The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) Regulations 2019

Explanatory Note

(This note is not part of the Regulations)

M1 These Regulations are made under and for the purpose of sections 13, 32, 51 and 56 of, and Schedule 5 to, the Taxation (Cross-border Trade) Act 2018 (“the Act”) .

Schedule 5 to the Act establishes a regime under which the Trade Remedies Authority (“the TRA”), when established, will investigate prima facie instances of increases in imports causing serious injury to UK producers. The TRA itself will be established by the Trade Bill when it receives Royal Assent.

The process of investigation and the circumstances in which an additional amount of import duty or a tariff rate quota may be applied is provided for by agreements under the auspices of the World Trade Organization to which the United Kingdom is a party. Specifically, these agreements are the General Agreement on Tariffs and Trade 1994 (“GATT”) (Article XIX in particular) and the Agreement on Safeguards (the “SGA”) in Annex 1A to the Marrakesh Agreement establishing the World Trade Organization (concluded on 15 April 1994, entered into force 1 January 1995). These Regulations are intended to be consistent with the United Kingdom's obligations under those agreements.

The purpose of these investigations by the TRA is to consider whether there is evidence that goods are being imported into the United Kingdom in increased quantities and are causing serious injury to UK industry such that it should recommend to the Secretary of State that an additional amount of import duty or a tariff rate quota be applied to the goods in question. The TRA's duty to make recommendations for the imposition of provisional and/or definitive measures is set out in Parts 3 and 4 of Schedule 5 to the Act. Any additional amount of import duty or a tariff rate quota is given effect by the Secretary of State publishing a public notice under section 13 of the Act.

Part 1 (Introductory) sets out the introductory provisions of the Regulations and includes the definitions that apply throughout. It also provides that the Regulations will apply as modified by Part 10 until the TRA is established.

M2 Part 2 (Increased quantities) of the Regulations provides for how the TRA will determine whether or not there are goods imported in increased quantities in accordance with paragraph 1 of Schedule 5 to the Act. It broadly reflects Article XIX of the GATT, Article 2 of the SGA and Articles 9 and 15 of Regulation (EU) 2015/478 of 11 March 2015 on common rules for imports . The regulations in this Part set out: how the TRA will determine whether there are increased quantities of imports; whether that increase is significant, and whether the importation of goods in increased quantities was foreseeable.

Part 3 (Serious injury and causation) of the Regulations provides for how the TRA will determine whether the importation of those goods has caused serious injury to UK producers. The regulations in this Part broadly reflect Articles 2 and 4 of the SGA, and Article 9 and 15 of Regulation (EU) 2015/478.

Part 4 (Determination of an adequate amount to prevent or remove the serious injury and remedies) of the Regulations provides for how the TRA will determine the appropriate remedy to prevent the serious injury established under Part 3. The regulations provide for two possible remedies: an additional amount of import duty or a tariff rate quota. The regulations in this Part broadly reflect Articles 5 and 6 of the SGA, and Article 16 of Regulation (EU) 2015/478.

Part 5 (Initiation and conduct of an investigation) of the Regulations provides for the TRA to initiate and conduct investigations to consider whether to recommend to the Secretary of State the imposition of provisional and/or definitive safeguarding remedies. In particular, the regulations in this Part set out: the requirements on the content of an application for the initiation of an investigation; how the TRA will assess such an application; how the TRA will treat confidential information; the conduct of authentication visits and hearings, and the disclosure of information forming the basis of the TRA's determinations. The regulations reflect Article 3 of the SGA and Chapter III of Regulation (EU) 2015/478.

Part 6 (Reviews) of the Regulations provides for the TRA to review existing safeguarding remedies so as to recommend the maintenance, variation (including extension of duration) or revocation of the relevant measure. It broadly reflects Article 7 of the SGA and Article 19 of Regulation (EU) 2015/478.

Part 7 (Suspension) of the Regulations provides for the TRA to consider and recommend temporary suspension of safeguarding measures to the Secretary of State. The regulations in this Part set out: the circumstances in which the TRA may recommend temporary suspension; the matters which it may consider in making its determination; how an interested party can apply for temporary suspension; the duration of the temporary suspension, and the circumstances in which the TRA may recommend the reinstatement of a measure.

Part 8 (Supplementary) of the Regulations provides for exceptions to the general application of safeguarding measures.

Part 9 (Transitional provisions) of the Regulations makes provision for certain EU safeguarding remedies (tariff rate quotas) that are in existence when the United Kingdom leaves the EU to take effect (with appropriate adjustments) as new UK tariff rate quotas. Among other things, this Part obliges the TRA to carry out a review of these new remedies, with a view to their adjustment to meet the circumstances of the UK market (or, in appropriate cases, their revocation i.e. where it is determined that the tariff rate quotas are no longer needed). This Part provides that, upon the conclusion of this “transition review”, the TRA is to make a recommendation to the Secretary of State as to the variation, revocation or replacement of these tariff rate quotas.

Part 10 (Transitional provisions relating to the TRA) temporarily modifies these Regulations in that it provides for the Secretary of State to conduct investigations and reviews, and make decisions and determinations under Parts 2 to 9 of these Regulations (as modified in accordance with Part 10) until the TRA is established.

An impact assessment has not been prepared for this instrument as the expected impact of the trade remedies system has already been assessed in the impact assessment accompanying the Taxation (Cross-border Trade) Act 2018.

A copy of the Explanatory Memorandum is published alongside this instrument on www.legislation.gov.uk. Further information is available from the Department for International Trade, 3 Whitehall Place, London SW1A 2AW and on the gov.uk website (www.gov.uk).