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

PART 6 Initiation and conduct of an investigation

CHAPTER 1 General provisions and the use of information

Purpose of Part 6

39.  Pursuant to paragraphs 9, 10, 29 and 31 of Schedule 4 to the Act, the initiation and conduct of investigations are subject to this Part.

General provisions

40.—(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 an investigation

41.—(1) This regulation applies after the TRA has published a notice of its determination to initiate an investigation in accordance with paragraph 9(5)(d) or (6)(c) of Schedule 4 to the Act.

(2) Subject to paragraphs (3) and (4), the TRA must not revise the scope of an investigation.

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

(a) the description of the goods concerned; or

(b) the period of investigation,

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

(4) The TRA may revise the scope of a subsidisation investigation so as to—

(a) amend the description of the goods concerned;

(b) include alleged subsidies not referred to in the notice of initiation; or

(c) amend the period of investigation,

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

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

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

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

(c) whether the proposed revision will prevent the TRA from proceeding with the investigation expeditiously.

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

Limitation on consolidation

42.—(1) Subject to paragraphs (2) and (3), the TRA may consolidate investigations.

(2) The TRA must not consolidate a dumping investigation with a subsidisation investigation (or vice versa).

(3) The TRA must not consolidate investigations unless it has first provided reasons for the proposed consolidation to interested parties and has provided them with an opportunity to comment.

(4) Where the TRA has made a determination under this regulation to consolidate investigations, it must publish an amended notice of initiation.

Deemed service

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

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

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

Public file

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

Confidential information

45.—(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 (see paragraph (6)(a)) of that information; 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;

(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 such information 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 non-confidential summary of that information.

(5) The Secretary of State must treat as confidential the information supplied by the TRA under regulation 46(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 44 (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

46.—(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—

(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 which 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

47.—(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 an applicant UK industry, 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 61(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 45 (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, including information supplied in an application, 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.

Acceptance or rejection of information

48.—(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 an 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 in the statement of essential facts (see regulation 62) or, where such information is rejected after the statement of essential facts has been published, in the final affirmative or final negative determination.

Non-cooperation

49.—(1) Where the TRA determines that an interested party has failed to cooperate with an investigation or has otherwise significantly impeded the progress of an 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 it—

(a) determines that that interested party has acted to the best of their ability to cooperate with an 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 an investigation

Application

50.—(1) An application made by an applicant UK industry for the initiation of a dumping investigation must contain as much of the information listed in paragraph 1 of Schedule 1 as is reasonably available to them.

(2) An application made by an applicant UK industry for the initiation of a subsidisation investigation must contain as much of the information listed in paragraph 2 of Schedule 1 as is reasonably available to them.

(3) An application referred to in paragraphs (1) and (2) may contain such additional information as the applicant UK industry considers relevant.

(4) Where an applicant UK industry, by notice in writing to the TRA, withdraws their application prior to the publication of the notice referred to in paragraph 9(5)(d) or (6)(c) of Schedule 4 to the Act, the application is considered not to have been made.

Market share requirement

51.  For the purpose of paragraph 9 of Schedule 4 to the Act, the market share requirement is met where the TRA is satisfied that a UK industry’s “share” of the market is—

(a) at least 1 per cent.; or

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

Assessment of an application

52.—(1) The TRA must examine the accuracy and adequacy of the information contained in, or supplied with, an application to determine whether it is sufficient to justify the initiation of an investigation under paragraph 9 of Schedule 4 to the Act.

(2) For the purpose of paragraph 9(1)(a)(i) of Schedule 4 to the Act, an application is made by or on behalf of a UK industry where the TRA determines that the application is supported by UK producers whose collective output constitutes at least 25 per cent. of the total production in the United Kingdom of the like goods, and is not opposed by other UK producers of the like goods whose collective output is greater than or equal to that percentage.

(3) The TRA may reject an application where it considers that it does not satisfy the requirements in regulation 50(1) or (2), but it must not do so where the requirement in question has been expressly waived by it.

(4) The TRA may reject an application if it is not made via the TRA’s case management system.

Publicising an application

53.—(1) The TRA must not publicise an application until it has determined to initiate the investigation.

(2) However, the TRA may—

(a) request additional information from any person before determining whether to initiate an investigation; and

(b) arrange visits to any premises in the United Kingdom for the purpose of determining whether to initiate an investigation.

(3) As soon as the TRA has published a notice of initiation of an investigation, it must provide the full text of the application received under regulation 50 (application) to—

(a) overseas exporters known to it and the government of the relevant foreign country or territory; or

(b) where the number of overseas exporters involved is such that it is impracticable for the TRA to contact all overseas exporters known to it individually, the government of the relevant foreign country or territory.

CHAPTER 3 Conduct of an investigation

Registration of interest and the issuing of questionnaires

54.—(1) Where the TRA has made a determination to initiate an investigation, it must set a period during which interested parties and any other person may make themselves known to the TRA (a “registration period”).

(2) In a dumping investigation, the TRA must, as far as practicable, issue a questionnaire (see regulation 55) to—

(a) all interested parties, other than the government of the relevant foreign country or territory, who have made themselves known to the TRA during the registration period;

(b) all UK producers, importers and overseas exporters (or associations thereof) which the applicant UK industry has identified in their application; and

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

(3) In a subsidisation investigation, the TRA must, as far as practicable, issue a questionnaire to—

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

(b) all UK producers, importers and overseas exporters (or associations thereof) which the applicant UK industry has identified in their application; and

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

(4) However, where the TRA uses sampling in accordance with regulation 56 (the use of sampling in respect of Part 2 of these Regulations) or 57 (the use of sampling in respect of Parts 3, 4 and 5 of these Regulations), the TRA may limit the issuing of a questionnaire to those interested parties included in that sample.

(5) 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.

(6) 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 sample referred to in regulation 56 (the use of sampling in respect of Part 2 of these Regulations) or 57 (the use of sampling in respect of Parts 3, 4 and 5 of these Regulations).

(7) The TRA must not issue a questionnaire after the statement of essential facts is published (see regulation 62).

Form of questionnaires and deficiency notice

55.—(1) Subject to paragraph (2), the questionnaire referred to in regulation 54 (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 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.

The use of sampling in respect of Part 2 of these Regulations

56.—(1) The TRA may use sampling in relation to an investigation in accordance with this regulation to determine whether goods are dumped for the purpose of Part 2 of these Regulations.

(2) The TRA may, where it considers it appropriate, limit its examination to a sample of—

(a) overseas exporters;

(b) importers; or

(c) categories of goods.

(3) The TRA must determine which overseas exporters, importers or categories of goods, as the case may be, to include in the sample based on either—

(a) the largest volume of exports from the exporting country or territory to the United Kingdom that the TRA is reasonably able to investigate; or

(b) a statistically valid method.

(4) Subject to paragraph (5), where the TRA considers it appropriate to limit its examination in accordance with this regulation to a sample, it must consult with overseas exporters and importers, as the case may be, about the proposed sample and, where possible, obtain their consent to the proposed sample.

(5) Paragraph (4) does not apply where the TRA considers that consultation or obtaining consent is impracticable.

(6) An overseas exporter who is not included in a sample in accordance with this regulation may request that the TRA calculate an individual margin of dumping provided that the overseas exporter has supplied the necessary information in time for that information to be considered during the course of the investigation.

(7) Where an overseas exporter makes a request in accordance with paragraph (6), the TRA must accept the request and calculate an individual margin of dumping unless the number of exporters is so large that individual examinations are unduly burdensome and would prevent the timely completion of the investigation.

The use of sampling in respect of Parts 3, 4 and 5 of these Regulations

57.—(1) The TRA may use sampling in relation to an investigation in accordance with this regulation to determine—

(a) whether imports of the goods concerned into the United Kingdom are subsidised;

(b) whether the dumped goods or subsidised imports, as the case may be, have caused or are causing injury to a UK industry; or

(c) the amount necessary to remove the injury.

(2) The TRA may, where it considers it appropriate to do so, limit its examination under Parts 3, 4 and 5 of these Regulations to a sample of—

(a) importers;

(b) overseas exporters;

(c) categories of goods;

(d) UK producers;

(e) transactions for the purchase of the like goods in the United Kingdom; or

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

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

(4) An overseas exporter who is not included in a sample in accordance with this regulation may request that the TRA calculate an individual anti-dumping amount or countervailing amount provided that the overseas exporter has supplied the necessary information in time for that information to be considered during the course of the investigation.

(5) Where an overseas exporter makes a request in accordance with paragraph (4), the TRA must accept the request and calculate an individual anti-dumping amount or countervailing amount unless the number of exporters is so large that individual examinations are unduly burdensome and would prevent the timely completion of the investigation.

Verification visit

58.—(1) This regulation applies to a verification visit conducted by the TRA.

(2) Subject to paragraph (8), the TRA may make such arrangements in connection with a verification visit in the United Kingdom as it considers appropriate.

(3) Subject to paragraphs (4) to (8), the TRA may make such arrangements in connection with a verification visit in any foreign country or territory as it considers appropriate.

(4) The TRA may carry out a verification visit in any foreign country or territory provided that all of the following are satisfied—

(a) it has advised the person that it proposes to visit of the following—

(i) the date of the proposed visit;

(ii) the general nature of the information to be verified; and

(iii) any further information required from the person;

(b) it has obtained the prior agreement of the person in question;

(c) it has notified the government of the relevant foreign country or territory of the information set out in paragraph (5); and

(d) that government does not object.

(5) The information referred to in paragraph (4)(c) is—

(a) the name and address of the person to be visited by the TRA; and

(b) the date of the visit as agreed with that person.

(6) Paragraph (7) applies where, prior to carrying out a verification visit, the TRA receives enquiries or requests for clarification relevant to such a visit from the person or the government of the relevant foreign country or territory.

(7) Where this paragraph applies, the TRA must, where practicable, respond to the enquiries or provide the clarification in advance of the visit.

(8) The TRA must not conduct a verification visit after the statement of essential facts is published (see regulation 62).

Verification report

59.—(1) The TRA must—

(a) provide a written report on a verification visit (a “verification report”) to the person subject to that visit;

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

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

(2) In the application of regulation 45 (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 a verification visit; and

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

Facilitation visit

60.—(1) Subject to paragraph (3), the TRA may make such arrangements in connection with a facilitation visit in the United Kingdom as it considers appropriate.

(2) Subject to paragraph (3), in exceptional circumstances, the TRA may make such arrangements in connection with a facilitation visit in any foreign country or territory as it considers appropriate, provided that the requirements set out in regulation 58(4) to (7) are met.

(3) The TRA must not conduct a facilitation visit after the statement of essential facts is published.

(4) In the application of regulation 58 (verification visit) to paragraph (2), reference in that regulation to a verification visit is be taken to include a facilitation visit.

Hearing

61.—(1) The TRA may conduct a hearing at any time during an 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 45(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 47(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 to supply 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.

(8) The TRA must not determine that an interested party who fails to attend a hearing is a non-cooperative party (see regulation 49) or that such failure to attend is otherwise prejudicial to its interests.

Essential facts and disclosure

62.—(1) Before making a final affirmative or final negative determination for the purpose of paragraph 11(5) of Schedule 4 to the Act, the TRA must—

(a) publish a statement (a “statement of essential facts”) which sets out—

(i) the final determination that it intends to make (“intended final determination”);

(ii) a summary of the facts considered by the TRA during the investigation;

(iii) those facts referred to in sub-paragraph (ii) that formed the basis of the intended final determination; and

(b) inform interested parties who have supplied information that has been considered by the TRA—

(i) how it has used the information supplied by that party in making the intended final determination; and

(ii) of the details of the TRA’s analysis forming the basis of the intended final determination.

(2) The TRA must specify in the statement of essential facts a period during which it will consider comments on that statement from interested parties, contributors or any other person who has supplied information to it.

CHAPTER 4 Consultation and termination of an investigation

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) the margin of dumping or the amount of subsidy is minimal;

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

(c) the injury is negligible.

(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 paragraph 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(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) The notice published by the TRA in accordance with paragraph 17(10)(a) and (b) of Schedule 4 to the Act (final affirmative determination with no recommendation on an anti-dumping amount or a countervailing amount) must contain the information listed in paragraph 5 of Schedule 2.

(6) The notice published by the Secretary of State referred to in paragraph 20(4)(a) and (5)(a) of Schedule 4 (acceptance or rejection of the TRA’s recommendation on an anti-dumping amount or a countervailing amount) 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), (5), (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.