The Trade Remedies (Amendment) Regulations 2024

Chapter 4 Amendment of Part 7 (initiation and conduct of a review)

Amendment of regulation 67 (initiation of a review)

8.  In regulation 67—

(a) before paragraph (1), insert—

“(A1) The Secretary of State may, within 60 days of the application, variation, extension or suspension of an anti-dumping amount or a countervailing amount pursuant to Part 4 of Schedule 4 to the Act, or Part 7, Part 9, Part 9A or Part 12 of these Regulations, request that the TRA undertakes an early review.

(B1) Paragraph (A1) does not apply in relation to an anti-dumping amount or a countervailing amount which is maintained or varied as a result of an early review.

(C1) 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 anti-dumping amount or countervailing amount;

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

(c) exceptional circumstances make the request appropriate.

(D1) Before making a request under paragraph (A1), the Secretary of State must consult the TRA.

(E1) Where the Secretary of State makes a request under paragraph (A1), the TRA must comply with the request.”;

(b) after paragraph (6), insert—

“(6A) Where the TRA initiates an early review, it must take then the following steps in the order in which they are set out—

(a) publish a notice (a notice of initiation of a review); and

(b) notify the Secretary of State and interested parties.”;

(c) in paragraph (7)—

(i) for the opening words substitute—

“Where the TRA has made a determination to initiate a review other than an early review, the TRA must notify the Secretary of State that it intends to initiate the review and, after the relevant interval, must take the following steps in the order in which they are set out—”;

(ii) before sub-paragraph (a), insert—

“(za) initiate the review;”;

(d) after paragraph (7), insert—

“(7A) In paragraph (7), 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.”;

(e) in paragraph (9), omit “and the Secretary of State”.

Amendment of regulation 68 (the conduct of a review)

9.  In regulation 68—

(a) after paragraph (6), insert—

“(6A) The TRA must terminate an early review on the request of the Secretary of State.”;

(b) in paragraph (11), after the opening words, insert—

“(za) an early review where the TRA considers varying the level of an anti-dumping amount or a countervailing amount;”.

Insertion of regulation 68A

10.  After regulation 68, insert—.

“Early review

68A.— (1) The TRA may conduct a review (an “early review”) to consider whether—

(a) to vary the application of an anti-dumping amount or a countervailing amount;

(b) to vary the suspension of the application of such an amount; or

(c) to revoke the application of such an amount.

(2) When conducting the early review, the TRA must have regard to any particular considerations which the Secretary of State may specify in the request made under regulation 67(A1).

(3) Where the TRA——

(a) receives a request from the Secretary of State under regulation 67(A1) to undertake an early review; and

(b) accepts an application under Chapter 2 of Part 2 of the Reconsideration and Appeals Regulations 2019 for reconsideration of an original decision to which the request under sub-paragraph (a) relates,

the TRA must take into account any notice published or public notice issued under regulation 14 of the Reconsideration and Appeals Regulations 2019 in relation to that reconsideration in any determination under this regulation.

(4) For the purposes of paragraph (3)—

“the Reconsideration and Appeals Regulations 2019” means the Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019(1);

“original decision” has the meaning given in regulation 9(1) of the Reconsideration and Appeals Regulations 2019.

(5) Following the conclusion of an early review, the TRA may determine that the application or suspension of an anti-dumping amount or a countervailing amount should be—

(a) maintained in accordance with the relevant public notice made under section 13 of the Act;

(b) varied; or

(c) revoked.”.

Amendment of regulation 69 (interim review)

11.  In regulation 69—

(a) after paragraph (6), insert—

“(6A) Where the TRA proposes to make a determination under paragraph (6)(a) the TRA must notify the Secretary of State of its proposed determination.

(6B) Where the Secretary of State has been notified in accordance with paragraph (6A), the Secretary of State may, within the relevant period (and subject to paragraph (6C)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.

(6C) The Secretary of State may only make a request under paragraph (6B) 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.

(6D) The TRA must comply with a request under paragraph (6B).

(6E) 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 (6B), the time when the TRA receives that information.

(6F) For the purposes of paragraphs (6B) and (6E), 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.”;

(b) in paragraph (10), for the words from “may make” to the end substitute “must conduct the economic interest test (see paragraph 25 of Schedule 4 to the Act)”.

Amendment of regulation 70 (expiry review)

12.  In regulation 70—

(a) in paragraph (9), for the words after “regulation 76” to the end, substitute “(powers of the Secretary of State in relation to the TRA’s recommendation) or made a decision under regulation 76A (Secretary of State’s power to apply an alternative remedy)”;

(b) after paragraph (11), insert—

“(11A) Where the TRA proposes to make a determination under paragraph (11)(a) the TRA must notify the Secretary of State of its proposed determination.

(11B) Where the Secretary of State has been notified in accordance with paragraph (11A), the Secretary of State may, within the relevant period (and subject to paragraph (11C)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.

(11C) The Secretary of State may only make a request under paragraph (11B) 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.

(11D) The TRA must comply with a request under paragraph (11B).

(11E) 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 (11B), the time when the TRA receives that information.

(11F) For the purposes of paragraphs (11B) and (11E), 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.

(11G) Where the TRA makes a determination under paragraph (11)(a) after the date on which the application of the relevant anti-dumping amount or countervailing amount would, but for paragraph (9), have ended as set out in the original public notice under section 13 relating to the amount (the “original expiry date”)—

(a) the Secretary of State must provide by public notice for the application of the relevant anti-dumping amount or countervailing amount to be treated as having ended on the original expiry date; and

(b) a public notice under sub-paragraph (a) must contain the information set out in paragraph 1A of Schedule 3.”;

(c) in paragraph (12), for the words from “may make” to “meets” substitute “must conduct”.

Amendment of regulation 71 (new exporter review)

13.  In regulation 71, after paragraph (6), insert—

“(6A) Where the TRA proposes to make a determination under paragraph (6)(a) the TRA must notify the Secretary of State of its proposed determination.

(6B) Where the Secretary of State has been notified in accordance with paragraph (6A), the Secretary of State may, within the relevant period (and subject to paragraph (6C)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.

(6C) The Secretary of State may only make a request under paragraph (6B) 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.

(6D) The TRA must comply with a request under paragraph (6B).

(6E) 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 (6B), the time when the TRA receives that information.

(6F) For the purposes of paragraphs (6B) and (6E), 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.”.

Amendment of regulation 72 (absorption review)

14.  In regulation 72, after paragraph (7), insert—

“(8) Where the TRA proposes to make a determination under paragraph (7)(a) the TRA must notify the Secretary of State of its proposed determination.

(9) Where the Secretary of State has been notified in accordance with paragraph (8), the Secretary of State may, within the relevant period (and subject to paragraph (10)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.

(10) The Secretary of State may only make a request under paragraph (9) 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.

(11) The TRA must comply with a request under paragraph (9).

(12) 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 (9), the time when the TRA receives that information.

(13) For the purposes of paragraphs (9) and (12), 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.”.

Amendment of regulation 73 (circumvention review)

15.  In regulation 73, after paragraph (7), insert—

“(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.”.

Amendment of regulation 74 (scope review)

16.  In regulation 74, after paragraph (5), insert—

“(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.”.

Amendment of regulation 75 (TRA recommendation to the Secretary of State)

17.  In regulation 75—

(a) in paragraph (1), omit “(where applicable) the economic interest test is met and that”;

(b) after paragraph (2), insert—

“(2A) Where, in relation to an early review, an interim review or an expiry review, 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 interim review or an expiry review, where the TRA considers that applying an anti-dumping amount or a countervailing amount in accordance with its proposed recommendation would not meet the economic interest test; or

(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 (2A), 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 interim review or an expiry review, the TRA makes a recommendation under paragraph (1) to extend the application of an anti-dumping amount or a countervailing amount, it must advise the Secretary of State whether and why it considers that the extension of the application of that amount in accordance with its recommendation, or in accordance with each option, as the case may be, would meet the economic interest test.”.

Amendment of regulation 76 (acceptance or rejection of the TRA’s recommendation by the Secretary of State)

18.  In regulation 76—

(a) for the heading substitute “Powers of the Secretary of State in relation to the TRA’s recommendation”;

(b) In paragraph (1), for “accept or reject the recommendation” substitute—

“—

(a) accept or reject the recommendation; or

(b) except in the case of a recommendation made in relation to an early review under regulation 68A, 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.”;

(c) after paragraph (1), insert—

“(1A) Where the Secretary of State accepts a recommendation which contains options given in reliance on paragraph 75(2A), the Secretary of State must decide which of those options to adopt.”;

(d) In paragraph (3), for the words from “following an” to the end, substitute “following an interim or expiry review, the Secretary of State must 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”;

(e) in paragraph (4), after “rejects the TRA’s recommendation”, insert “and does not make a decision under regulation 76A”;

(f) after paragraph (5), insert—

“(6) Where the Secretary of State accepts the TRA’s recommendation, the Secretary of State may decide that the date from which any variation has effect is a date before the date of the recommendation by the TRA.

(7) 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.

(8) Before making a request under paragraph (1)(b), the Secretary of State must consult the TRA.

(9) 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.”.

Insertion of regulations 76A and 76B

19.  After regulation 76 and before Part 8, insert—

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

76A.— (1) This regulation applies where—

(a) the TRA makes a recommendation under regulation 75(1)(a), (c) or (d); and

(b) the Secretary of State rejects the recommendation.

(2) 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 anti-dumping amount or countervailing amount should be—

(a) varied or applied, or the period of application of that amount extended, other than in accordance with the recommendation, subject to paragraph (3) where applicable; or

(b) revoked.

(3) Where the Secretary of State makes a decision under paragraph (2)(a) in respect of—

(a) a recommendation made by the TRA following a determination by the TRA under regulation 69(11), the restriction in regulation 69(12) applies to the Secretary of State’s decision;

(b) a recommendation made by the TRA following a determination by the TRA under regulation 72(7), the restriction in regulation 72(6) applies to the Secretary of State’s decision.

(4) Where the Secretary of State makes a decision under paragraph (2), the Secretary of State may decide that the date from which any revocation or variation has effect is a date before the date of the decision by the Secretary of State.

(5) Where the Secretary of State makes a decision under paragraph (2)—

(a) the notice published by the Secretary of State under paragraph 21(7)(a) of Schedule 4 to the Act must contain the information set out in paragraph 3 of Schedule 3; and

(b) the Secretary of State must lay a statement before the House of Commons setting out the reasons for the decision.

Power to request assistance etc. from TRA

76B.— (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 76A(2).

(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).”.

(1)

S.I. 2019/910, amended by section 74(11) of the Finance Act 2022 (c.3) and S.I. 2020/99, 730, 2022/113, 414, 2024/519.