Imposition of countervailing duties
(1) No countervailing duty shall be imposed except in accordance with this Act. (2) A subsidy as specified in section 2 A shall be subject to countervailing duties as provided under this Act only if the subsidy is specific, as may be prescribed, and is not a non-actionable subsidy. (3) The amount of the countervailing duty to be imposed shall be calculated in accordance with the method as may be prescribed.
Initiation of investigation
(1) The Government may initiate an investigation to determine the existence, degree and effect of any alleged subsidy upon the submission of a written petition by or on behalf of the domestic industry producing the like product. (2) A petition under subsection (1) shall contain such information as may be prescribed and shall include sufficient evidence of the existence of a subsidy and injury and a causal link between the imports of the subject merchandise and the alleged injury. (3) The Government shall, within the prescribed period, examine the petition and other available information and evidence to determine whether— (a) the evidence is sufficient to justify the initiation of an investigation; (b) there is a sufficient degree of support for or opposition to the petition expressed by the domestic industry; and (c) an investigation is in the public interest. (4) A petition under subsection (1) shall be immediately rejected if the Government is satisfied that— (a) there is no sufficient evidence of either subsidization or of injury to justify the initiation of a countervailing duty investigation, such as but not limited to cases where the amount of a subsidy is de minimis or where the volume of imports of the subject merchandise, actual or potential, or the injury, is negligible; or (b) an investigation is not in the public interest. (5) Where the Government rejects a petition under subsection (4), the Government shall, as soon as practicable, notify the petitioner in writing of its determination not to initiate an investigation. (6) Notwithstanding subsection (1) the Government may, in special circumstances, initiate a countervailing duty investigation on its own accord without having received a written petition by or on behalf of the domestic industry for the initiation of such investigation if it has sufficient evidence of each of the matters specified in subsection (2). (7) Where the Government decides to initiate an investigation under subsection (1) or (6), it shall notify the appropriate interested parties and publish a notice of initiation of investigation. (8) Evidence of both subsidy and injury shall be considered simultaneously in the decision whether to initiate an investigation and after that during the course of the investigation, starting on a date not later than the earliest date the provisional measures may be applied. (9) The Government shall not disclose any petition made under this section unless the Government has made a decision to initiate an investigation.
Consultations with interested foreign governments
(1) Before initiating an investigation, the Government shall provide the Members the merchandise of which are subject to investigation and any interested foreign government an opportunity for consultation for the purpose of clarifying matters relevant to the investigation and arriving at a mutually agreed solution. (2) The Government shall provide a reasonable opportunity for further consultations throughout the investigation. (3) No affirmative determination whether preliminary or final shall be made without reasonable opportunity for consultations having been given. (4) The consultations referred to in subsection (1) may establish the basis for proceeding under section 4. (5) The Government shall also permit, upon request, the Members the merchandise of which are subject to investigation access to non-confidential evidence, including the non-confidential summary of confidential information, being used for initiating or conducting the investigation.
Amendments to the petition
A petition requesting a countervailing duty investigation be initiated may be amended subject to such conditions as the Government deems fit.
Duration of investigation
The Government shall conclude a countervailing duty investigation within such period as may be prescribed.
Injury and causal link
(1) A determination of injury for the purpose of a countervailing duty investigation under this Act shall be based on relevant evidence and shall involve an objective examination of both the volume of imports of the subject merchandise and the effect of the subject merchandise on prices in the domestic market for like products and the consequent impact of these imports on the domestic producers of such products. (2) For the purposes of this Act, it shall be demonstrated that the subject merchandise is, through the effects of subsidies, causing injury. (3) The demonstration of a causal relationship between the subject merchandise and the injury to the domestic industry shall be based on an examination of all relevant evidence available to the Government. (4) The Government shall also examine any known factors other than the subject merchandise that at the same time are injuring the domestic industry and the injuries caused by these other factors shall not be attributed to the subject merchandise. (5) A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. (6) In making a determination regarding the existence of a threat of material injury, the Government shall consider such factors as may be prescribed. (7) In cases where injury is threatened by the subject merchandise, the application of countervailing measures shall be considered and decided with special care.
Preliminary determination of subsidy and injury
(1) The Government shall, within such period as may be prescribed, make a preliminary determination regarding— (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 subsidy, is causing material retardation of the establishment of such an industry in Malaysia. (2) If the Government makes a negative preliminary determination with regard to subsection (1), it shall publish a notice stating the reasons for the negative determination and— (a) continue the investigation; or (b) terminate the investigation if the Government deems fit. (3) If the Government makes an affirmative preliminary determination with regard to subsection (1), it shall continue the investigation and publish a notice of— (a) the affirmative preliminary determination, stating the reasons for its determination with respect to paragraphs (1)(a) and (b); and (b) the provisional measures applicable.
Provisional measures
(1) The Government shall apply provisional measures with regard to the subject merchandise imported into Malaysia on or after the publication of the notice of affirmative preliminary determination where the Government determines that such measures are necessary to prevent the injury referred to in paragraph 8(1)(b) from occurring during the period of investigation. (2) Provisional measures shall take the form of provisional countervailing duties guaranteed by a security equal to the amount of the estimated subsidy determined under subsection 8(1). (3) The provisional measures imposed under this section shall not exceed such period as may be prescribed.
Final determination of subsidy and injury
(1) The Government shall, within such period as may be prescribed, make a final determination regarding— (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 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 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 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
(1) Notwithstanding any other provisions of this Act, an investigation may be terminated at any time if— (a) the petitioner withdraws the petition; (b) there are changed circumstances; (c) the Government is satisfied that there is no sufficient evidence of subsidization or injury to justify proceeding with the investigation; (d) the amount of subsidy is de minimis or the volume of imports of the subject merchandise, actual or potential, or the injury, is negligible; or (e) the Government determines that termination of the investigation is in the public interest. (2) If a termination pursuant to subsection (1) occurs prior to the preliminary determination, the Government shall publish a notice of such termination stating the reasons for the termination. (3) If a termination pursuant to subsection (1) occurs after the preliminary determination, the Government shall— (a) terminate any provisional measures referred to in section 9 and release the security required by such measures; and (b) publish a notice of such termination, stating the reasons for the termination.
Suspension of investigation
(1) An investigation may be suspended at any time if undertakings are accepted by the Government. (2) Before accepting the undertakings, the Government shall determine that— (a) the undertakings— (i) will eliminate the subsidy or the injurious effects caused by the subject merchandise; and (ii) can be monitored effectively; or (b) the undertakings are in the public interest. (3) Undertakings shall not be sought or accepted unless the Government has made a preliminary affirmative determination of subsidization and injury caused by such subsidization and, in the case of undertakings from exporters, has obtained the consent of the exporting Member. (4) If the undertakings are accepted by the Government after the preliminary determination, the Government shall— (a) suspend the investigation; (b) suspend any provisional measures applied under section 9 and release all or part of the security required by such measures as the Government deems appropriate; and (c) publish a notice stating the reasons for the suspension of the investigation and actions under paragraph (b). (5) Notwithstanding the acceptance of the undertakings, the investigation shall be completed upon the written request of the interested foreign government or if the Government so decides. (6) Where the Government completes the investigation pursuant to subsection (5) and makes an affirmative determination, the undertakings shall remain in effect consistent with the provisions of this Act. (7) Where the Government completes the investigation pursuant to subsection (5) and makes a negative determination, the undertakings shall lapse, except where the negative determination is due in large part to the existence of the undertakings. (8) Where the negative determination referred to in subsection (7) is due in large part to the existence of the undertakings, the undertakings may be maintained for a reasonable period consistent with the provisions of this Act. (8A) The Government may suggest for price undertakings to be provided by exporting Members or exporters, but no exporter shall be obliged to enter into such undertakings. (8B) The fact that the exporting Members or exporters do not offer price undertakings, or do not accept an invitation to do so, shall in no way affect the consideration of the case. (8C) Notwithstanding subsections (8A) and (8B), the Government shall be free to determine that a threat of injury is more likely to be realized if the importation of the subject merchandise continues. (8D) The Government may require any exporting Member or exporter from whom an undertaking has been accepted to provide, periodically, information relevant to the fulfilment of such undertaking and to permit verification of pertinent information. (8E ) Non-compliance with subsection (8D) shall be construed as a breach of the undertaking. (9) The Government may resume a suspended investigation at any time if it determines that the undertakings accepted under subsection (1) no longer meet the requirements of subsection (2) or there is a material violation of the undertakings. (10) If the Government resumes an investigation pursuant to subsection (9), it shall take expeditious action to— (a) (Deleted by Act A1046); (b) apply provisional measures in conformity with section 9, if appropriate; and (c) make a final determination pursuant to section 10. (11) The Government may use the facts available with respect to any determination under subsection (10) where a material violation of the undertakings occur. (12) In the cases mentioned in subsection (9), the Government may impose countervailing duties in conformity with section 10 on the subject merchandise imported into Malaysia within a period of ninety days prior to the provisional measures applied under subsection (10): Provided that such retroactive assessment shall not be applied to subject merchandise imported prior to the violation. Duration of duty 12 A. A countervailing duty imposed under this Act shall remain in force only for as long as and to the extent necessary to counteract the subsidization that is causing the injury.
Administrative review
(1) Whenever an interested party provides information to the Government, or the Government otherwise obtains information, that— (a) the amount of subsidy has changed substantially; (b) the imposition of a countervailing duty is no longer necessary; (c) an undertaking is no longer necessary or should be revised; (d) a countervailing duty or undertaking which is required to be terminated pursuant to subsection (6) should be maintained; or (e) an administrative review is in the public interest, the Government may conduct an administrative review: Provided that no administrative review shall be undertaken unless the period prescribed has lapsed. (2) If the Government decides to conduct an administrative review under subsection (1), the Government shall— (a) publish a notice of the initiation of an administrative review; and (b) conduct such review, allowing appropriate interested parties an opportunity to provide comments. (3) Any administrative review conducted pursuant to subsection (2) shall be completed within such period as may be prescribed. (4) On the completion of the administrative review, the Government shall publish a final administrative review determination stating the reasons for its determination. (5) Any determination made pursuant to subsection (4) shall apply to the subject merchandise imported on or after the date of publication of the administrative review determination. (6) No countervailing duty shall be collected on imports made after five years from the date of its imposition, or five years from the date of the conclusion of the most recent administrative review under subsection (1) that covered both subsidy and injury, and undertakings shall automatically lapse with respect to imports made after five years from the date of publication of the notice of suspension of the investigation, unless the Government determines, in an administrative review initiated before that date on the Government’s own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time before that date, that the expiry of the duty or undertaking would be likely to lead to a continuation or recurrence of subsidization and injury. (7) A countervailing duty duly imposed under this Act may remain in force pending the outcome of an administrative review under this section. (8) An interested party who submits relevant information substantiating the need for an administrative review shall have the right to request for an administrative review by the Government to determine one or more of the following: (a) whether the continued imposition of the countervailing duty is necessary to offset subsidization; (b) whether the injury would be likely to continue to recur if the duty were removed or varied: Provided that the period specified in subsection (6) has lapsed since the imposition of the definitive countervailing duty. Refund review 13 A. (1) Without prejudice to section 13, an importer may request for a refund of the countervailing duties paid where the importer can show that the amount of the countervailable subsidy on the basis of which the countervailing duties were imposed has been either eliminated or reduced to a level that is below the level of the countervailing duties in force. (2) A request for a refund review shall be submitted in writing to the Government and shall contain— (a) a list of all entries of the subject merchandise into Malaysia for which the refund review is requested; and (b) all relevant evidence to show that the importer is entitled to a refund on each such entry. (3) Where, on the completion of a refund review under this section, the Government determines that— (a) a refund of the countervailing duty, wholly or partly, is appropriate; (b) no countervailing duty should have been imposed; or (c) the countervailing duty that was imposed is higher than the countervailing duty that should have been imposed in the circumstances, the Government shall refund such amount of the countervailing duty collected as it deems fit. (4) A refund under subsection (3) shall, as far as practicable, be made within ninety days from the date of the determination of the refund review. (5) A finding in the refund review that no countervailing duty should have been imposed shall not by itself require the Government to terminate the definitive countervailing duty.
Expedited review
(1) An exporter or a producer whose exports of the subject merchandise are subject to a definitive countervailing duty but who was not actually investigated for reasons other than a refusal to co-operate shall be entitled to an expedited review in order that the Government may immediately establish an individual countervailing duty rate for the exporter or producer. (2) No countervailing duty shall be imposed on imports from the exporters or producers referred to in subsection (1) while the review is being carried out. (3) Notwithstanding subsection (2), the Government may withhold an appraisement or request guarantees to ensure that, should a review under subsection (1) result in a determination of subsidization and injury caused thereby in respect of exports of the subject merchandise into Malaysia by the exporters or producers referred to in subsection (1), countervailing duties may be imposed retroactively to the date of the initiation of the review.
Developing country Member
Notwithstanding any other provisions of this Act, countervailing duty proceedings against exporters or producers from developing country Members of the World Trade Organization shall be carried out in such manner as may be prescribed.
Provisions on this page are reproduced verbatim from official open data. See the attribution line.
Text as at 1 January 2006 (LOM reprint); amendments made after that date may not be incorporated. Read the official text ↗
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).