SAFEGUARDS ACT 2006

LAWS OF MALAYSIA ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 657 SAFEGUARDS ACT 2006 As at 1 December 2013 2 SAFEGUARDS ACT 2006 Date of Royal Assent … … … … … 30 August 2006 … … … 31 August 2006 English text to be authoritative … … … P.U.(B) 359/2008 Latest amendment made by Act A1439 which came into operation on … Date of publication in the Gazette … … 1 September 2013 PREVIOUS REPRINT First Reprint … … … … … 2012 3 LAWS OF MALAYSIA Act 657 SAFEGUARDS ACT 2006 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title and commencement 2. Interpretation PART II THE INVESTIGATING AUTHORITY 3. Appointment of the investigating authority 4. Appointment of officers 5. Protection of officers and persons acting under the Act and regulations 6. Duties and powers of the investigating authority 7. Power to delegate PART III DETERMINATION OF SERIOUS INJURY OR THREAT OF SERIOUS INJURY AND CAUSAL LINK 8. Serious injury and causal link 9. Threat of serious injury and causal link 4 Laws of Malaysia ACT 657 PART IV INVESTIGATION Section 10. Petition for initiation of investigation 11. Requirements for a petition 12. Withdrawal of the petition before initiation of investigation 13. Amendments to the petition 14. Decision to initiate investigation 15. Notice of initiation of investigation 16. Publication of the notice of initiation of investigation 17. Contents of the notice of initiation 18. Public hearings and written arguments 19. Treatment of confidential information 20. Preliminary determination 21. Notification and consultation of a provisional safeguard measure 22. Provisional safeguard measure 23. Final determination 24. Notice of final determination PART V DEFINITIVE SAFEGUARD MEASURE 25. Determination of definitive safeguard measure 26. Notice of definitive safeguard measure 27. Notification and consultation of a definitive safeguard measure 28. Form and application of a definitive safeguard measure Safeguards Section 29. Administrative matters 30. Transhipment 31. Customs clearance not to be hindered 32. Application of the Customs Act 1967 33. Developing country Member 34. Duration of definitive safeguard measure 35. Liberalization of safeguard measure PART VI REVIEW OF SAFEGUARD MEASURE 36. Review 37. Extension of a definitive safeguard measure 38. Notification to extend PART VII REAPPLICATION OF SAFEGUARD MEASURE 39. Reapplication PART VIII MISCELLANEOUS 40. International obligations 40A. Bilateral safeguards 41. Regulations 42. Publication of notices 5 7 LAWS OF MALAYSIA Act 657 SAFEGUARD S ACT 2006 An Act to make provisions for the investigation and determination of safeguard measures on products imported into Malaysia and other matters connected therewith. [22 November 2007; P.U. (B) 429/2007] ENACTED by the Parliament of Malaysia as follows: PART I PRELIMINARY Short title and commencement 1. (1) This Act may be cited as the Safeguards Act 2006. (2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette. Interpretation 2. In this Act, unless the context otherwise requires— “threat of serious injury” means serious injury that is clearly imminent; “Member” means a Member of the World Trade Organization; “ASEAN” means the Association of South East Asian Nations; 8 Laws of Malaysia ACT 657 “prescribed” means prescribed by regulations made under this Act; “GATT 1994” means the General Agreement on Tariffs and Trade 1994 set out in Annex 1A to the World Trade Organization Agreement; “domestic industry” means— (a) the domestic producers as a whole of products which are like or directly competitive with the product under investigation, operating in Malaysia; or (b) the domestic producers operating in Malaysia whose collective output of like products or products directly competitive with the product under investigation constitutes a major proportion of the total domestic production of those products; “Committee” means the Committee on Safeguards of the World Trade Organization; “like products” means products that are identical or alike in all respect to the product under investigation or, in the absence of such products, another product that although not alike in all respect have characteristics closely resembling the product under investigation; “directly competitive products” means products that are in competition despite differences in characteristics or composing materials, substitutability in terms of utility purpose or commercial competitiveness; “product under investigation” means the class or kind of products imported or sold for importation into Malaysia that is subject of safeguard action under this Act, as determined by the Government to be appropriate for establishing the scope of action; “serious injury” means a significant overall impairment in the position of a domestic industry; Safeguards 9 “Government” means the Government of Malaysia; “Minister” means the Minister charged with the responsibility for international trade and industry; “country” includes all World Trade Organization Members and any other country or autonomous customs territory; “officer of customs” has the same meaning as is assigned to that expression under section 2 of the Customs Act 1967 [Act 235]; “Agreement” means the Agreement on Safeguards of the World Trade Organization; “interested parties” means— (a) the foreign exporter and producer of the product under investigation; (b) the importer of the product under investigation; (c) the government(s) of the exporting country or countries; (d) the domestic producers of the like products or directly competitive products; (e) relevant trade and business associations registered in Malaysia; “participating interested parties” means those interested parties that have indicated their interest in participating in an investigation in accordance with section 10; “investigating authority” appointed under section 3; means the investigating authority “WTO” means the World Trade Organization. 10 Laws of Malaysia ACT 657 PART II THE INVESTIGATING AUTHORITY Appointment of the investigating authority 3. The Minister may appoint and authorize an investigating authority to conduct an investigation under this Act. Appointment of officers 4. The Minister may, from time to time, appoint and authorize such officers as are necessary to perform the functions and powers under this Act. Protection of officers and persons acting under the Act and regulations 5. No action or prosecution shall be brought, instituted or maintained in any court against any officer or person authorized under this Act and the regulations made under this Act for or on account of or in respect of any act ordered or done for the purpose of carrying into effect this Act and the regulations made under this Act, and no suit or prosecution shall lie in any court against any other person for or on account of or in respect of any act done or purported to be done by him under the order, direction or instruction of any such officer or person if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served thereby. Duties and powers of the investigating authority 6. (1) The investigating authority shall perform such duties and functions and exercise such powers as may be provided under this Act. Safeguards 11 (2) The conduct of investigation relating to serious injury or threat thereof shall be as prescribed. (3) The investigating authority shall be subject to the provisions of the Act in performing the functions assigned to it under this Act. (4) With respect to any proceedings under this Act, the investigating authority shall not disclose any information which is entitled to confidential treatment under this Act. (5) The investigating authority may request directly from the participating interested parties, customs agents, inspection companies, forwarders, and other enterprises and entities of the public and private sectors, such data and information as the investigating authority considers relevant to the performance of its duties, functions and powers. The recipients of such requests shall provide the requested information, and such information shall be placed in the public file. (6) The investigating authority may decide to verify the accuracy of any information submitted during an investigation or review as prescribed. Power to delegate 7. (1) The Minister may, in writing, delegate any of his functions under this Act and the regulations made under this Act, subject to such conditions, limitations or restrictions as he thinks fit, to a person or class of persons and the person or class of persons to whom those functions are delegated may perform those functions in the manner and with the same effect as if those functions had been conferred on him or them under this Act and the regulations made under this Act. (2) A person or class of persons purporting to act pursuant to a delegation made under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation. 12 Laws of Malaysia ACT 657 (3) A delegation made under this section may at any time be revoked by the Minister. PART III DETERMINATION OF SERIOUS INJURY OR THREAT OF SERIOUS INJURY AND CAUSAL LINK Serious injury and causal link 8. (1) A determination of whether increased imports have caused or are threatening to cause serious injury to a domestic industry under this Act, all relevant factors of an objective and quantifiable nature of the product under investigation, the like products and directly competitive products of the domestic industry shall be evaluated in the prescribed manner, having a bearing on the situation of that industry. (2) The determination referred to in subsection (1) shall not be made unless the investigation demonstrates, on the basis of objective evidence, the existence of the causal link between increased imports of the product under investigation and serious injury or threat thereof. (3) When factors other than increased imports of the product under investigation are at the same time causing or threatening to cause injury to the domestic industry, such injury shall not be attributed to the increased imports.. Threat of serious injury and causal link 9. (1) A determination of a threat of serious injury caused by increased imports shall be based on facts and not merely on allegation, conjecture or remote possibility. (2) In considering whether increased imports threaten to cause serious injury, the relevant factors, which shall be evaluated, shall be as prescribed. Safeguards 13 PART IV INVESTIGATION Petition for initiation of investigation 10. A request for an investigation to determine whether increased imports of the product under investigation have caused or threaten to cause serious injury to a domestic industry may be initiated— (a) upon a written petition addressed to the Ministry of International Trade and Industry by or on behalf of the domestic industry; or (b) on the initiative of the Government. Requirements for a petition 11. A petition under paragraph 10(a) shall include such information as prescribed. Withdrawal of the petition before initiation of investigation 12. A petition under section 10 may be withdrawn prior to initiation of an investigation, in which case it shall be considered not to have been made. Amendments to the petition 13. A petition requesting an investigation to be initiated may be amended subject to such conditions as the Government deems fit. Decision to initiate investigation 14. (1) The Government may initiate an investigation, whether on the request of a domestic industry or on its own initiative, only when the Government has determined that there is sufficient evidence of serious injury or threat thereof caused by increased imports. 14 Laws o