WORLD TRADE
ORGANIZATIONG/ADP/Q1/ZAF/6
G/SCM/Q1/ZAF/6
14 May 2004
(04-2147)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal: English
NOTIFICATIONS OF LAWS AND REGULATIONS UNDER
ARTICLE 18.5 AND ARTICLE 32.6 OF THE AGREEMENTS
Follow-Up Questions to Replies1to Questions Posed by the UNITED STATES2
Regarding the Notification of SOUTH AFRICA3
The following communication, dated 13 May 2004, is being circulated at the request of the
Delegation of the United States.
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1. General Question
In response to US questions 8, 11, 18 and 19, South Africa stated that the answers to the US
questions were governed by certain "measures", "internal policy documents", "internal policy",
"policy guidelines". South Africa did not describe the legal status of these documents, nor their
precise contents.
Follow Up Question
Are these statements of policy publicly available or otherwise available to interested
parties? Please provide official citations and, if available, an Internet address on which these
policy statements may be viewed. What is the process for promulgating these statements of
policy? If the administering authority believes that such a statement of policy is not appropriate
in a particular case, may it decline to apply the policy? If so, is the authority required to give a
reasoned explanation? Does South Africa intend to notify these statements to the Committees?
If South Africa maintains that it is not required formally to notify these statements to the
Committees, we request that South Africa describe its policy in response to the relevant
questions below.
2. Original Question 1a
Are there any provisions in South African law other than the definition of "subsidized
export" in section 32(2)(c) of the International Trade Administration Act which address how
countervailable subsidies are identified and the benefits thereof calculated?
1G/ADP/Q1/ZAF/5-G/SCM/Q1/ZAF/5
2G/ADP/Q1/ZAF/3-G/SCM/Q1/ZAF/3
3G/ADP/N/1/ZAF/2–G/SCM/N/1/ZAF/2G/ADP/Q1/ZAF/6
G/SCM/Q1/ZAF/6
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South Africa’s Reply
At present the only enabling legislation is the ITA act, regulations for subsidized exports is
still being developed. However, the ADR sets out the procedures to be followed in countervailing
investigations.
Follow Up Question
While the anti-dumping procedures set out in the ADR may provide procural guidance
for certain aspects of countervailing duty investigations, many of the procedures are specific to
antidumping. For example, Section 23 provides detailed guidance on aspects of the allegation of
dumping which must be set forth in a petition, but this does not provide any indication of the
type of information to be provided in a countervailing duty petition. Until CVD regulations are
issued, what information will be required in such a petition? When does South Africa foresee
issuing CVD regulations?
3. Original Question 1b
Neither the Act nor the Anti-Dumping (AD) Regulations appear to require a finding
that a financial contribution confers a benefit or is specific prior to imposing countervailing
duties as required in Article 1 of the SCM Agreement. Please explain how South Africa will
comply with that provision.
South Africa’s Reply
The commission and other practitioners use the agreement of the WTO to provide clarity in
the event of any lacuna in our domestic law.
Follow Up Question
In such a case, will the WTO agreement take precedence over the ADR? Will South
Africa’s courts apply the WTO Agreement to clarify lacunae in South Africa’s law?
4. Original Question 3
Section 34.3 of the Act states "upon making a final determination in terms of
subsection (1) or (2)(b), the Commission:
(a) must notify the claimant in writing of its determination; and
(b) may, if it has determined that the information is not, by nature, confidential or
should not be recognised as being otherwise confidential, advise the claimant
that the information will not be considered in determining the merits of an
application or other matter in question".
If the claimant is informed that the information will not be considered in this manner,
will the claimant be allowed to submit a satisfactory public version of the information?G/ADP/Q1/ZAF/6
G/SCM/Q1/ZAF/6
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South Africa’s Reply
Section 34.3(b) relates to situations where a party refuses to supply the information in a
non-confidential version and where the Commission finds that there are not proper grounds for
confidential treatment.
Follow Up Question
If the claimant is notified that the Commission did not find proper grounds for
confidential treatment, what are the claimant’s options if the claimant does not want the
information released as non-confidential information? Will the claimant be given the
opportunity to resubmit the information in a form it believes is appropriate for release as
non-confidential information?
5. Original Question 8
Section 20 of the AD Regulations states that all investigations and reviews shall be
finalized within 18 months after initiation. What provisions does South Africa plan to make to
conclude investigations within one year "except in special circumstances", as provided for in
ADA Article 5.10?
South Africa’s Reply
There are measures which although not legislative are already in force ensure expeditious
completion of investigations.
Follow Up Question
Please see question 1, above. Please describe the referenced measures, and how these
measures fulfil the requirements of Article 5.10.
6. Original Question 11
The South African law as notified does not appear to include the procedural safeguards
concerning on the spot investigations (verifications) provided for in Annex I and Article 6.7 of
the ADA and Annex VI and Article 12.6 of the SCM Agreement. Please explain how South
Africa will comply with these obligations.
South Africa’s Reply
There are internal policy documents that ensure compliance with those provisions.
Follow Up Question
Please see question 1, above. Please describe the referenced internal policy documents,
and how these documents ensure compliance with Annex I and Article 6.7 of the ADA and
Annex VI and Article 12.6 of the SCM Agreement. Additionally, South Africa stated in the
April Antidumping Committee Meeting that the Customs and Excise Act provides Customs
with the implementing authority for ITA decisions. When does South Africa intend to notify
this Act to the AD Committee?G/ADP/Q1/ZAF/6
G/SCM/Q1/ZAF/6
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7. Original Question 14
Section 33 of the AD Regulations governs the timing of the issuance of provisional
measures, but there does not appear to be any corresponding guidance on the timing of
preliminary findings. What is the relationship between the "preliminary finding" referenced in
Section 34.1 and provisional measures under Section 33? Are there any circumstances under
which provisional measures could be imposed prior to publication of the preliminary finding or
issuance of the preliminary report? In particular, does Section 32.1 of the Regulations allow the
imposition of provisional measures prior to the preliminary determination as part of a facts
available determination?
South Africa’s Reply
No preliminary measures can be applied before an affirmative preliminary finding of
injurious dumping.
Follow Up Question
Section 33.3 appears to specify that provisional measures may be extended to nine
months based upon the request of any interested exporter. How this is consistent with ADA
Article 7.4 that such requests be made by exporters representing a significant percentage of
trade?
8. Original Question 18
The AD Regulations as notified do not appear to have included any of the procedural
safeguards provided under Annex II of the ADA concerning the use of facts available under
Article 6.8 of the ADA. Please explain how South African law comports with this obligation
under the ADA.
South Africa’s Reply
Through internal policy.
Follow Up Question
Please see question 1, above. Please describe the referenced internal policy, and how
they ensure compliance with Article 6.8 and Annex II of the ADA.
9. Original Question 19
The AD Regulations as notified do not appear to contain provisions addressing the
requirements of Article 5.8 of the ADA and Article 11.9 of the SCM concerning prompt
termination of investigations in circumstances in which there is insufficient evidence of
dumping/subsidization or injury; when the margin of dumping/subsidization is de minimis ; or
when the volume of dumped/subsidized imports, or the injury, is negligible. Please indicate how
these requirements will be addressed.
South Africa’s Reply
There are policy guidelines that deal with these issues. The issues of negligibility and
de minimis margins are addressed at the merit, preliminary and final stages of the investigation.G/ADP/Q1/ZAF/6
G/SCM/Q1/ZAF/6
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Follow Up Question
Please see question 1, above. Please describe the referenced policy guidelines, and how
they ensure compliance with Article 5.8 of the ADA and Article 11.9 of the SCM.
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