SI 2024/519 - The Trade Remedies (Increase in Imports as a Result of a Free Trade Agreement Causing Serious Injury to UK Producers) Regulations 2024

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STATUTORY INSTRUMENTS 2024 No. 519 CUSTOMS TRADE The Trade Remedies (Increase in Imports as a Result of a Free Trade Agreement Causing Serious Injury to UK Producers) Regulations 2024 Made - - - - 15th April 2024 Laid before the House of Commons - - - - 16th April 2024 Coming into force - - 13th May 2024 The Secretary of State makes these Regulations in exercise of the powers conferred by sections 13, 32(7) and (8) of, and paragraphs 1(2), 2, 3(2), 4(2), 5, 7(4), 8, 12(5), 13(6), 16(10B), 17(5), (6), 18(3), (6), 21, 22, 25(1), 29, 30 and 31(3) of Schedule 5 to the Taxation (Cross-border Trade) Act 2018 (“the 2018 Act”)(1) as applied by Schedule 5A(2), and paragraphs 3(3) and (4) of Schedule 20 to the Finance (No. 2) Act 2023(3).

Further to section 28 of the 2018 Act, the Secretary of State, in exercising the function of making the following Regulations, has had regard to international arrangements to which His Majesty’s government in the United Kingdom is a party that are relevant to the exercise of that function.

The Secretary of State has consulted the Trade Remedies Authority in accordance with

section 32(12) of the 2018 Act.

Part 1 Introductory Citation, commencement and extent

1.—(1) These Regulations may be cited as the Trade Remedies (Increase in Imports as a Result of a Free Trade Agreement Causing Serious Injury to UK Producers) Regulations 2024.

(1) 2018 c. 22, as amended by paragraphs 9, 10, 11, 12, 14 and 15 of Schedule 19 and paragraph 2 of Schedule 20 to the Finance (No. 2) Act 2023 (c. 30).

(2) Schedule 5A was inserted by paragraph 2 of Schedule 20 to the Finance (No. 2) Act 2023.

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(2) These Regulations come into force on 13th May 2024.

(3) These Regulations extend to England and Wales, Scotland and Northern Ireland.

Interpretation

2.—(1) All references in these Regulations to Schedule 5 to the Act are to be read as references to that Schedule as applied by Schedule 5A to the Act.

(2) In these Regulations— “the Act” means the Taxation (Cross-border) Trade Act 2018; “authentication visit” means a visit conducted by the TRA(4) 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 a bilateral safeguarding investigation(5);

“contributor” means a person other than an interested party who has made themselves known to the TRA for the purpose of participating in a bilateral safeguarding investigation or a review; “definitive bilateral safeguarding remedy” means a definitive bilateral safeguarding amount, a definitive suspension of tariff rate reduction or a tariff rate quota referred to in Part 4 of Schedule 5 to the Act(6);

“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; “goods concerned” means the goods described in the notice of initiation of a bilateral safeguarding investigation, referred to in paragraph 1 of Schedule 1;

“goods identified” means the goods in relation to which the Secretary of State is requesting the TRA to conduct a bilateral safeguarding investigation; “goods subject to review” means the goods described in the notice of initiation of a review, referred to in paragraph 8 of Schedule 1;

“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) a government of the relevant foreign country or territory(7),

(b) an overseas exporter or importer of the goods concerned or the goods subject to review or investigation,

(c) a trade or business association of producers, overseas exporters or importers of the goods concerned or the goods subject to review or investigation,

(d) a producer of the like goods(8) or directly competitive goods in the United Kingdom,

(e) a trade or business association of UK producers of the like goods or directly competitive goods, or

(f) an overseas producer of the goods concerned or the goods subject to review;

(4) “TRA” is defined in section 13 of the Taxation (Cross-border Trade) Act 2018.

(5) “Bilateral safeguarding investigation” is defined in paragraph 24 of Schedule 5A to the Taxation (Cross-border) Trade Act 2018 (c. 22) (“the Act”).

(6) Part 4 of Schedule 5 was amended by paragraphs 11 to 13 of Schedule 19 to the Finance (No. 2) Act 2023. There are other amendments to Part 4 which are not relevant to this instrument.

(7) Paragraph 31(1) of Schedule 5 to the Act defines “foreign country or territory” as a country or territory outside the United Kingdom.

(8) “Like goods” is defined in paragraph 4 of Schedule 5 to the Act.

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Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format. “international dispute investigation” means an investigation into whether the application to goods of a definitive bilateral safeguarding remedy should be maintained, varied, or revoked in light of an international dispute decision, required by the Secretary of State under regulation 38;

“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—

(a) in respect of a definitive bilateral safeguarding amount, or a definitive suspension of tariff rate reduction, the process by which the amount of import duty applicable to the goods becomes progressively smaller, in accordance with paragraph 17(5A) of Schedule 5 to the Act(9);

(b) 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(6A) of Schedule 5 to the Act(10);

“period of investigation” has the meaning given by regulation 6 (increased quantities); “provisional bilateral safeguarding remedy” means a provisional bilateral safeguarding amount, provisional suspension of tariff rate reduction or provisional tariff rate quota referred to in Part 3 of Schedule 5 to the Act(11);

“relevant free trade agreement” means a free trade agreement to which the United Kingdom is a party which is relevant to a review, a bilateral safeguarding investigation or an international dispute investigation carried out under these Regulations;

“statement of reasons” has the meaning given by regulation 16(6)(b); “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(12).

Transitional provisions

3.—(1) Where the Secretary of State has begun any form of enquiry into the application of a trade remedy to goods before the day on which these Regulations come into force (“commencement day”), and the trade remedy concerned would be a definitive bilateral safeguarding remedy under these Regulations, the Secretary of State may on or after commencement day—

(a) transfer that enquiry to the TRA, or

(b) continue the enquiry otherwise than under these Regulations.

(2) Where the Secretary of State transfers the enquiry to the TRA on or after commencement day—

(a) the Secretary of State must specify whether the enquiry is to be treated as a review or a bilateral safeguarding investigation under these Regulations;

(b) anything done by the Secretary of State in relation to that enquiry before the enquiry is transferred to the TRA is to be treated as if it had been done by the TRA as part of a review,

(9) Sub-paragraph (5A) was inserted into paragraph 17 as that paragraph is applied with modifications by paragraph 12 of Schedule 5A to the Act.

(10) Sub-paragraph (6A) was inserted into paragraph 18 as that paragraph is applied with modifications by paragraph 13 of Schedule 5A to the Act.

(11) Part 3 to Schedule 5 to the Act was amended by paragraph 10 of Schedule 19 to the Finance (No. 2) Act 2023.

(12) 1971 c. 80.

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Application

4. In applying the provisions of these Regulations, the TRA and the Secretary of State must have regard to any relevant free trade agreement.

Part 2 Increased quantities Purpose of Part 2

5. The TRA is to determine, for the purpose of a bilateral safeguarding 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

6.—(1) The TRA must assess whether—

(a) 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”), and

(b) any such increase during the period of investigation is due to the goods concerned having benefited from a reduction or elimination of import duty as a result of the relevant free trade agreement.

(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 determine 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) The TRA must consider imports of the goods concerned when making a determination under paragraph (2) unless regulation 49 (exceptions) applies.

Significant increase in the importation of the goods concerned

7.—(1) Where the TRA determines under regulation 6 (increased quantities) that—

(a) there has been an increase in the volume of the goods concerned imported into the United Kingdom, and

(b) the increase is due to the goods concerned having benefited from a reduction or elimination of import duty as a result of the relevant free trade agreement, the TRA must determine whether that increase is significant for the purpose of paragraph 1(1)(b) of Schedule 5 to the Act.

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(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, and

(b) any other factors it considers relevant.

Part 3 Serious injury and causation Serious injury

8. Where the TRA has determined in accordance with paragraph 1 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

9.—(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(13) 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 likelihood that the goods concerned will be exported to the United Kingdom in increased quantities, in absolute or relative terms;

(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

10.—(1) This regulation applies where the TRA is determining, for the purpose of regulation 9 (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 (“increased importation”).

(13) Paragraph 6 of Schedule 5 is modified by paragraph 4 of Schedule 5A to the Act.

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(2) The TRA may consider—

(a) price effects of the increased importation 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 increased importation on the like goods and directly competitive goods in the United Kingdom, and

(c) any other known factors that it considers relevant.

(3) The TRA must consider whether any known factors other than the increased importation have caused or are causing serious injury to UK producers.

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

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

11.—(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 bilateral safeguarding remedy or definitive bilateral 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.

Part 5 Initiation and conduct of a bilateral safeguarding investigation

Chapter 1 General provisions and the use of information Purpose of Part 5

12. Pursuant to paragraphs 7, 8 and 30 of Schedule 5 to the Act(14), the initiation and conduct of bilateral safeguarding investigations are to be carried out in accordance with this Part.

(14) Paragraph 7 of Schedule 5 was amended by paragraph 9 of Schedule 19 to the Finance (No. 2) Act 2023, and modified by paragraph 5 of Schedule 5A to the Act.

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General provisions

13.—(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;

(c) set time limits for responses to its requests and vary such time limits;

(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 a bilateral safeguarding investigation

14.—(1) This regulation applies after the TRA has published a notice of the initiation of a bilateral safeguarding investigation (the “notice of initiation”) 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 a bilateral safeguarding investigation.

(3) The TRA may, if the Secretary of State agrees, revise the scope of a bilateral safeguarding investigation so as to amend—

(a) the description of the goods concerned, or

(b) the period of investigation, where it has provided the Secretary of State, 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 a bilateral safeguarding investigation under paragraph (3), the TRA must consider—

(a) whether the proposed revision may cause any prejudice to the interests of any interested party or contributor,

(b) whether the proposed revision will prevent the TRA from proceeding with the bilateral safeguarding investigation expeditiously, and

(c) any other matter the TRA considers relevant.

(5) Where the TRA has made a determination under this regulation to revise the scope of the bilateral safeguarding investigation, it must advise the Secretary of State of that determination.

(6) The Secretary of State must advise the TRA whether or not the Secretary of State accepts the determination referred to in paragraph (5) (“the TRA determination”).

(7) If the Secretary of State accepts the TRA determination, the TRA must publish an amended notice of initiation.

(8) If the Secretary of State does not accept the TRA determination, the TRA must not revise the scope of the bilateral safeguarding investigation.

Deemed service

15. 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.

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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,

(c) demonstrates to the TRA good cause as to why the TRA must treat such information as confidential, and

(d) submits—

(i)a non-confidential summary of that information (see paragraph (6)(a)), or

(ii)in exceptional circumstances, a statement of reasons (see paragraph (6)(b)).

(2) For the purpose of paragraph (1)(b)(i), information that is by its nature confidential includes information which, if disclosed, would—

(a) be of significant competitive advantage to a competitor of the person supplying the information, or

(b) have a significant adverse effect on—

(i)the person supplying the information, or

(ii)any person from whom the person supplying the information had acquired it.

(3) Where this paragraph applies, the TRA must treat information supplied to it as confidential.

(4) The TRA may treat information as confidential where it is supplied to it otherwise than in accordance with paragraph (1), and, where it does so, it must—

(a) inform the person supplying the information that it intends to treat that information as confidential, and

(b) request that that person submits a sufficiently detailed non-confidential summary of that information.

(5) The Secretary of State must treat as confidential the information supplied by the TRA under regulation 17(2) which the TRA identifies as information that it is treating as confidential under this regulation.

(6) In this regulation—

(a) a “non-confidential summary” in relation to information means a sufficiently detailed summary for the public file referred to in regulation 48 (public file) which would enable a person other than the TRA to have a reasonable understanding of—

(i)the substance of the information to which it relates, and

(ii)its potential relevance to the exercise of any function by the TRA under the Act or these Regulations;

(b) a “statement of reasons” means a statement setting out the reasons of a person supplying information to the TRA as to why the TRA should treat that information as confidential and why summarisation of that information in accordance with this regulation is not possible.

Permitted disclosure

17.—(1) The TRA or the Secretary of State may disclose information which the TRA or the Secretary of State treats as confidential where such disclosure is— 8Document Generated: 2024-05-13

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(a) made with the consent of the person supplying the information,

(b) made for the purpose of court or tribunal proceedings in the United Kingdom relating to the exercise by the TRA or the Secretary of State of any functions under the Act or these Regulations,

(c) made for the purpose of an international dispute relating to the exercise by the TRA or the Secretary of State of any functions under the Act or these Regulations, or

(d) required or permitted by any other enactment or rule of law.

(2) The TRA may disclose to the Secretary of State information that it is treating as confidential for the purpose of the Secretary of State exercising functions under the Act or these Regulations.

(3) Where the TRA or the Secretary of State has a discretion to make a disclosure under paragraph (1)(b), (c) or (d), the TRA or the Secretary of State must consider whether such disclosure is likely to allow, or result in, such information being made available to a competitor of—

(a) the person supplying that information, or

(b) the person to whom the information relates.

(4) In paragraph (1)(d), reference to an enactment includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.

The use of information and facts available to the TRA from secondary sources

18.—(1) This regulation applies in respect of the exercise by the TRA of functions under the Act or these Regulations.

(2) The TRA must have regard to information supplied to it by the Secretary of State, an interested party, a contributor or any other person from whom it has requested information, provided that the information—

(a) is verifiable,

(b) has been appropriately submitted such that the TRA may use the information without undue difficulty,

(c) has been supplied to it within any applicable time limit, and

(d) where relevant, has been supplied to it in a form that it has requested.

(3) The TRA must not have regard to oral statements referred to in regulation 27(4) unless—

(a) those statements are reproduced in writing, and

(b) it has made the written reproductions available to interested parties and contributors.

(4) The TRA may disregard information which it treats as confidential (which it would otherwise have had regard to) where the person supplying that information has not supplied a non-confidential summary or a statement of reasons in accordance with regulation 16 (confidential information), unless it is satisfied from appropriate sources that such information is correct.

(5) The TRA may make a determination on the basis of information obtained from secondary sources, provided that it—

(a) does so with special circumspection, and

(b) where practicable, verifies such information from independent sources, including but not limited to published price lists, official import statistics or customs returns and data pertaining to the relevant markets.

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Acceptance or rejection of information

19.—(1) Where a person has supplied information to the TRA outside any applicable time limit, the TRA may accept such information where it considers that—

(a) doing so would not significantly impede the progress of a bilateral safeguarding investigation, or

(b) it is appropriate to accept that information, having regard to the potential significance of the information on any determination it may make and any explanation provided by that person as to why it should accept that information.

(2) Where the TRA rejects information for any reason, it must publish its reasons for rejection.

Non-cooperation

20.—(1) Where the TRA determines that an interested party has failed to cooperate with a bilateral safeguarding investigation or has otherwise significantly impeded the progress of a bilateral safeguarding investigation (a “non-cooperative party”), it may disregard the information supplied by that party.

(2) For the purpose of paragraph (1), the TRA must not determine that an interested party is a non-cooperative party where the TRA—

(a) determines that that interested party has acted to the best of their ability to cooperate with a bilateral safeguarding investigation, or

(b) has accepted that compliance with any request for information to be supplied in a particular form would be unreasonably burdensome to that party.

Chapter 2 Initiation of a bilateral safeguarding investigation Market share requirement

21. For the purpose of paragraph 7 of Schedule 5 to the Act, the market share requirement is met where the Secretary of State is satisfied that UK producers' “share” of the market is—

(a) at least 1 per cent, or

(b) such other higher share as the Secretary of State considers appropriate taking into account the goods and the particular market for those goods.

Form and content of a preliminary adjustment plan

22.—(1) A preliminary adjustment plan referred to in paragraph 7(3) of Schedule 5 to the Act may be in such form as the Secretary of State is willing to accept.

(2) A preliminary adjustment plan may contain information relating to—

(a) how UK producers intend to adjust to the importation of the goods identified or the goods concerned in increased quantities as appropriate,

(b) potential innovation, research and development initiatives to improve the competitiveness of UK producers, and

(c) changes which UK producers intend to make to improve efficiency, including workforce effectiveness and investing in new or different machinery.

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Chapter 3 Conduct of a bilateral safeguarding investigation Registration of interest and the issuing of questionnaires

23.—(1) Where the Secretary of State has requested the TRA to initiate a bilateral safeguarding investigation, the TRA must set a period during which interested parties and any other person may make themselves known to the TRA (a “registration period”).

(2) The TRA may issue a questionnaire (see regulation 24) to—

(a) interested parties who have made themselves known to the TRA during the registration period,

(b) UK producers, importers and overseas exporters (or associations thereof) which the Secretary of State has identified in their request to the TRA to initiate a bilateral safeguarding investigation, and

(c) contributors who have made themselves known to the TRA during the registration period.

(3) Where the TRA uses a limited examination in accordance with regulation 25 (limited examination), it may limit the issuing of questionnaires to those interested parties included in that examination.

(4) Where an interested party or a contributor makes themselves known to the TRA after the end of the registration period, the TRA may issue a questionnaire to that person if it is satisfied that doing so would not significantly impede the progress of the bilateral safeguarding investigation.

(5) Where an interested party makes themselves known to the TRA after the end of the registration period, the TRA may include that party in a limited examination in accordance with regulation 25.

Form of questionnaires and deficiency notice

24.—(1) Subject to paragraph (2), the questionnaire referred to in regulation 23 (registration of interest and the issuing of questionnaires) may take such form and contain such questions and other material as the TRA considers appropriate for the purpose of the bilateral safeguarding investigation.

(2) A questionnaire must set out the date by which it must be returned to the TRA.

(3) Where, following a review of the returned questionnaire, the TRA determines that it is incomplete or that the information supplied to it is inadequate, it may issue a notice to the relevant interested party or contributor requesting clarification or supplementary information (a “deficiency notice”).

(4) The deficiency notice must set out a time limit by which any missing, clarificatory or supplementary information is to be supplied.

Limited examination

25.—(1) The TRA may, where it considers it appropriate for the purpose of making any determination or conducting any analysis under the Act or these Regulations, limit its examination to a sample of—

(a) categories of goods,

(b) UK producers,

(c) transactions for the purchase of the like goods and directly competitive goods in the United Kingdom, or

(d) anything else the TRA considers it appropriate to examine in order to make its determination.

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(2) Where the TRA limits its examination in accordance with this regulation, it may use any reasonable method to determine the sample it considers appropriate.

Authentication visit and authentication report

26.—(1) The TRA may make such arrangements in connection with an authentication visit as it considers appropriate.

(2) Where the TRA conducts an authentication visit, it must—

(a) provide a written report on the authentication visit (an “authentication report”) to the person subject to that visit,

(b) require the person subject to an authentication visit to supply the TRA with a version of the authentication report with summarisation of the information that it requests the TRA to treat as confidential (a “non-confidential authentication report”), and

(c) set a time limit by which the non-confidential authentication report is to be supplied.

(3) In the application of regulation 16 (confidential information) to this regulation, a reference in that regulation to—

(a) the supply of information is to be taken to include information obtained by the TRA from the person subject to an authentication visit, and

(b) a non-confidential summary is to be taken to include a non-confidential authentication report.

Hearing

27.—(1) The TRA may conduct a hearing at any time during a bilateral safeguarding investigation either—

(a) at the request of any interested party, or

(b) on its own initiative.

(2) The TRA must notify interested parties and contributors of any processes and procedures to be adopted at a hearing in advance of it taking place.

(3) When deciding whether and how to conduct a hearing, the TRA must have regard to—

(a) the need to preserve the confidentiality of information it is treating as confidential in accordance with regulation 16(3) or (4), and

(b) whether holding a hearing and whether such processes and procedures it proposes to adopt at a hearing would be convenient to interested parties and contributors.

(4) The TRA must allow interested parties and contributors to present their views by written and oral statements (see regulation 18(3)).

(5) Where the TRA decides to conduct a hearing, it—

(a) must give sufficient notice of the hearing to interested parties and contributors,

(b) must allow interested parties and contributors to attend, and

(c) may request that an interested party or a contributor intending to attend supplies the TRA with the information they wish to rely on at the hearing.

(6) Where the TRA makes a request referred to in paragraph (5)(c), it must set a time limit by which such a request must be complied with.

(7) An interested party or a contributor is not under an obligation to attend a hearing.

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(8) The TRA must not determine that an interested party who fails to attend a hearing is a non- cooperative party (see regulation 20) or that such failure to attend is otherwise prejudicial to its interests.

Alternative options for final affirmative determination

28. The TRA must consider giving two or more options as part of its recommendation to the Secretary of State under paragraph 16(3) of Schedule 5 to the Act in the following circumstances—

(a) where the TRA considers that applying a definitive bilateral safeguarding amount, a definitive suspension of tariff rate reduction or making relevant goods subject to a tariff rate quota in accordance with its proposed recommendation would not meet the economic interest test;(15)

(b) where the TRA otherwise considers that it is appropriate.

Chapter 4 Termination of a bilateral safeguarding investigation Termination

29.—(1) The TRA must terminate a bilateral safeguarding investigation on the request of the Secretary of State.

(2) Where the TRA terminates a bilateral safeguarding investigation under this regulation, it must—

(a) publish a notice containing the information referred to in paragraph 7 of Schedule 1, and

(b) notify interested parties and contributors.

(3) The Secretary of State may—

(a) produce and publish a report or update in relation to the bilateral safeguarding investigation concerned, or

(b) request that the TRA produces such a report or update.

(4) Where the Secretary of State makes a request under paragraph (3)(b)—

(a) the TRA must produce a report or update, as the case may be, in accordance with the request, and

(b) the Secretary of State may publish the report or update.

Chapter 5 Content of notices and notifications Content of notices and notifications

30.—(1) A notice published by the TRA in accordance with Schedule 5 to the Act and these Regulations must contain the information listed in Part 1 of Schedule 1 to these Regulations applicable to the type of notice in question.

(2) A notice published by the Secretary of State in accordance with Schedule 5 to the Act and these Regulations must contain the information listed in Part 1 of Schedule 1 to these Regulations applicable to the type of notice in question.

(3) A notice referred to in paragraph (1) may contain any other information as the TRA considers appropriate.

(15) “Economic interest test” is set out in paragraph 23 of Schedule 5 to the Act.

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(4) A notice referred to in paragraph (2) may contain any other information as the Secretary of State considers appropriate.

(5) Where the Secretary of State is required by Schedule 5 or these Regulations to notify interested parties, that notification must be accompanied by the TRA determination or recommendation listed in Part 2 of Schedule 1 for the notification in question.

Part 6 Reviews Purpose of Part 6

31. Reviews by the TRA of the continuing application, including variation, revocation, extension and replacement, of a definitive bilateral safeguarding remedy to goods pursuant to paragraph 21 of Schedule 5 to the Act(16) are subject to the provisions of this Part.

Review

32.—(1) The TRA may conduct a review to consider whether the continuing application of a definitive bilateral safeguarding remedy is necessary to—

(a) remove the serious injury, or to prevent further serious injury to UK producers, caused by the importation of the goods subject to review in increased quantities, or

(b) facilitate the adjustment by those UK producers to the importation of the goods subject to review in increased quantities, where the increase is due to the relevant free trade agreement.

(2) The TRA may only initiate a review at the request of the Secretary of State.

(3) Where the Secretary of State requests the TRA to initiate a review, the TRA must—

(a) initiate the review,

(b) publish a notice that it has initiated a review (a “notice of initiation of a review”) containing the information referred to in paragraph 8 of Schedule 1, and

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

(4) In conducting a review, the TRA may consider—

(a) whether the importation of the goods subject to review in increased quantities is likely to recur,

(b) whether serious injury to UK producers of the goods (“serious injury”) has been removed, or reduced, in whole or in part due to the application of the definitive bilateral safeguarding remedy,

(c) whether serious injury would be likely to continue or recur if the application of the definitive bilateral safeguarding remedy were to expire or be otherwise varied or revoked,

(d) whether the circumstances of UK producers, or domestic or overseas market conditions, are such that the serious injury caused by the importation of the goods subject to review in increased quantities is likely to recur,

(e) any adjustments made by UK producers, and

(f) any other factors it considers relevant.

(16) Paragraph 21 was amended by paragraph 12 of Schedule 19 to the Finance (No. 2) Act 2023.

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

(a) the definitive bilateral safeguarding remedy should be maintained in accordance with the relevant public notice made under section 13 of the Act(17);

(b) the application of the definitive bilateral safeguarding remedy should be extended for a period which is necessary to—

(i)prevent or remove serious injury, and

(ii)facilitate adjustment by UK producers;

(c) the definitive bilateral safeguarding remedy should otherwise be varied in any way permitted by paragraph 21(8) or (9) of Schedule 5 to the Act;

(d) a definitive bilateral safeguarding amount or a definitive suspension of tariff rate reduction should be replaced with a tariff rate quota;

(e) a tariff rate quota should be replaced by a definitive bilateral safeguarding amount or a definitive suspension of tariff rate reduction;

(f) the definitive bilateral safeguarding remedy should be revoked.

(6) Where the TRA proposes to make a determination under paragraph (5)(a), the TRA must notify the Secretary of State of its proposed determination.

(7) Where the Secretary of State has been notified in accordance with paragraph (6), the Secretary of State may, within the relevant period (and subject to paragraph (8)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.

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

(a) there is information that the TRA did not take into account in its review that is relevant to the proposed determination,

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

(c) exceptional circumstances make the request appropriate.

(9) The TRA must comply with a request under paragraph (7).

(10) The TRA may not make a determination under paragraph (5)(a) 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.

(12) Where the TRA makes a determination under paragraph (5)(b), (c), (d) or (e), the TRA may determine that the pace of liberalisation of the definitive bilateral safeguarding remedy should be varied.

(13) The TRA must have regard to the relevant free trade agreement—

(a) in conducting a review under paragraph (4);

(b) in making the determinations referred to in paragraph (5);

(c) in determining the period for which a definitive bilateral safeguarding remedy applies to goods as a consequence of this regulation.

(17) Section 13 was amended by paragraph 15 of Schedule 19 to the Finance (No. 2) Act 2023.

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The conduct of reviews

33.—(1) Where the TRA considers it appropriate to expand or limit the matters to be considered in a review, the TRA must make a recommendation to the Secretary of State, setting out the reasons for their recommendation.

(2) The TRA must provide interested parties and the Secretary of State with an opportunity to comment prior to making a recommendation to the Secretary of State under paragraph (1).

(3) When the Secretary of State receives a recommendation under paragraph (1), the Secretary of State must—

(a) determine whether the matters to be considered in the review are to be expanded or limited, and

(b) notify the TRA of the determination.

(4) The TRA must terminate a review on the request of the Secretary of State.

(5) Where the TRA terminates a review under this regulation, it must—

(a) publish a notice of termination, containing the information referred to in paragraph 9 of Schedule 1;

(b) notify interested parties and contributors.

(6) Where the TRA completes a review and determines that the definitive bilateral safeguarding remedy should be maintained in accordance with its terms—

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

(b) the notice must contain the information set out in paragraph 10 of Schedule 1;

(c) the Secretary of State must notify interested parties that no change will be made to the definitive bilateral safeguarding remedy.

(7) Parts 2 to 5 apply to a review to the extent that the TRA considers relevant.

(8) If the TRA applies any part of Parts 2 to 5 to a review, any references in those Parts to “goods concerned” should be read as “goods subject to review”.

TRA's recommendation to the Secretary of State

34.—(1) The TRA must make a recommendation to the Secretary of State, where it determines that the application of a definitive bilateral safeguarding remedy should be extended or otherwise varied, revoked or replaced.

(2) Where in relation to a 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.

(3) 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) where the TRA considers that the extension or other variation of the application of the definitive bilateral safeguarding remedy, or the replacement of the definitive bilateral safeguarding remedy, in accordance with its proposed recommendation would not meet the economic interest test (see paragraph 23 of Schedule 5 to the Act);

(b) where the TRA otherwise considers that it is appropriate.

(4) Where, after considering whether it could give the Secretary of State two or more options as part of its recommendation in accordance with paragraph (1), the TRA considers that there is only one option which it could reasonably recommend, it must give the Secretary of State its reasons for reaching that conclusion.

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(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.

(6) Where the TRA makes a recommendation under paragraph (1) to extend or otherwise vary the application of a definitive bilateral safeguarding remedy or to replace that remedy, it must advise the Secretary of State whether and why it considers that the extension, variation or replacement of the application of that definitive bilateral safeguarding remedy in accordance with its recommendation, or in accordance with each option given under paragraph (2), as the case may be, would meet the economic interest test.

(7) Before making a recommendation that the application of a definitive bilateral safeguarding remedy be extended or otherwise varied or replaced, where the recommendation comprises or includes varying, or providing for, the allocation of a tariff rate quota, the TRA must consult the Secretary of State regarding the proposed allocation.

(8) The TRA's recommendation must include—

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

(b) the reasons for its recommendation;

(c) where relevant, the recommended period for which the definitive bilateral safeguarding remedy should be applicable which must begin on the day after the date of publication of the public notice under section 13 of the Act giving effect to the recommendation;

(d) information which the TRA considers is likely to be relevant to the Secretary of State's decision as to whether it would not be in the public interest to accept the TRA's recommendation (see regulation 35);

(e) any other information which the TRA considers relevant.

Powers of the Secretary of State in relation to the TRA's recommendation

35.—(1) Where the TRA makes a recommendation under regulation 34(1), the Secretary of State must—

(a) decide whether to 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.

(2) Where the Secretary of State accepts a recommendation which contains options given in reliance on regulation 34(2), the Secretary of State must decide which of those options to adopt.

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

(4) In considering the public interest under paragraph (3), where regulation 34(6) applies the Secretary of State must have regard to the TRA’s advice on whether extending or otherwise varying the application of a definitive bilateral safeguarding remedy, or replacing that remedy, in accordance with a recommendation, or in accordance with each option, as the case may be, would meet the economic interest test.

(5) Paragraph (6) applies if—

(a) the TRA makes a recommendation to extend or otherwise vary or replace the application of a definitive bilateral safeguarding remedy, and

(b) the Secretary of State rejects the recommendation.

(6) If the Secretary of State considers that it is in the public interest to do so, the Secretary of State may decide that the application of the definitive bilateral safeguarding remedy should be—

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(b) revoked.

(7) Where the Secretary of State rejects the recommendation and does not make a decision under paragraph (6), the Secretary of State must—

(a) publish a notice containing the information referred to in paragraph 11, 12 or 13 of Schedule 1, and

(b) notify interested parties.

(8) The Secretary of State may only make a request under paragraph (1)(b) where the Secretary of State considers that—

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

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

(c) exceptional circumstances make the request appropriate.

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

(10) Where the Secretary of State makes a request under paragraph (1)(b), the TRA must—

(a) comply with the request, and

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

Power to request assistance etc from TRA

36.—(1) The Secretary of State may request that the TRA give advice, information or other support to the Secretary of State for the purpose of allowing the Secretary of State to decide whether to make a decision under regulation 35(6).

(2) The Secretary of State may include in a request under paragraph (1) a requirement that the TRA investigate and provide a report on any matter specified in the request.

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

(4) The TRA must comply with a request under paragraph (1).

Reviews: reports and updates

37.—(1) This regulation applies where, in accordance with this Part, the TRA conducts or has conducted a review.

(2) The Secretary of State may—

(a) produce and publish a report or update in relation to the review concerned, or

(b) request that the TRA produces such a report or update.

(3) Where the Secretary of State makes a request under paragraph (2)(b)—

(a) the TRA must produce a report or update, as the case may be, in accordance with the request, and

(b) the Secretary of State may publish the report or update.

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Part 7 Investigation in light of an international dispute decision General Investigation in light of an international dispute decision

38. The Secretary of State may direct the TRA to investigate whether the application to goods of a definitive bilateral safeguarding remedy should be maintained, varied, or revoked in light of an international dispute decision.

Investigation Initiation

39.—(1) The TRA must publish notice of its initiation of an international dispute investigation.

(2) The notice must contain the information set out in paragraph 14 of Schedule 1.

Conduct

40. Parts 2 to 5 apply to the international dispute investigation to the extent the TRA considers relevant.

Determination Determination

41.—(1) The TRA must determine whether the application to goods of the definitive bilateral safeguarding remedy should be maintained, varied, or revoked in light of the international dispute decision.

(2) The TRA may make different determinations for different goods or descriptions of goods.

Determination to maintain

42.—(1) This regulation applies if the TRA proposes to determine that the application to goods of a definitive bilateral safeguarding remedy should be maintained.

(2) Where the TRA proposes to make a determination referred to in paragraph (1) the TRA must notify the Secretary of State of its proposed determination.

(3) Where the Secretary of State has been notified in accordance with paragraph (2), the Secretary of State may, within the relevant period (and subject to paragraph (4)), request that the TRA reassess its proposed determination by reference to any matter specified in the request.

(4) The Secretary of State may only make a request under paragraph (3) where the Secretary of State considers that—

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

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

(c) exceptional circumstances make the request appropriate.

(5) The TRA must comply with a request under paragraph (3).

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(6) The TRA may not make a determination that the application to goods of a definitive bilateral safeguarding remedy should be maintained 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 (3), the time when the TRA receives that information.

(7) For the purposes of paragraphs (3) and (6), 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) If the TRA determines that the application to goods of a definitive bilateral safeguarding remedy should be maintained, the TRA must notify the Secretary of State of the determination.

(9) The notice must contain the information set out in paragraph 15 of Schedule 1.

(10) The Secretary of State must notify interested parties that no change will be made to the definitive bilateral safeguarding remedy.

Determination to vary

43.—(1) If the TRA determines that the application to goods of a definitive bilateral safeguarding remedy should be varied, the TRA must make a recommendation to the Secretary of State to that effect.

(2) Where, in relation to a recommendation under paragraph (1), the TRA considers that there are two or more options which it could recommend, it may give the Secretary of State each of those options as part of its recommendation.

(3) 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) where the TRA considers that varying a definitive bilateral safeguarding remedy in accordance with its proposed recommendation would not meet the economic interest test (see paragraph 23 of Schedule 5 to the Act);

(b) where the TRA otherwise considers that it is appropriate.

(4) Where, after considering whether it could give the Secretary of State two or more options as part of its recommendation in accordance with paragraph (1), the TRA considers that there is only one option which it could reasonably recommend, it must give the Secretary of State its reasons for reaching that conclusion.

(5) 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.

(6) Where the TRA makes a recommendation under paragraph (1), it must advise the Secretary of State whether and why it considers that varying the application of a definitive bilateral safeguarding remedy in accordance with its recommendation, or in accordance with each option given under paragraph (2), as the case may be, would meet the economic interest test.

Determination to revoke

44.—(1) This regulation applies if the TRA determines the application to goods of a definitive bilateral safeguarding remedy should be revoked.

(2) The TRA must recommend to the Secretary of State that the application to goods of the definitive bilateral safeguarding remedy is revoked.

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Recommendation Powers of the Secretary of State in relation to the TRA’s recommendation

45.—(1) The Secretary of State must—

(a) accept or reject a recommendation made under regulation 43(1) or 44(2), 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.

(2) Where the Secretary of State accepts a recommendation which contains options given in reliance on regulation 43(2), the Secretary of State must decide which of those options to adopt.

(3) The Secretary of State may reject a recommendation made under regulation 43(1), or regulation 44(2), only if the Secretary of State is satisfied it is not in the public interest to accept the recommendation.

(4) In considering the public interest under paragraph (3) in relation to a recommendation made under regulation 43(1), the Secretary of State must have regard to the TRA’s advice on whether the variation of the application of a definitive bilateral safeguarding remedy in accordance with the recommendation, or in accordance with each option, as the case may be, would meet the economic interest test.

(5) Paragraph (6) applies if—

(a) the TRA makes a recommendation to vary the application of a definitive bilateral safeguarding remedy, and

(b) the Secretary of State rejects the recommendation.

(6) If the Secretary of State considers that it is in the public interest to do so, the Secretary of State may decide that the application of the definitive bilateral safeguarding remedy should be varied other than in accordance with the recommendation, or revoked.

(7) If the Secretary of State rejects a recommendation and does not make a decision under paragraph (6), the Secretary of State must—

(a) publish notice of the Secretary of State’s decision not to vary or revoke the definitive bilateral safeguarding remedy containing the information set out in paragraph 16 of Schedule 1, and

(b) notify interested parties.

(8) 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 investigation that is relevant to the recommendation,

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

(c) exceptional circumstances make the request appropriate.

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

(10) Where the Secretary of State makes a request under paragraph (1)(b), the TRA must—

(a) comply with the request, and

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

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Power to request assistance etc from TRA

46.—(1) The Secretary of State may request that the TRA give advice, information or other support to the Secretary of State for the purpose of allowing the Secretary of State to decide whether to make a decision under regulation 45(6).

(2) The Secretary of State may include in a request under paragraph (1) a requirement that the TRA investigate and provide a report on any matter specified in the request.

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

(4) The TRA must comply with a request under paragraph (1).

International dispute investigations: reports and updates

47.—(1) This regulation applies where the TRA conducts or has conducted an international dispute investigation, in accordance with this Part.

(2) The Secretary of State may—

(a) produce and publish a report or update in relation to the international dispute investigation concerned, or

(b) request that the TRA produces such a report or update.

(3) Where the Secretary of State makes a request under paragraph (2)(b)—

(a) the TRA must produce a report or update, as the case may be, in accordance with the request, and

(b) the Secretary of State may publish the report or update.

Part 8 Supplementary Public file

48.—(1) The TRA must, in respect of every bilateral safeguarding investigation, review and international dispute investigation, establish and maintain a file which is open to the public (a “public file”) containing information which the TRA considers material to the bilateral safeguarding investigation, international dispute investigation or review, other than confidential information.

(2) The public file may only contain—

(a) any item listed in Schedule 2;

(b) information referred to in paragraph (4).

(3) The Secretary of State may request the TRA, and the TRA may request the Secretary of State, to place information not listed in Schedule 2 on the public file in relation to a particular bilateral safeguarding investigation, review or international dispute investigation.

(4) If the party receiving the request referred to in paragraph (3) agrees, the TRA must place the information concerned on the public file.

Exceptions

49.—(1) Where the relevant free trade agreement provides for the excepting of goods from the application of a provisional or definitive bilateral safeguarding remedy, the TRA may except goods originating from a foreign country or territory which is party to the free trade agreement— 22Document Generated: 2024-05-13

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(a) from the scope of a recommendation by the TRA to apply a provisional or definitive bilateral safeguarding remedy, and

(b) from a relevant determination.

(2) For the purposes of this regulation, a “relevant determination” is the TRA’s determination on—

(a) whether the goods concerned have been or are being imported into the United Kingdom in increased quantities under Part 2 of these Regulations,

(b) whether the importation of the goods concerned in increased quantities (“increased importation”) was or is being caused by the reduction or elimination of import duty as a result of the relevant free trade agreement, or

(c) whether the increased importation has caused or is causing serious injury to UK producers under Part 3 of these Regulations.

Part 9 Amendment of the Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019 Amendment

50. The Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019(18) are amended in accordance with this Part.

Interpretation

51. In regulation 2—

(a) after the definition of “application for reconsideration”, insert— ““the Bilateral Safeguards Regulations” means the Trade Remedies (Increase in Imports as a Result of a Free Trade Agreement Causing Serious Injury to UK Producers) Regulations 2024;”;

(b) in the definition of “interested party”, before sub-paragraph (a), insert— “(za) regulation 2 of the Bilateral Safeguards Regulations in relation to an investigation or a review conducted under those Regulations;”.

Appeals to the Upper Tribunal: TRA decisions and determinations

52. In regulation 16, for paragraph (1), substitute— “(1) Subject to the following paragraphs, any interested party may appeal to the Upper Tribunal—

(a) for a review of a reconsidered decision in relation to an original decision listed in Part 1, 2, 3 or 4 of Schedule 1 to these Regulations, or

(b) for a review of an appealable decision.

(1A) For the purposes of paragraph (1), an “appealable decision” is a determination or recommendation of the TRA which is listed in Part 5 or 6 of Schedule 1 to these Regulations.”.

(18) S.I. 2019/910, amended by S.I. 2020/99, 730, 2022/414.

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Appeals to the Upper Tribunal

53. In regulation 17—

(a) in paragraph (1), after “determination” insert “or decision”;

(b) in paragraph (2)—

(i)after sub-paragraph (a), insert— “(aa) Part 1A contains a list of decisions made under Schedule 5 as applied by Schedule 5A (bilateral safeguarding remedies);”;

(ii)after sub-paragraph (d), insert— “(e) Part 5 contains a list of decisions made under the Bilateral Safeguards Regulations.”.

Decisions of the TRA that are subject to appeal

54.—(1) In the heading to Schedule 1, after “original decisions” insert “and appealable decisions”.

(2) After Part 4 of Schedule 1, insert— “Part 5 Determinations or Recommendations made under Schedule 5 as applied by Schedule 5A: appealable decisions

41. A final negative determination under paragraph 9(5)(b).

42. A recommendation made under paragraph 16(3) (including any recommendation made in accordance with paragraph 16(4)) in relation to a definitive bilateral safeguarding amount, definitive suspension of tariff rate reduction or tariff rate quota.

43. A determination notified under paragraph 16(11) that no recommendation can be made under paragraph 16(3).

Part 6 Determinations or Recommendations made under the

Bilateral Safeguards Regulations: appealable decisions

44. A determination under regulation 32(5) following a review.

45. A recommendation made under regulation 34(1) following a review.

46. A determination notified under regulation 42(8) in an international dispute investigation.

47. A recommendation made under regulation 43(1) or 44(2) in an international dispute investigation.”.

Decisions of the Secretary of State that are subject to appeal

55. In Schedule 2—

(a) after Part 1, insert— 24Document Generated: 2024-05-13

Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format. “Part 1A Decisions made under Schedule 5, as applied by Schedule 5A 2A. A decision under paragraph 19 to apply, or not to apply, a definitive bilateral safeguarding remedy.

2B. A decision under paragraph 20 to apply, or not to apply, a definitive bilateral safeguarding remedy.

2C. A decision under paragraph 21(7) to vary or revoke a definitive bilateral safeguarding remedy following a review.

2D. A decision under paragraph 21(10) to apply a definitive bilateral safeguarding remedy for the first time in replacement for an existing definitive bilateral safeguarding remedy following a review.

2E. A decision under paragraph 22(4) to vary or revoke a definitive bilateral safeguarding remedy following an investigation in light of an international dispute decision.

2F. A decision under paragraph 22A(1)(19) to revoke a definitive bilateral safeguarding remedy in the public interest.”;

(b) after Part 4, insert— “Part 5 Decisions made under the Bilateral Safeguards Regulations

14. A decision to request the termination of a bilateral safeguarding investigation under regulation 29.

15. A decision to request the termination of a review under regulation 33(4).

16. A decision under regulation 35(7) following a review.

17. A decision under regulation 45(7) following an investigation in light of an international dispute decision.”.

Signed by the authority of the Secretary of State for Business and Trade Greg Hands Minister of State 15th April 2024 Department for Business and Trade

(19) Paragraph 22A was inserted by paragraph 13 of Schedule 19 to the Finance (No. 2) Act 2023.

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Schedules Schedule 1 Regulations 2, 29, 30, 32, 33, 35, 39, 42 and 45 Notices and notifications Part 1 Notices Notice of initiation of a bilateral safeguarding investigation

1. The information to be contained in a notice referred to in paragraph 7(6)(b) of Schedule 5 to the Act is—

(a) the date of initiation of the investigation;

(b) a description of the goods which are the subject of the investigation;

(c) a description of the like goods and directly competitive goods;

(d) a summary of the factors on which the allegations of increased imports and serious injury caused by the increased imports are based, including a summary of the developments that led to the alleged increased imports of the goods;

(e) the period of investigation;

(f) a summary of the investigation process;

(g) the address of the TRA to which comments by interested parties or persons with sufficient interest in the investigation are to be delivered, or the means by which such comments are to be delivered;

(h) details of a registration period during which interested parties, or any other person, may make themselves known to the TRA;

(i) a statement that interested parties may request the TRA to conduct a hearing.

Notice to the Secretary of State of a TRA provisional affirmative determination with no recommendation regarding a provisional bilateral safeguarding remedy

2. The information to be contained in a notice referred to in paragraph 11(9)(a) of Schedule 5 to the Act is—

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

(b) a summary of the investigation to date and the expected future stages of the investigation;

(c) the reasons for the TRA's provisional affirmative determination;

(d) the reasons why the TRA has determined that there is no recommendation that it could make under paragraph 11(3) of Schedule 5 to the Act.

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Notice of the Secretary of State’s decision to apply, or not to apply, a provisional bilateral safeguarding remedy

3. The information to be contained in a notice referred to in paragraph 14(2E)(a), (3)(a), (4)(a), 15(2E)(a), (3)(a) or (4)(a) of Schedule 5(20) to the Act is—

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

(b) the decision of the Secretary of State;

(c) the reasons for the Secretary of State’s decision;

(d) where the Secretary of State—

(i)accepts the TRA's recommendation, or

(ii)rejects the TRA's recommendation, and makes a decision under paragraph 14(2C) or 15(2C) of Schedule 5 to the Act, that such notice is a public notice made under section 13 of the Act.

Notice to the Secretary of State of a TRA final affirmative determination with no recommendation regarding a definitive bilateral safeguarding remedy

4. The information to be contained in a notice referred to in paragraph 16(11)(a) of Schedule 5 to the Act is—

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

(b) a summary of the investigation;

(c) the reasons for the TRA’s final affirmative determination;

(d) the reasons why the TRA has determined that there is no recommendation that it could make under paragraph 16(3) of Schedule 5 to the Act.

Notice of the Secretary of State’s decision to apply, or not to apply, a definitive bilateral safeguarding remedy

5.—(1) The information to be contained in a notice referred to in paragraph 19(2E)(a), (3)(a),

(4)(a), 20(2E)(a), (3)(a) or (4)(a) of Schedule 5 to the Act(21) is—

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

(b) the decision of the Secretary of State;

(c) the reasons for the Secretary of State’s decision;

(d) where the decision is one referred to in sub-paragraph (2)(a), (b) or (c), that the notice is a public notice under section 13 of the Act;

(e) where the decision is one referred to in sub-paragraph (2)(a), (b)(i) or (c)—

(i)a specified period for which the definitive bilateral safeguarding remedy is applicable (see paragraph 17(2) or 18(2) of Schedule 5 to the Act);

(ii)details of exceptions of goods from the application of the definitive bilateral safeguarding remedy, if any.

(2) The decisions referred to in this sub-paragraph are—

(a) a decision by the Secretary of State to accept the TRA’s recommendation;

(b) where a provisional bilateral safeguarding remedy is in force, a decision by the Secretary of State—

(20) Paragraph 14(2A) to (2E) and 15(2A) to (2E) were inserted by paragraph 10 of Schedule 19 to the Finance (No. 2) Act 2023.

(21) Paragraphs 19(2A) to (2E) and 20(2A) to (2E) were inserted by paragraph 11 of Schedule 19 to the Finance (No. 2) Act 2023.

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(i)under paragraph 19(2C) or 20(2C) of Schedule 5 to the Act to apply a definitive bilateral safeguarding remedy otherwise than in accordance with the TRA’s recommendation;

(ii)to reject the TRA’s recommendation to implement a definitive bilateral safeguarding remedy, without applying an alternative definitive bilateral safeguarding remedy;

(c) where a provisional bilateral safeguarding remedy is not in force, a decision by the Secretary of State under paragraph 19(2C) or 20(2C) of Schedule 5 to the Act to apply a definitive bilateral safeguarding remedy otherwise than in accordance with the TRA’s recommendation.

Notice to the Secretary of State of a TRA final negative determination

6. The information to be contained in a notice referred to in paragraph 9(7)(a) of Schedule 5 to the Act is—

(a) a summary of the investigation;

(b) the TRA's reasons for its determination.

Notice of termination of a bilateral safeguarding investigation

7. The information to be contained in a notice referred to in regulation 29(2)(a) is—

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

(b) the date the notice comes into effect.

Notice of initiation of a review

8. The information to be contained in a notice referred to in regulation 32(3)(b) is—

(a) details of the content of the relevant public notice made under section 13 of the Act to which the review relates;

(b) the date of initiation of the review;

(c) a description of the goods subject to review;

(d) the period which will be covered by the review;

(e) a summary of the issue involved in the review;

(f) a summary of the review process;

(g) the address of the TRA to which comments by interested parties and persons with sufficient interest in the review is to be delivered, or the means by which such comments are to be delivered;

(h) details of a registration period during which interested parties, or any other person, may make themselves known to the TRA;

(i) a statement that interested parties may request that the TRA conduct a hearing.

Notice of termination of a review

9. The information to be contained in a notice referred to in regulation 33(5)(a) is—

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

(b) the date the notice comes into effect.

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Notice to the Secretary of State of a TRA determination to maintain the application of a definitive bilateral safeguarding remedy following a review

10. The information to be contained in a notice referred to in regulation 33(6)(b) is—

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

(b) a summary of the review to date;

(c) the reasons for the TRA’s determination that a definitive bilateral safeguarding remedy should be maintained in accordance with its terms.

Notice of the Secretary of State’s decision on whether to vary a definitive bilateral safeguarding remedy following a review

11.—(1) In the case of a decision on whether to vary a definitive bilateral safeguarding remedy following a review, the information to be contained in a notice referred to in paragraph 21(7)(a) of Schedule 5 to the Act(22) or regulation 35(7)(a) is—

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

(b) the Secretary of State’s decision;

(c) the reasons for the Secretary of State’s decision;

(d) for a decision referred to in sub-paragraph (2)(a) or (b)—

(i)a specified period during which the definitive bilateral safeguarding remedy is applicable, and

(ii)details of exceptions of goods from the application of the definitive bilateral safeguarding remedy, if any;

(e) for any decision referred to in sub-paragraph (2), that the notice is a public notice made under section 13 of the Act.

(2) The decisions referred to in this sub-paragraph are decisions by the Secretary of State—

(a) to accept the TRA’s recommendation;

(b) to reject the TRA’s recommendation and make a decision under regulation 35(6)(a);

(c) to reject the TRA’s recommendation and make a decision under regulation 35(6)(b).

Notice of the Secretary of State’s decision on whether to revoke a definitive bilateral safeguarding remedy following a review

12. In the case of a decision on whether to revoke a definitive bilateral safeguarding remedy following a review, the information to be contained in a notice referred to in paragraph 21(7)(a) of Schedule 5 to the Act or regulation 35(7)(a) is—

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

(b) the Secretary of State’s decision;

(c) the reasons for the Secretary of State’s decision;

(d) where the Secretary of State accepts the TRA's recommendation—

(i)that such notice is a public notice made under section 13 of the Act;

(ii)the date that the notice takes effect, which must be the day after the date of publication of the notice.

(22) Paragraph 21(7)(a) was amended by paragraph 12(1)(c) of Schedule 19 to the Finance (No. 2) Act 2023.

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Notice of the Secretary of State’s decision on whether to replace a definitive bilateral safeguarding remedy following a review

13.—(1) The information to be contained in a notice referred to in paragraph 21(10)(a) of Schedule 5 to the Act(23) or regulation 35(7)(a) is—

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

(b) the Secretary of State’s decision;

(c) the reasons for the Secretary of State’s decision;

(d) for a decision referred to in sub-paragraph (2)(a) or (b)—

(i)a specified period during which the definitive bilateral safeguarding remedy is applicable, and

(ii)details of exceptions of goods from the application of the definitive bilateral safeguarding remedy, if any;

(e) for any decision referred to in sub-paragraph (2), that the notice is a public notice made under section 13 of the Act.

(2) The decisions referred to in this sub-paragraph are decisions by the Secretary of State—

(a) to accept the TRA’s recommendation;

(b) to reject the TRA’s recommendation and make a decision under regulation 35(6)(a);

(c) to reject the TRA’s recommendation and make a decision under regulation 35(6)(b).

Notice of initiation of international dispute investigation

14. The information referred to in regulation 39(2) is—

(a) the date of initiation of the investigation;

(b) a description of the goods concerned;

(c) a description of the definitive bilateral safeguarding remedy to which the investigation relates;

(d) a summary of the international dispute decision;

(e) a summary of the investigation process.

Notice to the Secretary of State of a TRA determination to maintain the application of a definitive bilateral safeguarding remedy following an international dispute investigation

15. The information referred to in regulation 42(9) is—

(a) a description of the goods concerned;

(b) a description of the definitive bilateral safeguarding remedy to which the notice relates;

(c) a summary of the international dispute decision;

(d) a summary of the investigation;

(e) the determination made in light of the international dispute decision;

(f) the reasons for the determination;

(g) the date of the determination.

(23) Paragraph 21(10)(a) was amended by paragraph 12(1)(f) of Schedule 19 to the Finance (No. 2) Act 2023.

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Notice of the Secretary of State’s decision following an international dispute investigation

16.—(1) The information to be contained in a notice referred to in paragraph 22(4)(a) of Schedule 5 to the Act(24) or regulation 45(7)(a) is—

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

(b) a description of the definitive bilateral safeguarding remedy to which the notice relates;

(c) a summary of the international dispute decision;

(d) the decision of the Secretary of State;

(e) the reasons for the Secretary of State’s decision;

(f) for a decision referred to in sub-paragraph (2)(a) or (b)—

(i)a specified period for which the definitive bilateral safeguarding remedy is applicable;

(ii)details of exceptions of goods from the application of the definitive bilateral safeguarding remedy, if any;

(g) for any decision referred to in sub-paragraph (2), that such notice is a public notice made under section 13 of the Act;

(h) where the Secretary of State accepts the TRA’s recommendation to revoke the definitive bilateral safeguarding remedy—

(i)that such notice is a public notice made under section 13 of the Act;

(ii)the date that the notice takes effect, which must be the day after the date of publication of the notice.

(2) The decisions referred to in this sub-paragraph are decisions by the Secretary of State—

(a) to accept the TRA’s recommendation to vary the definitive bilateral safeguarding remedy;

(b) to reject the TRA’s recommendation and make a decision under regulation 45(6) that the definitive bilateral safeguarding remedy should be varied otherwise than in accordance with the TRA’s recommendation;

(c) to reject the TRA’s recommendation and make a decision under regulation 45(6) that the definitive bilateral safeguarding remedy should be revoked.

Notice of the Secretary of State’s decision to revoke a definitive bilateral safeguarding remedy in the public interest

17. The information to be contained in a notice referred to in paragraph 22A(3)(a) of Schedule 5 to the Act(25) is—

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

(b) the Secretary of State’s decision;

(c) the reasons for the Secretary of State’s decision;

(d) that such notice is a public notice under section 13 of the Act;

(e) the date on which the notice takes effect, which must be the day after the date of publication of the notice.

(24) Paragraph 22(4)(a) was amended by paragraph 12(2)(c) of Schedule 19 to the Finance (No. 2) Act 2023.

(25) Paragraph 22A was inserted by paragraph 13 of Schedule 19 to the Finance (No. 2) Act 2023.

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Part 2 Determinations and recommendations to accompany notifications

18. For the notification referred to in paragraph 9(7)(b) of Schedule 5 to the Act, the TRA final negative determination made under paragraph 9(4) of that Schedule.

19. For the notification referred to in paragraph 16(11)(b) of Schedule 5 to the Act, the TRA determination that there is no recommendation which it could make under paragraph 16(3) of that Schedule.

20. For the notification referred to in paragraph 19(2E)(b), (3)(b) or (4)(b) of Schedule 5 to the Act, the TRA final affirmative determination made under paragraph 9(4) and the TRA recommendation made under paragraph 16(3)(a) or (aa) of that Schedule.

21. For the notification referred to in paragraph 20(2E)(b), (3)(b) or (4)(b) of Schedule 5 to the Act, the TRA final affirmative determination made under paragraph 9(4) and the TRA recommendation made under paragraph 16(3)(b) of that Schedule.

22. For the notification referred to in paragraph 21(7)(b) of Schedule 5 to the Act, the TRA determination made under regulation 32(5)(b), (c) or (f), and the TRA recommendation under regulation 34(1).

23. For the notification referred to in paragraph 21(10)(b) of Schedule 5 to the Act, the TRA determination made under regulation 32(5)(d) or (e), and the TRA recommendation under regulation 34(1).

24. For the notification referred to in paragraph 22(4)(b) of Schedule 5 to the Act or in regulation 45(7)(b), the TRA determination made under regulation 41(1) to vary or revoke the application to goods of a bilateral safeguarding remedy and the TRA recommendation under regulation 43(1) or 44(2).

25. For the notification referred to in regulation 33(6)(c), the TRA determination made under regulation 32(5)(a).

26. For the notification referred to in regulation 35(7)(b), the TRA determination made under regulation 32(5)(b), (c), (d), (e) or (f), as applicable, and the TRA recommendation made under regulation 34(1).

27. For the notification referred to in regulation 42(10), the TRA determination notified under regulation 42(8).

Schedule 2 Regulation 48 Public file Interpretation

1. References in this Schedule to paragraphs are to paragraphs of Schedule 5 to the Act, unless otherwise stated.

Bilateral safeguarding investigations

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(a) the request under paragraph 7(1) from the Secretary of State to the TRA to open a bilateral safeguarding investigation;

(b) any preliminary adjustment plan accompanying that request under paragraph 7(1)(d);

(c) the notice of initiation published under paragraph 7(6);

(d) a decision by the Secretary of State to revoke a definitive bilateral safeguarding remedy in the public interest in the absence of a recommendation from the TRA under paragraph 22A;

(e) any information relating to the transfer of an enquiry to the TRA under regulation 3;

(f) where the TRA propose to revise the scope of a bilateral safeguarding investigation under regulation 14—

(i)the reasons given by the TRA for the proposed revision of scope;

(ii)any comments made by the Secretary of State, interested parties and contributors;

(iii)subsequent advice from the TRA to the Secretary of State recommending the revision of scope;

(iv)the Secretary of State’s decision as to whether or not to accept the TRA’s determination;

(g) an amended notice of initiation published under regulation 14(7);

(h) any non-confidential summary submitted under regulation 16;

(i) any statement of reasons submitted under regulation 16;

(j) any information which may be disclosed under regulation 17;

(k) an indicative timeline for the bilateral safeguarding investigation;

(l) any application received by the TRA for an extension of time;

(m) any decision by the TRA to grant an extension of time, whether or not that decision was made pursuant to an application;

(n) any information available to the TRA from secondary sources under regulation 18;

(o) any information relating to a TRA decision to accept or reject information under regulation 19;

(p) any information relating to a decision by the TRA to treat a party as a non-cooperative party under regulation 20;

(q) information relating to registrations of interest and the issuing of questionnaires under regulation 23;

(r) information relating to responses to questionnaires issued by the TRA under regulation 23;

(s) information relating to the issue of deficiency notices under regulation 24;

(t) any information relating to the conduct of a limited examination and sampling under regulation 25;

(u) information relating to an authentication visit, authentication report, or non-confidential authentication report under regulation 26;

(v) information relating to a hearing under regulation 27;

(w) a request by the Secretary of State under regulation 29 that the TRA terminate a bilateral safeguarding investigation;

(x) the notice of termination of a bilateral safeguarding investigation under regulation 29.

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Reviews

3. The following items may be placed on the public file for a review—

(a) the request from the Secretary of State under regulation 32 that the TRA initiate a review;

(b) the notice of initiation of a review, published under regulation 32(3)(b);

(c) information relating to the expansion or limitation of the matters to be considered in the review, under regulation 33(1) to (3);

(d) an indicative timeline for the review;

(e) any application received by the TRA for an extension of time;

(f) any decision by the TRA to grant an extension of time, whether or not that decision was made pursuant to an application;

(g) a request by the Secretary of State under regulation 33(4) that the TRA terminate a review;

(h) the notice of termination of the review, published under regulation 33(5)(a);

(i) any information referred to in Part 5 of these Regulations which arises in the context of a review, if that information could be placed on the public file under paragraph 2 of this Schedule.

International dispute investigations

4. The following items may be placed on the public file for an international dispute investigation—

(a) the direction from the Secretary of State under regulation 38 that the TRA should carry out an international dispute investigation;

(b) the notice of initiation of an international dispute investigation published under regulation 39;

(c) any information referred to in Part 5 of these Regulations which arises in the context of an international dispute investigation, if that information could be placed on the public file under paragraph 2 of this Schedule.

(d) an indicative timeline for the international dispute investigation;

(e) any application received by the TRA for an extension of time;

(f) any decision by the TRA to grant an extension of time, whether or not that decision was made pursuant to an application.

EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations are made under sections 13 and 32 of, and Schedule 5 to the Taxation (Cross- border Trade) Act 2018 (“the Act”), as applied by Schedule 5A to that Act in relation to bilateral safeguarding remedies.

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Schedule 5 to the Act, as so applied, establishes a regime under which the Trade Remedies Authority (“the TRA”), investigates prima facie instances of increases in imports as a result of a free trade agreement causing serious injury to UK producers.

Part 1 (introductory) sets out the introductory provisions of the Regulations and includes the definitions that apply throughout. It makes transitional provision for bilateral safeguarding investigations and reviews already commenced by the Secretary of State before the Regulations come into force.

Part 2 (increased quantities) provides for how the TRA will determine whether or not there are goods imported in increased quantities as a result of a free trade agreement in accordance with paragraph 1 of Schedule 5 to the Act. The regulations in this Part set out: how the TRA will determine whether there are increased quantities of imports; and whether that increase is significant.

Part 3 (serious injury and causation) provides for how the TRA will determine whether the importation of those goods has caused serious injury to UK producers.

Part 4 (determination of an adequate amount to prevent or remove serious injury and remedies) provides for how the TRA will determine the appropriate remedy under the Act to prevent the serious injury established under Part 3. The regulations make provision in relation to the following remedies

under the Act: an additional amount of import duty or a tariff rate quota or the suspension of a tariff rate reduction.

Part 5 (initiation and conduct of a bilateral safeguarding investigation) provides for the TRA to conduct bilateral safeguarding investigations to consider whether to recommend to the Secretary of State the imposition of provisional and/or definitive bilateral safeguarding remedies. For example, the regulations in this Part set out: the requirements for the revision of the scope of a bilateral safeguarding investigation, how the TRA and the Secretary of State will treat confidential information, the conduct of authentication visits and hearings, and the disclosure of information forming the basis of the TRA's determinations.

Part 6 (reviews) provides for the TRA to review existing bilateral safeguarding remedies so as to recommend the maintenance, variation (including extension of duration), revocation or replacement of the relevant remedy.

Part 7 (investigation in light of an international dispute decision) provides for the Secretary of State to direct the TRA to conduct an investigation as to whether a bilateral safeguarding remedy should be maintained, varied or revoked following an international dispute decision, and sets out the powers of the Secretary of State in relation to the TRA’s recommendations.

Part 8 (supplementary) requires the TRA to keep a public file of information relevant to a bilateral safeguarding investigation, international dispute investigation or review, and provides for the TRA to make exceptions to the general application of bilateral safeguarding remedies.

Part 9 (amendment of the Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations

2019) amends those Regulations to ensure they apply to appeals relating to bilateral safeguarding remedies under the Act and under these Regulations.

A notice referred to in these Regulations which is published by the Secretary of State will be available

to view online at https://gov.uk/business-and-industry/importing. A hard copy may be obtained from the Department for Business and Trade, Admiralty Place, Old Admiralty Building, London SW1A 2DY.

A notice referred to in these Regulations which is published by the Trade Remedies Authority will

be available to view online at https://www.trade-remedies.service.gov.uk/. A hard copy may be obtained from the Trade Remedies Authority, 60 Caversham Road, Reading RG1 7EB.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.

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