33. Reviews by the TRA of the continuing application, including variation, revocation and extension, of a definitive safeguarding remedy to goods pursuant to paragraph 21 of Schedule 5 to the Act are subject to the provisions of this Part.
Commencement Information
I1Reg. 33 in force at 6.3.2019 with effect in accordance with reg. 1(3)-(8), see reg. 1(2)
33A.—(1) The Secretary of State may, within 60 days of the application, variation, extension or suspension of a definitive safeguarding remedy under Part 4 of Schedule 5 to the Act or Part 6, Part 7 or Part 7A of these Regulations, request that the TRA undertakes a review of the application, variation, extension or suspension of that remedy (as the case may be) by reference to any matters specified in the request, with a view to varying or revoking it (an “early review”).
(2) Paragraph (1) does not apply in relation to a definitive safeguarding remedy which is maintained, varied or revoked as a result of an early review under this regulation.
(3) The Secretary of State may request an early review where the Secretary of State considers that—
(a)there is information that the TRA did not take into account in its investigation or review that is relevant to the definitive safeguarding remedy;
(b)the TRA made an error in relation to its recommendation; or
(c)exceptional circumstances make the request appropriate.
(4) Before making a request under paragraph (1), the Secretary of State must consult the TRA.
(5) Where the Secretary of State makes a request under paragraph (1), the TRA must—
(a)comply with the request;
(b)in reviewing the definitive safeguarding remedy, have regard to any particular considerations which the Secretary of State may specify in the request.
(6) Where the TRA initiates an early review, the TRA must—
(a)publish a notice (a “notice of initiation of a review”) containing the information set out in paragraph 9 of the Schedule; and
(b)notify the Secretary of State and interested parties accordingly.
(7) Following the conclusion of an early review, the TRA may determine that the application of a definitive safeguarding remedy should be—
(a)maintained in accordance with the relevant public notice made under section 13 of the Act;
(b)varied; or
(c)revoked.]
Textual Amendments
34.—(1) Where a definitive safeguarding remedy is intended to apply for more than three years, the TRA must initiate a review (a “mid-term review”) not later than half way through the intended duration of that remedy, to consider whether—
(a)its continuing application is necessary to—
(i)remove the serious injury, or to prevent further serious injury, caused by the importation of the goods subject to review in increased quantities, to UK producers; or
(ii)facilitate the adjustment by those UK producers to the importation of the goods subject to review in increased quantities; and
(b)an alternative definitive safeguarding amount or tariff rate quota would better meet the aim of—
(i)removing or preventing serious injury to UK producers; or
(ii)facilitating the adjustment by those UK producers to the importation of the goods subject to review in increased quantities.
(2) [F2Where the TRA decides to initiate a mid-term review under paragraph (1), the TRA must notify the Secretary of State that it intends to initiate a mid-term review and, after the relevant interval, must take the following steps in the order in which they are set out—]
[F3(aa)initiate the review;]
(a)publish a notice of its determination to initiate a mid-term review (a “notice of initiation of a review”) containing the information referred to in paragraph 9 of the Schedule; and
(b)notify the Secretary of State and interested parties.
[F4(2A) In paragraph (2), the “relevant interval” is the period of two working days beginning with the first working day after the day on which the TRA notifies the Secretary of State of its intention to initiate the review.]
(3) In conducting a mid-term review, the TRA may consider, among other things—
(a)whether the circumstances under which the definitive safeguarding remedy was applied have changed significantly;
(b)whether it is likely that serious injury will recur if the definitive safeguarding remedy is revoked;
(c)whether serious injury has been removed or reduced, in whole or in part, due to the application of the definitive safeguarding remedy;
(d)information on progress in implementing the adjustment plan to help decide if the pace of liberalisation is appropriate.
(4) Following the conclusion of a mid-term review, the TRA may determine that the application of a definitive safeguarding remedy should be—
(a)maintained in accordance with the relevant public notice made under section 13 of the Act;
(b)varied F5...; or
(c)revoked.
[F6(5) Where the TRA proposes to make a determination under paragraph (4)(a) the TRA must notify the Secretary of State of its proposed determination.
(6) Where the Secretary of State has been notified in accordance with paragraph (5), the Secretary of State may, within the relevant period (and subject to paragraph (7)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.
(7) The Secretary of State may only make a request under paragraph (6) where the Secretary of State considers that—
(a)there is information that the TRA did not take into account in its review that is relevant to the proposed determination;
(b)the TRA has made an error in relation to its proposed determination; or
(c)exceptional circumstances make the request appropriate.
(8) The TRA must comply with a request under paragraph (6).
(9) The TRA may not make its proposed determination until—
(a)the relevant period has ended; or
(b)if the Secretary of State informs the TRA within the relevant period that the Secretary of State will not make a request under paragraph (6), the time when the TRA receives that information.
(10) For the purposes of paragraphs (6) and (9), the “relevant period” is the period of 21 days beginning with the day on which the TRA notifies the Secretary of State that it proposes to make the determination in question.]
Textual Amendments
F2Words in reg. 34(2) substituted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 8(a)(i) (with reg. 2)
F3Reg. 34(2)(aa) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 8(a)(ii) (with reg. 2)
F4Reg. 34(2A) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 8(b) (with reg. 2)
F5Words in reg. 34(4)(b) omitted (1.3.2020) by virtue of The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 4
F6Reg. 34(5)-(10) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 8(c) (with reg. 2)
Commencement Information
I2Reg. 34 in force at 6.3.2019 with effect in accordance with reg. 1(3)-(8), see reg. 1(2)
35.—(1) The TRA may conduct a review (an “extension review”) to consider whether the expiry of a definitive safeguarding remedy would likely result in a continuation or recurrence of serious injury to UK producers of the relevant goods.
(2) The TRA may initiate an extension review—
(a)following the receipt of an application made by or on behalf of UK producers; or
(b)on its own initiative.
[F7(2A) Where an application is made under paragraph (2)(a), the TRA must notify the Secretary of State of that application before the end of the second working day after the day on which it receives the application.]
F8(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) An application for an extension review must not be made more than 12 months before the scheduled expiry of a definitive safeguarding remedy.
(5) [F9Where the TRA decides to initiate an extension review, the TRA must notify the Secretary of State that it intends to initiate an extension review and, after the relevant interval, must take the following steps in the order in which they are set out]
[F10(aa)initiate the review;]
(a)publish a notice of its determination to initiate an extension review (a “notice of initiation of a review”) containing the information referred to in paragraph 9 of the Schedule; and
(b)notify the Secretary of State and interested parties.
[F11(5A) In paragraph (5), the “relevant interval” is the period of two working days beginning with the first working day after the day on which the TRA notifies the Secretary of State of its intention to initiate the review.]
(6) In conducting an extension review, the TRA must consider—
(a)whether the importation of the goods subject to review in increased quantities is likely to recur;
(b)whether serious injury has been removed, or reduced, in whole or in part due to the application of the definitive safeguarding remedy;
(c)whether it is likely that serious injury will recur if the application of the definitive safeguarding remedy is not extended;
(d)whether the circumstances of UK producers, or domestic or overseas market conditions, are such that the serious injury caused by the importation of the goods subject to review in increased quantities is likely to recur;
(e)any adjustments made by UK producers; and
(f)any other factors it considers relevant.
(7) Following an extension review, the TRA may determine that—
(a)the application of a definitive safeguarding remedy to the goods subject to review should expire in accordance with the public notice made under section 13 of the Act; or
(b)the application of such remedy be extended for a period which is necessary to—
(i)prevent or remove serious injury; and
(ii)facilitate adjustment by UK producers.
[F12(7A) Where the TRA proposes to make a determination under paragraph (7)(a) the TRA must notify the Secretary of State of its proposed determination.
(7B) Where the Secretary of State has been notified in accordance with paragraph (7A), the Secretary of State may, within the relevant period (and subject to paragraph (7C)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.
(7C) The Secretary of State may only make a request under paragraph (7B) where the Secretary of State considers that—
(a)there is information that the TRA did not take into account in its review that is relevant to the proposed determination;
(b)the TRA has made an error in relation to its proposed determination; or
(c)exceptional circumstances make the request appropriate.
(7D) The TRA must comply with a request under paragraph (7B).
(7E) The TRA may not make its proposed determination until—
(a)the relevant period has ended; or
(b)if the Secretary of State informs the TRA within the relevant period that the Secretary of State will not make a request under paragraph (7B), the time when the TRA receives that information.
(7F) For the purposes of paragraphs (7B) and (7E), the “relevant period” is the period of 21 days beginning with the day on which the TRA notifies the Secretary of State that it proposes to make the determination in question.]
(8) Where the TRA makes a determination under paragraph (7)(b), the TRA—
(a)must determine that the pace of liberalisation of the definitive safeguarding remedy should be [F13varied]; and
(b)may determine that F14... the definitive safeguarding remedy should be varied.
(9) The period for which a definitive safeguarding remedy applies to goods as a consequence of this regulation must not exceed eight years and such period includes the specified period referred to in paragraph 16(3)(a) or (b) of Schedule 5 to the Act.
(10) The TRA may reject an extension review application if it is not made via the TRA's case management system.
(11) Where the TRA rejects an extension review application, it must notify the review applicant.
Textual Amendments
F7Reg. 35(2A) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 9(a) (with reg. 2)
F8Reg. 35(3) omitted (25.9.2023) by virtue of The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 9(b) (with reg. 2)
F9Words in reg. 35(5) substituted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 9(c)(i) (with reg. 2)
F10Reg. 35(5)(aa) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 9(c)(ii) (with reg. 2)
F11Reg. 35(5A) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 9(d) (with reg. 2)
F12Reg. 35(7A)-(7F) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 9(e) (with reg. 2)
F13Word in reg. 35(8)(a) substituted (1.3.2020) by The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 5(a)
F14Words in reg. 35(8)(b) omitted (1.3.2020) by virtue of The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 5(b)
Commencement Information
I3Reg. 35 in force at 6.3.2019 with effect in accordance with reg. 1(3)-(8), see reg. 1(2)
35A.—(1) The TRA may conduct a review to consider whether a definitive safeguarding remedy should be revoked (a “discontinuation review”) where it is satisfied that there is sufficient information indicating that—
(a)there may have been a lasting change of circumstances since the application of the relevant definitive safeguarding remedy; and
(b)as a result, UK producers may no longer be suffering serious injury, or may cease to suffer such injury if the relevant definitive safeguarding remedy is revoked.
(2) The TRA may initiate a discontinuation review on its own initiative.
(3) [F16Where the TRA decides to initiate a discontinuation review, the TRA must notify the Secretary of State that it intends to initiate a discontinuation review and, after the relevant interval, must take the following steps in the order in which they are set out]—
[F17(aa)initiate the review;]
(a)publish a notice of its decision to initiate that review (a “notice of initiation of a review”) containing the information set out in paragraph 9 of the Schedule; and
(b)notify the Secretary of State and interested parties.
[F18(3A) In paragraph (3), the “relevant interval” is the period of two working days beginning with the first working day after the day on which the TRA notifies the Secretary of State of its intention to initiate the review.]
(4) In conducting a discontinuation review, the TRA—
(a)must determine whether—
(i)there has been a lasting change of circumstances since the application of the relevant definitive safeguarding remedy; and
(ii)UK producers have ceased to suffer serious injury or would not suffer such injury if the relevant definitive safeguarding remedy is revoked; and
(b)may take into account any factors that it considers relevant.
(5) Following a discontinuation review, the TRA may determine that the application to goods of a definitive safeguarding remedy subject to review should be—
(a)maintained in accordance with the relevant public notice made under section 13 of the Act; or
(b)revoked.
[F19(6) Where the TRA proposes to make a determination under paragraph (5)(a) the TRA must notify the Secretary of State of its proposed determination.
(7) Where the Secretary of State has been notified in accordance with paragraph (6), the Secretary of State may, within the relevant period (and subject to paragraph (8)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.
(8) The Secretary of State may only make a request under paragraph (7) where the Secretary of State considers that—
(a)there is information that the TRA did not take into account in its review that is relevant to the proposed determination;
(b)the TRA has made an error in relation to its proposed determination; or
(c)exceptional circumstances make the request appropriate.
(9) The TRA must comply with a request under paragraph (7).
(10) The TRA may not make its proposed determination until—
(a)the relevant period has ended; or
(b)if the Secretary of State informs the TRA within the relevant period that the Secretary of State will not make a request under paragraph (7), the time when the TRA receives that information.
(11) For the purposes of paragraphs (7) and (10), the “relevant period” is the period of 21 days beginning with the day on which the TRA notifies the Secretary of State that it proposes to make the determination in question.]
Textual Amendments
F15Regs. 35A, 35B inserted (1.3.2020) by The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 6
F16Words in reg. 35A(3) substituted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 10(a)(i) (with reg. 2)
F17Reg. 35A(3)(aa) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 10(a)(ii) (with reg. 2)
F18Reg. 35A(3A) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 10(b) (with reg. 2)
F19Reg. 35A(6)-(11) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 10(c) (with reg. 2)
35B.—(1) The TRA may conduct a review to consider whether a tariff rate quota to which goods are subject should be varied (a “TRQ review”) where it is satisfied that there is sufficient information indicating that there may have been a change of circumstances (see paragraph (9)) since the application of that tariff rate quota to those goods.
(2) The TRA may initiate a TRQ review—
(a)following the receipt of an application made by or on behalf of an interested party (a “TRQ review application”); or
(b)on its own initiative.
[F20(2A) Where an application is made under paragraph (2)(a), the TRA must notify the Secretary of State of that application before the end of the second working day after the day on which it receives the application.]
(3) The TRA may reject a TRQ review application if it is made before the end of the period of six months beginning with the conclusion of—
(a)an investigation conducted under Part 5;
(b)a mid-term review;
(c)an extension review; or
(d)the transition review (under Part 9) in respect of the same tariff rate quota.
(4) The TRA may reject a TRQ review application if it is not made via the TRA’s case management system.
(5) [F21Where the TRA decides to initiate a TRQ review, the TRA must notify the Secretary of State that it intends to initiate a TRQ review and, after the relevant interval, must take the following steps in the order in which they are set out]—
[F22(aa)initiate the review;]
(a)publish a notice of its decision to initiate a TRQ review (a “notice of initiation of a review”) containing the information set out in paragraph 9 of the Schedule; and
(b)notify the Secretary of State and interested parties.
[F23(5A) In paragraph (5), the “relevant interval” is the period of two working days beginning with the first working day after the day on which the TRA notifies the Secretary of State of its intention to initiate the review.]
(6) In conducting a TRQ review, the TRA—
(a)need not make any assessments or determinations under Parts 2 to 4;
(b)must determine whether there has been a change in circumstances (see paragraph (9)) since the application of the relevant tariff rate quota; and
(c)may consider—
(i)whether the amount or allocation of the tariff rate quota is appropriate for domestic market conditions;
(ii)the desirability of maintaining, as far as possible, traditional trade flows;
(iii)any other factors that it considers relevant.
(7) Following a TRQ review, the TRA may determine that the tariff rate quota to which goods are subject should be—
(a)maintained in accordance with the relevant public notice made under section 13 of the Act;
(b)varied; or
(c)where there is sufficient evidence that UK producers have ceased production of those goods, revoked.
[F24(7A) Where the TRA proposes to make a determination under paragraph (7)(a) the TRA must notify the Secretary of State of its proposed determination.
(7B) Where the Secretary of State has been notified in accordance with paragraph (7A), the Secretary of State may, within the relevant period (and subject to paragraph (7C)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.
(7C) The Secretary of State may only make a request under paragraph (7B) where the Secretary of State considers that—
(a)there is information that the TRA did not take into account in its review that is relevant to the proposed determination;
(b)the TRA has made an error in relation to its proposed determination; or
(c)exceptional circumstances make the request appropriate.
(7D) The TRA must comply with a request under paragraph (7B).
(7E) The TRA may not make its proposed determination until—
(a)the relevant period has ended; or
(b)if the Secretary of State informs the TRA within the relevant period that the Secretary of State will not make a request under paragraph (7B), the time when the TRA receives that information.
(7F) For the purposes of paragraphs (7B) and (7E), the “relevant period” is the period of 21 days beginning with the day on which the TRA notifies the Secretary of State that it proposes to make the determination in question.]
[F25(8) The TRA must not vary a tariff rate quota by—
(a)reducing the rate of import duty that applies to goods subject to that quota; or
(b)varying the period for which goods are subject to that quota.]
(9) For the purposes of paragraphs (1) and (6)(b), a change of circumstances may, among other things, be—
(a)the fact that the tariff rate quota, or any part of the quota, has been exhausted;
(b)a change in demand for the relevant goods;
(c)the effect of an anti-dumping amount or a countervailing amount being applied to the relevant goods or like goods and directly competitive goods in the United Kingdom;
(d)trade diversion in relation to the imposition of anti-dumping, countervailing, safeguard or other trade measures by a foreign country or territory;
(e)the impact of the tariff rate quota on traditional trade flows;
(f)the fact that imports from a developing country member of the WTO which have been excluded from the application of the tariff rate quota can no longer be excluded under regulation 43 (developing country exception);
(g)the fact that imports from a developing country member of the WTO which have not been excluded from the application of the tariff rate quota should be excluded under regulation 43.]
Textual Amendments
F15Regs. 35A, 35B inserted (1.3.2020) by The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 6
F20Reg. 35B(2A) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 11(a) (with reg. 2)
F21Words in reg. 35B(5) substituted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 11(b)(i) (with reg. 2)
F22Reg. 35B(5)(aa) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 11(b)(ii) (with reg. 2)
F23Reg. 35B(5A) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 11(c) (with reg. 2)
F24Reg. 35B(7A)-(7F) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 11(d) (with reg. 2)
F25Reg. 35B(8) substituted (5.8.2020) by The Trade Remedies (Amendment) (EU Exit) (No. 2) Regulations 2020 (S.I. 2020/730), regs. 1, 3
36.—(1) Where the TRA considers it appropriate, the TRA may expand or limit the matters to be considered in a review.
(2) The TRA must provide interested parties with an opportunity to comment prior to acting in accordance with paragraph (1).
(3) The TRA may, where it considers it appropriate, terminate an extension review on the request of the review applicant.
(4) Parts 2 to 5 apply to [F26an early review,] [F27a mid-term review, an extension review or a discontinuation review] to the extent that the TRA considers relevant.
[F28(4A) Part 5 applies to a TRQ review to the extent that the TRA considers relevant.]
(5) If the TRA applies any part of Parts 2 to 5 to a review, any references in those Parts to “goods concerned” should be read as “goods subject to review”.
[F29(6) Regulation 43 (developing country exception) applies to a review conducted under this Part, other than a discontinuation review, and, in the application of that regulation to such a review, the references in that regulation—
(a)to the “application of a provisional safeguarding remedy or definitive safeguarding remedy” should be read as the “maintenance, expiry or variation of a safeguarding remedy following a review”; and
(b)to “goods concerned” should be read as “goods subject to review”.]
Textual Amendments
F26Words in reg. 36(4) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 12 (with reg. 2)
F27Words in reg. 36(4) substituted (1.3.2020) by The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 7(a)
F28Reg. 36(4A) inserted (1.3.2020) by The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 7(b)
F29Reg. 36(6) inserted (1.3.2020) by The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 7(c)
Commencement Information
I4Reg. 36 in force at 6.3.2019 with effect in accordance with reg. 1(3)-(8), see reg. 1(2)
36A.—(1) Where, other than following a TRQ review, the TRA determines that a definitive safeguarding remedy is to be varied under this Part, such variation may, among other things, comprise or include—
(a)the replacement of the application of a definitive safeguarding amount with a tariff rate quota;
(b)the replacement of a tariff rate quota with the application of a definitive safeguarding amount;
(c)the variation of the level or pace of liberalisation.]
Textual Amendments
F30Reg. 36A inserted (1.3.2020) by The Trade Remedies (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/99), regs. 1, 8
37.—(1) [F31The] TRA must make a recommendation to the Secretary of State, where it determines that the application of a definitive safeguarding remedy should be varied, revoked or replaced.
F32(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F33(2A) Where, in relation to an early review under regulation 33A, a mid-term review under regulation 34 or an extension review under regulation 35, the TRA considers that there are two or more options which it could recommend under paragraph (1), it may give the Secretary of State each of those options as part of its recommendation.
(2B) The TRA must consider whether it could give the Secretary of State two or more options as part of its recommendation under paragraph (1)—
(a)in the case of an extension review, where the TRA considers that the extension of the application of the definitive safeguarding remedy in accordance with its proposed recommendation would not meet the economic interest test;
(b)where the TRA otherwise considers that it is appropriate.
(2C) Where, after considering whether it could give the Secretary of State two or more options as part of its recommendation in accordance with paragraph (1), the TRA considers that there is only one option which it could reasonably recommend under paragraph (1), it must give the Secretary of State its reasons for reaching that conclusion.
(2D) 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.
(2E) Where, in the case of an extension review, the TRA makes a recommendation to extend the application of a definitive safeguarding remedy, it must advise the Secretary of State whether and why it considers that the extension of the application of that definitive safeguarding remedy in accordance with its recommendation, or in accordance with each option given under paragraph (2A), as the case may be, would meet the economic interest test.]
(3) Before making a recommendation that the application of a definitive safeguarding remedy be varied which comprises or includes varying (or providing for) the allocation of a tariff rate quota, the TRA must consult the Secretary of State regarding the proposed allocation.
(4) The TRA's recommendation must include—
(a)a description of the goods to which the recommendation relates;
(b)the reasons for its recommendation;
(c)where relevant, the recommended period for which the definitive safeguarding remedy should be applicable, which must begin on the day after the date of publication of the public notice under section 13 of the Act giving effect to the recommendation;
(d)information which the TRA considers is likely to be relevant to the Secretary of State's decision as to whether it would not be in the public interest to accept the TRA's recommendation (see regulation 38);
(e)any other information which the TRA considers relevant.
(5) Where the TRA terminates a review but does not make a recommendation in accordance with paragraph (1), the TRA must—
(a)publish a notice containing the information referred to in paragraph 12 of the Schedule; and
(b)notify the Secretary of State and interested parties.
Textual Amendments
F31Word in reg. 37(1) substituted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 13(a) (with reg. 2)
F32Reg. 37(2) omitted (25.9.2023) by virtue of The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 13(b) (with reg. 2)
F33Reg. 37(2A)-(2E) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 13(c) (with reg. 2)
Commencement Information
I5Reg. 37 in force at 6.3.2019 with effect in accordance with reg. 1(3)-(8), see reg. 1(2)
38.—(1) Where the TRA makes a recommendation in accordance with regulation 37(1), the Secretary of State must [F35—
(a)accept or reject the recommendation; or
(b)except in the case of a recommendation made in relation to an early review under regulation 33A, request that the TRA reassess its recommendation, by reference to any matters specified in the request, with a view to amending or replacing the recommendation.]
[F36(1A) Where the Secretary of State accepts a recommendation which contains options given in reliance on paragraph 37(2A), the Secretary of State must decide which of those options to adopt.]
(2) The Secretary of State may reject the recommendation only if the Secretary of State is satisfied [F37that it is not in the public interest to accept it].
[F38(2A) In considering the public interest under paragraph (2), where regulation 37(2E) applies the Secretary of State must have regard to the TRA’s advice on whether extending the application of a definitive safeguarding remedy in accordance with a recommendation, or in accordance with each option, as the case may be, would meet the economic interest test.
(2B) Paragraph (2C) applies if—
(a)the TRA makes a recommendation to vary or replace the application of a definitive safeguarding remedy; and
(b)the Secretary of State rejects the recommendation.
(2C) If the Secretary of State considers that it is in the public interest to do so, the Secretary of State may decide that the application of the definitive safeguarding remedy should be—
(a)varied or replaced other than in accordance with the recommendation, subject to paragraph (2D) where applicable; or
(b)revoked.
(2D) Where the Secretary of State decides to vary a recommendation made by the TRA following a determination by the TRA under regulation 35B(7)(b), the restrictions in regulation 35B(8) apply to the Secretary of State’s decision under paragraph (2C)(a).]
(3) Where the Secretary of State rejects the recommendation [F39and does not make a decision under paragraph (2C)], the Secretary of State must—
(a)publish a notice containing the information referred to in paragraph 10 or 11 of the Schedule;
(b)notify interested parties; and
(c)lay a statement before the House of Commons setting out the reasons for rejecting the recommendation.
[F40(4) The Secretary of State may only make a request under paragraph (1)(b) where the Secretary of State considers that—
(a)there is information that the TRA did not take into account in its review that is relevant to the recommendation;
(b)the TRA made an error in relation to its recommendation; or
(c)exceptional circumstances make the request appropriate.
(5) Before making a request under paragraph (1)(b), the Secretary of State must consult the TRA.
(6) Where the Secretary of State makes a request under 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.]
Textual Amendments
F34Reg. 38 heading substituted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 14(a) (with reg. 2)
F35Words in reg. 38(1) substituted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 14(b) (with reg. 2)
F36Reg. 38(1A) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 14(c) (with reg. 2)
F37Words in reg. 38(2) substituted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 14(d) (with reg. 2)
F38Reg. 38(2A)-(2D) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 14(e) (with reg. 2)
F39Words in reg. 38(3) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 14(f) (with reg. 2)
F40Reg. 38(4)-(6) inserted (25.9.2023) by The Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023 (S.I. 2023/954), regs. 1(2), 14(g) (with reg. 2)
Commencement Information
I6Reg. 38 in force at 6.3.2019 with effect in accordance with reg. 1(3)-(8), see reg. 1(2)
38A.—(1) The Secretary of State may request that the TRA give advice, information or other support to the Secretary of State for the purpose of allowing the Secretary of State to decide whether to make a decision under regulation 38(2C).
(2) The Secretary of State may include in a request under paragraph (1) a requirement that the TRA investigate and provide a report on any matter specified in the request.
(3) Before making a request under paragraph (1), the Secretary of State must consult the TRA.
(4) The TRA must comply with a request under paragraph (1).]
Textual Amendments