RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/MYS/6
G/SCM/Q1/MYS/6
11 January 2001
(01-0147)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies of MALAYSIA
to Questions posed by the EUROPEAN COMMUNITY1,
JAPAN2 and the UNITED STATES3
The following communication, dated 10 January 2001, has been received from the Permanent
Mission of Malaysia.
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QUESTIONS BY THE EUROPEAN COMMUNITY
Q1. N ON-MARKET ECONOMY COUNTRY
In the 1998 (Amendment) Act, section 2(a)(xii) states: ‘ “non-market economy country
means any foreign country that the Government  determines operates on a centrally-planned
economy and not on market principles of cost… ’.
Under what criteria would the Government determine that a foreign country operates
on a centrally-planned economy? Is it the Governme nt’s intention to make such a determination
on a case-by-case basis, or will it draw up a list of foreign countries deemed to be non-market
economy countries for the purposes of an anti-dumping investigation?
Reply
Criteria used inter alia :
The degree of government's influence on ownership, management, control and determination
of commercial and business policies, i.e.
• The degree of private investment, in particular whether private companies hold the
majority of shares and whether government officials are on the board or in keymanagement positions
• Freedom to hire and fire employees and to determine their salaries
• Company control over sourcing of raw materials and inputs
• Freedom to determine export prices and export quantities
                                                     
1 G/ADP/Q1/MYS/4-G/SCM/Q1/MYS/4
2 G/ADP/Q1/MYS/3-G/SCM/Q1/MYS/3
3 G/ADP/Q1/MYS/5-G/SCM/Q1/MYS/5G/ADP/Q1/MYS/6
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The determination of non-market economy will be made on a case-by-case basis.
Q2. P UBLIC INTEREST TEST
Under Amendment of Section 25, poin t 23(e), it is stated that ‘ where an affirmative final
determination has been made, the Government may take into consideration public interest in
determining whether to impose anti-dumping duties…. ’
Under what circumstances would the Government take public interest into
consideration in determining whether to impose anti-dumping duties. Could the public interesttest also lead to a modification of the amount of such duties?
Reply
"Public interest" may cover a wide range of factors including the interest of consumers and
downstream producers of the imported product.  (Note:   Whilst at the same time taking into account
the need to promote competitive environment).
The public interest test could not lead to a modification of the amount of such duties.
Q3. R EFUNDS
In the new sections 28A and 28B, point 28(3), ‘ the Government shall refund such amount
of the anti-dumping duty collected as it deems fit ’ following a refund review which shows that a
refund is wholly or partly appropriate, where no anti-dumping duty should have been imposed,or the anti-dumping duty was higher than appropriate.
Articles 9.3.2 of the WTO AD Agreement stipulates that on request, a prompt refund
will be made of any duty paid in excess of the margin of dumping. In these circumstances, could
Malaysia explain the apparent discretion available  to the Government in deciding how much of
the anti-dumping duty to refund?
Reply
The Government does not exercise discretion a nd the amount of duty refunded is based on the
determination of the refund review.
QUESTIONS BY JAPAN
Malaysia's law has a phrase "public interest" in the various articles related to
"initiation of investigation" (Act 1046, Section 4,  20), "termination of investigation" (Act 1046,
section 26), "affirmative final determination (including price undertakings)" (Act 1046, Section
25) and "administrative review" (Act 1046, Section 28).
(a) Could Malaysia tell us in detail how it considers "public interest" in the process of
implementation of the Act?
(b) If Malaysia has any written criteria, could Malaysia provide us with written
information?G/ADP/Q1/MYS/6
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(c) Could Malaysia tell us whether there were any cases where AD investigation was
terminated in light of the "public interest" clause?
Reply to 1(a)
"Public interest" may cover a wide range of factors including the interest of consumers and
downstream producers of the imported product.  (Note:   Whilst at the same time taking into account
the need to promote competitive environment)
Reply to 1(b)
None
Reply to 1 (c)
None
QUESTIONS FROM THE UNITED STATES
Q1. The Countervailing and Anti-Dumping Duties (Amendment) Act 1998 (“1998
Amendments”) amends the definition of “interested parties” in section 2(1) of the Malaysian
Countervailing and Anti-Dumping Duties Act 1 993 (“1993 Act”) by adding a provision stating
that “any other party as the Government deems appropriate” may be treated as an “interested
party”.
(a) To what types of parties does Malaysia contemplate providing “interested party” status
pursuant to this provision?
(b) What criteria do the Malaysian anti-dumping and countervailing duty authorities use to
determine whether it is “appropriate” to gr ant interested party status to those parties
not automatically accorded such status under the 1993 Act?
Reply to 1(a)
To provide for parties such as end-users and processors of the subject merchandise.
Reply to 1(b)
Relationship of the parties to the investigation i. e. whether directly or indirectly affected by
the action.
Q2. The 1998 Amendments provide a new definition of the term “regional producers” which
specifies under what conditions the Malaysian anti-dumping and countervailing duty
authorities can engage in a regional industry analysis.  The definition does not require the
authorities to find that there is a concentratio n of dumped imports into the isolated regional
market and that the dumped imports are causing in jury to the producers of all or almost all of
the production within that market.  How is this consistent with Article 4.1(ii) of the ADAgreement and Art. 16.2 of the SCM Agreement?G/ADP/Q1/MYS/6
G/SCM/Q1/MYS/6
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Reply
The amendment only provides for the definition of "regional producers".  The new definition
of "domestic industry" has also included "regional producers".  In determining whether there is injuryto the region, factors stipulated under Article 4.1(ii) of the A-D Agreement and Article 16.2 of the
SCM Agreement will be taken into consideration.
Q3. The 1998 Amendments inserted a new section 38 into the 1993 Act.  New section 38(4) of
the 1993 Act ensures that the Malaysian anti-d umping and countervailing duty authorities will
provide all interested parties opportunities to see all relevant non-confidential information.
Does Malaysia also offer interested parties acce ss to confidential information pursuant to the
type of protective orders discussed in footnote 17 to Article 6.5 of the AD Agreement and
footnote 42 to Article 12.4 of the SCM Agreement?
Reply
Generally Malaysia does not provide such information.
Q4. Under Malaysian law, what effect do the Countervailing and Anti-dumping Duties
(Amendment) Regulations 1999 (“1999 Regulation s”) have?  Are the 1999 Regulations binding
on the Malaysian anti-dumping and countervailin g duty authorities?   Are the 1999 Regulations
accorded equal weight to the statutory provisions in the 1993 Act?
Reply
The 1999 Regulations is a subsidiary legislation to the parent Act, the Countervailing and
Anti-Dumping Duties Act 1993.  It is binding on the Malaysian Authorities.  The Regulations provide
for procedural matters whereas the Act contains the main framework of the AD/CVD law.  Both
should be read together.  However, in the case where there are inconsistencies, the Act will prevail.
Q5. (a) Under new Section 39(5) of the 1999 Regulations, the Minister will grant a
request for a meeting of parties with adverse interests in an anti-dumping
investigation only if he determines that there is a valid justification for themeeting.  How is this consistent with Art. 6.2 of the AD Agreement, which states
that authorities “ shall , on request, provide opportunities for all interested
parties to meet those parties with adverse interests” (emphasis added)?
(b) Similarly, new Section 39(4) of the 1999 Regulations states that any interested
party other than the one requestin g the meeting must provide a valid
justification to the Minister before it may be permitted to participate in the
meeting.  How is this consistent with Art. 6.2 of the AD Agreement?
Reply
The provisions are basically intended to focus on the objective of the request and not to
restrict the request.
Q6. Please clarify how the administering authority will calculate cost of production under
Regulation 26 in circumstances where the ex porter or producer of the subject merchandise
demonstrates its entitlement to an adjustment to such cost for “start-up operations”, as
reflected in Article 2.2.1.1 of the AD Agreement.G/ADP/Q1/MYS/6
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Reply
The calculation will be described in subsections 16(7) and 16(8) of the Act.
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