Taxation (Cross-border Trade) Act 2018

PART 3 Provisional remedy: requiring a guarantee

TRA’s duty to recommend requiring guarantees

13 (1) This paragraph applies where the TRA makes a provisional affirmative determination in relation to goods which are the subject of a dumping or a subsidisation investigation.

(2) Goods in relation to which that determination is made are referred to in this paragraph as relevant goods.

(3) The TRA may recommend to the Secretary of State—

(a) in the case of a dumping investigation that, in respect of all the relevant goods, all importers of those goods should be required to give a guarantee in respect of any additional amount of import duty which would have been applicable, or potentially applicable, to the goods under section 13 if an anti-dumping amount had been applied to the goods based on the provisional affirmative determination (“an estimated anti-dumping amount”), or

(b) in the case of a subsidisation investigation that, in respect of all the relevant goods, all importers of those goods should be required to give a guarantee in respect of any additional amount of import duty which would have been applicable, or potentially applicable, to the goods under section 13 if a countervailing amount had been applied to the goods based on the provisional affirmative determination (“an estimated countervailing amount”).

(4) The TRA may make a recommendation under sub-paragraph (3) only if it is satisfied that requiring a guarantee in accordance with its recommendation—

(a) is necessary to prevent injury being caused during the investigation to a UK industry in the relevant goods, and

(b) meets the economic interest test (see paragraph 25).

(5) The TRA may make different recommendations under sub-paragraph (3) for different relevant goods or descriptions of relevant goods, including by reference to—

(a) specified overseas exporters or descriptions of overseas exporter;

(b) specified foreign countries or territories or descriptions of foreign countries or territories.

(6) But the TRA may only make one recommendation under paragraph (a) or, as the case may be, paragraph (b) of sub-paragraph (3) in relation to any particular relevant good.

(7) And the TRA may make different recommendations under paragraph (a) or (b) of sub-paragraph (3) for different relevant goods or descriptions of relevant goods only if the recommendations which it makes under that paragraph when taken together cover all the relevant goods.

(8) If the TRA determines that there are one or more recommendations which it could make under paragraph (a) or, as the case may be paragraph (b), of sub-paragraph (3), it must make that recommendation or those recommendations (subject to sub-paragraphs (6) and (7)).

(9) If the TRA determines that there is no recommendation which it could make under sub-paragraph (3), it must—

(a) publish notice of its provisional affirmative determination in relation to the goods,

(b) publish notice of its determination that there is no recommendation which it could make under sub-paragraph (3), and

(c) notify the Secretary of State and interested parties (see paragraph 32(3)) accordingly.

TRA’s recommendations regarding requiring a guarantee

14 (1) A recommendation under paragraph 13(3) to require the giving of a guarantee in respect of goods must specify those goods and include—

(a) the TRA’s recommendation regarding—

(i) the form of the guarantee,

(ii) how an estimated anti-dumping amount or an estimated countervailing amount applicable to the goods should be determined for the purpose of calculating the amount of the guarantee,

(iii) how the amount of the guarantee should be calculated, and

(iv) the period during which the requirement to give a guarantee should apply, and

(b) such other content as regulations may require.

(2) The form of guarantee referred to in sub-paragraph (1)(a)(i) may be cash, a bond or a bank guarantee.

(3) The recommendation referred to in sub-paragraph (1)(a)(ii) must be such that an estimated anti-dumping amount or an estimated countervailing amount does not exceed—

(a) the margin of dumping or, as the case may be, the amount of the subsidy, in relation to the goods as determined by the TRA as part of its provisional affirmative determination, or

(b) the amount which the TRA is satisfied would be adequate to remove the injury to a UK industry in the goods if that amount is less than the margin of dumping or, as the case may be, the amount of the subsidy referred to in paragraph (a).

(4) Regulations may make provision for the purposes of sub-paragraph (3)(b) about how the amount which the TRA is satisfied would be adequate to remove the injury described in that provision is to be determined.

(5) The period referred to in sub-paragraph (1)(a)(iv)—

(a) must not exceed 6 months in the case of a dumping investigation (but see paragraph 16 regarding extensions), or 4 months in the case of a subsidisation investigation, and

(b) if the recommendation is accepted by the Secretary of State, must begin—

(i) on the day after the date of publication of the notice under paragraph 15(5)(b), or

(ii) if later, on the day which is the day after the end of the period of 60 days beginning with the date of the initiation of the investigation.

Secretary of State’s power to require a guarantee

15 (1) If the TRA makes a recommendation under paragraph 13(3), the Secretary of State must decide whether to accept or reject the recommendation.

(2) The Secretary of State may reject the recommendation only if the Secretary of State is satisfied that it is not in the public interest to accept it.

(3) In considering that, the Secretary of State must accept the TRA’s determination that requiring a guarantee in accordance with the recommendation meets the economic interest test (see paragraph 25), unless the Secretary of State is satisfied that the determination is not one that the TRA could reasonably have made.

(4) If the recommendation is rejected, the Secretary of State must—

(a) publish notice of the TRA’s provisional affirmative determination in relation to the goods, of the recommendation and of the rejection of it,

(b) notify interested parties (see paragraph 32(3)) accordingly, and

(c) lay a statement before the House of Commons setting out the reasons for rejecting the recommendation.

(5) If the recommendation is accepted, the Secretary of State must—

(a) publish notice of the TRA’s provisional affirmative determination in relation to the goods and of the recommendation,

(b) publish a notice that all importers of the goods specified in the recommendation are required to give a guarantee in accordance with the recommendation and regulations under paragraph 6 of Schedule 6, and

(c) notify interested parties accordingly.

(6) The notice under sub-paragraph (5)(b) must—

(a) specify, in accordance with the TRA’s recommendation, the matters referred to in paragraph 14(1)(a)(i) to (iv), and

(b) include such other content as regulations may require.

(7) For the purposes of this Schedule, “the period of a provisional remedy” in respect of goods means the period during which the requirement to give a guarantee in respect of the goods applies.

(8) The period of a provisional remedy in respect of goods ceases (if it has not already expired) when the dumping investigation or, as the case may be, the subsidisation investigation in relation to the goods terminates.

Extension of the period of a provisional remedy in a dumping investigation

16 (1) Regulations may make provision for, or in connection with, the extension by the Secretary of State, on the recommendation of the TRA, of the period of a provisional remedy which has been applied in respect of goods in the case of a dumping investigation.

(2) Any such extension must not result in the period of the provisional remedy being a period of more than 9 months beginning with the date when the requirement to give a guarantee in respect of goods first applied.

(3) The regulations must require that if the period of a provisional remedy is extended, the Secretary of State—

(a) publishes a revised notice under paragraph 15(5)(b) containing the revised period of the provisional remedy in accordance with the TRA’s recommendation, and

(b) notifies interested parties (see paragraph 32(3)) accordingly.