WORLD TRADE  
ORGANIZATION  G/ADP/Q1/ZAF/3 
G/SCM/Q1/ZAF/3 5 April 2004 
 
(04-1524) 
Committee on Anti-Dumping Practices 
Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATIONS OF LAWS AND REGULATIONS UNDER ARTICLE 18.5 
AND ARTICLE 32.6 OF THE AGREEMENTS 
 
Questions Posed by the UNITED STATES  
Regarding the Notification of SOUTH AFRICA1 
   The following communication, dated 1 April 2004, is being circulated at the request of the Delegation of the United States. 
 
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Questions Regarding South Africa’s International Trade Administration Act of 2002 
 1.  We note that South Africa has notified the Committee on Subsidies and Countervailing 
Measures that it has countervailing duty measures in force.
2 
  (a)   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?    
  (b)   Neither the Act nor the Anti-Dumping ( AD) Regulations appear to require a finding 
that a financial contribution confers a be nefit 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. 
  (c)   Article 68.2 of the AD Regulations states that those regulations will apply to 
countervailing investigations until such  time as separate countervailing duty 
regulations are promulgated.  What is the current status of the procedure for 
promulgating counterva iling duty regulations? 
 2. Please explain how Sections 39(2), 52, and 55 of the Act, concerning the ability of the 
International Trade Administration Commission (the Commission) to summon witnesses, and providing for the imposition of criminal liability and penalties, comply with Article 6.2 of the ADA 
which states "there shall be no obligation on any part y to attend a meeting, and failure to do so shall 
not be prejudicial to that party's case".    3. Section 34.3 of the Act states "upon making a fi nal determination in terms of subsection (1) 
or (2)(b), the Commission: 
                                                     
 
1 G/ADP/N/1/ZAF/2- G/SCM/N/1/ZAF/2. 
2 G/SCM/N/106/ZAF. G/ADP/Q1/ZAF/3 
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 (a)  must notify the claimant in writing of its determination;  and    (b)  may, if it has determined that the info rmation is not, by nature , confidential or should 
not be recognised as being otherwise conf idential, advise the claimant that the 
information will not be considered in dete rmining 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 satisfactor y public version of the information?  
 4.   Section 26(3)(a) of the Act states that the Commission may give notice in the Gazette of an application for amendment of customs duties, with  regard to antidumping/countervailing duties, prior 
to considering the application.  How is the Ac t consistent with Article 5.5 of the ADA, which 
prohibits publication of the application prior to initiation and requires authorities to notify the 
government of the exporting Member before procee ding to initiate an antidumping investigation?  
How does this  Section of the Act relate to S ection 27.2 of the AD Regulations, which states that 
(apart from the provision in Section 27.1) the Commission shall not publicize the application of the initiation of an investigation?      Questions regarding the Anti-Dumping Regulations 
 
5.   Section 5 of the AD Regulations covers oral hearings.     (a) Please confirm that this section relates to the provision of oral information under 
ADA Article 6.3.  
  (b) Will any interested party other than the re questor be invited to a ttend oral hearings?   
  (c) Will other interested parties be informed that an oral hearing has been requested?   
 
 (d) How soon after an oral hearing will th e written information under Section 5.3 be 
made available to other interested parties?  Specifically, will all interested parties be 
informed of and provided with written info rmation relating to any oral hearing in 
sufficient time to request their own oral h earing within the 90-day deadline set forth 
under Section 5.2?  
 
6.   Section 6 of the AD Regulations addresses adverse party meetings.     (a) What is the difference between an "ora l hearing" conducted pursuant to Section 5 of 
the AD Regulations and an "adverse party mee ting" conducted pursuant to Section 6?   
 
 (b) Section 6.4 states that all interested  parties that have cooperated during the 
investigation shall be invited to attend the adverse party meeting.  Noting that 
Section 6.5 implies that confidential info rmation may be presented during an adverse 
party meeting, how will such confidential in formation be protected should it need to 
be discussed? 
 
7. Section 6.7 of the AD Regulations, which is  contained within Section 6 on adverse party 
meetings, appears to address topics to  be covered in an oral hearing rather than in an adverse party 
meeting.  Please clarify this distinction.   G/ADP/Q1/ZAF/3 
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 8.   Section 20 of the AD Regulations states that all investigations and re views shall be finalized 
within 18 months after initiation.  What provision s does South Africa plan to make to conclude 
investigations within one year "except in special circumstances", as provided for in ADA 
Article 5.10? 
 
9.    Is there a set deadline from the date of recei pt of application for the Commission to initiate an 
investigation?  If so, what is this length of time?   If not, on average how long has the pre-initiation 
process taken?  
10.   Articles 5.2 of the ADA and 11.2 of the SCM Agreement address the information to be 
provided in an application.  Sec tions 21 and 22 of the AD Regulations do not contain any reference to 
the information required to complete the application.  Please explain what information must be contained in an application under South African law.  
11.   The South African law as notified does not appear to include the procedural safeguards  
concerning on the spot investigations (verificati ons) provided for in Annex I and Article 6.7 of the 
ADA and Annex VI and Article 12.6 of the SCM Ag reement.  Please explain how South Africa will 
comply with these obligations.  12.   Section 26(3)(a) of the Act states that the Commission may give notice in the Gazette of an 
application for amendment of customs duties, with  regard to antidumping/countervailing duties, prior 
to considering the application.  How is the Ac t consistent with Article 5.5 of the ADA, which 
prohibits publication of the application prior to initiation and requires authorities to notify the 
government of the exporting Member before proceedi ng to initiate an antidumping investigation?   
 
13.   Section 28.4 of the AD Regulations states "a ll 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".  To what deadlines is this sec tion referring?  Is there a deadline for parties to 
request to participate in the investigation?  If so, what is the procedure for such request? 
 
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 circum stances 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 a llow the imposition of provisional measures prior to 
the preliminary determination as part of a  facts available determination?   15.   Section 39 of the AD Regulations, whic h discusses price undertakings, does not include a 
provision such as that in ADA Arti cle 8.1, which states that "price  increases under such undertakings 
shall not be higher than necessary to eliminate th e margin of dumping".  How does South Africa plan 
to comply with this WTO requirement? 
 16.   If an undertaking is accepted, will the investig ation continue at the request of the exporter as 
set forth in ADA Article 8.4?  
17.   Section 47.1 of the AD Regulations allows for a change in the existing anti-dumping duties as 
a result of an interim review.  Section 47.2 of the Regulations allows the Commission to increase or 
decrease the scope of the application of such AD duties in an interim review.  Could changes under 
Section 47.2 result in a different scope of appli cation for different parties covered by the same G/ADP/Q1/ZAF/3 
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 measure, or will such changes only be made with re spect to all parties subject to the measure?  If the 
latter, will all parties be given an opportunity to defend their interests in such an interim review? 
 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  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 concer ning 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 neg ligible.  Please indicate how these requirements will 
be addressed. 
 
20.   Sub-Part V of the AD Regulations addresses South Africa’s practice with respect to the conduct of anti-circumvention reviews.  The United States notes that South Africa has not filed any 
written description of its regulations or experien ce in this area with the Antidumping Committee’s 
Informal Group on Anti-Circumvention, and encourages South Africa to do so.  With respect to the notified regulations: 
 
 (a)   Section 60.2(a) includes as circumventi on improper declarations of the value, origin, 
nature or classification of a product.  Are circumvention reviews the only means South Africa may employ for addressing such issues?  How would South Africa address such issues concerning improper declarations with respect to imports of 
products not covered by  anti-dumping measures? 
  (b)   Section 60.2(d) includes absorption of anti-dumping duties within the definition of 
circumvention.  While absorption of anti-dumping duties may be a problem, some might argue that if the full amount of duties owed have been paid, the imported product has not circumvented the anti-dumping measure.  Why does South Africa 
consider absorption of anti-dumping duties to  constitute a form of circumvention? 
  (c)   Please explain what is meant by S ection 60.2(f) which defines as circumvention, 
"declaration under a different tariff heading, even where such different tariff heading 
does provide for the clearance of that product". 
 
 (d)   What factors will South Africa examine in determining whether a minor modification 
of a product "is a substitute for the produc t on which anti-dumping duties have been 
imposed," within the meaning of Section 60.4(b) of the regulations?   
 21. Section 62 of the AD Regulations states that an anti-circumvention review may consist of 
either a preliminary and a final, or only of a si ngle, investigation phase.  How will the Commission 
make such a determination concerning the number of investigation phases?  22. The legislative and regulatory scheme th at South Africa has notified does not appear 
expressly to require the Commission to make an in jury determination, except in the instance of 
determining the adequacy of an application for imposition of duties pursuant to section 26 of the AD 
Regulations.  For example, Sections  26 and 32 of the Act, which es tablish the Commission’s authority 
to conduct antidumping and countervailing duty in vestigations, do not reference the concept of 
material injury or authorize or require the Commiss ion to make injury dete rminations.  Sections 33 
and 34 of the AD Regulations, which discuss the imposition of provisional measures, require the  G/ADP/Q1/ZAF/3 
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 ITAC to issue a report indicating the injury and cau sality factors "considered".  They do not, however, 
squarely state that the Commission must find materi al injury be caused by dumped or subsidized 
imports before it can impose provisional duties.  Subpart IV of Part C of the AD Regulations, 
concerning imposition of definitive duties, does not anywhere reference the concept of material 
injury.  In light of this, please explain how South Africa complies with the requirement of GATT 
Article VI:6(a) that a Member may not levy antidumping or countervailing duties "unless it determines that the effect of the dumping or subsidi zation, as the case may be, is such as to cause or 
threaten material injury to an established domestic injury, or is such as to retard materially the 
establishment of a domestic industry". 
 
23. Under section 13.1 of the AD Regulations , the Commission, in analyzing whether the 
domestic industry is injured, must consider "whe ther there has been a significant depression and/or 
suppression of the SACU industry’s prices".  This provision does not appear to require an analysis of whether the dumped imports suppressed or depressed prices to a significant degree; indeed, price 
depression and suppression are not among the causality f actors listed in section 16 of the Regulations.  
Please explain how these provisions are consistent w ith Article 3.2 of the AD Agreement, which 
requires that an investigating authority consider "w hether the effect of such [dumped] imports is 
otherwise to depress prices to a significant degree or prevent prices increases, which otherwise would have occurred, to a significant degree".  
24. Does South African law permit regional industry analysis pursuant to Article 4.1(ii) of the AD 
Agreement?     25. How does the Commission apply the "Lesser dut y rule" provision in section 17 of the AD 
Regulations? 
 
26. What is the meaning of the term "the Commission’s fording," used in section 34.2(j) of the AD Regulations?  27. How does South Africa implement Article 6.4 of the AD Agreement, which requires 
authorities to provide timely opportunities for interest ed parties to see all non-confidential information 
that is relevant to the preparation of their cases that the authorities use in an antidumping 
investigation, and to permit interested parti es to prepare presentations on the basis of such 
information?  28. Does South Africa permit disclosure of conf idential information under protective order 
pursuant to Article 6.5 of the AD Agreement? 
 29. Subpart IV of Part C of the AD Regulations does not appear to require the Commission to publish any notice, or render any formal decision, be fore it imposes definitive anti-dumping duties.  In 
light of this, how does South Africa implement ar ticle 12.2.2 of the AD Agreement, which requires 
authorities to publish a public notice of any affirm ative determination resulting in the imposition of 
definitive duties, and make available through that  notice or a separate report certain information 
concerning that determination?  30. In what form does the Commission publis h its final findings in reviews pursuant to 
sections 47, 52, 59, and 63 of the AD Regulations?    
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