded as a separate industry if—

(a)

the producers within each market sell all or almost all of

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their production of the merchandise in question within that market; and

(b)

the demand in each market is not to any substantial degree supplied by producers of the merchandise in question located elsewhere in Malaysia;

“subject merchandise” means the class or kind of merchandise imported or sold for importation into Malaysia that is the subject of any countervailing or anti-dumping duty action under this Act, as determined by the Government to be appropriate for establishing the scope of the action;

“undertakings” means undertakings as may be prescribed under section 50;

“World Trade Organization” means the World Trade Organization established by the World Trade Organization Agreement;

“World Trade Organization Agreement” means the Marrakesh

Agreement Establishing the World Trade Organization done at

Marrakesh on 15 April 1994.

(2)

(Deleted by Act A1046).

(3)

Notwithstanding any other provisions of this Act, the Minister may regard such activities as are recognized under Malaysia’s international obligations to be activities which shall or shall not be subject to action under this Act.

(4)

(Deleted by Act A1046).

(5)

Parties shall be deemed to be related if—

(a)

one of them directly or indirectly controls the other;

(b)

both of them are directly or indirectly controlled by a third party; or

Countervailing and Anti-Dumping Duties 13

(c)

together they directly or indirectly control a third party:

Provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the party concerned to behave differently from non-related parties.

(6)

One party shall be deemed to control another when the firstmentioned party is legally or operationally in a position to exercise restraint or direction over the latter.

PART IA

SUBSIDIES

s 2ASubsidy

For the purposes of this Act, “subsidy”, in relation to merchandise that is imported into Malaysia, means—

(a)

a financial contribution by a government or a public body, or by a private body entrusted or directed by the government or public body to carry out a governmental function, that is made in connection with the production, manufacture or export of the merchandise and that involves one or more of the following:

(i)

a direct transfer of funds from the government or public body or private body to the enterprise by whom the merchandise is produced, manufactured or exported (after this referred to as “the enterprise”);

(ii)

a potential direct transfer of funds from the government or public body or private body to the enterprise contingent on the occurrence of particular circumstances;

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(iii)

the acceptance of liabilities, actual or potential, of the enterprise by the government or public body or private body;

(iv)

the forgoing, or non-collection, of revenue (other than an allowable exemption or remission) due to the government or public body or private body from the enterprise;

(v)

the provision by the government or public body or private body of goods or services to the enterprise other than general infrastructure;

(vi)

the purchase by the government or public body or private body of goods provided by the enterprise;

(vii)

the making of payments to a funding mechanism by the government or public body; or

(b)

any form of income or price support as specified in Article

XVI of the General Agreement on Tariffs and Trade 1994

that is received from a government or public body, if that financial contribution or income or price support confers a benefit in relation to the merchandise.

s 2BProhibited subsidy

The following subsidies shall be prohibited:

(a)

subsidies contingent, in law or in fact, whether solely or as one of several other conditions, upon export performance, including those as may be prescribed; and

(b)

subsidies contingent, whether solely or as one of several other conditions, upon the use of domestic over imported merchandise.

Countervailing and Anti-Dumping Duties 15

s 2CActionable subsidy

A subsidy that causes the following adverse effects to the domestic interest shall be subject to countervailing measures under this Act:

(a)

injury to the domestic industry;

(b)

nullification or impairment of benefits accruing directly or indirectly under the General Agreement on Tariffs and

Trade 1994, in particular the benefits of concessions bound under Article II of the General Agreement on

Tariffs and Trade 1994; or

(c)

serious prejudice to domestic interests:

Provided that this section shall not apply to subsidies maintained on agricultural products as provided in Article 13 of the Agreement on

Agriculture set out in Annex 1A to the World Trade Organization

Agreement.

s 2DNon-actionable subsidy

The following subsidies shall be regarded as non-actionable subsidies and shall not be subject to countervailing duties under this

Act:

(a)

subsidies that are not specific within the meaning of subsection 3(2); and

(b)

subsidies that are specific within the meaning of subsection 3(2) but meet all the prescribed conditions.

s 2ECalculation of subsidy

Subsidy shall be calculated in the prescribed manner.

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Part II

Countervailing Duties

Read on from Part II

Part III

Anti-Dumping Duties

Read on from Part III

Part IV

Administration

Read on from Part IV

Part V

General

Read on from Part V