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The Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019

Type Statutory-Instrument

Publication 2019-03-04

Last updated 2024-05-23

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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Consultation in a subsidisation investigation

63

The TRA must not make a provisional affirmative or final affirmative determination in a subsidisation investigation unless it has given the government of the relevant foreign country or territory reasonable opportunity for consultation.

Termination

64

(1) The TRA must terminate an investigation where, at any stage during the investigation, it determines that—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the volume of dumped goods or subsidised imports is negligible; or

(1A) The TRA must terminate an investigation in relation to some or all of the goods where, at any stage during the investigation, it determines that the margin of dumping or the amount of subsidy in respect of those goods is minimal.

(2) The TRA may, where it considers it appropriate, terminate an investigation on the request of the applicant UK industry.

(3) Where the TRA rejects a request referred to in paragraph (2), it must—

(a) publish a notice of its determination setting out the reasons for its determination; and

(b) notify interested parties and contributors.

(4) Where the TRA terminates an investigation under this regulation, it must—

(a) publish a notice of its determination in accordance with regulation 65(8); and

(b) notify interested parties and contributors.

CHAPTER 5 — Content of notices

Content of notices

65

(1) The notice published by the TRA in accordance with paragraph 9(5)(d) of Schedule 4 to the Act (initiation of a dumping investigation) must contain the information listed in paragraph 1 of Schedule 2.

(2) The notice published by the TRA in accordance with paragraph 9(6)(c) of Schedule 4 to the Act (initiation of a subsidisation investigation) must contain the information listed in paragraph 2 of Schedule 2.

(3) The notice published by the TRA in accordance with paragraph 13(9)(a) and (b) of Schedule 4 to the Act (provisional affirmative determination with no recommendation regarding requiring a guarantee) must contain the information listed in paragraph 3 of Schedule 2.

(4) The notice published by the Secretary of State in accordance with paragraph 15(3D), (4)(a) and (5)(a) of Schedule 4 to the Act (acceptance or rejection of a recommendation requiring a guarantee) must contain the information listed in paragraph 4 of Schedule 2.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The notice published by the Secretary of State referred to in paragraph 20(4)(a) and (5)(a) ... (acceptance or rejection of the TRA's recommendation on an anti-dumping amount or a countervailing amount) and paragraph 20A(4) (Secretary of State’s decision to apply an alternative remedy) of Schedule 4 to the Act must contain the information listed in paragraph 6 of Schedule 2.

(7) The notice published by the TRA referred to in paragraph 11(8) of Schedule 4 to the Act (final negative determination) must contain the information listed in paragraph 7 of Schedule 2.

(8) The notice published by the TRA in accordance with regulation 64(4)(a) must contain the information listed in paragraph 8 of Schedule 2.

(9) A notice referred to in paragraph (1), (2), (3), ... (7) or (8) of this regulation may contain any other information the TRA considers appropriate.

(10) A notice referred to in paragraph (4) or (6) of this regulation may contain any other information the Secretary of State considers appropriate.

PART 7 — Initiation and conduct of a review

CHAPTER 1 — General provisions and the initiation of a review

Purpose of Part 7

66

Reviews by the TRA of the continuing application, including the variation and extension, of an anti-dumping amount or a countervailing amount to goods pursuant to paragraph 21 of Schedule 4 to the Act are subject to the following provisions of this Part.

Initiation of a review

67

(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

(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.

(1) If the TRA is satisfied that there is sufficient information substantiating the need for a review, the TRA may initiate an interim review, an absorption review, a circumvention review or a scope review—

(a) where a review application is made by or on behalf of an interested party; or

(b) on its own initiative.

(2) If there is sufficient evidence substantiating the need for an expiry review, the TRA may initiate an expiry review—

(a) where a review application is made by or on behalf of UK industry in the goods; or

(b) on its own initiative in special circumstances.

(3) The TRA must initiate a new exporter review—

(a) where a review application is made by or on behalf of a new exporter; and

(b) the TRA is satisfied that the review application contains sufficient information substantiating the need for a review in accordance with regulation 71 (new exporter review).

(4) The TRA may, in particular, reject a review application where—

(a) it considers the review application is made in relation to a change in circumstances that is not of a lasting nature;

(b) it has conducted a previous review or rejected a previous review application in respect of the relevant anti-dumping amount or countervailing amount and—

(i) the review application relates to matters which are similar to those arising under that previous review or set out in that previous review application; and

(ii) there is no change of circumstances since the termination of that previous review or rejection of that previous review application which substantiates the need for a new review;

(c) information on which the review application relies could have been provided to the TRA in the investigation or a previous review; or

(d) the review applicant has not complied with procedural requirements in accordance with this Part.

(5) The TRA may reject a review application if it is not made via the TRA's case management system.

(6) Where the TRA rejects a review application, it must notify the review applicant.

(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.

(7) 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—

(za) initiate the review;

(a) publish a notice of its decision to initiate a review (for the purpose of this Part a “notice of initiation of a review”); and

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

(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.

(8) A notice of initiation of a review must contain the information listed in paragraph 1 of Schedule 3.

(9) Where a review application is made in respect of goods subject to a countervailing amount, the TRA must notify the government of the exporting country or territory ... prior to the initiation of that review.

CHAPTER 2 — Conduct of a review

The conduct of a review

68

(1) Where the TRA considers it appropriate, the TRA may expand or limit the issues to be considered in a review.

(2) The TRA must provide interested parties with an opportunity to provide comments prior to acting in accordance with paragraph (1).

(3) The TRA must make a determination that an anti-dumping amount or a countervailing amount should be revoked in respect of goods from a particular overseas exporter where, at any stage during a review, it determines that the margin of dumping or the amount of subsidy is minimal.

(4) Where regulation 36(5) applies in respect of goods from a particular overseas exporter (“E”), but an anti-dumping amount or a countervailing amount remains in place for at least one other overseas exporter in respect of such goods, E—

(a) may be subject to a review or subsequent review carried out in respect of the exporting country or territory; and

(b) following the review or subsequent review, may have an anti-dumping amount or a countervailing amount applied or re-applied to those goods.

(4A) Paragraph 4 does not apply where the Secretary of State has accepted a recommendation made by the TRA (see regulation 76) which is in accordance with a determination referred to in paragraph (3).

(5) The TRA may, where it is satisfied that there is sufficient information to justify doing so, extend a review initiated in respect of one overseas exporter to any, or all, other overseas exporters who export the dumped goods or subsidised imports which are subject to the relevant public notice made under section 13 of the Act.

(6) The TRA may, where it considers it appropriate, terminate a review on the request of the review applicant.

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

(7) Where the TRA constructs the export price in accordance with regulation 15 (export price), the TRA may deduct any anti-dumping amount paid where it is not reflected in resale prices and subsequent selling prices in the United Kingdom.

(8) Parts 2, 3, 4 and 6 apply to reviews to the extent that the TRA considers relevant.

(9) If the TRA applies any part of Parts 2, 3, 4 or 6 to a review, any references in those Parts to “goods concerned” should be read as “goods subject to review”.

(10) Following a review, the anti-dumping amount or countervailing amount applicable to goods must be such that it does not exceed—

(a) the margin of dumping or the amount of subsidy in relation to the goods;

(b) the amount which the TRA is satisfied would be adequate to remove the injury to a UK industry in the goods if that amount is less than the margin of dumping or the amount of subsidy referred to sub-paragraph (a).

(11) Part 5 applies to—

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

(a) an interim review where the TRA considers varying the level of an anti-dumping amount or a countervailing amount by varying its level and duration;

(b) an interim review where the TRA reassesses the amount adequate to remove the injury;

(d) a new exporter review where the TRA calculates an individual anti-dumping amount or an individual countervailing amount;

(e) an absorption review.

(12) Where it is not possible for the TRA to recalculate the anti-dumping amount or countervailing amount, the TRA may determine that the amount should not be varied.

Interim review

69

(1) The TRA may conduct a review (an “interim review”) to consider whether—

(a) the continuing application of an anti-dumping amount or a countervailing amount to goods is necessary or sufficient to offset—

(i) in the case of an anti-dumping amount, the dumping of the goods which has caused or is causing injury to a UK industry in the goods; or

(ii) in the case of a countervailing amount, the importation of the subsidised goods which has caused or is causing injury to a UK industry in the goods;

(b) the application of an anti-dumping amount or a countervailing amount to goods is having the effect of removing the injury to a UK industry in the goods.

(2) Otherwise than on its own initiative in accordance with regulation 67 (initiation of a review), the TRA may not initiate an interim review in relation to goods within a year of the imposition or variation of an anti-dumping amount or a countervailing amount pursuant to a public notice made under section 13 of the Act.

(3) An interim review application must include—

(a) evidence that since the application of an anti-dumping amount or a countervailing amount, there has been a change in circumstances which is of a lasting nature; and

(b) the required information.

(4) The required information is information that—

(a) the continued imposition of an anti-dumping amount or a countervailing amount is not necessary to offset the relevant dumping or subsidisation;

(b) the injury would be unlikely to continue or recur if the anti-dumping amount or countervailing amount were removed or varied; or

(c) the existing anti-dumping amount or countervailing amount is not sufficient to offset the injury caused by the dumped goods or subsidised imports.

(5) In conducting an interim review, the TRA may consider, among other things—

(a) whether the circumstances in respect of the dumped goods or subsidised imports, or injury, caused by the dumped goods or subsidised imports have changed significantly;

(b) whether the existing application of an anti-dumping or a countervailing amount is necessary or sufficient to offset or prevent the injury caused by dumped goods or subsidised imports previously established in accordance with Part 6; or

(6) Following an interim review, the TRA may determine that the application of an anti-dumping amount or a countervailing amount to some or all of the goods subject to review should be—

(a) maintained;

(b) varied; or

(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

(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.

(7) Where the goods subject to review are subject to an anti-dumping amount or a countervailing amount, the TRA must have regard to the current and prospective impact of the anti-dumping amount or countervailing amount when making a determination regarding the future application of an anti-dumping amount or a countervailing amount.

(8) The TRA must not treat compliance with an undertaking in accordance with Part 8 as evidence of—

(a) the cessation of dumping;

(b) the elimination of the effect of a subsidy; or

(9) The TRA may only make a determination that the application of an anti-dumping amount or a countervailing amount to some or all of the goods subject to review be varied by extending its duration where it has reassessed—

(a) the margin of dumping or the amount of subsidy; and

(b) the amount adequate to remove the injury.

(10) Where the TRA determines that the application of an anti-dumping amount or a countervailing amount be extended in accordance with this regulation, it must conduct the economic interest test (see paragraph 25 of Schedule 4 to the Act).

(11) Where—

(a) the countervailing amount imposed is less than the amount of subsidy; and

(b) after the period of investigation, export prices have decreased or there has been no movement, or insufficient movement of resale prices of the goods subject to review in the United Kingdom to reflect the application of that amount, the TRA may determine that the countervailing amount be increased to attain the price increase required to remove injury caused by the subsidised imports.

(12) Where the TRA determines that a countervailing amount be increased pursuant to paragraph (11), the level after the increase must not exceed the amount of the subsidy.

Expiry review

70

(1) The TRA may conduct a review to consider whether injury to a UK industry in the goods would be likely to continue or recur if the application of an anti-dumping amount or a countervailing amount to the relevant goods were to expire (an “expiry review”).

(2) The TRA may make a determination that the anti-dumping amount or countervailing amount should be varied—

(a) by extending the duration; and

(b) where it considers it appropriate, by amending the level.

(3) The TRA must notify interested parties of the expiry of the application of an anti-dumping amount or a countervailing amount in sufficient time to allow interested parties to make an application for an expiry review.

(4) The TRA may only consider an application for an expiry review if it is made at least three months but not more than 12 months before the scheduled expiry of the relevant anti-dumping amount or countervailing amount.

(5) An expiry review application must include evidence that if the application of an anti-dumping amount or a countervailing amount were to expire in accordance with the terms of the public notice made under section 13 of the Act, the following would be likely to continue or recur—

(a) the dumping or subsidisation of the goods subject to review; and

(b) the injury caused by the dumped goods or subsidised imports.

(6) In conducting an expiry review, where relevant, the TRA must consider whether—

(a) dumping or subsidisation of the goods subject to review is continuing or is likely to recur;

(b) injury has been removed, or reduced, in whole or in part due to the application of the anti-dumping amount or countervailing amount; and

(c) the circumstances of the relevant exporting country or territory, or overseas exporter, are such that the injury caused by the dumped goods or subsidised imports is likely to continue or recur.

(7) The TRA may only make a determination that the application of an anti-dumping amount or a countervailing amount to some or all of the goods subject to review be varied in any way other than by extending its duration where it has reassessed—

(a) the margin of dumping or the amount of subsidy; and

(b) the amount adequate to remove the injury.

(8) Where the goods subject to review are subject to an anti-dumping amount or a countervailing amount, the TRA must have regard to the current and prospective impact of the anti-dumping amount or countervailing amount when making a determination regarding the future application of an anti-dumping or a countervailing amount.

(9) Where an application for an expiry review has been made in accordance with this regulation, an anti-dumping amount or a countervailing amount which applies to the goods subject to review is to be treated as continuing (where it would otherwise cease to do so) until the TRA has made a determination in accordance with paragraph (11)(a) or the Secretary of State has accepted or rejected the TRA's recommendation in accordance with regulation 76 (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).

(10) In order to extend the application of an anti-dumping amount or a countervailing amount pursuant to paragraph (9), the Secretary of State must make a public notice under section 13 of the Act on initiation of the expiry review.

(11) Following an expiry review, the TRA may determine that—

(a) the application of the relevant anti-dumping amount or countervailing amount to some or all of the goods subject to review should expire as set out in the public notice made under section 13 of the Act;

(b) the application of the relevant anti-dumping amount or countervailing amount at the same level to some or all of the goods subject to review should be extended by a period of no more than five years; or

(c) the application of the relevant anti-dumping amount or countervailing amount at a different level to some or all of the goods subject to review should be extended by a period of no more than five years.

(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

(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.

(12) Where the TRA determines that the application of an anti-dumping amount or a countervailing amount be extended in accordance with this regulation, it must conduct the economic interest test (see paragraph 25 of Schedule 4 to the Act).

New exporter review

71

(1) The TRA may conduct a review (a “new exporter review”) to consider whether the application of an anti-dumping amount or a countervailing amount to goods should be varied in the case of a new exporter.

(2) A “new exporter” is an overseas exporter that did not export the goods subject to review into the United Kingdom during the period of investigation in respect of which the application of the relevant anti-dumping amount or countervailing amount is based.

(3) A review application for a new exporter review must include evidence that—

(a) the review applicant is not related to any overseas exporter—

(i) who is subject to the application of an anti-dumping amount or a countervailing amount in respect of the dumped goods or subsidised imports; and

(ii) who exported the dumped goods or subsidised imports to the United Kingdom during the period of investigation;

(b) the review applicant did not export the goods subject to review to the United Kingdom during the period of investigation and either—

(i) is exporting the goods subject to review to the United Kingdom; or

(ii) has a contractual obligation to export a significant quantity of the goods subject to review to the United Kingdom.

(4) Where an anti-dumping amount or a countervailing amount has been determined using sampling in accordance with regulation 37 (determination of the anti-dumping amount or countervailing amount for non-sampled overseas exporters), an anti-dumping amount or a countervailing amount applied to the goods subject to review must be the same as the non-sampled overseas exporter amount determined in accordance with that regulation.

(5) Where the TRA initiates a new exporter review in relation to an anti-dumping amount—

(a) the TRA must notify the Secretary of State; and

(b) the Secretary of State must suspend, by a public notice made under section 13 of the Act, the collection of any anti-dumping amount for the review applicant's goods pending the outcome of the new exporter review.

(6) Following a new exporter review, the TRA may determine that—

(a) the review applicant is not a new exporter;

(b) the review applicant is a new exporter and the non-sampled overseas exporter amount should be applied to the review applicant's exports of the goods subject to review;

(c) the review applicant is a new exporter and an individual anti-dumping amount or individual countervailing amount should be applied to the review applicant's exports of the goods subject to review at a rate calculated during the review; or

(d) the review applicant is a new exporter and an undertaking should be accepted in accordance with Part 8.

(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

(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.

(7) If the TRA makes a determination under paragraph (6)(a) in respect of an anti-dumping amount, the Secretary of State may, by a public notice made under section 13 of the Act, apply the rate previously calculated in accordance with regulation 38 (determination of the residual amount) in respect of the relevant review applicant from the date of the initiation of the new exporter review.

(8) If the TRA makes a determination under paragraph (6)(b) or (c) in respect of an anti-dumping amount, the Secretary of State may, by a public notice made under section 13 of the Act, apply the rate specified in the TRA's recommendation in respect of that new exporter from the date of the initiation of the new exporter review.

(9) If the Secretary of State accepts an undertaking, Part 8 applies to the extent it is relevant.

Absorption review

72

(1) The TRA may conduct a review (an “absorption review”) to consider whether there has been a sufficient change to the export price or resale price of goods to reflect the application of an anti-dumping amount.

(2) An absorption review application must include evidence that after the period of investigation relating to the application of an anti-dumping amount—

(a) export prices of the goods subject to review have decreased; or

(b) there has been no movement, or insufficient movement, in the resale price or subsequent selling prices of the imported goods subject to review.

(3) In conducting an absorption review, the TRA must consider, among other things—

(a) available information from overseas exporters, importers and UK industry in respect of the export prices, resale prices and subsequent selling prices;

(b) whether the application of an anti-dumping amount has led to movements in resale prices and subsequent selling prices;

(4) Subject to paragraph (5), for the purpose of making a determination under this regulation, the TRA may make any assessment, finding or determination relevant to the calculation of the anti-dumping amount which it could have made in the investigation to which the anti-dumping amount relates.

(5) The TRA must not reassess the economic interest test (see paragraph 25 of Schedule 4 to the Act) when carrying out an absorption review.

(6) The TRA must not recommend the application of an anti-dumping amount exceeding twice the anti-dumping amount most recently applied to the goods subject to review.

(7) Following the conclusion of an absorption review, the TRA may determine that the level of an anti-dumping amount to some or all of the goods subject to review should be—

(a) maintained; or

(b) varied.

(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

(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.

Circumvention review

73

(1) The TRA may conduct a review (a “circumvention review”) to consider whether activity is being undertaken to circumvent the application of an anti-dumping amount or a countervailing amount to goods.

(2) For the purpose of this regulation, “circumvention” exists where—

(a) there is a change in the pattern of trade between—

(i) a foreign country or territory not listed in the relevant public notice made under section 13 of the Act (a “third country”) and the United Kingdom; or

(ii) individual companies in the exporting country or territory listed in the public notice made under section 13 of the Act (“the relevant exporting country or territory”) and the United Kingdom; and

(b) the change in the pattern of trade results from a practice, process or work which has insufficient economic justification other than the avoidance of the anti-dumping amount or countervailing amount;

(c) there is injury or the remedial effects of the anti-dumping amount or countervailing amount are being undermined in respect of prices or quantities of the goods subject to review; and

(d) either—

(i) there is dumping in relation to the normal values previously established for the goods subject to review; or

(ii) the countervailable subsidy still confers a benefit on the goods subject to review.

(3) The practice, process or work referred to in paragraph (2)(b) includes—

(a) the minor modification of the dumped goods or subsidised imports to make them subject to a different customs code and so not subject to the anti-dumping amount or countervailing amount, provided that the modification does not alter the essential characteristics of the good;

(b) channelling the consignment of dumped goods or subsidised imports via third countries;

(c) the reorganisation by overseas exporters of their patterns and channels of sales in the relevant exporting country or territory in order to export dumped goods or subsidised imports to the United Kingdom through exporters of goods which are subject to a lower anti-dumping amount or countervailing amount;

(d) the assembly of parts by an assembly operation in the United Kingdom or a third country.

(4) For the purpose of paragraph (3)(d), an assembly operation is one—

(a) which started or substantially increased after, or immediately prior to, the initiation of the relevant investigation;

(b) which uses parts from the relevant exporting country or territory;

(c) where 60 per cent. or more of the total value of the parts of the assembled goods come from the relevant exporting country or territory, except that in no case shall circumvention be considered to be taking place where the value added to the parts brought in, during the assembly or completion operation, is greater than 25 per cent. of the manufacturing cost; and

(d) where the remedial effects of the anti-dumping amount or countervailing amount are being undermined in terms of the prices or quantities of the assembled like goods and there is evidence of either dumping of the goods in relation to the normal values previously established or importation of subsidised imports into the United Kingdom.

(5) A circumvention review application must include sufficient evidence of the matters alleged to constitute circumvention.

(6) In order to determine whether circumvention exists, the TRA may consider, among other things—

(a) the nature of the relationship between persons in the export chain;

(b) the timing of the change in the pattern of trade; and

(7) Following a circumvention review, the TRA may determine that—

(a) the application of an anti-dumping amount or a countervailing amount should remain unchanged; or

(b) the application of the relevant anti-dumping amount or countervailing amount imposed should be varied—

(i) to apply to some or all of the goods subject to review;

(ii) to apply to goods from a third country; or

(iii) where circumvention exists in the form described in paragraph (3)(c), to apply an anti-dumping amount or a countervailing amount at a level less than or equal to that specified in the relevant public notice made under section 13 of the Act.

(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

(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) At any time during a circumvention review, the TRA may exempt an importer or overseas exporter from any anti-dumping amount or countervailing amount which it may impose as a result of a determination under paragraph (7)(b) where the conditions in paragraph (10) are met.

(9) The TRA may grant an exemption after the conclusion of a circumvention review where the importer or overseas exporter did not import or export the goods subject to review during the circumvention review and the conditions in paragraph (10) are met.

(10) The TRA may grant an exemption in favour of—

(a) an overseas exporter, who it determines not to be engaged in circumvention, where the practice, process or work referred to in paragraph (2)(b) takes place outside the United Kingdom; or

(b) an importer, who is not related to an overseas exporter which is subject to the anti-dumping amount or countervailing amount to which the circumvention review relates, where the practice, process or work referred to in paragraph (2)(b) takes place in the United Kingdom.

Scope review

74

(1) The TRA may conduct a review (a “scope review”) to consider whether the goods or the description of goods to which an anti-dumping amount or a countervailing amount is applicable should be varied.

(2) Otherwise than on its own initiative in accordance with regulation 67 (initiation of a review), the TRA may not initiate a scope review in relation to goods within a year of the imposition or variation of an anti-dumping amount or a countervailing amount pursuant to a public notice made under section 13 of the Act.

(3) A scope review application must include evidence that—

(a) the goods or the description of the dumped goods or subsidised imports should be varied; and

(b) the nature of the variation does not justify an investigation in accordance with Part 6.

(4) In order to determine whether it is appropriate to initiate a scope review, the TRA must consider—

(a) whether it would have included the goods or description of goods subject to review in the original investigation had it had the information contained in that application before it at the time of that investigation;

(b) the relationship between the goods subject to review and the like goods in the domestic market in the United Kingdom;

(c) the impact, or potential impact, of any change in scope on the intended effects of the anti-dumping amount or countervailing amount;

(d) whether any prejudice could be caused to the interests of any interested party or contributor;

(e) whether the application of rules of customs would resolve the issues raised by the review applicant; and

(f) any other factors it considers relevant.

(5) Following a scope review, the TRA may determine that the goods or the description of goods to which an anti-dumping amount or a countervailing amount is applicable should be—

(a) maintained; or

(b) varied.

(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

(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.

CHAPTER 3 — TRA recommendation and decision of the Secretary of State

TRA recommendation to the Secretary of State

75

(1) Following the conclusion of a review, the TRA must make a recommendation to the Secretary of State, where it is satisfied that ...—

(a) the application of an anti-dumping amount or a countervailing amount to some or all of the goods subject to review should be varied;

(b) the application of an anti-dumping amount or a countervailing amount to some or all of the goods subject to review should be revoked;

(d) an anti-dumping amount or a countervailing amount should be applied to a new exporter at a particular level.

(2) The TRA's recommendation must include—

(a) a description of the goods to which the recommendation relates;

(b) the names of overseas exporters, or where impracticable, the exporting countries or territories;

(c) where relevant, the recommended period for which the anti-dumping amount or countervailing amount 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, unless the TRA makes a recommendation in accordance with paragraph (3); and

(d) the reasons for its recommendation.

(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.

(3) The TRA may recommend that the application of a varied anti-dumping amount or countervailing amount should be applicable to goods from a date before the date set out in the public notice made under section 13 of the Act giving effect to the recommendation where—

(a) the recommendation is in respect of a review in accordance with regulation 73 (circumvention review); and

(b) the requirements set out in paragraph 21(10) of Schedule 4 to the Act are satisfied.

(4) 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 set out in paragraph 2 of Schedule 3; and

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

Acceptance or rejection of the TRA's recommendation by the Secretary of State

76

(1) Where the TRA makes a recommendation in accordance with regulation 75 (TRA recommendation to the Secretary of State), the Secretary of State must —

(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.

(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.

(2) The Secretary of State may reject the TRA's recommendation only if the Secretary of State is satisfied that it is not in the public interest to accept the recommendation.

(3) In considering that, where the recommendation is one which comprises or includes extending the period for which an anti-dumping amount or a countervailing amount applies 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.

(4) Where the Secretary of State rejects the TRA's recommendation and does not make a decision under regulation 76A, the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 3 or 4 of Schedule 3;

(b) notify interested parties; and

(5) Where the Secretary of State accepts the TRA's recommendation, 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 or 4 of Schedule 3.

(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

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

PART 8 — Undertakings

Requests and offers of undertakings

77

(1) In respect of a subsidisation investigation—

(a) where the TRA intends to request an undertaking from a relevant foreign government, it must obtain the consent of the Secretary of State to approach the relevant foreign government;

(b) where the TRA intends to request an undertaking from an overseas exporter, it must obtain the consent of the relevant foreign government to approach the relevant overseas exporter.

(2) A refusal to offer, or accept an invitation to offer, an undertaking must in no way prejudice consideration of the case against the overseas exporter or relevant foreign government.

78

(1) The TRA may make a recommendation to the Secretary of State under paragraph 23(1) of Schedule 4 to the Act to accept an undertaking in respect of goods only if—

(a) it is satisfied that the undertaking is sufficient to eliminate the injurious effect of—

(i) the dumping of the goods to a UK industry in those goods; or

(ii) the importation of the subsidised goods to a UK industry in those goods;

(b) acceptance of the undertaking meets the economic interest test (see paragraph 25 of Schedule 4 to the Act);

(d) it has complied with the requirements set out in regulation 77 (requests and offers of undertakings).

(2) In making an assessment as to whether it is appropriate to recommend the acceptance of an undertaking for the purpose of paragraph (1)(c), the TRA may consider—

(a) the adequacy of the terms and conditions of an undertaking including—

(i) the sufficiency of provision for the supply of information to the TRA to enable the monitoring of compliance with the undertaking, including regular supply of information relevant to the fulfilment of the undertaking and provision to permit verification of relevant information;

(ii) the provision of a non-confidential version of the undertaking by the overseas exporter or relevant foreign government;

(iii) what constitutes a breach of the undertaking and the consequences of any such breach;

(b) whether acceptance is impractical; and

(3) The terms and conditions of the undertaking must cover—

(a) the supply of information to the TRA for the purpose of compliance monitoring;

(b) compliance monitoring by the TRA;

(d) the circumstances in which the undertaking will cease to apply;

(e) when an anti-dumping amount or a countervailing amount applies in the alternative to the continuation of the undertaking; and

(f) anything else which the TRA considers necessary.

(4) A recommendation to accept an undertaking may only be made when accompanied by a recommendation in accordance with paragraph 17(3)(a) or (4)(a) of Schedule 4 to the Act and must—

(a) specify the goods in respect of which the undertaking is offered;

(b) identify the overseas exporter or relevant foreign government who offered the undertaking;

(d) include the reasons for the TRA's determination that the acceptance of the undertaking is appropriate.

(5) If an undertaking is offered by an overseas exporter or a relevant foreign government and the TRA determines that it is not appropriate to accept an undertaking, it must—

(a) where it is practicable, notify the overseas exporter or relevant foreign government of the reasons for its determination; and

(b) where possible, provide the overseas exporter or relevant foreign government an opportunity to provide comments.

(6) The terms and conditions of the undertaking must be in accordance with paragraph 18(6) of Schedule 4 to the Act.

Secretary of State's power to accept undertakings

79

(1) Where the TRA makes a recommendation under regulation 78 (TRA's power to recommend acceptance of undertakings) that the Secretary of State accept an undertaking, the Secretary of State must accept or reject the recommendation.

(2) Where the Secretary of State accepts the TRA's recommendation, the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 1 of Schedule 4; and

(b) notify interested parties.

(3) Where the Secretary of State intends to reject the TRA's recommendation, the Secretary of State must—

(a) where it is practicable, notify the overseas exporter or relevant foreign government of the reasons for that; and

(b) where possible, provide the overseas exporter or relevant foreign government an opportunity to provide comments.

Monitoring compliance with an undertaking

80

(1) The TRA must monitor compliance with the terms and conditions of an undertaking (see regulation 78).

(2) Part 6 applies to this Part to the extent that the TRA considers relevant.

The acceptance of a new undertaking in place of an existing undertaking

81

Regulations 77 (requests and offers of undertakings), 78 (TRA's power to recommend acceptance of undertakings) and 79 (Secretary of State's power to accept undertakings) apply to the acceptance of a new undertaking in place of an existing undertaking.

Undertakings ceasing to apply

82

(1) An undertaking ceases to apply prior to the end of the period specified in the public notice made under section 13 of the Act where—

(a) an anti-dumping amount or a countervailing amount is no longer applicable to the dumped goods or subsidised imports listed in that notice;

(b) the undertaking is withdrawn by the overseas exporter or relevant foreign government;

(d) the TRA notifies the Secretary of State that the undertaking otherwise ceases to apply in accordance with its terms or conditions.

(2) Where an undertaking ceases to apply, in accordance with paragraph (1)(a), (b) or (c), the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 2 of Schedule 4; and

(b) notify interested parties.

Breach of an undertaking

83

(1) Where there is evidence of a breach of an undertaking, the TRA may initiate an investigation (a “breach investigation”)—

(a) following an application made by, or on the behalf of, an interested party or the Secretary of State; or

(b) on its own initiative.

(2) The TRA may reject an application for a breach investigation where it considers that there is insufficient evidence of the breach alleged.

(3) Where the TRA initiates a breach investigation, it must notify interested parties accordingly.

(4) The TRA must provide interested parties with an opportunity to comment prior to making a determination that an undertaking has been breached.

(5) Except where the TRA determines that there are adequate reasons to allow the undertaking to continue to apply, where the TRA determines that an undertaking has been breached—

(a) the acceptance of the undertaking must be withdrawn; and

(b) an anti-dumping amount or a countervailing amount must be applied to the goods in accordance with the terms and conditions of the undertaking from the date of the breach as determined by the TRA.

(6) Where the acceptance of an undertaking is withdrawn following the TRA's determination of a breach, the TRA must publish a notice containing the information set out in paragraph 3 of Schedule 4.

Reviews by the TRA of the continuing application of an undertaking

84

(1) The TRA may conduct a review (an “undertaking review”) to consider whether—

(a) the period of application of the undertaking should be extended so that it continues after it would otherwise expire;

(b) the continuing application of the undertaking is necessary or sufficient to offset—

(i) the dumping of the goods in respect of which the undertaking is given; or

(ii) the subsidisation of the goods in respect of which the undertaking is given;

(c) injury to UK industry in the goods would be likely to continue or recur if the application of the undertaking were to expire or be varied, or its acceptance were to be withdrawn;

(d) the goods in respect of which the undertaking applies should be varied; or

(e) the undertaking including the terms and conditions continues to be appropriate.

(2) The TRA may initiate an undertaking review—

(a) where a review (see Part 7) has been initiated in respect of the dumped goods or subsidised imports listed in the relevant public notice made under section 13 of the Act; or

(b) on its own initiative.

(3) The TRA must provide interested parties with an opportunity to comment during the course of a review under this regulation.

(4) Regulation 80 (monitoring compliance with an undertaking) applies to an undertaking review.

(5) Following an undertaking review, the TRA may determine that—

(a) the terms and conditions of an undertaking should remain unchanged;

(b) the terms and conditions of an undertaking should be varied;

(d) the level of the anti-dumping amount or countervailing amount that may be applied in the alternative to the continuation of the undertaking specified in the relevant public notice made under section 13 of the Act should be varied; or

(e) the acceptance of an undertaking should be withdrawn.

(6) Where the TRA makes a determination in accordance with paragraph (5)(b) to (e), it must make a recommendation to the Secretary of State in accordance with its determination.

(7) Where the TRA makes a recommendation to the Secretary of State, the Secretary of State must accept or reject the recommendation.

(8) Where the Secretary of State accepts the TRA's recommendation, the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 4 of Schedule 4; and

(b) notify interested parties.

(9) Where the Secretary of State rejects the TRA's recommendation, the Secretary of State must notify interested parties accordingly.

(10) Where the Secretary of State intends to make a decision which will result in an undertaking ceasing to apply, the Secretary of State must—

(a) where it is practicable, notify the overseas exporter or relevant foreign government of the reasons for that decision; and

(b) where possible, provide the overseas exporter or relevant foreign government an opportunity to provide comments.

PART 9

Suspension

Suspension of an anti-dumping amount or a countervailing amount

85

(1) The TRA may make a recommendation to the Secretary of State (a “suspension recommendation”) that the application of an anti-dumping amount or a countervailing amount be suspended for a specified period (the “period of suspension”) in relation to some or all of the goods specified in a public notice made by the Secretary of State under section 13 of the Act.

(2) The TRA may make a suspension recommendation where—

(a) paragraph (3) applies;

(b) it is satisfied that a suspension is appropriate; and

(c) the applicant UK industry has been given the opportunity to comment on the suspension proposed in the application for suspension (see regulation 86).

(3) This paragraph applies where the TRA, whether or not as a consequence of considering an application in accordance with regulation 86 (application for suspension), considers that the circumstances in paragraph (4) exist.

(4) Those circumstances are that—

(a) market conditions have changed temporarily; and

(b) as a consequence of the change in market conditions, the injury caused to a UK industry is unlikely to recur if the application of an anti-dumping amount or a countervailing amount were to be suspended.

(5) In considering whether to make a suspension recommendation, the TRA may take such steps as it considers appropriate.

(6) Where the TRA rejects an application for suspension, the TRA must notify the applicant.

(7) Where the TRA determines that it is not appropriate to make a suspension recommendation, it must—

(a) publish a notice of the reasons for its determination; and

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

(8) Where the TRA considers that it is appropriate to make a suspension recommendation, the recommendation must include—

(a) the reasons for its determination;

(b) the recommended period of suspension, 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; and

(9) If the TRA makes a suspension recommendation, the Secretary of State must decide whether to —

(a) accept or reject the recommendation; or

(b) 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.

(10) Where the Secretary of State accepts the suspension recommendation, the notice published by the Secretary of State under paragraph 26(6)(a) of Schedule 4 to the Act must contain the information set out in paragraph 1 of Schedule 5.

(11) The Secretary of State may only reject a suspension recommendation where the Secretary of State considers that it is not in the public interest to accept it.

(11A) Paragraph (11B) applies if the recommendation is rejected.

(11B) If the Secretary of State considers that it is in the public interest to do so, the Secretary of State may decide to vary the period of suspension specified by the TRA, subject to regulation 87(1).

(11C) Where the Secretary of State makes a decision under paragraph (11B)—

(a) the notice published by the Secretary of State under paragraph 26(6)(a) of Schedule 4 to the Act must contain the information set out in paragraph 1 of Schedule 5; and

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

(12) Where the Secretary of State rejects a suspension recommendation and does not make a decision under paragraph (11B), the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 1 of Schedule 5;

(b) notify interested parties; and

(13) Where an anti-dumping amount or a countervailing amount is suspended under this Part, the period of suspension counts towards the specified period of the anti-dumping amount or countervailing amount as stated in the relevant public notice.

(14) The Secretary of State may only make a request under paragraph (9)(b) where the Secretary of State considers that—

(a) there is information that the TRA did not take into account in its consideration of whether the circumstances in paragraph (4) exist that is relevant to that consideration;

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

(15) Before making a request under paragraph (9)(b), the Secretary of State must consult the TRA.

(16) Where the Secretary of State makes a request under paragraph (9)(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.

Application for suspension

86

(1) An application for suspension of an anti-dumping amount or a countervailing amount in accordance with regulation 85 (suspension of an anti-dumping amount or a countervailing amount) (a “suspension application”) may be made to the TRA by or on behalf of an interested party.

(2) A suspension application to the TRA must include as far as possible information regarding—

(a) the change in the market conditions;

(b) the temporary nature of that change; and

(2A) Where an application is made under paragraph (1) 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) Where a suspension application is withdrawn by the applicant, the TRA may still consider whether it is appropriate to make a suspension recommendation (see regulation 85).

Period of suspension

87

(1) The period of suspension referred to in regulation 85(1) must not exceed nine months commencing on the day after the publication of the public notice under section 13 of the Act giving effect to the suspension.

(2) Following an application by an interested party or where the TRA otherwise considers that it is appropriate, the TRA may recommend to the Secretary of State that the period of nine months in paragraph (1) be extended to a maximum of 21 months (“extended period of suspension”).

(3) Where the TRA makes a recommendation in accordance with paragraph (2), but the duration of the extended period of suspension recommended is less than 21 months, the TRA may make a further recommendation to the Secretary of State to increase the duration of the extended period of suspension where it considers it is appropriate to do so and provided that the overall duration of the extended period of suspension does not exceed 21 months.

(4) Where the TRA rejects an application for an extension of the period of suspension, the TRA must notify the applicant.

(5) Where the TRA considers that it is not appropriate to make a recommendation to extend the period of suspension, it must—

(a) publish a notice of its determination and the reasons for it; and

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

(6) Where the TRA considers that it is appropriate to make a recommendation to extend the period of suspension, the recommendation must include—

(a) the reasons for its recommendation;

(b) the recommended extended period of suspension, 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; and

(7) If the TRA makes a recommendation in accordance with this regulation, the Secretary of State must decide whether to —

(a) accept or reject the recommendation; or

(b) 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.

(8) Where the Secretary of State accepts a recommendation, the notice published by the Secretary of State under paragraph 26(6)(a) of Schedule 4 to the Act must contain the information set out in paragraph 3 of Schedule 5.

(9) The Secretary of State may only reject a recommendation where the Secretary of State considers that it is not in the public interest to accept the recommendation.

(9A) Paragraph (9B) applies if the recommendation is rejected.

(9B) If the Secretary of State considers that it is in the public interest to do so, the Secretary of State may decide to vary the extended period of suspension, subject to paragraph (9C).

(9C) Where the Secretary of State decides to vary the extended period of suspension—

(a) the overall duration of the extended period of suspension must not exceed 21 months; and

(b) the extended period of suspension must begin on the day after the date of publication of the public notice under section 13 of the Act giving effect to the decision.

(9D) Where the Secretary of State makes a decision under paragraph (9B)—

(a) the notice published by the Secretary of State under paragraph 26(6)(a) of Schedule 4 to the Act must contain the information set out in paragraph 3 of Schedule 5; and

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

(10) Where the Secretary of State rejects a recommendation and does not make a decision under paragraph (9B), the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 3 of Schedule 5;

(b) notify interested parties; and

(11) The Secretary of State may only make a request under paragraph (7)(b) where the Secretary of State considers that—

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

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

(12) Before making a request under paragraph (7)(b), the Secretary of State must consult the TRA.

(13) Where the Secretary of State makes a request under paragraph (7)(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.

Reinstatement of an anti-dumping amount or a countervailing amount

88

(1) The TRA may make a recommendation to the Secretary of State to reinstate an anti-dumping amount or a countervailing amount where it determines that the circumstances in regulation 85(4) no longer exist.

(2) Where the TRA makes a recommendation in accordance with this regulation, the recommendation must include—

(a) the reasons for its recommendation; and

(b) any other information it considers relevant.

(3) If the TRA makes a recommendation in accordance with this regulation, the Secretary of State must decide whether to accept or reject it.

(4) Where the Secretary of State accepts the recommendation, the Secretary of State must—

(a) publish a public notice under section 13 of the Act containing the information set out in paragraph 4 of Schedule 5; and

(b) notify interested parties.

(5) The Secretary of State may only reject a recommendation where the Secretary of State considers that it is not in the public interest to accept the recommendation.

(6) Where the Secretary of State rejects a recommendation, the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 4 of Schedule 5;

(b) notify interested parties; and

PART 10 — Investigations regarding repayments

Investigations regarding repayments

89

(1) The TRA may conduct an investigation (a “repayment investigation”) to determine whether HMRC should make a repayment of an anti-dumping amount or a countervailing amount (the “amount”) under the Customs (Import Duty) (EU Exit) Regulations 2018 .

(2) The determination in paragraph (1) is a determination that the dumping margin or amount of the subsidy has been—

(a) eliminated; or

(b) reduced to a level that is lower than the amount specified in the public notice made by the Secretary of State under section 13 of the Act.

(3) An importer may only make an application for a repayment investigation if they make an application (a “qualifying application”) to the TRA in accordance with this regulation.

(4) A qualifying application must contain—

(a) a description of the goods to which the application relates;

(b) evidence of the amount paid in respect of those goods;

(d) sufficient evidence of the matters referred to in paragraph (2);

(e) relevant evidence from the overseas exporter or a commitment that such evidence will be provided within 30 days of a request by the TRA;

(f) information regarding the relationship between the importer and the overseas exporter; and

(g) any other relevant information.

(5) In conducting a repayment investigation, the TRA must determine whether there has been dumping or subsidisation applying the same methodology as in the original investigation, unless the TRA considers that it is inappropriate to do so.

(6) Where the TRA constructs the export price in accordance with regulation 15 (export price), the TRA may deduct any anti-dumping amount paid where it is not reflected in resale prices and subsequent selling prices in the United Kingdom.

(7) The TRA must reject an application for a repayment investigation and notify the importer where the application does not satisfy the requirements set out in paragraph (4)(d) or (e).

(8) Where the TRA makes a determination that HMRC should make a repayment under the Customs (Import Duty) (EU Exit) Regulations 2018, it must—

(a) calculate the amount of the repayment;

(b) send a notification to HMRC that the TRA is satisfied that a repayment is due; and

(9) Where the TRA makes a determination that HMRC should not make a repayment under the Customs (Import Duty) (EU Exit) Regulations 2018, it must notify the importer.

PART 11 — Miscellaneous

Extension of the period of a provisional remedy in a dumping investigation

90

(1) The TRA may recommend to the Secretary of State (an “extension recommendation”) that the period of a provisional remedy, which has been applied in respect of goods in the case of a dumping investigation, be extended.

(2) The TRA may only make an extension recommendation where—

(a) paragraph (3) or (4) applies; ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2A) Where the TRA makes an extension recommendation in accordance with paragraph (1), it must advise the Secretary of State whether and why it considers that the extension of the application of the provisional remedy in accordance with its recommendation would meet the economic interest test (see paragraph 25 of Schedule 4 to the Act).

(3) This paragraph applies where the TRA receives a request to extend the period of the provisional remedy from or on behalf of overseas exporters representing a significant volume of the dumped goods.

(4) This paragraph applies where—

(a) the TRA considers that extending the period of the provisional remedy is appropriate in the circumstances;

(b) the TRA issues a notification to overseas exporters notifying them that the TRA considers it appropriate to extend the period of the provisional remedy (“proposed extension”); and

(5) An extension recommendation must include—

(a) a description of the goods to which the recommendation relates;

(b) the overseas exporters that support or do not object to the extension;

(c) the recommended period of extension, which must not exceed the period referred to in paragraph 16(2) of Schedule 4 to the Act and which must begin on the day on which the provisional remedy would have otherwise expired; and

(d) the reasons for the TRA's recommendation.

(6) If the TRA makes an extension recommendation, the Secretary of State must decide whether to accept or reject it.

(7) The Secretary of State may only reject the TRA's recommendation where the Secretary of State is satisfied that it is not in the public interest to accept it.

(8) In making a decision under paragraph (6), the Secretary of State must have regard to the TRA’s advice on whether the extension recommendation would meet the economic interest test.

(9) Where the Secretary of State accepts an extension recommendation, the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 1 of Schedule 6; and

(b) notify interested parties.

(10) Where the Secretary of State and does not make a decision under regulation 90A, the Secretary of State must—

(a) publish a notice containing the information set out in paragraph 1 of Schedule 6;

(b) notify interested parties; and

Relevant period in a dumping investigation

91

(1) The TRA may recommend that an anti-dumping amount should apply to goods from the relevant date specified in paragraph 19(3)(a) of Schedule 4 to the Act where paragraph (2) applies.

(1A) The TRA may recommend that an anti-dumping amount should apply to goods from the relevant date specified in paragraph 19(3)(b) of Schedule 4 to the Act where in an anti-dumping investigation—

(a) a final determination of injury is made (but not a threat of injury or material retardation of the establishment of an industry), or

(b) a final determination of a threat of injury is made, and the TRA determines that injury would have occurred in the absence of provisional measures.

(2) This paragraph applies where the Secretary of State has published a notice under paragraph 29(1) of Schedule 4 to the Act and the TRA considers in a dumping investigation that—

(a) there is a history of dumping which caused injury or the importer is, or should have been, aware that the overseas exporter practises dumping and that such dumping would cause injury to a UK industry;

(b) the injury caused to a UK industry was caused by a massive volume of dumped goods in a short period of time; and

(c) in light of the timing and volume of the dumped goods and other circumstances (for example a rapid build-up of inventories of the dumped goods), the application of the anti-dumping amount to be applied is likely to seriously undermine the remedial effect of that amount.

(3) Before making the recommendation in paragraph (1), the TRA must allow importers to submit any evidence they consider relevant.

(4) The TRA may recommend that the anti-dumping amount to be applied during all or part of the relevant period is the same or less than the anti-dumping amount determined in the final affirmative determination, provided that the anti-dumping amount applied during the relevant period does not exceed the estimated anti-dumping amount as specified in paragraph 13(3)(a) of Schedule 4 to the Act.

Relevant period in a subsidisation investigation

92

(1) The TRA may recommend that a countervailing amount should apply to goods from the relevant date specified in paragraph 19(3)(a) of Schedule 4 to the Act where paragraph (2) applies.

(1A) The TRA may recommend that a countervailing amount should apply to goods from the relevant date specified in paragraph 19(3)(b) of Schedule 4 to the Act where in a subsidisation investigation—

(a) a final determination of injury is made (but not a threat of injury or material retardation of the establishment of an injury), or

(b) a final determination of a threat of injury is made, and the TRA determines that injury would have occurred in the absence of provisional measures.

(2) This paragraph applies where the Secretary of State has published a notice under paragraph 29(1) of Schedule 4 to the Act and the TRA considers in a subsidisation investigation that in critical circumstances—

(a) there is a massive volume of imports of the subsidised goods into the United Kingdom in a short period of time;

(b) the massive imports of the subsidised imports caused injury to a UK industry, which is difficult to repair; and

(c) it is necessary in order to preclude the recurrence of such injury to a UK industry to recommend that a countervailing amount apply to goods from the relevant date specified in paragraph 19(3)(a)(i) of Schedule 4 to the Act.

(3) The TRA may recommend that the countervailing amount to be applied during all or part of the relevant period is the same or less than the countervailing amount in the final affirmative determination, provided that the countervailing amount to be applied during the relevant period does not exceed the estimated countervailing amount as specified in paragraph 13(3)(b) of Schedule 4 to the Act.

Meaning of export subsidisation

93

(1) For the purpose of paragraph 27 of Schedule 4 to the Act, “export subsidisation” (and “export subsidy” accordingly) has the meaning given by this regulation.

(2) Subject to paragraph (3), export subsidisation means the granting of a subsidy which is contingent, in law or in fact, upon export performance.

(3) The fact that a subsidy is granted to enterprises which export does not for that reason alone mean that it is an export subsidy.

(4) When considering whether or not a subsidy is an export subsidy, the TRA must take into account footnote 1 and Annexes I to III to the Agreement on Subsidies and Countervailing Measures (being part of Annex 1A to the WTO Agreement).

PART 12 — Transitional provisions

Interpretation for Part 12

94

(1) In this Part—

“appropriate date” means—in relation to a transition review under regulation 97(2)(a), the day of replacement of EU trade duty;in relation to a transition review under regulation 97(2)(b)—the day after the day of publication of the notice under regulation 101C(2)(a); orthe day of expiry if the relevant UK trade remedies measure continues to apply under regulation 97C(2);

“circumvention” has the meaning given in regulation 73(2);

“determination notice” means a notice published by the Secretary of State under regulation 96(1);

“EU anti-dumping duty” means a definitive anti-dumping duty imposed by an EU instrument made under—the EU anti-dumping regulation;an earlier EU regulation under which an EU instrument imposing a definitive anti-dumping duty could have been made;

“the EU anti-dumping regulation” means Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union;

“EU countervailing duty” means a definitive countervailing duty imposed by an EU instrument made under—the EU countervailing regulation; oran earlier EU regulation under which an EU instrument imposing a definitive countervailing duty could have been made;

“the EU countervailing regulation” means Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union;

“EU regulation” has the same meaning as in Article 288 of the Treaty on the Functioning of the European Union;

“EU trade remedies measure” means an EU anti-dumping duty or an EU countervailing duty;

“recommendation of revocation” means a recommendation made under regulation 100(1) in accordance with regulation 100B;

“recommendation of variation” means a recommendation made under regulation 100(1) in accordance with regulation 100A;

“replacement of EU trade duty” means the coming into force of paragraph 1 of Schedule 7 to the Act in so far as it relates to any EU anti-dumping duty or EU countervailing duty;

“transition review” means a review under regulation 97(2)(a) or (b);

“UK trade remedies measure” means an anti-dumping amount or a countervailing amount applied by public notice under regulation 96A(1).

(2) For the purposes of this Part, “EU countervailing duty” includes a duty that would apply to goods were it not for acceptance by the European Commission of an undertaking in accordance with Article 13 of the EU countervailing regulation.

Application of this Part

95

(1) This regulation applies if the TRA is requested to initiate an investigation in an application made by or on behalf of an applicant UK industry before replacement of EU trade duty.

(2) The TRA may initiate an investigation only to the extent the application relates to goods which are the subject of—

(a) an anti-dumping investigation initiated by the European Commission in accordance with article 5 of the EU anti-dumping regulation; or

(b) a countervailing duty investigation initiated by the European Commission in accordance with article 10 of the EU countervailing regulation.

Notification etc of determination

96

(1) The Secretary of State may by publishing a notice determine to transition an EU trade remedies measure.

(2) A notice under paragraph (1) may be published at any time before replacement of EU trade duty.

Treatment of amounts under this Part etc

97

(1) The TRA must review every EU trade remedies measure specified in a determination notice.

(2) The TRA may conduct a transition review—

(a) before replacement of EU trade duty, in which case the review is of an EU trade remedies measure; or

(b) after replacement of EU trade duty, in which case the review is of a UK trade remedies measure.

Review of amounts under this Part

98

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