Protector 1 laws of MALAYSIA Act REPRINTING 657 safeguards Act 2006 As at 1 November 2012, PUBLISHED by the COMMISSIONER of law revision, UNDER the AUTHORITY of law REVISION ACT 1968 2012 2 laws of Malaysia Act Royal Assent Date 657...... August 30, 2006 date published in the Gazette and. .. August 31, 2006 the English text is the ... ... more P.u. (B) 359/2008 authentic text Protector 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 AUTHORITY INVESTIGATORS 3. The appointment of the investigating authorities 4. Appointment of officers 5. Protection officers and persons acting under the Act and regulations 6. Duties and powers of the investigating authorities 7. Power to delegate part III DETERMINATION of SERIOUS HARM or THREAT of HARM that is SERIOUS and REASONED RELATIONSHIP 8. Serious harm and reasoned relationship 9. The threat of serious harm and the relationship of the reasoned part IV INVESTIGATION 10. The petition for preliminary investigation 11. Requirements for a petition 4 laws of Malaysia Act 657 12. The withdrawal of the petition before the beginning of investigation 13. Amendment to petition 14. The decision to begin the investigation 15. Notice to commence investigation 16. Publication of notice of commencement of investigation 17. Contents of notice to commence an investigation 18. Public hearing and argument writing 19. Deal with confidential information 20. Determination of early 21. Notification and consultation for a temporary protection measure 22. Temporary protection measures 23. Determination of the final 24. Notice of final determination of part V MEASURES FINAL 25. Determination of ultimate protection for step 26. Notice for ultimate protection measure 27. Notification and consultation a final protection step 28. Form and the imposition of an ultimate protection measure 29. Item administration 30. Ship transfer 31. Customs clearance cannot be blocked 32. Application of Customs Act 1967 33. Member developing countries 34. The time frame for a final protection step 35. Diffusion for step protection part VI REVIEW MEASURES 36. The review of 37. Extension for an ultimate protection step 38. Notification to extend Section 5 Safeguards part VII the IMPOSITION of the MEASURES a Section 39. Imposition of the part VIII VARIOUS 40. 41. international obligations Regulations 42. Publication of notice of the 6 laws of Malaysia Act 657 Protector 7 laws of MALAYSIA Act 657 safeguards Act 2006 an act to provide for the investigation and determination of step protection against products imported into Malaysia and other matters relating thereto.
[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) of this Act come into force on such date as the Minister may, by notification in the Gazette.
Interpretation 2. In this Act, unless the context otherwise requires — "threat of serious injury" means serious harm will occur;
"Member" means a member of the World Trade Organization;
"ASEAN" means the Organization for Southeast Asian countries;
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 as specified in Annex 1A to the World Trade Organization Agreement;
"domestic industry" means — (a) the domestic producers as a whole for similar products or in direct competition with products investigated, operating in Malaysia; or (b) domestic manufacturers operating in Malaysia's overall output for the release of similar or competing directly become a large part of the total domestic production of the product concerned;
"Committee" means the Committee about Safeguards for the World Trade Organization;
"identical products" means products that are similar or identical in all respects with those investigated or, in absence of such a product, another product though not identical in all respects have features that almost resemble release investigated;
"release investigated" means the class or type of products to be imported or sold for importation into Malaysia which is subject to action under this act as are determined appropriate by the Government to prove the scope of action;
"serious harm" means a significant overall harm to the standing of a domestic industry;
"Government" means the Government of Malaysia;
"Minister" means the Minister charged with the responsibility for international trade and industry;
Protector 9 "country" includes all members of the World Trade Organization and any other country or customs territory autonomous;
"customs officer" has the same meaning as given to the expression under section 2 of the Customs Act 1967 [Act 235];
"Agreement" means the Agreement on Safeguards for the World Trade Organization;
"stakeholders" means — (a) the foreign exporters and manufacturers for the products under investigation;
(b) the importer releases investigated;
(c) the Government of the country or countries exporters;
(d) domestic producers for identical products or competing directly;
(e) Trade Association and business relevant registered in Malaysia;
"the stakeholders participating" means the stakeholders implied intention to join an investigation pursuant to section 10;
"the investigating authorities" means authorities of the investigator appointed under section 3;
"WTO" means the World Trade Organization.
Part II the AUTHORITIES INVESTIGATING the appointment of the investigating authority 3. The Minister may appoint and authorise an investigating authority to carry out an investigation under this Act.
10 laws of Malaysia Act 657 appointment of officers 4. The Minister may, from time to time, appoint and authorise any number of officers necessary to perform its functions and powers under this Act.
protection officers and persons acting under the Act and regulations 5. No action or prosecution can be brought, instituted or maintained in any court against any officer or person authorized under this Act and the regulations made under this Act or for or reason with respect to any action ordered or performed for the purpose of enforcing this Act and the regulations made under this Act, and no suit or prosecution can be brought in any court against any person for or for or in respect of any action done or purporting to be done on orders, directions or instructions of any officer or the person if they are done in good faith and with a reasonable belief that such action is necessary for the purposes that are intended to be achieved by it.
Duties and powers of the investigating authorities 6. (1) the investigating authority shall perform any duties and functions and exercise such powers as may be provided under this Act.
(2) Conduct an investigation relating to serious harm or ancamannya shall be as prescribed.
(3) the investigating authority shall be subject to the provisions of this Act in carrying out the functions assigned to it under this Act.
(4) any proceedings under this Act, the investigating authorities cannot disclose any information who is entitled to be treated as confidential under this Act.
Protector 11 (5) the investigating authorities can request directly from the relevant stakeholders participate, customs agents, inspectors, the company the company the sender and the enterprise and another entity for public and private sector, any data and information considered to be relevant for the implementation of the duties, functions and powers of them. The parties accept the request shall provide the requested information, and that information should be placed on the public file.
(6) the investigating authority may decide to verify the accuracy of any information submitted during an investigation or review as may be prescribed.
Power to delegate 7. (1) the Minister may, in writing, delegate any of its functions under this Act and the regulations made under this Act, subject to such conditions, limitations or restrictions as it thinks fit, to any person or class of persons and person or class of persons to whom such functions delegated can perform such functions in the same manner and with the same effect as if such functions have been delegated to him or them under this Act and the regulations made under this Act.
(2) any person or class of persons purporting to act pursuant to a delegation made under this section shall, in the absence of evidence to the contrary, be deemed to be acting in accordance with the terms of such delegation.
(3) a delegation made under this section may at any time be revoked by the Minister.
Part III the DETERMINATION of SERIOUS INJURY or THREAT of SERIOUS HARM and serious Harm by REASON and reasoned relationship 8. (1) a determination about whether increased imports have caused or threaten to cause serious injury to a domestic industry under this Act, all relevant factors which are objective and can be noted 12 laws of Malaysia Act 657 quantity on the product investigated, similar products and competing products directly shall be measured in the prescribed manner, which has to do with the State of the 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 a relationship between the increase in imports by reason of the investigated product with serious harm or ancamannya.
(3) when factors other than increased imports for the products was investigated at the same time cause or threaten to cause harm to the domestic industry, such harm shall not be deemed to be caused by increased imports.
The threat of serious harm and reasoned relationship 9. (1) a determination of a threat of serious injury caused by increased imports shall be based on facts and not merely on allegations, terkaan or chances are thin.
(2) in considering whether the increase in imports threaten to cause serious harm, the relevant factors to be assessed, shall be as prescribed.
Part IV INVESTIGATION petition for preliminary investigation 10. Request for an investigation to determine whether increased imports of products investigated were causing or threatening to cause serious harm to domestic industry shall be instituted — (a) when there is a written petition addressed to the Ministry of international trade and industry by or on behalf of a domestic industry; or (b) on Government initiatives.
Protector 13 Requirements for a petition 11. A petition under paragraphs 10 (a) shall include such information as may be prescribed.
the withdrawal of the petition before the beginning of investigation 12. A petition under section 10 be withdrawn before the start of an investigation, which in the case of the petition shall be deemed to have never been made.
amendment to petition 13. A petition requesting an investigation started may be amended subject to such conditions as the Government may deem fit.
The decision to start an investigation 14. (1) the Government can start an investigation, either upon request of a domestic industry or upon government initiatives of its own, only when the Government determines that there is sufficient evidence of serious harm or ancamannya due to the increase in imports.
(2) if the Government decided to begin an investigation under subsection (1), the Government may request additional information as the Government may deem necessary.
(3) if the Government decides not to initiate an investigation, the Government shall inform the petitioners in writing of the reasons for the investigation is not started.
(4) where a petition is accepted, the Government shall, from the date the petition is received, decide whether to initiate an investigation or not during the period as may be prescribed. If the petition involves complicated issues, or if the Government should request additional information as provided in subsection (2), the period can be extended for another period as may be prescribed.
14 laws of Malaysia Act 657 Notice to begin the investigation 15. The Committee shall be notified of the decision to initiate an investigation. The notification shall be made immediately after the initiation.
publication of notice of commencement of investigation 16. Notice of commencement of investigation shall be published by the Government.
Contents of notice to commence an investigation 17. Contents of notice to commence an investigation shall be as prescribed.
public hearing and argument writing 18. (1) all participating stakeholders should be given the opportunity in accordance with the provisions of this section — (a) for public hearing or other appropriate way that importers, exporters and other interested parties could present evidence and their views; and (b) to provide answers to a written and oral presentations by other stakeholders who took part and to make a suggestion whether the implementation of a measure of cover is in the public interest.
(2) the Procedure for the public hearing shall be as prescribed.
Deal with confidential information 19. (1) any information in terms of its nature confidential or which is provided confidentially shall, upon cause shown, be treated as such by the Government. The relevant information should not be disclosed without specific permission of the party submitting the confidential information.
Protector 15 (2) the party who provides confidential information shall be required to provide a summary of the confidential information are not confidential or, if the parties indicate that such information cannot be summarized, the reasons why a summary cannot be provided.
(3) if the Government finds that a request for deal with confidential information was inappropriate, and if the supplier of the information is not willing to disclose information to the public or to the disclosure of that information in the form of General or summary, the Government can set aside the information unless a source can be shown of him was supposed to until the Government is satisfied that the information is correct.
determination of early 20. (1) the Government shall, within the period prescribed, make a determination early on — (a) whether products investigated imported into Malaysia in increasing quantities, absolute or relative to domestic production; and (b) whether in the circumstances, it is causing or threatening to cause serious harm to the domestic industry that produce similar products or products which compete directly.
(2) if the Government made a determination early negative about subsection (1), the Government shall publish a notice stating the reasons for the negative determination of and — (a) continue the investigation; or (b) terminate the investigation if the Government thinks fit.
(3) if the Government made a determination early affirmative about subsection (1), the Government shall proceed with the investigation and publish a notice to — (a) the initial determination is affirmative, stating the reasons for its determination in respect of paragraph (1) (a) and (b); and (b) temporary protection measures applicable.
16 laws of Malaysia Act 657 (4) if the decision is to impose a temporary protection measures, notices relating to implementation of a temporary protection measures shall be as prescribed.
(5) if the Government decided not to impose a temporary protection measures, the notice of determination of the early negative shall be as prescribed.
notification and consultation for a temporary protection measure 21. (1) when a decision was taken to impose a temporary protection measure and before the relevant measures in force, the Government shall notify to the Committee in accordance with the requirements prescribed by the Committee.
(2) before the move imposed, opportunities for consultation as referred to in the agreement shall be given.
Temporary protection measures 22. (1) the Government may impose a temporary protection measures in respect of products investigated imported into Malaysia on or after publication of the notice of preliminary affirmative determination if the Government specifies that the move is necessary to prevent the harm referred to in subsection 8 (1) and 9 (1) of the occurred during the period of investigation.
(2) a temporary protection measures shall be in the form of a temporary guarantee duty guaranteed with a bond or guarantee equal to the amount determined by the Government.
(3) temporary protection Measures imposed under this section shall not exceed two hundred today.
Protector 17 (4) If the next investigation does not find that a determination that increased imports have caused or threaten to cause serious harm to the domestic industry, any bond or guarantee must be returned immediately.
(5) the collection of any temporary protective duties imposed under this Act shall be conducted by a customs officer.
determination of the final 23. (1) the Government shall, within the period prescribed, make an ultimate determination as to — (a) whether products investigated imported into Malaysia in increasing quantities, absolute or relative to domestic production; and (b) whether in the circumstances, it is causing or threatening to cause serious harm to the domestic industry that produce similar products or products which compete directly.
(2) if the Government makes a final negative determination on subsection (1), the Government shall — (a) terminate the investigation;
(b) terminate the temporary protection measure imposed under section 22, and release the bond or guarantee required by the move; and (c) publish a notice of the final determination is negative, stating the reasons for the determination of the downside.
(3) if the Government makes a final affirmative determination on subsection (1), the Government shall — (a) publish a notice of final affirmative determinations; and (b) impose a final protection measures.
18 laws of Malaysia Act 657 (4) the Government shall notify promptly to the Committee if the Government decided that increased imports have caused or threaten to cause serious harm to the domestic industry. Any such notification shall comply with the requirements set by the Committee.
Notice of determination of the final 24. The Government shall publish a notice of the final determination of serious harm and the relationship by reason as may be prescribed.
Part V FINAL determination STEP PROTECTION for ultimate protection step 25. If the Government decides when a temporary protection measure that — (a) issue investigated imported into Malaysia in increased quantities, absolute or relative to domestic production; and (b) in the circumstances, it is causing or threatening to cause serious harm to the domestic industry that produce similar products or products in direct competition, the Government must impose a final protection measures.
Notice for ultimate protection step 26. Soon after a decision is taken on an ultimate protection measure, the Government shall publish a notice of the imposition of an ultimate protection measure and the notice shall contain such information as may be prescribed.
Protector 19 notification and consultation a final protection step 27. (1) upon a decision taken to impose a definitive protection steps, but before the relevant measures in force, the Government shall notify the Committee of — (a) proof of serious harm or ancamannya due to the increased imports;
(b) an accurate description of the product under investigation;
(c) the nature, extent and duration of measures proposed;
(d) the date proposed for the payroll; and (e) the date proposed to introduce, the expected duration and timetable for liberalisation in phases.
(2) before an ultimate protection measure imposed, the Government should provide adequate opportunities for consultation with Members who have a substantive interest as exporters of the products investigated, with a view to — (a) to review the information notified to the Committee on the findings of serious harm or ancamannya due to the increased imports and the measures proposed;
(b) exchange views about the move; and (c) reached an understanding on how to achieve the objective of maintaining a level of concession equivalent that substantive and other existing obligations under GATT 1994 between Malaysia and the members of the exporters will be affected by the imposition of the measures. The Government can strive to provide any means to indemnify trade sufficient for adverse effects on the move to trade them.
(3) the Government shall notify the Council for trade in Goods WTO immediately, through the Committee, on the results of the consultation.
20 laws of Malaysia Act 657 form and the imposition of a definitive protection step 28. (1) an ultimate protection measure may be imposed in the form of — (a) a protective duty; or (b) a quota of imports; or (c) a protective duty and a quota on the import.
(2) subject to section 34, any ultimate protection measures under paragraph (1) (a) and (b) shall apply to all imports of the products investigated, regardless of the source, that check-in on or after the date of the move is to take effect.
item administration 29. (1) any petition which is required to be submitted under part IV shall be submitted to the Ministry of international trade and industry.
(2) subject to the provisions of this Act, any act required or taken under this Act shall be carried out or taken by any officer or person authorized in writing in that behalf by the Minister.
(3) any finding of an investigation, either for the purpose of determination of the initial or final, or a systematic review, under this Act, shall be submitted to the Minister.
(4) the Minister shall make a decision and that decision shall be final.
(5) the Minister shall make a recommendation to the Minister of finance to impose a definitive protection measures.
(6) implementation of an ultimate protection measure in the form provided in subsection 28 (1) shall be carried out by a customs officer.
Protector 21 (7) if any question arises about whether any particular product is or is not included in any notification given under this Act, the question shall be referred to the investigating authority, which shall make a decision about that.
transfer of 30 ships. In the case of merchandise not imported into Malaysia directly from the country of origin but are exported to Malaysia from an intermediate country, the provisions of this Act shall apply and the transaction, for the purposes of this Act, shall be considered as having been made between the country of origin with Malaysia.
Customs clearance cannot be blocked 31. Any investigation conducted under this Act shall not hinder the procedures of customs clearance.
application of Customs Act 1967 32. (1) this Act shall be construed together with the Customs Act 1967.
(2) where there is any inconsistency between the provisions of the Customs Act 1967 with the provisions of this Act, the provisions of this Act shall apply.
Member developing countries 33. (1) Notwithstanding any other provision of this Act, a step the ultimate protection cannot be applied to a product originating from an investigated Member developing countries as long as the part importnya for release in Malaysia does not exceed three per cent of the total imports of products concerned, provided that developing country Members with less than three per cent collectively part importnya is not more than nine per cent of the total imports of products concerned.
22 laws of Malaysia Act 657 (2) an action taken pursuant to subsection (1) shall be notified to the Committee.
The time frame for a final protection step 34. (1) a final protection measures shall be imposed for a term not exceeding four years unless it is extended as provided under section 37.
(2) the total duration for an ultimate protection measure, including the period of imposition of any temporary protective measures and any extension in accordance with section 37, shall not exceed ten years, under the provisions of the agreement.
diffusion for step cover 35. If the imposition of more than one year, the measures imposed shall be liberalised in stages at regular intervals during the period of imposition.
Part VI REVIEW of STEP PROTECTION review 36. (1) if the period of a temporary protection measure, including the period of imposition of any temporary protective measures, more than three years, the Government imposing measures that shall review the situation not later than the mid-term the imposition or increase the rate of diffusion.
(2) a notice to maintain, completely relax or recall an ultimate protection measure, summarize the results of the review, may be broadcast.
Protector 23 extension for an ultimate protection measure 37. (1) Upon the Government's own initiative or on request based, an extension of the final measures in excess of the initial term and comply with the procedures set out under section 8, 9, 16, 21, 23 and 25 may be given — (a) if the measures continue to be necessary to prevent or meremedi serious harm; and (b) there is evidence that the industry make adaptations, provided that the provisions of the Agreement are met.
(2) a final extended measures shall not be more restrictive than the measures imposed at the end of the initial term imposition. During the period of extension, the move shall continue to be fully liberalised in stages-stage according to the schedule published in the notices to pursue an ultimate protection measure.
(3) The renewal of an ultimate protection measure exceeds three years, the Government should strive to maintain an equivalent level of concessions and other obligations that substantive available under GATT between Malaysia and the members of the exporters will be affected by the move.
(4) the requirements relating to the notification to the Committee and the Council for trade in Goods WTO as provided under subsection 21 (1), 23 (4) and 27 (3), and needs related to consultations with the substantive interest as exporters of products applicable as provided under subsection 27 (2) shall apply to any extension of a protection measure.
notification to extend 38. When a decision has been taken to extend the protection measures, the Government should notify the Committee.
24 laws of Malaysia Act 657 part VII IMPOSITION of the imposition of the MEASURES a 39. (1) no new protection measures may be imposed for a period of at least two years to an import product which is the subject of an ultimate protection measure.
(2) Notwithstanding subsection (1), an ultimate protection measure for a time period of one hundred and eighty days or less may be applied to the import of products investigated which is the subject of a previous protection measures if — (a) at least one year has elapsed since the date of the imposition of measures to imports of the products; and (b) such protection measures have never been applied to import the same product more than twice in the five-year period immediately before the date of introduction of the measure.
Part VIII MISCELLANEOUS Obligations international 40. This Act shall apply to the obligations under the agreement on the establishment of the World Trade Organization made in Marrakesh, on April 15, 1994, including GATT 1994 and the agreement on Safeguards.
regulations 41. The Minister may make regulations in relation to any matter to be determined and other regulations as are necessary or expedient to give effect to or for carrying out the provisions of this Act.
Protector 25 publication of notice 42. All notices required to be published under this Act shall be published in the Gazette.
26 laws of Malaysia Act 657 laws of MALAYSIA Act 657 safeguards Act 2006 LIST AMENDMENT of laws that amend the short title effect from – no – Protector 27 laws of MALAYSIA Act 657 safeguards Act 2006 AMENDED SECTION LIST Section Power amend with effect from – THERE are –