Legalize / United Kingdom / Statutory-Instrument

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

Type Statutory-Instrument

Publication 2019-03-04

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: at 5.04 p.m. on 4th March 2019

Laid before the House of Commons: 5th March 2019

Coming into force: 6th March 2019

The Secretary of State for International Trade, in exercise of the powers conferred by sections 13, 32(7) and (8), 51 and 56 of, and Schedule 5 to, the Taxation (Cross-border Trade) Act 2018 , makes the following Regulations.

PART 1 — Introductory

Citation, commencement and effect

1

(1) These Regulations may be cited as the Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) Regulations 2019.

(2) These Regulations come into force on 6th March 2019.

(3) These Regulations have effect subject to the modifications in Part 10 until the TRA is established.

(4) Following the establishment of the TRA, any preliminary decision or determination made by the Secretary of State under Parts 6, 7 and 9 of these Regulations as modified by Part 10, has effect as though it were a recommendation made by the TRA under the corresponding unmodified provision.

(5) Following the establishment of the TRA, anything done (or having effect as if done) by the Secretary of State in pursuance of a transitional function has effect as if done by the TRA, so far as that is required for continuing its effect.

(6) Following the establishment of the TRA, anything done (or having effect as if done) in relation to the Secretary of State in connection with a transitional function has effect as if done in relation to the TRA, so far as that is required for continuing its effect.

(7) If, on the establishment of the TRA, anything is in the process of being done by or in relation to the Secretary of State in connection with a transitional function, it may, following the establishment of the TRA, be continued by or in relation to the TRA.

(8) A “transitional function” is a function which—

(a) is conferred on the Secretary of State by Part 10 of these Regulations;

(b) corresponds to a function that will, following the establishment of the TRA, be exercisable by the TRA under Parts 2 to 9 of these Regulations; and

Interpretation

2

In these Regulations—

“the Act” means the Taxation (Cross-border) Trade Act 2018;

“applicant UK producers” has the meaning given by paragraph 7(1)(a)(i) of Schedule 5 to the Act;

“application” means an application referred to in paragraph 7(1)(a) of Schedule 5 to the Act;

“authentication visit” means a visit conducted by the TRA to any premises in the United Kingdom the principal purpose of which is to obtain information, verify information supplied to it or to facilitate the progress of an investigation;

“contributor” means a person other than an interested party who has made themselves known to the TRA for the purpose of participating in an investigation or a review;

“definitive safeguarding remedy” means a definitive safeguarding amount or tariff rate quota referred to in Part 4 of Schedule 5 to the Act;

“directly competitive goods” means goods produced in the United Kingdom which are directly competitive with the goods identified, goods concerned or goods subject to review as appropriate;

“discontinuation review” has the meaning given by regulation 35A (discontinuation review);

“early review” has the meaning given by regulation 33A;

“extension review” has the meaning given by regulation 35 (extension review);

“goods concerned” means the goods described in the notice of initiation of an investigation (see paragraph 2 of the Schedule);

“goods identified” means the goods in relation to which the applicant UK producers is requesting the TRA to conduct an investigation;

“goods subject to review” means the goods described in the notice of initiation of a review;

“importer” of goods means a person liable to pay import duty in respect of the goods;

“increased quantities” has the meaning given by paragraph 1 of Schedule 5 to the Act;

“interested party” means—a government of the relevant foreign country or territory;an overseas exporter or importer of the goods concerned or the goods subject to review;a trade or business association of producers, overseas exporters or importers of the goods concerned or the goods subject to review;a producer of the like goods or directly competitive goods in the United Kingdom; ora trade or business association of UK producers of the like goods or directly competitive goods; an overseas producer of the goods concerned or the goods subject to review;

“investigation” means a safeguarding investigation;

“mid-term review” has the meaning given by regulation 34 (mid-term review);

“non-confidential summary” has the meaning given by regulation 16(6)(a);

“overseas exporter” means a person outside of the United Kingdom that exports goods to the United Kingdom;

“overseas producer” means a person outside of the United Kingdom that produces goods;

“pace of liberalisation” means—in respect of a definitive safeguarding amount, the process by which the amount of import duty applicable to the goods becomes progressively smaller, in accordance with paragraph 17(4)(b) of Schedule 5 to the Act;in respect of a tariff rate quota, the process by which the amount of import duty applicable to goods becomes progressively smaller, or the amount of the quota becomes progressively larger, or both, in accordance with paragraph 18(5)(b) of Schedule 5 to the Act;

“period of investigation” has the meaning given by regulation 4 (increased quantities);

“provisional safeguarding remedy” means a provisional safeguarding amount or provisional tariff rate quota referred to in Part 3 of Schedule 5 to the Act;

“review applicant” means a person who applies to the TRA for the initiation of a review;

“review application” means an application for a review made in accordance with Part 6;

“statement of reasons” has the meaning given by regulation 16(6)(b);

“a TRQ review” has the meaning given by regulation 35B (tariff rate quota review);

“UK producers” has the meaning given by paragraph 3(1) of Schedule 5 to the Act;

“working day” means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971 .

PART 2 — Increased quantities

Purpose of Part 2

3

The TRA is to determine, for the purpose of an investigation, whether the goods concerned have been or are being imported into the United Kingdom in increased quantities in accordance with this Part.

Increased quantities

4

(1) The TRA must assess whether the goods concerned have been or are being imported into the United Kingdom in increased quantities by reference to a period of time for which it determines that there is sufficient data available in order for it to make that assessment (the “period of investigation”).

(2) In order to determine whether the goods concerned are imported into the United Kingdom in increased volumes for the purpose of paragraph 1(1)(a) of Schedule 5 to the Act, the TRA must consider whether there has been—

(a) an absolute increase in the volume of the goods concerned imported into the United Kingdom; or

(b) a relative increase in the volume of the goods concerned imported into the United Kingdom compared with the total domestic production in the United Kingdom of the like goods and directly competitive goods.

(3) When making a determination under paragraph (2), the TRA may take into account any information it considers relevant.

(4) Unless regulation 44 (other exception) applies, when making a determination under paragraph (2), the TRA must consider imports of the goods concerned from all foreign countries and territories.

Significant increase in the importation of the goods concerned

5

(1) Where the TRA determines under regulation 4 (increased quantities) that there has been an increase in the volume of the goods concerned imported into the United Kingdom, the TRA must determine whether that increase is significant for the purpose of paragraph 1(1)(b) of Schedule 5 to the Act.

(2) For the purpose of paragraph (1), the TRA must consider—

(a) the rate and volume of imports of the goods concerned into the United Kingdom;

(b) regulation 6 (foreseeability); and

Foreseeability

6

(1) Pursuant to paragraph 1(2)(c) of Schedule 5 to the Act, the importation of the goods concerned in increased quantities into the United Kingdom was not foreseeable where the TRA considers that the increase is a result of unforeseen developments.

(2) In determining whether developments were unforeseen, the TRA may consider—

(a) changes in patterns of demand for the goods concerned, like goods and directly competitive goods;

(b) global overcapacity or increases in production capacity of the goods concerned;

(d) any other factors it considers relevant.

(3) Where the TRA determines that an increase in the importation of the goods concerned was foreseeable, that increase is not significant for the purpose of regulation 5 (significant increase in the importation of the goods concerned).

PART 3 — Serious injury and causation

Serious injury

7

Where the TRA has determined in accordance with paragraph 2 of Schedule 5 to the Act and Part 2 of these Regulations that the goods concerned have been or are being imported into the United Kingdom in increased quantities, it must consider whether those goods have caused or are causing serious injury to UK producers in accordance with this Part.

Determination of serious injury

8

(1) The TRA is to determine whether UK producers of the like goods and directly competitive goods have suffered or are suffering serious injury for the purpose of paragraph 6 of Schedule 5 to the Act in accordance with this regulation.

(2) A threat of significant overall impairment to the position of UK producers only arises where the TRA considers that threat to be clearly imminent.

(3) In order to determine whether UK producers have suffered or are suffering serious injury (see paragraph 2 of Schedule 5 to the Act), the TRA must assess all relevant economic factors having a bearing on UK producers including—

(a) the rate and volume of increase of the importation of the goods concerned into the United Kingdom, in absolute or relative terms;

(b) the export capacity of the goods concerned in foreign countries or territories and the likelihood that the capacity will be exported to the United Kingdom;

(c) the share of the domestic market in the United Kingdom taken by the importation of the goods concerned in increased quantities;

(d) changes in the UK producers' level of—

(i) sales;

(ii) productivity;

(iii) production;

(iv) capacity utilisation;

(v) profits and losses; and

(vi) employment.

Causation and non-attribution

9

(1) This regulation applies where the TRA is determining, for the purpose of regulation 8 (determination of serious injury), whether or not serious injury has been or is being caused to UK producers by the importation of the goods concerned in increased quantities into the United Kingdom.

(2) For the purpose of paragraph (1), the TRA may consider—

(a) price effects of the importation of the goods concerned in increased quantities on the like goods and directly competitive goods in the United Kingdom, including the depression or suppression of price increases which would otherwise have occurred;

(b) volume effects of the importation of the goods concerned in increased quantities on the like goods and directly competitive goods in the United Kingdom; and

(3) The TRA must consider whether any known factors other than the importation of the goods concerned in increased quantities into the United Kingdom has caused or is causing serious injury to UK producers.

(4) The TRA must not attribute to the goods concerned injury caused by known factors other than the importation of the goods concerned into the United Kingdom.

PART 4 — Determination of an adequate amount to prevent or remove serious injury and remedies

Determination and assessment of an adequate amount to prevent or remove serious injury

10

(1) For the purpose of paragraphs 12(4), 13(5), 17(4)(a) and 18(5)(a) of Schedule 5 to the Act, the TRA must determine a provisional safeguarding remedy or definitive safeguarding remedy (a “relevant remedy”) in accordance with this Part.

(2) The TRA must determine the relevant remedy which it is satisfied is necessary to prevent or remove serious injury to UK producers of the like goods and directly competitive goods based on an assessment of the minimum increase in average import prices of the goods concerned that would prevent or remove serious injury.

(3) In making that assessment, where relevant, the TRA must have regard to—

(a) the weighted average price of the goods concerned imported into the United Kingdom; and

(b) an assessment of the prices in the United Kingdom that UK producers of the like goods and directly competitive goods could have expected to achieve under normal conditions of competition in the absence of the importation of the goods concerned in increased quantities into the United Kingdom.

(4) Where the TRA determines that it is appropriate to recommend the imposition of a provisional tariff rate quota or tariff rate quota, in determining the level at which such tariff rate quota should be set, it must consider the desirability of maintaining, as far as possible, traditional trade flows.

(5) Paragraph (6) applies where—

(a) a provisional safeguarding remedy is in force;

(b) the TRA has been made aware of contracts concluded on normal terms and conditions before the entry into force of that provisional safeguarding remedy; and

(6) Where this paragraph applies, in determining the level at which the tariff rate quota should be set, the TRA must consider the volume of the goods concerned to be exported under the contracts referred to in paragraph (5)(b).

PART 5 — Initiation and conduct of an investigation

CHAPTER 1 — General provisions and the use of information

Purpose of Part 5

11

Pursuant to paragraphs 7, 8 and 30 of Schedule 5 to the Act, the initiation and conduct of investigations are subject to this Part.

General provisions

12

(1) Subject to any contrary provision made in this Part, the TRA may do anything it considers appropriate in connection with the exercise of any of its functions in accordance with these Regulations.

(2) In particular, the TRA may—

(a) consider information supplied to it by any person;

(b) request that any person supply information to it;

(d) specify the format or structure of responses to its requests;

(e) accept information supplied to it outside any applicable time limit.

Revision of scope of an investigation

13

(1) This regulation applies after the TRA has published a notice of its determination to initiate an investigation in accordance with paragraph 7(6)(b) of Schedule 5 to the Act.

(2) Subject to paragraph (3), the TRA must not revise the scope of an investigation.

(3) The TRA may revise the scope of an investigation so as to amend—

(a) the description of the goods concerned; or

(b) the period of investigation,

where it has provided interested parties and contributors with reasons for the proposed revision and has given them an opportunity to comment.

(4) In determining whether to revise the scope of an investigation under paragraph (3), the TRA must consider—

(a) the likelihood of it having determined to initiate an investigation with the scope as set out in its proposed revision had the information available to it after the initiation of an investigation been set out in the application;

(b) whether the proposed revision may cause any prejudice to the interests of any interested party or contributor; and

(5) Where the TRA has made a determination under this regulation to revise the scope of the investigation, it must publish an amended notice of initiation.

Deemed service

14

Any document submitted to the TRA is deemed to have been submitted on the earlier of—

(a) the first working day after the day on which it is received by the TRA; or

(b) the day on which the TRA issues an acknowledgement of receipt.

Public file

15

The TRA must, in respect of every investigation, establish and maintain a file which is open to the public (a “public file”) containing information, other than confidential information, which the TRA considers material to the investigation.

Confidential information

16

(1) Paragraph (3) applies where a person—

(a) supplies information to the TRA in connection with the exercise by the TRA of any of its functions under the Act or these Regulations;

(b) either—

(i) requests the TRA to treat that information as confidential on the grounds that that information is by its nature confidential; or

(ii) supplies that information to the TRA on a confidential basis;

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