Finance (No. 2) Act 2023

Definitive remedies

4 (1) In paragraph 17 (TRA’s duty to recommend an anti-dumping amount or countervailing amount)—

(a) in sub-paragraph (3), in the words before paragraph (a), for “may” substitute “must”;

(b) in sub-paragraph (4), in the words before paragraph (a), for “may” substitute “must”;

(c) omit sub-paragraph (5);

(d) in sub-paragraph (7)—

(i) omit “But”;

(ii) at the end insert “(but a recommendation may include two or more options in accordance with sub-paragraph (8A))”;

(e) after sub-paragraph (8) insert—

“(8A) Where the TRA considers that there are two or more options which it could recommend under sub-paragraph (3) or (4), as the case may be, in relation to relevant goods or descriptions of relevant goods, it may give the Secretary of State each of those options as part of its recommendation.

(8B) The Secretary of State may by regulations make provision requiring the TRA, in specified circumstances, to consider whether it could give the Secretary of State two or more options as part of its recommendation under sub-paragraph (3) or (4) in relation to relevant goods or descriptions of relevant goods.

(8C) Where, after considering whether it could give the Secretary of State two or more options as part of its recommendation in accordance with regulations under sub-paragraph (8B), the TRA considers that there is only one option which it could recommend under sub-paragraph (3) or (4), as the case maybe, in relation to relevant goods or descriptions of relevant goods, it must give the Secretary of State its reasons for reaching that conclusion.

(8D) Where the TRA gives the Secretary of State options, it must—

(a) give the Secretary of State its reasons for including each option, and

(b) inform the Secretary of State which option it prefers and why.

(8E) Where the TRA makes a recommendation under sub-paragraph (3) or (4) it must advise the Secretary of State whether and why it considers that applying an anti-dumping amount or a countervailing amount, as the case may be, in accordance with—

(a) the recommendation, or

(b) where the recommendation contains options given under sub-paragraph (8A), each option,

would meet the economic interest test (see paragraph 25).”;

(f) omit sub-paragraph (9);

(g) omit sub-paragraph (10).

(2) In paragraph 18 (TRA’s recommendations about an anti-dumping amount or a countervailing amount), after sub-paragraph (8) insert—

“(9) This paragraph has effect in relation to an option given by the TRA under paragraph 17(8A) as it has effect in relation to a recommendation by the TRA under paragraph 17(3) or (4).”

(3) In paragraph 19 (regulations about TRA’s recommendations), after sub-paragraph (5) insert—

“(6) Regulations under this paragraph may make any provision in relation to an option given by the TRA under paragraph 17(8A) that they may make in relation to a recommendation by the TRA under paragraph 17(3) or (4).”

(4) In the italic heading before paragraph 20 (Secretary of State’s power to accept or reject a recommendation), for “power to accept or reject” substitute “powers in relation to”.

(5) In paragraph 20—

(a) in sub-paragraph (1)—

(i) the words from “decide” to the end become paragraph (a);

(ii) at the end of that paragraph insert “, or

(b) request that the TRA reassess the recommendation, by reference to any matters specified in the request, with a view to amending or replacing the recommendation.”;

(b) after sub-paragraph (1) insert—

“(1A) Where the Secretary of State accepts a recommendation which contains options given in reliance on paragraph 17(8A), the Secretary of State must decide which of those options to adopt.”;

(c) in sub-paragraph (3), for the words from “accept” to the end substitute “have regard to the TRA’s advice on whether the application of an anti-dumping amount or a countervailing amount to goods in accordance with the recommendation, or in accordance with each option, as the case may be, would meet the economic interest test (see paragraph 25)”;

(d) in sub-paragraph (4), after “rejected” insert “and the Secretary of State does not make a decision under paragraph 20A(2)”;

(e) in sub-paragraph (5), in paragraph (a), after “recommendation” insert “, including any particular option adopted by the Secretary of State,”;

(f) after sub-paragraph (5) insert—

“(5A) The Secretary of State may only make a request under sub-paragraph (1)(b) where the Secretary of State considers that—

(a) there is information that the TRA did not take into account in its investigation that is relevant to the recommendation,

(b) the TRA has made an error in relation to its recommendation, or

(c) exceptional circumstances make the request appropriate.

(5B) Before making a request under sub-paragraph (1)(b), the Secretary of State must consult the TRA.

(5C) Where the Secretary of State makes a request under sub-paragraph (1)(b), the TRA must—

(a) comply with the request, and

(b) in reassessing its recommendation, have regard to any particular considerations which the Secretary of State may specify in the request.”

(6) After paragraph 20 insert—

“Secretary of State’s power to apply an alternative remedy

20A (1) This paragraph applies where the Secretary of State rejects a recommendation under paragraph 20.

(2) If the Secretary of State considers that it is in the public interest to do so, the Secretary of State may decide to apply an anti-dumping amount or a countervailing amount in relation to relevant goods or descriptions of relevant goods to which the TRA’s recommendation related, other than in accordance with the recommendation.

(3) But the Secretary of State may make a decision under sub-paragraph (2) only if a recommendation under paragraph 17(3) or (4) to the same effect as the decision (ignoring any restrictions in paragraph 17 on the ability of the TRA to make such a recommendation) would have complied with the requirements set out in paragraph 18.

(4) Where the Secretary of State makes a decision under sub-paragraph (2), the Secretary of State—

(a) must publish notice of the decision,

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

(c) must lay a statement before the House of Commons setting out the reasons for making the decision, and

(d) is required under section 13 to make provision by public notice to give effect to the decision.”