+------------------------------------------------+---------------------+
| **[World Trade]{.smallcaps}**                  |                     |
|                                                |                     |
| **[Organization]{.smallcaps}**                 |                     |
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|                                                |                     |
+------------------------------------------------+---------------------+
|                                                | **G/SC              |
|                                                | M/N/1/ZAF/2/Add.1** |
|                                                |                     |
|                                                | 21 April 2005       |
+------------------------------------------------+---------------------+
|                                                | (05-1648)           |
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|                                                |                     |
+------------------------------------------------+---------------------+
| **Committee on Subsidies**                     | Original: English   |
|                                                |                     |
| **and Countervailing Measures**                |                     |
+------------------------------------------------+---------------------+

NOTIFICATION OF LAWS AND REGULATIONS UNDER

ARTICLE 32.6 OF THE AGREEMENT

south africa

[Addendum]{.underline}

The following submission, dated 18 April 2005, is being circulated at
the request of the Delegation of South Africa.

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

Further to the requirement under the Agreement on Subsidies and
Countervailing Measures and in accordance with the related decision
adopted by the Committee established under the Agreement, I have the
honour to provide a copy of the Countervailing Regulations made by the
Minister of Trade and Industry on 30 March 2005. The Regulations were
published in *Government Gazette* No. 27475 of 15 April 2005 under
Notice R.356. This notification is an addendum to the Regulations in
South Africa's notification circulated under document G/SCM/N/1/ZAF/2 of
20 January 2004.

**REPUBLIC OF SOUTH AFRICA**

**THE INTERNATIONAL TRADE**

**ADMINISTRATION COMMISSION**

**OF SOUTH AFRICA**

**COUNTERVAILING REGULATIONS**

> **TABLE OF CONTENTS**

**Part A -- Definitions 5**

1\. Definitions 5

**Part B -- General Provisions 7**

2\. Confidentiality 7

3\. Investigations 7

4\. Representation 8

5\. Oral hearings 8

6\. Adverse party meetings 8

**Part C -- Procedures 9**

**Sub-Part I -- General 9**

7\. SACU industry 9

8\. Subsidies 10

9\. Countervailability of subsidies 11

10\. Subsidies not alleged in application 11

11\. Calculation of subsidy margin 11

12\. Margin of subsidy 13

13\. Material injury 13

14\. Threat of material injury 14

15\. Material retardation of the establishment of an industry 14

16\. Causality 14

17\. Level of countervailing duty 15

18\. Verifications 15

19\. Verification reports 16

20\. Deadlines 16

**Sub-Part II -- Pre-Initiation Procedure 16**

21\. Properly documented complaint 16

22\. Properly documented application 17

23\. Subsidy standard for initiation purposes 17

24\. Material injury standard for initiation purposes 17

25\. SACU industry verification 17

26\. Merit assessment 17

27\. Notification 17

28\. Initiation 18

**Sub-Part III -- Preliminary Investigation Phase 18**

29\. Responses by interested parties 18

30\. Extensions for submission 19

31\. Deficiencies 19

32\. Non-cooperation by exporters or foreign producers 19

33\. Provisional measures 20

34\. Preliminary report 20

**Sub-Part IV -- Final Investigation Phase 20**

35\. Comments on preliminary report 20

36\. Extension of validity of provisional measures 21

37\. Essential facts 21

38\. Definitive countervailing duties 21

39\. Price undertakings 21

**Part D -- Reviews 22**

**Sub-Part I -- General 22**

40\. Notification 22

41\. Initiation 22

42\. Responses by interested parties 22

43\. Essential facts 23

**Sub-Part II -- Interim Reviews 23**

44\. Time frame 23

45\. Changed circumstances 23

46\. Review procedure 23

47\. Final recommendation 23

**Sub-Part III -- New Shipper Reviews 24**

48\. Eligibility 24

49\. Information required 24

50\. Suspension of countervailing duties 24

51\. Review procedure 24

52\. Final recommendation 25

**Sub-Part IV -- Sunset Reviews 25**

53\. Duration of countervailing duties 25

54\. Initiation of sunset review 25

55\. Notification 25

56\. Review procedure 26

57\. Information required 26

58\. Non-cooperation 26

59\. Final recommendation 26

**Sub-Part V -- Anti-Circumvention Reviews 26**

60\. Circumvention 26

61\. Information required 28

62\. Review procedure 28

63\. Final recommendation 29

**Sub-Part VI -- Judicial Reviews 29**

64\. Judicial review of preliminary determination 29

**Sub-Part VII -- Refunds 29**

65\. Applications for refunds 29

66\. Refunds following interim reviews 30

**Part E -- Final Provisions 30**

67\. Delegation 30

68\. Transitional application 30

**DRAFT REGULATIONS**

**Part A - Definitions**

**1. Definitions**

**"Commission"** means the International Trade Administration Commission
of South Africa established in terms of section 7 of the International
Trade Administration Act, 2002 (Act No. 71 of 2002).

**"Countervailing measure"** shall be understood to mean a special
measure imposed for the purpose of offsetting any subsidy bestowed
directly or indirectly upon the manufacture, production or export of any
merchandise.

**"Deadlines"** shall be interpreted as the final date for submissions,
responses, comments and requests and the like as envisaged by the
different sections of these Regulations, and shall be deemed to be at
15h00 South African standard time on the deadline indicated, unless
expressly otherwise indicated.

**"Facts available"** means the information that is available to the
Commission at the time of making a determination, whether preliminary or
final, and which has been verified or is verifiable, provided that all
requirements regarding non-confidentiality and timely submission have
been met.

**"Good cause"** for an extension of the submission of information, as
referred to in sections 19.3, 30.1, 35.2, 37.3, 42.4 and 43.3, does not
include merely citing insufficient time to complete a response to the
Commission's questionnaires;

**"Government"** includes government at any level, and any public body;

**"Interested parties"** are parties that have a direct interest in an
investigation and may include known --

\(a\) producers in SACU

\(b\) exporters;

\(c\) foreign producers;

\(d\) importers;

\(e\) trade or business associations whose members are SACU or foreign
producers, exporters or importers; and/or

\(f\) the governments of the countries of origin and of export;

of the product under investigation or the like product. This does not
preclude the Commission from accepting other parties as interested
parties at the behest of the Commission in a countervailing
investigation.

**"Investigation period for subsidies"** is the period for which it is
assessed whether the exports from the country under investigation
benefited from subsidies. This period shall normally be 12 months, and
may be more, but in no case less than 6 months, and shall normally be a
period ending not more than 6 months before the initiation of the
investigation. The investigation period for subsidies shall be clearly
indicated in the initiation notice published in the *Government
Gazette*.

**"Investigation period for injury"** is the period for which it is
assessed whether the SACU industry experienced material injury. This
period shall normally cover a period of three years plus information
available on the current financial year at the date that the application
was submitted, but may be determined by the Commission as a different
period provided that the period is sufficient to allow for a fair
investigation. The investigation period for injury shall be clearly
indicated in the initiation notice published in the *Government
Gazette*.

**"Lesser duty"** means the provisional payment or countervailing duty
imposed at the lesser of the subsidy margin or the margin of injury, and
which is deemed to be sufficient to remove the injury caused by the
subsidised exports.

**"Like product"** means --

\(a\) a product which is identical, i.e. alike in all respects to the
product under consideration, or

\(b\) in the absence of such a product, another product which, although
not alike in all respects, has characteristics closely resembling those
of the product under consideration.

**"Main Act"** refers to the International Trade Administration Act,
2002 (Act No. 71 of 2002);

**"Margin of subsidy"** is the extent of the subsidies paid by or on
behalf of the government in such exporting country or in the country of
origin and related to the product under investigation or to an input
used in the production of the product under investigation;

**"Material injury"**, unless the opposite is clear from the context,
refers to actual material injury, a threat of material injury or the
material retardation of the establishment of an industry;

**"Price depression"** takes place where the SACU industry's ex-factory
selling price decreases during the investigation period;

**"Price disadvantage"** is the extent to which the price of the
imported product is lower than the unsuppressed selling price of the
like product produced by the SACU industry, as measured at the
appropriate point of comparison;

**"Price suppression"** takes place where the cost-to-price-ratio of the
SACU industry increases, or where the SACU industry sells at a loss
during the investigation period or part thereof;

**"Price undercutting"** is the extent to which the price of the
imported product is lower than the price of the like product produced by
the SACU industry, as measured at the appropriate point of comparison;

**"SACU"** means the Southern African Customs Union;

**"SACU industry"** means the domestic producers in the SACU as a whole
of the like product or those of them whose collective output of the
product constitutes a major proportion of the total domestic production
of those products;

**"Unsuppressed selling price"** is the price at which the SACU industry
would have been able to sell the like product in question in the absence
of subsidised exports.

**Part B -- General Provisions**

**2. Confidentiality**

2.1 Interested parties providing confidential information in any
correspondence shall furnish non‑confidential summaries thereof. These
summaries shall --

\(a\) indicate in each instance where confidential information has been
omitted;

\(b\) indicate in each instance the reasons for confidentiality; and

\(c\) be in sufficient detail to permit other interested parties a
reasonable understanding of the substance of the information submitted
in confidence.

2.2 Where information does not permit summarisation reasons should be
provided why the information cannot be summarised.

2.3 The following list indicates "information that is by nature
confidential" as per section 33(1)(a) of the Main Act, read with section
36 of the Promotion of Access to Information Act, 2000 (Act 2 of 2000):

\(a\) management accounts;

\(b\) financial accounts of a private company;

\(c\) actual and individual sales prices;

\(d\) actual costs, including cost of production and importation cost;

\(e\) actual sales volumes;

\(f\) individual sales prices;

\(g\) information, the release of which could have serious consequences
for the person that provided such information; and

\(h\) information that would be of significant competitive advantage to
a competitor;

provided that the party submitting such information indicates it to be
confidential.

2.4 All correspondence not clearly indicated to be confidential shall be
treated as non-confidential.

2.5 The Commission may disregard any information indicated to be
confidential that is not accompanied by a proper non-confidential
version and will return such information to the party submitting same,
if this deficiency has not been addressed in accordance with the
provisions of section 31.

2.6 The Commission will disregard any information indicated to be
confidential that is not accepted as confidential by the Commission
under section 34(1) of the Main Act and will return such information to
the party submitting the same.

**3. Investigations**

3.1 A countervailing investigation shall only be initiated upon
acceptance of a properly documented application by or on behalf of the
SACU industry, except as provided for in subsection 3.

3.2 An interim, new shipper, anti-circumvention or sunset review shall
be initiated upon a written application by or on behalf of an interested
party, except as provided for in subsection 3.

3.3 The Commission may initiate an investigation mentioned in subsection
1 or a review mentioned in subsection 2 without having received a
written application from the relevant interested party. In such cases
the Commission shall proceed only if it has sufficient evidence of, or
of a significant change in circumstances relating to, subsidised
exports, material injury and a causal link to justify the initiation of
such investigation or review. A non-confidential version of the
information shall be made available to all known interested parties.

3.4 Prior to initiation of an investigation, a notification must be
forwarded to the foreign country inviting it to consultations to discuss
the alleged subsidies, to determine whether any other subsidies are
applicable and to seek a mutually agreeable solution.

**4. Representation**

4.1 Should any of the interested parties wish to be represented by an
outside party in an investigation or a review the interested party must
provide the Commission with a letter of appointment of its
representative, detailing the identity of the representative and the
scope and duration of the representation.

4.2 Should any interested party wish to terminate a representation
indicated in subsection 1, such party must provide the Commission with a
letter to this effect.

4.3 Once an interested party has appointed a representative all
communication between the Commission and the interested party will take
place through the appointed representative.

**5. Oral hearings**

5.1 Any interested party may request an oral hearing during the
preliminary and/or final investigation phases of an investigation,
provided the party indicates reasons for not relying on written
submissions only. The Commission may refuse an oral hearing if granting
such hearing will unduly delay the finalisation of a preliminary or
final determination.

5.2 No request for an oral hearing will be considered more than 30 days,
and no oral hearing will be heard more than 60 days, after the
publication of the Commission's preliminary finding.

5.3 All information presented during an oral hearing shall be reduced to
writing and a non-confidential version will be placed on the public
file.

5.4 Parties requesting an oral hearing shall provide the Commission with
a detailed agenda for, and a detailed version, including a
non-confidential version, of the information to be discussed at the oral
hearing at the time of the request.

5.5 The Commission may limit the duration of the oral hearing. Any such
limitation must be communicated to the party requesting a hearing at the
same time that the Commission indicates the date for such hearing.

5.6 The Commission may limit or add to the agenda contemplated in
subsection 4.

**6. Adverse party meetings**

6.1 Any interested party may request an adverse party meeting during the
preliminary and/or final investigation phases of an investigation,
provided the party indicates reasons for not relying on written
submissions only. The Commission may refuse an adverse party meeting if
granting such meeting will unduly delay the finalisation of a
preliminary or final determination.

6.2 No request for an adverse party meeting will be considered more than
30 days, and no adverse party meeting will be held more than 60 days,
after the publication of the Commission's preliminary finding.

6.3 All interested parties that have cooperated during the investigation
shall be invited to attend the adverse party meeting. All parties so
invited shall be granted 7 days to indicate whether they will attend the
adverse party meeting.

6.4 All information presented during an adverse party meeting shall be
reduced to writing and a non-confidential version will be placed on the
public file.

6.5 Parties requesting an adverse party meeting shall provide the
Commission with a detailed agenda for and a detailed version, including
non-confidential version, of the information to be discussed at the
adverse party meeting at the time of the request. The Commission will
make the agenda available to other interested parties for comments and
additions. The Commission will make the final agenda available in
advance to all parties attending the adverse party meeting at least 7
days prior to such meeting taking place.

6.6 The Commission may limit or add to the topics to be covered during
the oral hearing and may structure the meeting as it deems efficient.

6.7 The Commission may limit the duration of the adverse party meeting.
Any such limitation must be communicated to all parties attending the
meeting when the date for the meeting is finalised.

6.8 In adverse parties meetings account shall be taken of the need to
preserve confidentiality and of convenience to the parties. Confidential
information may be submitted in camera, but a non-confidential version
of such confidential information shall be made available to other
interested parties.

6.9 There shall be no obligation on any party to attend a meeting, and
failure to do so shall not be prejudicial to that party's case.

**Part C -- Procedures**

**Sub-Part I -- General**

**7. SACU industry**

7.1 Other than investigations initiated in terms of section 3.3, any
application for countervailing action shall be brought by or on behalf
of the SACU industry.

7.2 Where a SACU producer is --

(a)related to the importer, exporter or the foreign producer; or

\(b\) itself an importer of the products under investigation,

the term "SACU industry" may be interpreted as referring to the rest of
the SACU producers.

7.3 An application shall be regarded as brought by or on behalf of the
SACU industry if --

\(a\) at least 25 per cent of the SACU producers by domestic production
volume support the application; and

\(b\) of those producers that express an opinion on the application,
more than 50 per cent by domestic production volume support such
application.

7.4 In the case of industries involving an exceptionally large number of
producers, the Commission may determine support and opposition by
reference to the largest number of producers that can be reasonably
included in the investigation or by using statistically valid sampling
techniques based on the information available to the Commission at the
time of its finding.

7.5 If a SACU producer withdraws the application or its support thereof
after the investigation has been initiated, the Commission may --

\(a\) terminate the investigation; or

\(b\) disregard the withdrawal of support and continue with its
investigation as if all requirements in subsections 1, 2 and 3 have been
met.

**8. Subsidies**

8.1 For the purpose of these regulations, a subsidy shall be deemed to
exist if --

\(a\) there is a financial contribution by a government at any level or
any public body within the territory of an exporting country; i.e.
where:

\(i\) a government practice involves a direct transfer of funds, (e.g.
grants, loans and equity infusion) potential direct transfers of funds
or liabilities (e.g. loan guarantees);

\(ii\) government revenue that is otherwise due is foregone or not
collected (e.g. fiscal incentives such as tax credits);[^1]

\(iii\) a government provides goods or services other than general
infrastructure, or purchases goods;

\(iv\) a government makes payments to a funding mechanism, or entrusts
or directs a private body to carry out one or more of the type of
functions illustrated in (i) to (iii) above which would normally be
vested in the government and the practice, in no real sense, differs
from practices normally followed by governments; or

\(b\) there is any form of income or price support by government; and

\(c\) a benefit is thereby conferred.

8.2 For the purposes of subsection 1, the territory of a country shall
include any area set aside as an export processing or development zone
and other similar areas.

**9. Countervailability of subsidies**

9.1 A subsidy shall be countervailable only if:

\(a\) such subsidy is specific, i.e. if the granting authority
explicitly limits access to a subsidy to an enterprise or industry or
group of enterprises or industries, or if the Commission finds in fact
that the subsidy is used by a limited number of enterprises or
industries or a disproportionately large amount of the subsidy is
granted to a limited number of enterprises or industries \[certain
enterprises or industries\]; and

\(b\) it causes material injury to the SACU industry producing the like
product.

9.2 An export subsidy shall be deemed to be a specific subsidy
regardless of whether the subsidy has explicitly or in fact been made
contingent upon export performance.

9.3 Where a subsidy may in fact be specific under the provisions of
paragraph (a) of subsection 9.1, the Commission shall take account of
the extent of economic diversification in the jurisdiction of the
granting authority and the length of time during which the subsidy
programme has been in operation.

9.4 A countervailing measure may only be imposed if the subsidy is one
per cent or more of the invoiced export price.

9.5 In the case of developing countries, the reference to "one per cent"
in subsection 3 shall be understood to be "two percent".

9.6 All subsidies shall be cumulated before a determination whether the
total subsidy exceeds the de minimis standard, as contemplated in
subsections 3 and 4, is made.

**10. Subsidies not alleged in application**

The Commission shall be entitled to take into account and add up any or
all subsidies found during the course of the investigation even if the
SACU industry has not alleged the existence of such subsidy in the
application.

**11. Calculation of subsidy margin**

11.1 The calculation of the subsidy margin shall take cognisance of the
time value of money.

11.2 For the purposes of determining the margin of each individual
subsidy, the Commission may take into account the following:

*(a) Grants*

Grants can be made in several different ways, including, but not limited
to, equity infusion, the conversion of a loan into equity or by waiver
of a debt due to agreement. The determination of the amount of subsidy
countervailable in a particular year shall provide for the time value of
money and shall include reference to the amount originally paid, the
number of years that have lapsed since the grant was paid, the average
life cycle of the plant or equipment and the interest rate payable in
the country of origin.

*(b) Loans*

Loans by the government at market equivalent rates shall not be deemed
to be a subsidy, but the advantage gained through loans made under
circumstances that loans would not normally be granted, or the lesser
amount of interest paid or payable if loans are made at preferential
rates shall be deemed to be subsidy. In the determination of the amount
of subsidy countervailable in a particular year the Commission shall
consider the time value of money and include reference to the original
amount of the loan, the number of years that have lapsed since the grant
was paid, the average life cycle of the plant or equipment, the interest
rate payable on the loan and the market interest rate applicable in the
country of origin.

*(c) Foregoing of revenue*

In the determination of the amount of subsidy countervailable in a
particular year the Commission shall take cognisance of any revenue due
to the government of the exporting country that was foregone by such
government and the products to which such revenue pertains.

*(d) Tax holidays and rebates*

Non-payment of corporate tax on export earnings is a prohibited subsidy
and actionable except for developing countries listed in Annex VII of
the Subsidies Agreement. In its determination of the margin of subsidy
the Commission shall consider the company's export earnings for the
period under review and the corporate tax rate in that country. In its
determination of the margin of subsidy regarding a tax holiday the
Commission shall take cognisance of the amount of tax paid vis-à-vis the
amount payable in the absence of such tax holiday, and the products to
which such tax holiday applies.

*(e) Input subsidies*

An input subsidy is a subsidy paid on an input cost of a product that is
subsequently exported. In its determination of the margin of subsidy the
Commission shall consider the effect of the input subsidy on the cost or
price of the product under investigation.

*(f) Over-reimbursement of customs duties*

Over-reimbursement of customs duties occurs where a manufacturer imports
raw materials that are used in the manufacture of final products that
are exported and the duty paid on importation is over-reimbursed, or
where the exporter cannot provide proof that the imported product, on
which reimbursement was claimed, is actually incorporated in the
exported product. In its determination of the margin of subsidy the
Commission shall consider of the amount of customs duty payable and that
rebated and/or refunded.

*(g) Preferential interest rates for export purposes*

If interest rates lower than those prevailing in the market are granted
to a company by the government or a public body at the behest of the
government it will be regarded as a subsidy. In its determination of the
margin of subsidy the Commission shall consider the interest rate
payable on domestic and export markets, the original amount of the loan
and the value of the product exported.

*(h) Other subsidies*

The Commission will determine the margin or amount of subsidy for any
subsidy not indicated under subparagraphs (a) through (f) with reference
to the facts pertaining to each such subsidy, taking cognisance of --

\(i\) the time value of money;

\(ii\) the duration of the subsidy;

\(iii\) whether the subsidy is linked to exports or to all sales or
production; and

\(iv\) any other relevant information at the Commission's disposal.

**12. Margin of subsidy**

The Commission shall determine the margin of each individual subsidy,
including those not listed under paragraph 2 of section 11, with
reference to either the cost to government or the benefit to the
recipient thereof.

**13. Material injury**

131.1 In determining material injury to the SACU industry the Commission
shall consider whether there has been a significant depression and/or
suppression of the SACU industry's prices.

13.2 In its determination of material injury the Commission shall
further consider whether there have been significant changes in the
domestic performance of the SACU industry in respect of the following
potential injury factors:

\(a\) sales volume;

\(b\) profit and loss;

\(c\) output;

\(d\) market share;

\(e\) productivity;

\(f\) return on investments;

\(g\) capacity utilisation;

\(h\) cash flow;

\(i\) inventories;

\(j\) employment;

\(k\) wages;

\(l\) growth;

\(m\) ability to raise capital or investments;

\(n\) whether there has been an increased burden on the Government's
support programmes; and

\(o\) any other relevant factors placed before the Commission.

This list is not exhaustive nor can one or several of these factors
necessarily give decisive guidance.

13.3 The Commission may require any additional information on injury
from the SACU industry at any stage during an investigation.

13.4 Each of the factors mentioned in subsections 1 and 2 shall be
considered for the product under investigation only or, where such
analysis is not possible, for the narrowest group of products for which
such analysis can be made. Only if no such information is available will
the Commission consider the information for the company as a whole, and
then with special circumspection.

**14. Threat of material injury**

14.1 A determination of threat of material injury shall be based on
facts and not merely on allegation, conjecture or remote possibility.
The change in circumstances which would create a situation in which
subsidised exports would cause material injury must be clearly foreseen
and imminent.

14.2 In considering a threat of material injury the Commission shall, in
addition to the factors indicated under section 13, and where relevant
information is available, consider such factors as:

\(a\) The nature of the subsidy or subsidies in question and the trade
effects likely to arise therefrom;

\(b\) a significant rate of increase of subsidised imports into the
domestic market of the SACU;

\(c\) sufficiently freely available, or an imminent substantial increase
in, capacity of the exporter;

\(d\) the availability of other export markets to absorb additional
export volumes;

\(e\) whether products are entering or will be entering the SACU market
at prices that will have a significant depressing or suppressing effect
on SACU prices; and

\(f\) the exporter's inventories of the product under investigation.

**15. Material retardation of the establishment of an industry**

15.1 No investigation shall be initiated on the basis of the material
retardation of the establishment of an industry unless the industry or
proposed industry has supplied the Commission with a comprehensive plan
indicating the establishment of such industry in the absence of
subsidised exports.

15.2 The Commission may request a provisional payment or recommend a
countervailing duty where the establishment of such industry is
materially retarded by subsidised imports.

15.3 If significant progress has not been made to establish an industry
as proposed in subsection 2 within one year following the imposition of
a countervailing duty, the Commission may recommend that the
countervailing duty be withdrawn.

**16. Causality**

16.1 In considering whether there is a causal link between the
subsidised exports and the material injury the Commission shall consider
all relevant factors, including, but not limited to:

\(a\) the change in the volume of subsidised imports, whether absolute
or relative to the production or consumption in the SACU market;

\(b\) the price undercutting experienced by the SACU industry vis-à-vis
the imported products;

\(c\) the market share of the subsidised imports;

)d) the magnitude of the margin of subsidisation; and

\(e\) the price of fairly traded imports available in the market.

16.2 The volume of exports from a country shall normally be regarded as
negligible if the volume of imports for the like product from that
country is found to account for less than three per cent of the total
imports of the like product into the SACU market, unless countries which
individually account for less than three per cent of the total imports
of the like product into the SACU market for the like product
collectively account for more than seven per cent of the total imports
of the like product into the SACU market.

16.3 The Commission may cumulatively assess the effect of the subsidised
imports only if it finds that cumulation is appropriate in light of --

\(a\) competition between imports from the different countries; and

\(b\) competition between the imported products and the SACU like
products;

and if

\(c\) the imports from the countries are not negligible as contemplated
in subsection 3; and

\(d\) the margin of subsidy is one per cent or more when expressed as a
percentage of the export price.

16.4 Notwithstanding the provisions of subsection 3, the Commission may
cumulate subsidised and dumped imports that are under investigation at
the same time, provided the conditions contemplated in subsection 3 are
met mutatis mutandis.

16.5 The Commission shall determine whether there is a causal link
between subsidised exports and the material injury determined under
section 13.

16.6 The Commission shall consider all relevant factors other than
subsidised imports that may have contributed to the SACU industry's
injury provided that an interested party has submitted, or the
Commission otherwise has, information on such factor or factors. The
injury caused by such other factors shall not be attributed to the
subsidised imports. Factors that may be relevant in this respect
include, but are not limited to --

\(a\) the volume and prices of imports not sold at subsidised prices;

\(b\) contraction in demand or changes in the patterns of consumption;

\(c\) trade restrictive trade practices of and competition between the
foreign and SACU producers;

\(d\) developments in technology;

\(e\) other factors affecting the SACU prices;

\(f\) the industry's export performance; and

\(g\) the productivity of the SACU industry.

**17. Level of countervailing duty**

17.1 The Commission shall consider applying the lesser duty rule if both
the corresponding importer and exporter have cooperated fully.

17.2 The Commission, in determining the level of the countervailing
duty, shall ensure that a product is not subject to both countervailing
and anti-dumping duties to compensate for the same situation of dumping
or export subsidisation.

**18. Verifications**

18.1 The Commission shall satisfy itself as to the accuracy of the
information supplied by cooperating interested parties.

18.2 The Commission may conduct such verifications at the SACU producers
and at cooperating importers, exporters, foreign producers and foreign
governments as it may deem necessary.

18.3 In the event that an importer, exporter, foreign producer or
foreign government refuses to receive a verification visit by the
Commission, refuses the Commission access to relevant information or
acts so as to significantly impede the investigation, the Commission may
disregard the information submitted by that party.

18.4 Where a party --

\(a\) fails to supply relevant substantiating evidence required by
investigating officers during a verification;

\(b\) fails to explain any calculations contained in its submissions; or

\(c\) otherwise fails to cooperate during the investigation process;

the Commission may terminate the verification proceedings and the
Commission may disregard any or all information submitted by the party
in question. The Commission may nevertheless consider information that
was properly submitted and verified.

18.5 The Commission shall inform the government of the country concerned
of the dates of the intended verification visit and shall conduct the
verification on those dates unless that government objects to the
verification.

18.6 Where the government of the country concerned objects to the
Commission's verification the Commission may make a preliminary or final
decision based on the facts available, and may exclude any information
submitted by any party in that country.

**19. Verification reports**

19.1 Following an exporter, foreign producer or foreign government
verification the Commission shall make a verification report available
to the company or country in question, as the case may be, indicating
all information verified. In cases where verification took place prior
to the Commission's preliminary determination, such verification report
shall normally be made available before the Commission's preliminary
finding.

19.2 The Commission will place a copy of the non-confidential
verification report on the public file prior to its preliminary
determination, if the verification took place prior to the preliminary
determination.

19.3 Parties will receive 7 days to comment on the verification report.
The Commission may grant an extension upon good cause shown.

**20. Deadlines**

All investigations and reviews shall be finalised within 18 months after
initiation.

**Sub-Part II -- Pre-Initiation Procedure**

**21. Properly documented complaint**

21.1 Written complaints shall be made by or on behalf of the SACU
industry using the Commission's relevant questionnaire.

21.2 On receipt of a complaint the Commission's trade remedies unit
shall liase with the SACU industry to ensure that all required
information has been submitted in the required format.

**22. Properly documented application**

22.1 In determining whether a complaint submitted in terms of section 21
constitutes a properly documented application the Commission shall
determine whether the application includes such information as is
reasonably available to the applicant relating to the prescribed
information.

22.2 The Commission will return all applications that are not properly
completed to the applicant.

**23. Proof of subsidy standard for initiation purposes**

23.1 The applicant shall submit such information as is reasonably
available on each subsidy programme alleged.

23.2 For the purpose of subsection 1, a copy of the official publication
citing the relevant subsidy programme, newspaper reports, a copy of a
previous finding by the Commission in respect of a particular subsidy,
and the like, shall be considered a *prima facie* proof of the existence
of a countervailable subsidy.

23.3 The applicant shall provide the Commission with a reasonable
calculation of the extent of each alleged subsidy, as well as the
alleged total margin of subsidisation.

**24. Material injury standard for initiation purposes**

In determining material injury to a SACU industry the Commission shall
consider whether the information submitted in this regard and relating
to the factors listed in section 13 indicates a *prima facie* case of
material injury.

**25. SACU industry verification**

The Commission shall satisfy itself of the accuracy and adequacy of the
information provided in the application. Deficiencies or inaccuracies
that do not detract from the *prima facie* establishment of a case of
injurious subsidised exports shall not result in any delay in initiating
an investigation.

**26. Merit Assessment**

26.1 In its merit assessment the Commission shall determine whether
there is sufficient information to establish a *prima facie* case that
subsidised exports are causing material injury to the SACU industry.

26.2 In the event that the Commission makes a negative merit assessment
it shall inform the applicant concerned accordingly and supply it with a
full set of reasons for its decision.

26.3 The Commission may grant the SACU industry an oral hearing to
discuss the reasons for rejecting an application if the applicant so
requests.

**27. Notification**

27.1 The Commission shall notify the representative of the country of
origin and of export, where applicable, that it has received a properly
documented application in terms of section 22, after verification of the
SACU industry's injury information, but prior to initiation, and shall
provide such representative with a non-confidential version of the
application.

27.2 Except as provided for in subsection 1, the Commission shall not
publicise the application prior to the initiation of an investigation.

27.3 Following the notification contemplated in subsection 1, the
Commission shall invite the foreign country to consultations with the
Commission regarding the alleged subsidy programmes.

**28. Initiation**

28.1 An investigation shall be formally initiated through publication of
an initiation notice in the *Government Gazette*.

28.2 The initiation notice shall contain the basis of the alleged
subsidised exports, material injury and causality, and shall also
indicate at least the following:

\(a\) the identity of the applicant;

\(b\) a detailed description of the product under investigation,
including the tariff subheading applicable to the product;

\(c\) the country or countries under investigation;

\(d\) the investigation periods for injury and subsidised exports;

\(e\) the basis of the allegation of subsidised exports;

\(f\) a summary of the factors on which the allegation of injury is
based;

\(g\) the address to which representations by interested parties should
be directed; and

\(h\) the time frame for responses by interested parties.

28.3 If the Commission, during its investigation, finds that the subject
product is imported under a tariff subheading not initially indicated to
be in the scope of the investigation, it may include the imports of such
subject product in its injury analysis.

28.4 All interested parties shall be deemed to have received notice of
the investigation once it has been duly initiated in terms of subsection
1 and no extension for deadlines, as contemplated in section 30, shall
be considered on the basis of ignorance of the investigation.

28.5 The Commission shall inform all known interested parties of the
initiation of the investigation and supply them with all relevant
documentation, unless the number of interested parties makes it
impracticable.

**Sub-Part III -- Preliminary Investigation Phase**

**29. Responses by interested parties**

29.1 Importers, exporters and foreign producers are required to use the
relevant Commission questionnaires in their responses to the Commission.

29.2 Parties shall be deemed to have received the questionnaires 7 days
after the dispatch of the questionnaires by the Commission.

29.3 From receipt of the questionnaires, as contemplated in subsection
2, parties shall receive 30 days to submit their responses to the
Commission. Such responses must reach the Commission's trade remedies
unit before 15h00 on the date indicated.

29.4 The deadline for submission by parties not directly informed of the
investigation by the Commission will be 40 days from the date of the
initiation of such investigation in the *Government Gazette*.

29.5 All submissions shall be made in both hard copy and in electronic
format, unless the Commission has agreed otherwise in writing. Failure
to comply with this provision may result in the submission being
regarded as deficient.

**30. Extensions for submissions**

30.1 The Commission may grant parties an extension on good cause shown.

30.2 Any extension granted in terms of subsection 1 will apply only to
the party to which such extension was granted, and will not apply to
other interested parties.

**31. Deficiencies**

31.1 Submissions may be deemed deficient --

\(a\) If any relevant information has not been submitted;

\(b\) If a proper non-confidential version has not been submitted; or

\(c\) In the circumstances contemplated in section 29.5.

31.2 Parties will receive 7 days from the date of the Commission's
deficiency letter to address any deficiencies pointed out by the
Commission in terms of subsection 1.

31.3 The Commission will not consider submissions that are deficient
after the deadline contemplated in subsection 2 for the purpose of its
preliminary finding.

**32. Non-cooperation by exporters or foreign producers**

32.1 In the event that no exporter or producer from a particular country
cooperates in a countervailing investigation by the deadline
contemplated in sections 29 or 30, the Commission may, subject to the
requirements of section 33.1, immediately request the imposition of a
provisional payment on the basis of the facts available.

32.2 In the event that one or more exporters or producers in a
particular country cooperates while other exporters or producers do not
cooperate, the Commission, for the purpose of the non-cooperating
exporters or producers, may base its preliminary decision on the best
information available, as provided for in subsection 5.

32.3 In order to expedite proceedings, the Commission may split
investigations between cooperating and non-cooperating exporters.

32.4 In the event that an exporter has submitted an incomplete or
otherwise deficient submission by the deadline contemplated in sections
29, 30 and 31, the Commission will disregard its information for the
purpose of its preliminary finding.

32.5 In cases of non-cooperation by an exporter facts available may
include, in any order, -

\(a\) the information on subsidies obtained from or at another seller or
sellers in that market;

\(b\) the information contained in the application; and/or

\(c\) any other information at the Commission's disposal;

Provided the Commission has, where practicable, checked the information
from other independent sources at its disposal.

**33. Provisional measures**

33.1 Provisional measures may not be imposed within less than 60 days
after initiation of an investigation.

33.2 Provisional measures will be imposed for a period of not more than
four months.

33.3 The Commission may determine the level of provisional payments
against non-cooperating parties as set out in section 32.2.

**34. Preliminary report**

34.1 The Commission shall make available a non-confidential report
within seven days of the publication of its preliminary finding.

34.2 The preliminary report shall contain at least the following
information:

\(a\) identity of the applicant;

\(b\) a full description of the product under investigation;

\(c\) date of the Commission's decision to initiate the investigation;

\(d\) initiation date and notice number;

\(e\) date of the Commission's preliminary findings on subsidisation and
injury;

\(f\) the margin of subsidisation found in respect of each subsidy;

\(g\) the methodology used by the Commission to determine the margin of
subsidisation;

\(h\) the injury factors considered;

\(i\) the causality factors considered;

\(j\) the Commission's finding; and

\(k\) while preserving the requirements of confidentiality, all relevant
issues of fact and law considered by the Commission in reaching its
preliminary determination.

**Sub-Part IV -- Final Investigation Phase**

**35. Comments on preliminary report**

35.1 All interested parties shall receive 14 days, from the date the
preliminary report is made available, to comment in writing.

35.2 The Commission may grant parties an extension on good cause shown.

35.3 Any request for an extension to the deadline contemplated in
subsections 1 and 2 shall be requested in writing at least 7 days prior
to such deadline and shall contain a proper motivation for the request.

35.4 Other than as contemplated in subsection 5, the Commission will not
accept new information following its preliminary finding.

35.5 Parties that have submitted deficient responses, as contemplated in
section 31, and that have addressed the deficiencies prior to the
deadline indicated in section 32 of this section, shall be deemed
cooperating parties and the Commission will consider their information
in its final finding, subject to the provisions of section 36 and the
requirement to finalise an investigation timely.

**36. Extension of validity of provisional measures**

The validity of a provisional countervailing measure may not be
extended.

**37. Essential facts**

37.1 All interested parties will be informed of the essential facts to
be considered by the Commission, provided there has been a change in the
facts to be considered since the Commission issued its preliminary
determination.

37.2 All interested parties will receive 7 days to comment on the
essential facts.

37.3 The Commission may grant parties an extension on good cause shown.

37.4 The Commission will take all relevant comments on the essential
facts into consideration in its final finding.

**38. Definitive countervailing duties**

38.1 Definitive countervailing duties will remain in place for a period
of five years from the date of the publication of the Commission's final
recommendation unless otherwise specified or unless reviewed prior to
the lapse of the five-year period.

38.2 Definitive countervailing duties may be imposed with retroactive
effect as provided for in terms of the Customs and Excise Act, 1964 (Act
No 91 of 1964).

38.3 Where parties have not properly cooperated in a investigation, the
Commission may base its final finding for such parties on the facts
available and may determine the level of the countervailing measure on
such facts available.

**39. Price undertakings**

39.1 Proceedings may be suspended or terminated following the receipt of
a satisfactory price undertaking under which --

\(a\) the government of the exporting country agrees to eliminate or
limit the subsidy or take other measures concerning its effect; or

\(b\) the exporter agrees to revise its prices or to cease exports to
the SACU at subsidised prices so that the Commission is satisfied that
subsidised exports or the injurious effect thereof is eliminated,

provided the Commission has made at least a preliminary determination in
the matter.

39.2 The Commission may decide on the information to be submitted in
respect of the offering and maintenance of undertakings and may
terminate an undertaking if the conditions are not met.

39.3 Undertakings need not be accepted if the Commission considers their
acceptance impractical, e.g. where the number of exporters is too great,
or for other reasons, including reasons of general policy.

39.4 In cases where an undertaking is violated the Commission may take
expeditious action against such exporter, including the immediate
request to the Commissioner for the South African Revenue Service to
impose provisional payments.

**Part D -- Reviews**

**Sub-Part I -- General**

**40. Notification**

40.1 Other than as provided for in section 55 in respect of sunset
reviews, the government of the country concerned shall be notified of
the review as soon as a properly documented review application has been
received.

40.2 The government of the country concerned and all other known
interested parties shall be supplied with all the relevant
non-confidential information as soon the review in question has been
initiated through publication in the *Government Gazette*.

40.3 On receipt of a properly documented review application a
notification must be forwarded to the foreign country inviting it to
consultations to discuss the alleged subsidies, to determine whether any
other subsidies are applicable and to seek a mutually agreeable
solution.

**41. Initiation**

41.1 All reviews shall be initiated through notice in the *Government
Gazette*. Such notice shall indicate the following minimum information:

\(a\) the identity of the applicant;

\(b\) the product under consideration;

\(c\) the investigation periods for subsidisation and injury,
respectively;

\(d\) the scope of the review;

\(e\) the current countervailing measures in place; and

\(f\) a summary indicating the basic information on which the review is
based.

41.2 For sunset reviews the provisions regarding the initiation of
sunset reviews as contemplated in section 56 shall apply in addition to
the provisions indicated in subsection 1.

**42. Responses by interested parties**

42.1 All interested parties are required to use the relevant Commission
questionnaires in their responses.

42.2 Parties shall be deemed to have received the questionnaires 7 days
after the dispatch of the questionnaires by the Commission.

42.3 From receipt of the questionnaires, as contemplated in subsection
2, parties shall receive 30 days to submit their responses to the
Commission.

42.4 The Commission may grant parties an extension on good cause shown.

**43. Essential facts**

43.1 All interested parties will be informed of the essential facts to
be considered in the Commission's final determination.

43.2 All parties will receive 14 days from the dispatch of the essential
facts letter to comment thereon.

43.3 The Commission may grant parties an extension on reasonable grounds
shown.

43.4 In its final determination the Commission will consider all
relevant comments on the essential facts letter made by cooperating
interested parties, provided such comments are received by the deadline
contemplated in subsections 2 and 3.

**Sub-Part II-- Interim reviews**

**44. Time frame**

The Commission will not normally consider an application for an interim
review sooner than 12 months after the publication of its final finding
in the original investigation or the previous review.

**45. Changed circumstances**

45.1 The Commission will only initiate an interim review if the party
requesting such interim review can prove significantly changed
circumstances.

45.2 Where an importer, exporter or foreign producer has not cooperated
in the Commission's investigation that led to the imposition of the
countervailing duty and such importer, exporter or foreign producer is
subsequently willing to supply such information, this change in
disposition will not qualify as significantly changed circumstances.

45.3 No party shall be precluded from requesting an interim review
simultaneously with a sunset review in order to expand or limit the
scope of application.

**46. Review procedure**

46.1 An interim review shall consist of a single investigation phase,
subject to the requirements of section 43.

46.2 The Commission may verify such information as it deems necessary to
confirm the accuracy and the adequacy of the information submitted by
any interested party.

**47. Final recommendation**

47.1 The Commission's final finding, in the form of a recommendation to
the Minister, may result in an increase, decrease, the withdrawal or the
reconfirmation of the existing countervailing duty.

47.2 The Commission may increase, decrease or confirm the scope of the
application of such countervailing duty.

**Sub-Part III -- New Shipper Reviews**

**48. Eligibility**

48.1 Only exporters that did not export to SACU during the original
investigation period for subsidisation may request a new shipper review.

48.2 The exporter requesting such review shall provide sufficient
information to prove that

\(a\) it is not and was not related to any party against which the
countervailing duty was applied; and

\(b\) it did not export the subject product to SACU during the original
investigation period.

48.3 The Commission shall not consider a request for a new shipper
review before definitive countervailing duties have been imposed.

**49. Information required**

49.1 A new shipper shall provide the Commission with full information on
subsidies and any other information deemed necessary by the Commission
and shall submit such information in the prescribed format.

49.2 In the event that the new shipper has not exported any products to
SACU during the period under review, it shall provide the Commission
with the required information in the prescribed format.

**50. Suspension of countervailing duties**

50.1 The countervailing duties in respect of the new shipper shall be
withdrawn simultaneously with the initiation of a new shipper review.

50.2 The Commission may request the Commissioner for the South African
Revenue Service to impose provisional payments at the same level as the
countervailing duties simultaneously with the withdrawal of the
countervailing duties in terms of subsection 1. Such provisional
payments shall remain in force for the duration of the review.

**51. Review procedure**

51.1 A new shipper review shall consist of a single investigation phase.

51.2 The Commission may verify such information as it deems necessary to
confirm the accuracy and the adequacy of any information submitted by
any interested party.

51.3 The exporter's margin of subsidisation will normally be determined
as the subsidy expressed as a percentage of the export price to South
Africa. In the event that no export price to South Africa can be
established, the Commission may determine the export price on any
reasonable basis, including, but not limited to, with reference to the
new shipper's export price to an appropriate third country.

**52. Final recommendation**

The Commission's final finding may result in a recommendation to--

\(a\) impose a countervailing duty equal to or lower than the level of
subsidisation; or

\(b\) terminate the provisional payment.

**Sub-Part IV -- Sunset Reviews**

**53. Duration of countervailing duties**

53.1 Countervailing duties shall remain in place for a period not
exceeding 5 years from the imposition or the last review thereof.

53.2 If a sunset review has been initiated prior to the lapse of a
countervailing duty, such countervailing duty shall remain in force
until the sunset review has been finalised.

**54. Initiation of sunset review**

54.1 A notice indicating that an countervailing duty will lapse on a
specific date unless a sunset review is initiated shall be published in
the *Government Gazette* approximately 6 months prior to the lapse of
such countervailing duty.

54.2 The Commission will directly inform interested parties known from
the original investigation or last review of the subject product of the
imminent lapse of the countervailing duties as soon as the notice
contemplated in subsection 1 has been published.

54.3 Interested parties will receive 30 days from the publication of the
notice contemplated in subsection 1 to request a sunset review.

54.4 In the event that the SACU industry requests that the
countervailing duty be maintained, it shall provide the Commission with
a proper application containing the necessary information to establish a
*prima facie* case that the removal of the countervailing duty will be
likely to lead to the continuation or a recurrence of injurious
subsidised exports.

54.5 If the Commission decides to initiate a sunset review, it shall
publish an initiation notice in the *Government Gazette* prior to the
lapse of such duties. Such notice shall contain the information as
contemplated in section 41.

**55. Notification**

55.1 The government of the country concerned shall be informed of the
imminent lapse of the countervailing duty as contemplated in section
54.1.

55.2 The government of the country concerned and all other known
interested parties shall be notified of --

\(a\) the initiation of the investigation; or

\(b\) the termination of the proceeding;

after the relevant notice has appeared in the *Government Gazette*.

**56. Review procedure**

56.1 A sunset review shall consist of a single investigation phase.

56.2 The Commission may verify such information as it deems necessary to
confirm the accuracy and the adequacy of any information submitted by
any interested party.

**57. Information required**

57.1 Following publication of the notice in terms of section 54.1 the
SACU industry shall indicate whether it will request a sunset review to
be undertaken.

57.2 The SACU industry shall provide the Commission with detailed
information in the prescribed format indicating the likelihood of a
continuation or recurrence of subsidised exports and injury in the event
that the countervailing duty is removed.

57.3 Once a sunset review has been initiated in terms of section 54.4
the exporters and foreign producers shall be required to submit
information in the required format to enable the Commission to make a
finding on subsidisation. Exporters and foreign producers shall not be
precluded from supplying any other information they may deem relevant.

57.4 The Commission may require importers to supply any information the
Commission deems necessary. Importers shall not be precluded from
supplying any other information they may deem relevant.

**58. Non-cooperation**

58.1 Where the SACU industry does not request a sunset review or does
not supply the required information following a notice published in
terms of section 54.1 within the deadline indicated in section 54.2, the
Commission will recommend that the countervailing duty lapse on the date
indicated in such notice.

58.2 Where the SACU industry has supplied the required information and
the exporter or foreign producer does not cooperate within the time
frames contemplated in section 42, the Commission may rely on the facts
available to reach its final decision.

**59. Final recommendation**

The Commission's recommendation may result in the withdrawal, amendment
or reconfirmation of the original countervailing duty.

**Sub-Part V -- Anti-Circumvention Reviews**

**60. Circumvention**

60.1 Other than circumvention contemplated in subsections 2(a) and (d),
circumvention shall be deemed to take place if one or more of the
following conditions are met:

\(a\) a change in the pattern of trade between third countries and South
Africa or the common customs area of the Southern African Customs Union;

\(i\) which results from a practice, process or work;

\(ii\) for which there is no or insufficient cause or economic
justification other than the imposition of the countervailing duty; and

\(b\) remedial effects of the countervailing duty are being undermined
in terms of the volumes or prices of the products under investigation.

60.2 For purposes of anti-circumvention the following types of
circumvention shall be treated separately:

\(a\) improper declaration of --

\(i\) the value or volume of the product;

\(ii\) the origin of the product; or

\(iii\) the nature or classification of the product.

\(b\) minor modifications to the product subject to countervailing duty;

\(c\) the export of parts, components and sub-assemblies with assembly
in a third country or within the common customs area of the Southern
African Customs Union;

\(d\) absorption of the countervailing duty by either the exporter or
the importer;

\(e\) declaration under a different tariff heading, even where such
different tariff heading does provide for the clearance of that product;

\(f\) any other form of circumvention as may be submitted for the
Commission's consideration.

60.3 Any instance of circumvention as contemplated in subsection 2(a)
shall be referred to the Commissioner for the South African Revenue
Service for further investigation. This shall not preclude the
Commission from taking countervailing action if the information at the
Commission's disposal, including information obtained through
submissions by interested parties, warrants such action.

60.4 Minor modifications of the product shall be deemed to have taken
place if the subsequently exported product --

\(a\) has materially the same production processes, uses the same raw
materials and have basically the same physical appearance or
characteristics; or

\(b\) is a substitute for the product on which countervailing duties
have been imposed.

60.5 Assembly in a third country or within the common customs area of
the Southern African Customs Union shall be deemed to take place if the
value added in such third country or in the common customs area of the
Southern African Customs Union does not exceed 25 per cent or does not
constitute a major transformation process. Such assembly shall not be
regarded as changing the country of origin.

60.6 The value added in terms of subsection 5 shall be determined with
reference to the direct and indirect costs of production only and shall
not include selling, general, administrative or packaging expenses or
profit.

60.7 Absorption of the countervailing duty shall be deemed to take place
if:

\(a\) the exporter decreases its export price in any manner to
compensate the importer or a third party for the extra burden imposed by
the countervailing duties, unless there is a correspondent decrease in
the normal value of the product;

\(b\) the importer does not increase its price in line with the
countervailing duties, unless such importer can provide evidence
indicating that it absorbed such countervailing duties without
assistance from any other party and only from revenue generated by the
specific product in question; or

\(c\) in cases involving tenders, the tender price is not increased by
the effect of the countervailing duty.

**61. Information required**

61.1 The SACU industry or other interested party shall provide such
information that is reasonably available to it to indicate that
circumvention is taking place.

61.2 Any request for an anti-circumvention review shall include
information of the specific type of circumvention that is alleged to
take place.

61.3 The Commission may require any interested party to submit such
information as it deems necessary to properly conduct the review.

61.4 In the event that the party against which the allegation is made
does not respond properly within the stated deadline, the Commission may
make a decision on the facts available to it.

**62. Review procedure**

62.1 An anti-circumvention review may consist of either a preliminary
and final, or only of a single, investigation phase.

62.2 Provided an anti-circumvention complaint is lodged with the
Commission within one year of the publication of the Commission's final
determination, the SACU industry shall not be required to update its
injury information.

62.3 Notwithstanding the provisions of subsection 2, no injury
information shall be required in cases of circumvention as contemplated
in section 60.2(b) or (c).

62.4 Provided an anti-circumvention complaint is lodged with the
Commission within one year of the publication of the Commission's final
finding, and in relation to any circumvention alleged in section
60.2(b), (c), (d), (e) or (f), the Commission may use the information
previously established on the subsidies to determine the margin of
subsidisation until such time as the exporter, foreign producer or
foreign government has submitted proper information. Provisional
payments and definitive countervailing duties may be imposed on the
basis of the margin of subsidisation so determined.

62.5 In the event that the relevant interested parties have not
submitted appropriate information before the deadline contemplated in
section 42, the Commission may make a preliminary or final determination
on the basis of the facts available.

62.6 In the event of an adverse preliminary finding as contemplated in
subsection 4, and provided the relevant interested party had submitted
at least a substantial, if deficient, response by the deadline
contemplated in section 42, such party will receive the opportunity to
address any deficiencies within 7 days and such additional information
will be taken into consideration by the Commission in its final finding.

62.7 In anti-circumvention reviews involving absorption, the Commission
may determine the level of the absorption with reference to the failure
in movement in the resale price of the subsidised imported product.

62.8 The Commission may conduct such verifications as it deems necessary
to confirm the accuracy and the adequacy of any information submitted by
any interested party.

**63. Final recommendation**

If the Commission makes a finding that circumvention has taken place the
Commission's final recommendation may result in

\(a\) the increase of countervailing duties to compensate for absorption
of countervailing duties; or

\(b\) the extension of the scope of the countervailing duties to apply
to parts, components or substitute like products, new models and the
like.

**Sub-Part VI -- Judicial Review**

**64. Judicial review of preliminary determinations**

Without limiting a court of law's jurisdiction to review final decisions
of the Commission, participating interested parties may challenge
preliminary decisions or the Commission's procedures prior to the
finalisation of an investigation in cases where it can be demonstrated
that

\(a\) the Commission has acted contrary to the provisions of the Main
Act or these regulations;

\(b\) the Commission's action or omission has resulted in serious
prejudice to the complaining party; and

\(c\) such prejudice cannot be made undone by the Commission's future
final decision.

**Sub-Part VII -- Refunds**

**65. Applications for refunds**

65.1 An importer or an exporter may request reimbursement of
countervailing duties collected where it is shown that the margin of
subsidisation, on the basis of which countervailing duties were paid,
has been eliminated or has been reduced to a level which is below the
level of the duty in force.

65.2 Other than as contemplated in section 66, any request, containing
all prescribed information, for a refund shall be submitted during the
anniversary month of the countervailing duty and shall relate only to
the preceding 12-month period.

65.3 An application for refund shall be considered as duly supported by
evidence where it contains precise information on the amount of the
refund of countervailing duties claimed and all customs documentation
relating to the calculation and payment of such countervailing duties.
It shall also include, for the relative period under review, information
on normal values and export prices to the SACU for the producer or
exporter to which the countervailing duty applies.

65.4 Regardless of whether the exporter and the importer are related
parties, the exporter may supply any information contemplated in
subsection 3 direct to the Commission.

65.5 The Commission may, at any time after receiving a refund
application, decide to initiate an interim review, whereupon the
information and findings from such interim review shall be used to
determine whether a refund is justified.

**66. Refunds following interim reviews**

Where the Commission, following an interim review, recommends that the
existing countervailing duty be decreased or withdrawn, the relevant
importer or importers may request that countervailing duties be refunded
in line with the Commission's findings.

**Part E -- Final Provisions**

**67. Delegation**

Other than final decision-making powers the Commission may delegate any
of its functions in respect of countervailing investigations to its
investigation staff.

**68. Transitional application**

These regulations shall apply to all investigations and reviews
initiated after the promulgation of the regulations.

**\_\_\_\_\_\_\_\_\_\_**

[^1]: The exemption of an exported product from duties or taxes borne by
    the like product when destined for domestic consumption, or the
    remission of such duties or taxes in amounts not in excess of those
    which have accrued, shall not be deemed to be a subsidy.