WORLD TRADE  
ORGANIZATION  G/ADP/Q1/ZAF/7 
G/SCM/Q1/ZAF/7 29 October 2004 
 
(04-4594) 
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 
 
Replies to Follow-Up Questions Posed by the UNITED STATES1 
Regarding the Notification of SOUTH AFRICA2 
   The following communication, dated 27 October 2004, is being circulated at the request of the Delegation of South Africa. 
 
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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 “measu res”, “internal policy documents”, “internal 
policy”, “policy guidelines”.  South Africa did not describe the legal status of these documents, 
not 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, and Internet address on which these 
policy statements may be viewed.  What is th e process of 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 require d formally to notify these statements to the 
Committees, we request that South Africa de scribe its policy in response to the relevant 
questions below.  
South Africa's reply
 
 
The Commission’s policy directives are at present embodied in its decisions as contained in 
its preliminary and final reports, which are published and notified to the WTO.  The Commission is at 
present in the process of developing one single polic y directive document which will be published on 
ITAC’s website. 
 
                                                      
1 G/ADP/Q1/ZAF/5-G/SCM/Q1/ZAF/5 & G/ADP/Q1/ZAF/6-G/SCM/Q1/ZAF/6 
2 G/ADP/N/1/ZAF/2–G/SCM/N/1/ZAF/2 G/ADP/Q1/ZAF/7 
G/SCM/Q1/ZAF/7 Page 2 
 
 
 2. Original Question 1a
 
  Are there any provisions in South African la w other than the definition of “subsidized 
export” in section 32(2)(c) of the Internationa l Trade Administration Act which address how 
countervailable subsidies are identified and the benefits thereof calculated? 
 
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 procedural 
guidance for certain aspects of countervailing duty investigations, many of these procedures are 
specific to anti-dumping.  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 CDV regulations are issues, what information will be required in such a petition? When does 
South Africa foresee issuing CDV regulations? 
 
South Africa's reply
 
 
Draft Countervailing Regulations, which addr ess these issues, were published for public 
comment on 20 August 2004.  Once promulgated,  these will be submitted to the Committee on 
Subsidies and Countervailing Measures.  
Part C of the draft Countervailing Regulations provides for all the procedures to be followed 
and the information to be submitted by interested parties.  
 
3. Original question 1b
 
  Neither the Act nor the Anti-Dumping Regu lations appear to require a finding that a 
financial contribution confers a benefit or is sp ecific prior to imposing countervailing duties as 
required in Article 1 of the SCM Agreement.  Pl ease 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 lacunae 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? 
  G/ADP/Q1/ZAF/7 
 G/SCM/Q1/ZAF/7 
 Page 3 
 
 
 South Africa's reply  
 
Draft Countervailing Regulations, which addr ess these issues, were published for public 
comment on 20 August 2004.  Once promulgated,  these will be submitted to the Committee on 
Subsidies and Countervailing Measures.  
 
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 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 informatio n will not be considered in this manner, will the 
claimant be allowed to submit a satisfac tory public version of the information?  
 
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 non-
confidential treatment. 
Follow-up question 
 
 If the claimant is notified that the Commission did not find proper grounds for confidential treatment, what are the claiman t’s options if the claimant does not want the 
information released as non-confidential in formation? Will the claimant be given the 
opportunity to resubmit the inform ation in a form it believes is appropriate for release as non-
confidential information? 
 
South Africa's reply
 
 
The Commission will not release any information submitted in confidence, but may disregard 
such information if it is not made available in a n on-confidential format.  All interested parties will be 
given opportunity to provide non-confidential versions  of their information within the set time frames 
of the investigation. 
 
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? 
 G/ADP/Q1/ZAF/7 
G/SCM/Q1/ZAF/7 Page 4 
 
 
 South Africa’s reply
 
 There are measures which although not legisla tive already in force to 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. 
 
South Africa's reply
 
  Internal time frames for the different phases of  an investigation have been set by the 
Commission.  The Commission monitor progress with i nvestigations through a status report that is 
submitted to it on a monthly basis. 
 
6. Original question 11  
The South African law as notified does not appe ar 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 wi th Annex 1 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 Anti-dumping Committee Meeting that the Customs and Excise Act provides Customs 
with the implementing authority for ITA decision s.  When does South Africa intend to notify 
this Act to the AD Committee? 
 
South Africa's reply
 
 
Prior to a verification visit to an exporter, written agreement is obtained from the exporter. 
The exporter is provided with a detailed description of th e information that is to be verified as well as 
the documentation that should be available during ve rification.  The government(s) of the country(ies) 
involved in the investigation is notified of the inte nded verification visit well in advance of the actual 
visit.  After the verification visit, the exporter is provided with a verifi cation report, detailing all 
information verified and given an opportunity to comment.  A non-confidential version of this report 
is placed on the public file which is available to all interested parties. 
 The relevant extracts of the Customs and Excise Act have been notified to the AD 
Committee.  The full text of the Customs and Ex cise Act can be obtained from the website of the 
South African Revenue Service (sars@gov.za).   G/ADP/Q1/ZAF/7 
 G/SCM/Q1/ZAF/7 
 Page 5 
 
 
 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 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?  
 
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 provi sional measures may be extended to nine 
months based upon the request of any interested exporter.  How is this consistent with ADA 
Article 7.4 that such requests be made by exporters representing a significant percentage of 
trade? 
 
South Africa's reply
 
 
The Commission will only extend the provisiona l measures in instances where a request is 
made by exporters representing a significant percentage of trade. 
 
18. 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 So uth 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. 
 
South Africa's reply
 
 
Please refer to the answer to question 1. 
 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 G/ADP/Q1/ZAF/7 
G/SCM/Q1/ZAF/7 Page 6 
 
 
 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.  These issues of negligibility and de 
minimis margins are addressed at the merit, preliminary and final stages of the investigation. 
 
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. 
 South Africa's reply
 
 
South Africa has previously terminated investigations where it was found that imports from 
certain countries were negligible, while continuing th e investigation against other countries (e.g. tyres 
from Mozambique).  In cases where a preliminary finding of no injury or no dumping is made, 
interested parties receive an opportunity to comment.  These comments are taken into consideration in 
reaching a prompt final finding.   
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