WORLD TRADE  
ORGANIZATION  G/ADP/Q1/ZAF/5 
G/SCM/Q1/ZAF/5 22 April 2004 
 
(04-1821) 
Committee on Anti-Dumping Practices 
Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER 
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS 
 
Replies to Questions Posed by the UNITED STATES1 
Regarding the Notification of SOUTH AFRICA2 
  
 The following communication, dated 20 Apr il 2004, has been received from the Permanent 
Mission of South Africa. 
 
 
_______________ 
 
 
Questions Regarding South Africa’s International Trade Administration Act of 2002
 
 
Q1.  We note that South Africa has notifi ed the Committee on Subsidies and Countervailing 
Measures that it has countervailing duty measures in force.3 
  (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 co untervailable subsidies are identified 
and the benefits thereof calculated? 
 
Reply
 
 
 At present the only enabling legislation is the ITA act, regulations for subsidized exports is 
still being developed. However, the ADR sets out th e procedures to be followed in countervailing 
investigations. 
 
 (b) Neither the Act nor the Anti-Dumping (AD) Regulations appear to require a 
finding that a financial contribution co nfers 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. 
 
                                                     
 
1 G/ADP/Q1/ZAF/3 – G/SCM/Q1/ZAF/3. 
2 G/ADP/N/1/ZAF/2 – G/SCM/N/1/ZAF/2. 
3 G/SCM/N/106/ZAF. G/ADP/Q1/ZAF/5 
G/SCM/Q1/ZAF/5 Page 2 
 
 
 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. 
 
 (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 countervailing duty regulations? 
 Reply
 
 
 The countervailing regulations are in the pro cess of being drafted and should be promulgated 
by the end of 2004.  Q2. 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 party to attend a meeting, and failure to 
do so shall not be prejudicial to that party's case".   
 Reply
 
  Sections 39 – 40 and 42 – 45 rela te to import and export contro l provisions and not to anti-
dumping procedures.  Q3. Section 34.3 of the Act states "upon ma king 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 info rmation 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 info rmation will not be considered in this manner, 
will the claimant be allowed to submit a sati sfactory public version of the information?  
 
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.  
Q4.   Section 26(3)(a) of the Act states that the Commission may give notice in the Gazette of 
an application for amendment of customs dutie s, with regard to anti-dumping/countervailing 
duties, prior to considering the application.  Ho w is the Act consistent with Article 5.5 of the 
ADA, which prohibits publication of the applicatio n prior to initiation and requires authorities 
to notify the government of the exporting Memb er before proceeding to initiate an anti-
dumping investigation?  How does this  Section of the Act relate to Section 27.2 of the  G/ADP/Q1/ZAF/5 
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 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?     
 
Reply  
 
 Section 26(3)(a) merely indicates that the Co mmission will not prejudge an application and 
will publish it in the Gazette for comments prior to considering the application, i.e. before making a 
preliminary determination. ADR 27 clearly states that the Commission shall notify the government of the exporting Member before proceeding to initi ate an anti-dumping investigation and that the 
Commission shall not publicise the application prior to the initiation of an investigation. 
 
Questions regarding the Anti-Dumping Regulations
 
 
Q5.   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.  
 
Reply  
 
  This section relates to the provision of  oral information under ADA Article 6.3 
 
 (b) Will any interested party other than the requestor be invited to attend oral 
hearings?   
 Reply
 
  ADR 5 provides for an interested party to pr esent information orally to the Commission. No 
other interested party will be invited to attend such oral hearing.  
 (c) Will other interested parties be informed that an oral hearing has been 
requested?   
 
Reply
 
  A request for an oral hearing must be ma de in writing. The Commission does not consider 
such a request to be confidential and the request will therefore be placed on the public file to which all 
interested parties have access.  
 (d) How soon after an oral hearing will the written information under Section 5.3 be 
made available to other interested part ies?  Specifically, will all interested 
parties be informed of and provided with written information relating to any 
oral hearing in sufficient time to request their own oral hearing within the 
90-day deadline set forth under Section 5.2?  
 
Reply
 
 
 ADR 5.4 requires inter alia that a detailed vers ion, including a non-confidential version, of the 
information to be discussed at the oral heari ng be submitted at the time of the request. A non-
confidential version of all information submitted in writing is placed on the public file on receipt 
thereof.  G/ADP/Q1/ZAF/5 
G/SCM/Q1/ZAF/5 Page 4 
 
 
 Q6.   Section 6 of the AD Regulations addresses adverse party meetings.   
 
(a) What is the difference between an "oral hearing" 
conducted pursuant to Section 5 of the AD 
Regulations and an "adverse party meeting" 
conducted pursuant to Section 6?   
Reply
 
  An oral hearing provides interested parties with an opportunity to address the Commission on 
information submitted in writing. The interested party is provided an opportunity to address the 
Commission in the absence of any other interested pa rty. An adverse party meeting can be requested 
by any interested party to provide for the opportunity to meet with parties with adverse interests, as required by ADA 6.2.   (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 information may be presented during an adverse party meeting, how will such confidential information be protected should it need to be discussed? 
 Reply
 
  ADR 6.9 clearly states that account shall be taken of the need to preserve confidentiality. Confidential information may be submitted in cam era, but a non-confidential version of such 
information shall be made availabl e to other interested parties. 
 
Q7. 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.  
Reply
 
 
 South Africa provides both for ex-parte oral hearing and for adverse party meetings. The requesting party has to indicate the forum to be u sed, but in essence both situations can be used to 
achieve the same purpose, i.e. raising per tinent information before the Commission. 
 Q8. 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? 
 
Reply
 
 
 There are measures which although not legislativ e are already in force ensure expeditious 
completion of investigations.  
Q9. Is there a set deadline from the date of receipt of application for the Commission to 
initiate an investigation?  If so, what is this le ngth of time?  If not, on average how long has the 
pre-initiation process taken? 
  G/ADP/Q1/ZAF/5 
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 Page 5 
 
 
 Reply  
  There is no set deadline from receipt of an a pplication until initiation of an investigation. On 
average, however, initiation takes place within 30 days of receipt of an application. 
 
Q10. Articles 5.2 of the ADA and 11.2 of the SCM Agreement address the information to be 
provided in an application.  Sections 21 and 22 of the AD Regulations do not contain any reference to the information required to comp lete the application.  Please explain what 
information must be contained in an application under South African law. 
 
Reply
 
  While not specifically stated in ADR 21 a nd/or 22, South Africa applies provisions of 
Articles 5.2 of the ADA and 11.2 of the SCM Agreemen t in this regard. The questionnaire referred to 
in ADR 21.1 prescribes the required information. The questionnaire requests information on all 
pertinent issues raised in ADA5.2 and SCMA 11.2.  
Q11. 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.  
Reply
 
  There are internal policy documents that ensure compliance with those provisions. 
 
Q12. Section 26(3)(a) of the Act states that th e Commission may give notice in the Gazette of 
an application for amendment of customs dutie s, with regard to anti-dumping/countervailing 
duties, prior to considering the application.  Ho w is the Act consistent with Article 5.5 of the 
ADA, which prohibits publication of the applicatio n prior to initiation and requires authorities 
to notify the government of the exporting Memb er before proceeding to initiate an anti-
dumping investigation?    
Reply
 
  See question 4. 
 
Q13. 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 dead lines is this section referring?  Is there a deadline 
for parties to request to participate in the invest igation?  If so, what is the procedure for such 
request?  
Reply
 
  ADR 28.5 provides that the Commission shall inform all known interested parties of the 
initiation of the investigation. 
  ADR 29.3 provides that parties shall receive 30 days to submit their responses to the Commission’s questionnaires and that parties shall be  deemed to have rece ived the questionnaires 
7 days after the dispatch thereof. G/ADP/Q1/ZAF/5 
G/SCM/Q1/ZAF/5 Page 6 
 
 
  
 ADR 29.4 further provides that parties not directly informed of the investigation by the Commission will have 40 days from the date of the initiation of the investigation in the Government 
Gazette. 
 
 Other than the deadlines stated, there is no deadline for parties to request to participate in an 
investigation.  
Q14.   Section 33 of the AD Regulations governs the timing of the issuance of provisional 
measures, but there does not appear to be an y 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 prio r to publication of the preliminary finding or 
issuance of the preliminary report?  In particul ar, 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?   
Reply
 
  No preliminary measures can be applied befo re an affirmative preliminary finding of 
injurious dumping. 
 
Q15.   Section 39 of the AD Regulations, which discusses price undertakings, does not include a provision such as that in ADA Article 8.1, which states that "price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping".  How 
does South Africa plan to comp ly with this WTO requirement? 
 
Reply
 
  South Africa will not require a price undertaking at a level higher than necessary to remove 
injury caused by dumping. 
 
Q16.   If an undertaking is accepted, will th e investigation continue at the request of the 
exporter as set forth in ADA Article 8.4? 
 
 Yes 
 
Q17.   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 scop e of application for different parties covered 
by the same measure, or will such changes only be  made with respect 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? 
 
Reply
 
 
 South Africa will conduct reviews in response to requests by individual parties, rather than 
revising the entire anti-dumping measure. As such, any change effected may relate only to the 
particular party. All parties interested in the re view will receive a reasonable period within which to 
make presentations to the Commission. 
  G/ADP/Q1/ZAF/5 
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 Page 7 
 
 
 Q18. The AD Regulations as notified do not a ppear 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 So uth African law comports with this obligation 
under the ADA 
 
Reply  
  Through internal policy.  Q19. The AD Regulations as notified do no t 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. 
 
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. 
 Q20. 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 exp erience in this area with the Anti-Dumping 
Committee’s Informal Group on Anti-Circumventi on, and encourages South Africa to do so.  
With respect to the notified regulations: 
  (a) Section 60.2(a) includes as circumvention improper declarations of the value, 
origin, nature or classification of a pro duct.  Are circumvention reviews the only 
means South Africa may employ for add ressing such issues?  How would South 
Africa address such issues concerning im proper declarations with respect to 
imports of products not covered  by anti-dumping measures? 
 
Reply
 
  ADR60.3 provides that such instances will be  referred to the Commissioner for the South 
African Revenue Service (Customs) for further investigation. 
 
 (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? 
 
Reply
 
 
 If the anti-dumping duties are absorbed by the exporter, or the importer cannot show that it 
has absorbed the anti-dumping duties from its own r esources, it indicates that the margin of dumping 
may have increased by the amount of the absorption. 
 G/ADP/Q1/ZAF/5 
G/SCM/Q1/ZAF/5 Page 8 
 
 
  (c) Please explain what is meant by Sect ion 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". 
 Reply
 
  Because it is possible and has already happened. 
 
 (d) What factors will South Africa examine in determining whether a minor 
modification of a product "is a substitute  for the product on which anti-dumping 
duties have been imposed," within the meaning of Section 60.4(b) of the regulations?   
 
Reply
 
 
 Issues such as physical appearance, physical ch aracteristics, customer perception, end-use and 
interchangeability will all play a role. 
  
Q21. 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 single, investigation phase.  How will the 
Commission make such a determination con cerning the number of investigation phases? 
 
Reply  
  The number of investigation stages will depend on the type of circumvention that is taking 
place and the ability of Customs to implement a preliminary decision. 
 
Q22. The legislative and regulatory scheme that  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 establish the 
Commission’s authority to conduct anti-dumping and countervailing duty investigations, do not 
reference the concept of material injury or auth orize or require the Commission to make injury 
determinations.  Sections 33 and 34 of the AD Regulations, which discuss the imposition of provisional measures, require the ITAC to issue a report indicating the injury and causality 
factors "considered".  They do not, however,  squarely state that the Commission must find 
material injury be caused by dumped or subs idized imports before it can impose provisional 
duties.  Subpart IV of Part C of the AD Regulation s, 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 anti-dumping or countervailing duties "unless it determines that the effect of the dumping or subsidization, 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". 
 
Reply
 
 
 This is implied in ADR 13. South Africa has always required and will always require injury 
caused by dumping before any anti-dumping measures can be imposed.  
Q23. Under section 13.1 of the AD Regulations, the Commission, in analyzing whether the 
domestic industry is injured, must consider "whether there has been a significant depression  G/ADP/Q1/ZAF/5 
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 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 factors listed in 
section 16 of the Regulations.  Please explain how these provisions are consistent with Article 3.2 
of the AD Agreement, which requires that an investigating authority consider "whether 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". 
 
Reply
 
 
 ADR 13.1 requires an analysis of price suppression and price depression, while ADR 16.4 requires a link between injury and the dumping.  
Q24. Does South African law permit regional indus try analysis pursuant to Article 4.1(ii) of 
the AD Agreement?     
Reply
 
  Yes, but it has not been applied to date.  Q25. How does the Commission apply the "Lesser duty rule" provision in section 17 of the AD Regulations? 
 
Reply
 
 
 The Commission calculates an injury margin , normally being the difference between the 
landed cost of the imported product and the uns uppressed ex-factory selling price of the SACU 
industry product. The lesser of the injury margin  and the dumping margin is applied as the provisional 
payment or definitive anti-dumping duty in instan ces where both the exporter and corresponding 
importer have cooperated full y in the investigation. 
 Q26. What is the meaning of the term "the Co mmission’s fording," used in section 34.2(j) of 
the AD Regulations? 
 
Reply
 
 
 Section 34.2(j) reads as follows: “the Commission’s finding;”. In terms of this provision, the 
Commissions determination on material injury, du mping and causality shall be included in the 
preliminary report.  
Q27. How does South Africa implement Arti cle 6.4 of the AD Agreement, which requires 
authorities to provide timely opportunities for interested parties to see all non-confidential 
information that is relevant to the preparation of their cases that the authorities use in an anti-
dumping investigation, and to permit interested parties to prepare presentations on the basis of 
such information? 
 
Reply
 
 
 ADR 3.3 provides that a non-confidential vers ion of the information submitted shall be made 
available to all known interested parties on initia tion. All non-confidential information is further 
placed on the public file and all interested parties are invited to peruse the public file during the 
course of the investigation. G/ADP/Q1/ZAF/5 
G/SCM/Q1/ZAF/5 Page 10 
 
 
  
Q28. Does South Africa permit disclosure of confidential information under protective order 
pursuant to Article 6.5 of the AD Agreement? 
 Reply
 
  Section 33, 34 and 35 of the International Tr ade Administration Act sets out the provisions 
for the treatment of confidential information by th e Commission. Information submitted by interested 
parties as confidential, which is accepted as such by  the Commission, will not be disclosed without 
the permission of the owner of such information. 
 
Q29. Subpart IV of Part C of the AD Regulati ons does not appear to require the Commission 
to publish any notice, or render any formal decisi on, before it imposes definitive anti-dumping 
duties.  In light of this, how does South Africa implement article 12.2.2 of the AD Agreement, 
which requires authorities to publish a public noti ce of any affirmative determination resulting 
in the imposition of definitive duties, and make available through that notice or a separate report certain information concerning that determination? 
 
Reply
 
 
 The Commission makes a final determination a nd requests the Minister of Trade and Industry 
to request the Minister of Finance to impo se an anti-dumping measure. In instances where the 
recommendation results in the imposition of definitiv e duties, the Commissioner for the South African 
Revenue Service will publish these duties through am endment of the Customs and Excise Act, 1964. 
The Commission’s findings are contained in a final re port, which is made available to all interested 
parties. 
 
Q30. 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?   
 
Reply  
 
 All final findings are contained in the Commis sion’s final report, which is made available to 
all interested parties after publication of the fi nal finding. The report is a public document and is 
available from the Commission on request. 
 
 
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