*SAFEGUARDS ACT 2006

This Act comes into operation on a date to be appointed by the

Minister by notification in the Gazette.

Interpretation

the domestic producers as a whole of products which are like or directly competitive with the product under investigation, operating in Malaysia; or

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;

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“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—

the foreign exporter and producer of the product under investigation;

the importer of the product under investigation;

the government(s) of the exporting country or countries;

the domestic producers of the like products or directly competitive products;

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” means the investigating authority appointed under section 3;

“WTO” means the World Trade Organization.

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The conduct of investigation relating to serious injury or threat thereof shall be as prescribed.

The investigating authority shall be subject to the provisions of the Act in performing the functions assigned to it under this Act.

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.

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.

The investigating authority may decide to verify the accuracy of any information submitted during an investigation or review as prescribed.

Power to delegate

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.

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A delegation made under this section may at any time be revoked by the Minister.

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.

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

In considering whether increased imports threaten to cause serious injury, the relevant factors, which shall be evaluated, shall be as prescribed.

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upon a written petition addressed to the Ministry of International

Trade and Industry by or on behalf of the domestic industry; or

on the initiative of the Government.

Requirements for a petition

If the Government decides to initiate an investigation under subsection (1), the Government may seek such additional information, as the Government deems necessary.

Where the Government decides not to initiate an investigation, the Government shall notify the petitioner in writing of the reasons for not initiating the investigation.

Where a petition has been received, the Government shall, from the date of receipt of the petition, decides whether or not to initiate an investigation within such period as prescribed. Where the petition involves complex issues, or if the Government has to seek additional information as provided for in subsection (2), the period may be extended for another period as prescribed.

Notice of initiation of investigation

to have public hearings or other appropriate means in which importers, exporters and other interested parties could present evidence and their views; and

to respond to a written and oral presentation of other participating interested parties and to submit views as to whether or not the application of a safeguard measure would be in the public interest.

The procedures for a public hearing or other appropriate means shall be as prescribed.

Treatment of confidential information

Parties providing confidential information shall be requested to furnish non-confidential summaries thereof or, if such parties indicate that such information cannot be summarized, the reasons why a summary cannot be provided.

If the Government finds that a request for confidential treatment is not warranted, and if the provider of the information is unwilling to make the information public or to authorize its disclosure in generalized or summary form, the Government may disregard such information unless it can be demonstrated to the

Government’s satisfaction from appropriate sources that the information is correct.

Preliminary determination

whether the product under investigation is being imported into Malaysia in such increased quantities, absolute or relative to domestic production; and

whether under such conditions, it causes or threatens to cause serious injury to the domestic industry that produces like or directly competitive products.

If the Government makes a negative preliminary determination with regard to subsection (1), the Government shall publish a notice stating the reasons for the negative determination and—

If the Government makes an affirmative preliminary determination with regard to subsection (1), the Government shall continue the investigation and publish a notice of—

If the decision is to apply a provisional safeguard measure, the notice regarding the application of a provisional safeguard measure shall be as prescribed.

If the Government decides not to apply a provisional safeguard measure, the notice of negative preliminary determination shall be as prescribed.

Notification and consultation of a provisional safeguard measure

Before the measure is applied, the opportunity to be consulted as referred to in the Agreement shall be provided.

Provisional safeguard measure

A provisional safeguard measure shall take the form of provisional safeguard duties guaranteed by a bond or security equal to the amount determined by the Government.

The provisional safeguard measure imposed under this section shall not exceed two hundred days.

If the subsequent investigation does not result in a determination that increased imports have caused or threaten to cause serious injury to the domestic industry, any bond or security shall be promptly released.

The collection of any provisional safeguard duties imposed under this Act shall be conducted by an officer of customs.

Final determination

whether the product under investigation is being imported into Malaysia in such increased quantities, absolute or relative to domestic production; and

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whether under such conditions, it causes or threatens to cause serious injury to the domestic industry that produces like or directly competitive products.

Where the Government makes a negative final determination with regard to subsection (1), the Government shall—

Where the

Government makes an affirmative final determination with regard to subsection (1), the Government shall—

The Government shall immediately notify the Committee if the

Government determines that increased imports have caused or threaten to cause serious injury to the domestic industry. Any such notification shall conform to the requirement established by the Committee.

Notice of final determination

the product under investigation is being imported into

Malaysia in such increased quantities, absolute or relative to domestic production; and

under such conditions, it causes or threaten to cause serious injury to the domestic industry that produces like or directly competitive products, the Government shall apply a definitive safeguard measure.

Notice of definitive safeguard measure

the evidence of serious injury or threat thereof caused by increased imports;

the precise description of the product under investigation;

the form, level and duration of the proposed measure;

the proposed date of application of the measure; and

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the proposed date of introduction, expected duration and timetable for progressive liberalization.

Before a definitive safeguard measure is applied, the

Government shall provide adequate opportunity for consultation with those Members having a substantial interest as exporters of the product under investigation, with a view to—

The Government shall notify the Council for Trade in Goods of the WTO immediately, through the Committee, of the results of the consultation.

Form and application of a definitive safeguard measure

a safeguard duty; or

a quota on imports; or

a safeguard duty and a quota on imports.

Subject to section 34, any definitive safeguard measure under paragraphs (1)(a), (b) and (c) shall be applied to all imports of the

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product under investigation, irrespective of source, entered on or after the date on which the measure takes effect.

Administrative matters

Subject to the provisions of this Act, any action to be conducted or taken under this Act shall be conducted or taken by any officer or person authorized in writing in that behalf by the Minister.

Any finding of an investigation, whether for the purpose of a preliminary or final determination, or a review, under this Act, shall be forwarded to the Minister.

The Minister shall decide and such decision shall be final.

The Minister shall make a recommendation to the Minister of

Finance to impose a definitive safeguard measure.

The implementation of a definitive safeguard measure in the form as provided in subsection 28(1) shall be conducted by an officer of customs.

If any question arises as to whether any particular product is or is not included in any notification given under this Act, such question shall be referred to the investigating authority who shall make a decision on the matter.

Transhipment

If there is any inconsistency between the provisions of the

Customs Act 1967 and the provisions of this Act, the provisions of this Act shall prevail.

Developing country Member

An action taken pursuant to subsection (1) must be notified to the Committee.

Duration of a definitive safeguard measure

The total duration of a definitive safeguard measure, including the period of application of any provisional safeguard measure and

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any extension thereof pursuant to section 37, shall not exceed ten years, in accordance with the provisions of the Agreement.

Liberalization of safeguard measure

A notice to maintain, liberalize or withdraw a definitive safeguard measure, summarizing the results of the review, may be published.

Extension of a definitive safeguard measure

if the safeguard measure continues to be necessary to prevent or remedy serious injury; and

there is evidence that the industry is adjusting, provided that the provisions of the Agreement are fulfilled.

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An extended definitive safeguard measure shall not be more restrictive than at the end of the initial period of application. During the extension period, the measure shall continue to be progressively liberalized in accordance with the schedule published in a notice to extend a definitive safeguard measure.

In extending a definitive safeguard measure exceeding three years, the Government shall endeavour to maintain a substantially equivalent level of concessions and other obligation to that existing under GATT 1994 between Malaysia and the exporting Members, which would be affected by such measure.

The requirements pertaining to notification to the Committee and to the WTO Council for Trade in Goods as provided in subsections 21(1), 23(4) and 27(3), and the requirements pertaining to consultations with those Members having a substantial interest as exporters of the product concerned as provided for in subsection 27(2)

shall apply to any extension of a safeguard measure.

Notification to extend

Notwithstanding the provisions of subsection (1), a definitive safeguard measure with a duration of hundred and eighty days or less

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may be applied to the imports of a product under investigation which was the subject of an earlier safeguard measure if—

The Minister shall prescribe the terms and conditions of the safeguard investigation and safeguard measure for the purpose of subsection (1).

Regulations