Imposition of anti-dumping duties
(1) No anti-dumping duty shall be imposed except in accordance with this Act. (2) The amount of anti-dumping duty to be imposed— (a) shall be equal to the dumping margin determined to exist with respect to the subject merchandise; or (b) if the Government determines that a lower anti-dumping duty will be sufficient to eliminate the injury, may be such lower duty.
Normal value
(1) For the purpose of this Act, the normal value shall be the comparable price actually paid or payable in the ordinary course of trade for the like product sold for consumption in the domestic market of the exporting country. (2) When there are no sales in the domestic market of the exporting country under subsection (1), or when such sales do not permit a proper comparison, normal value shall be determined— (a) by comparison with a comparable price of the like product when exported to an appropriate third country provided that the comparable price is representative; or (b) by constructing the value of the subject merchandise by adding cost of production in the country of origin plus a reasonable amount for selling, administrative and other general expenses and for profits. (3) If there are reasonable grounds for believing or suspecting that a sale of the like product under subsection (1) or paragraph (2)(a) is at a price below unit production costs (fixed and variable) plus selling, administrative and other general expenses, the sale may be treated as not having been made in the ordinary course of trade by reason of price and may be disregarded in determining normal value only if the Government determines that such sale was made within an extended period of time in substantial quantities and is at a price that does not provide for the recovery of all costs within a reasonable period of time. (4) If the price of a sale referred to in subsection (3) is above the weighted average per unit cost for the period of investigation, such price shall be considered to provide for the recovery of costs within a reasonable period of time. (5) For the purpose of this section, the amount for selling, administrative and other general expenses and for profits shall be based on actual information pertaining to production and sales in the ordinary course of trade of the like product by the exporter or producer under investigation. (6) If the amount referred to in subsection (5) cannot be determined on the basis specified in that subsection, the amount may be determined on any of the following basis: (a) the weighted average of the actual amount incurred and realized by other exporters or producers subject to investigation in respect of production and sales of the like product in the domestic market of the country of origin; (b) the actual amount incurred and realized by the exporter or producer in question in respect of production and sales in the domestic market of the country of origin of the same general category of products; or (c) any other reasonable method, provided that the amount for profits so established shall not exceed the profit normally realized by other exporters or producers on the sale of products of the same general category in the domestic market of the country of origin. (7) For the purpose of this section, production costs shall be calculated on the basis of records kept by the exporter or producer under investigation, provided that such records are in accordance with the generally accepted accounting principles of the exporting country concerned and reasonably reflect the costs associated with the production and sale of the subject merchandise. (8) The Government shall consider all available evidence on the proper allocation of costs, including any evidence that is made available by the exporter or producer in the course of the investigation, provided that it is shown that such allocations have historically been utilized by the exporter or producer, in particular in relation to establishing appropriate amortization and depreciation periods and allowances for capital expenditures and other development costs.
Export price
(1) The export price shall be the price actually paid or payable for the subject merchandise. (2) In cases where there is no export price or where it appears that the export price is unreliable because the exporter and the importer or a third party are related, or that there is a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the subject merchandise is first resold to an independent buyer, or if the subject merchandise is not resold to an independent buyer, or not resold in the condition imported, on any reasonable basis. (3) If the export price is constructed as described in subsection (2), allowance shall be made for all costs incurred between importation and resale.
Comparison of normal value and export price
(1) A fair comparison shall be made between the export price and the normal value. (2) The comparison shall be made at the same level of trade, normally at ex-factory level, and in respect of sales made at as nearly as possible the same time and due account shall be taken of other differences that affect price comparability. (3) Where the normal value and the export price as established are not on a comparable basis, due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors that are claimed, and demonstrated, to affect prices and price comparability. (4) If the determination of the export price under subsection 17(2) affects price comparability, the Government shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or shall make due allowance as provided under this section. (5) In a case where the subject merchandise is not imported directly from the country of origin but is exported from an intermediate country, the price at which the subject merchandise is sold from the exporting country to Malaysia shall be compared with the comparable price in the exporting country. (6) Notwithstanding subsection (5), comparison may be made with the price in the country of origin if— (a) the subject merchandise is merely transhipped through the exporting country; (b) the subject merchandise is not produced in the exporting country; or (c) there is no comparable price for the subject merchandise in the exporting country. (7) Where an exporter or importer claims for an adjustment under subsection (3), it shall prove that its claim is justified. (8) The Government shall indicate to the parties in question the information that is necessary to ensure a fair comparison.
Subject merchandise from a non-market economy country
Where the country of origin of the subject merchandise is a non-market economy country, the normal value shall be determined in the prescribed manner.
Initiation of investigation
(1) The Government may initiate an investigation to determine the existence, degree and effect of any alleged dumping 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 dumping and injury and a causal link between the imports of the subject merchandise and the alleged injury. (3) After receipt of a petition under subsection (1) but before proceeding under subsection (4), the Government shall notify the government of the exporting country of the receipt of the petition. (4) 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. (5) A petition under subsection (1) shall be immediately rejected if the Government is satisfied that— (a) there is no sufficient evidence of either dumping or of injury to justify the initiation of an anti-dumping duty investigation, such as but not limited to cases where the dumping margin 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. (6) Where the Government rejects a petition under subsection (5), the Government shall, as soon as practicable, notify the petitioner in writing of its determination not to initiate an investigation. (7) Notwithstanding subsection (1) the Government may, in special circumstances, initiate an anti-dumping 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). (8) Where the Government decides to initiate an investigation under subsection (1) or subsection (7), it shall notify the appropriate interested parties and publish a notice of initiation of investigation. (9) Evidence of both dumping 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. (10) The Government shall not disclose any petition made under this section unless the Government has made a decision to initiate an investigation.
Amendments to the petition
A petition requesting an anti-dumping duty investigation be initiated may be amended subject to such conditions as the Government deems fit.
Duration of investigation
The Government shall conclude an anti-dumping duty investigation within such period as may be prescribed. Injury and causal link 22 A . (1) A determination of injury for the purpose of an anti-dumping 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 dumping, 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 anti-dumping measures shall be considered and decided with special care.
Preliminary determination of dumping and injury
(1) The Government shall, within such period as may be prescribed, make a preliminary determination regarding— (a) whether a dumping margin exists with respect to the subject merchandise and the margin of such dumping; and (b) whether injury is found to exist in any one of the following ways: (i) the subject merchandise, through the effects of dumping, is causing material injury to the domestic industry in Malaysia producing the like product; (ii) the subject merchandise, through the effects of dumping, 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 dumping, 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 23(1)(b) from occurring during the period of investigation. (2) Provisional measures shall take the form of provisional antidumping duties guaranteed by a security equal to the amount of estimated dumping margin determined under subsection 23(1). (3) The provisional measures imposed under this section shall not exceed such period as may be prescribed.
Final determination of dumping and injury
(1) The Government shall, within such period as may be prescribed, make a final determination regarding— (a) whether a dumping margin exists with regard to the subject merchandise and the margin of such dumping; and (b) whether injury is found to exist in any one of the following ways: (i) the subject merchandise, through the effects of dumping, is causing material injury to the domestic industry in Malaysia producing the like product; (ii) the subject merchandise, through the effects of dumping, 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 dumping, 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 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 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 24, 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 antidumping duties applicable and the subject merchandise on which the anti-dumping duties apply; (b) impose anti-dumping duties in the amounts determined in accordance with subsection 15(2) on the subject merchandise imported into Malaysia on or after the date of publication of the final determination; and (c) impose anti-dumping 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 anti-dumping duties and the amount of such duties. (5) The Government shall impose anti-dumping 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 anti-dumping 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 anti-dumping duties under subsection (5)— (a) where the anti-dumping 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 anti-dumping duty is less than the amount guaranteed by the security required under the provisional measures, the full amount of the anti-dumping 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 anti-dumping 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) there is a history of dumping which caused injury, or the importer was or should have been aware that the exporter practises dumping and that such dumping would cause injury. (7A) No anti-dumping duties shall be imposed retroactively under subsection (7) on merchandise entered for consumption before the date of initiation of the investigation. (8) When an anti-dumping duty is imposed on the subject merchandise, such anti-dumping 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 dumping the subject merchandise causing injury. (9) Provisional measures and definitive anti-dumping duties shall only be applied to subject merchandise that enters for consumption after the time when the decision under subsection 24(1) or 25(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 dumping or injury to justify proceeding with the investigation; (d) the dumping margin 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 24 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 price undertakings are accepted by the Government. (8A) The Government may suggest for price undertakings to be provided by exporters, but no exporter shall be obliged to enter into such undertakings. (8B) The fact that the 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 exporter from whom a price 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 price undertaking. (9) The Government may resume a suspended investigation at any time if it determines that the price undertakings accepted under subsection (1) no longer meet the requirements of subsection (2) or there is a material violation of the price 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 24, if appropriate; and (c) make a final determination pursuant to section 25. (11) The Government may use the facts available with respect to any determination under subsection (10) where a material violation of the price undertakings occur. (12) In the cases mentioned in subsection (9), the Government may impose anti-dumping duties in conformity with section 25 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 27 A. An anti-dumping duty imposed under this Act shall remain in force only for as long as and to the extent necessary to counteract the dumping 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 dumping margin has changed substantially; (b) (Deleted by Act A1046); (c) the imposition of an anti-dumping duty is no longer necessary; (d) an undertaking is no longer necessary or should be revised; (e) an anti-dumping duty or undertaking which is required to be terminated pursuant to subsection (6) should be maintained; or (f) 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 anti-dumping 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 dumping 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 dumping and injury. (7) An anti-dumping 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 anti-dumping duty is necessary to offset dumping; (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 anti-dumping duty.
Refund review
(1) Without prejudice to section 28, an importer may request for a refund of the anti-dumping duties paid where the importer can show that the dumping on the basis of which the anti-dumping duties were imposed has been either eliminated or reduced to a level that is below the level of the anti-dumping 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 anti-dumping duty, wholly or partly, is appropriate; (b) no anti-dumping duty should have been imposed; or (c) the anti-dumping duty that was imposed is higher than the anti-dumping duty that should have been imposed in the circumstances, the Government shall refund such amount of the anti-dumping 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 anti-dumping duty should have been imposed shall not by itself require the Government to terminate the definitive anti-dumping duty. Expedited review 28 B. (1) An exporter or a producer whose exports of the subject merchandise are subject to a definitive anti-dumping duty but who has not exported the subject merchandise to Malaysia during the period of investigation shall be entitled to an expedited review in order that the Government may immediately establish an individual anti-dumping duty rate for the exporter or producer, provided that the exporter or producer can show that the exporter or producer is not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the subject merchandise. (2) No anti-dumping 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 dumping and injury caused thereby in respect of exports of the subject merchandise into Malaysia by the exporters or producers referred to in subsection (1), anti-dumping duties may be imposed retroactively to the date of the initiation of the review.
Anti-dumping action on behalf of third country
(1) The Government may initiate an anti-dumping duty investigation on behalf of a third country upon receipt of a written request for an anti-dumping action from the government of the third country. (2) The request referred to in subsection (1) shall be supported by price information to show that the imports are being dumped and by detailed information to show that the alleged dumping is causing injury to the domestic industry concerned in the third country. (3) The government of the third country shall give all assistance to the Government to obtain any further information as may be necessary for the investigation. (4) In considering a request under this section, the Government shall consider the effects of the alleged dumping on the industry concerned as a whole in the third country. (5) The decision whether to proceed with an anti-dumping duty investigation on behalf of a third country shall rest solely with the Government. (6) If the Government decides to initiate an anti-dumping duty investigation under this section, the Government shall obtain the approval of the Council for Trade in Goods of the World Trade Organization before beginning the investigation.
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).