COUNTERVAILING AND ANTI-DUMPING DUTIES ACT 1993

LAWS OF MALAYSIA ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 504 COUNTERVAILING AND ANTI-DUMPING DUTIES ACT 1993 As at 1 January 2014 2 COUNTERVAILING AND ANTI-DUMPING DUTIES ACT 1993 Date of Royal Assent … … … … … … 7 July 1992 Date of publication in the Gazette … … … 15 July 1993 Latest amendment made by Act A1046 which came into operation on … … … … … … … … 1 December 1999 PREVIOUS REPRINTS First Reprint ... ... ... ... ... 2002 Second Reprint … … … … 2006 3 LAWS OF MALAYSIA Act 504 COUNTERVAILING AND ANTI-DUMPING DUTIES ACT 1993 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and commencement 2. Interpretation PART IA SUBSIDIES 2A. Subsidy 2B. Prohibited subsidy 2 C. Actionable subsidy 2 D. Non-actionable subsidy 2E. Calculation of subsidy PART II COUNTERVAILING DUTIES 3. Imposition of countervailing duties 4. Initiation of investigation 5. Consultations with interested foreign governments 4 Laws of Malaysia Section 6. Amendments to the petition 7. Duration of investigation 7A. Injury and causal link 8. Preliminary determination of subsidy and injury 9. Provisional measures 10. Final determination of subsidy and injury 11. Termination of investigation 12. Suspension of investigation 12A. Duration of duty 13. Administrative review 13A. Refund review 13B. Expedited review 14. Developing country Member PART III ANTI-DUMPING DUTIES 15. Imposition of anti-dumping duties 16. Normal value 17. Export price 18. Comparison of normal value and export price 19. Subject merchandise from a non-market economy country 20. Initiation of investigation 21. Amendments to the petition 22. Duration of investigation 22A. Injury and causal link 23. Preliminary determination of dumping and injury 24. Provisional measures 25. Final determination of dumping and injury 26. Termination of investigation 27. Suspension of investigation ACT 504 Countervailing and Anti-Dumping Duties Section 27A. Duration of duty 28. Administrative review 28A. Refund review 28B. Expedited review 29. Anti-dumping action on behalf of third country PART IV ADMINISTRATION 30. Administrative matters 31. Protection of officers and persons acting under direction of officers 32. (Deleted) 33. Regulations in respect of specified areas 34. Application of the Customs Act 1967 34A. Judicial review PART V GENERAL 35. Cumulative assessment 36. False statements 37. Anti-circumvention measures 38. Notice of information and opportunities to present evidence 39. Confidential information 40. Verification of information 41. Use of facts available 42. Other practices discovered during the investigation 43. Conduct of investigation where no international obligations apply 44. Transhipment 45. Publication of notices 46. Double counting not permitted 47. Customs clearance not to be hindered 5 6 Laws of Malaysia Section 48. Public servants 49. Obligation of secrecy 50. Power to make regulations 51. Repeal of the Customs (Dumping and Subsidies) Act 1959 ACT 504 7 LAWS OF MALAYSIA Act 504 COUNTERVAILING AND ANTI-DUMPING DUTIES ACT 1993 An Act to make provisions for the investigation and determination of subsidies being provided on, and the dumping of, merchandise imported into Malaysia, the imposition of countervailing and anti-dumping duties to offset such subsidies or dumping, and other matters connected therewith. [28 April 1994, P.U. (B) 212/1994] BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows: PART I PRELIMINARY Short title and commencement 1. (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. Interpretation 2. (1) In this Act, unless the context otherwise requires— 8 Laws of Malaysia ACT 504 “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; 10 Laws of Malaysia ACT 504 (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 12 Laws of Malaysia ACT 504 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 Subsidy 2A. 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 p