Taxation (Cross-border Trade) Bill (HC Bill 128)

Taxation (Cross-border Trade) BillPage 60

(b) those of them whose collective output of like goods constitutes a
major proportion of the total production in the United Kingdom of
those goods.

(2) Regulations may make provision for the purposes of sub-paragraph (1)

(a) 5about what constitutes or does not constitute—

(i) a producer in the United Kingdom of like goods;

(ii) such a producer’s output of like goods;

(iii) the total production in the United Kingdom of like goods;

(iv) a major proportion of that total production;

(b) 10about how any of those matters are to be determined.

Meaning of “like goods”

7 (1) For the purposes of this Schedule, “like goods”, in relation to goods,
means—

(a) goods which are like those goods in all respects, or

(b) 15if there are no such goods, goods which, although not alike in all
respects, have characteristics closely resembling those of the goods
in question.

(2) Regulations may make provision about—

(a) what constitutes or does not constitute “like goods” for the purposes
20of this Schedule;

(b) how “like goods” is to be determined for those purposes.

Part 2 Dumping and subsidisation investigations

Dumping and subsidisation investigations

8 (1) 25The TRA may investigate—

(a) whether goods have been or are being dumped in the United
Kingdom, and

(b) whether the dumping of the goods has caused or is causing injury to
a UK industry in those goods.

(2) 30References in this Schedule to a “dumping investigation” are to an
investigation under sub-paragraph (1).

(3) The TRA may investigate—

(a) whether goods which have been or are being imported into the
United Kingdom are subsidised, and

(b) 35whether the importation of the subsidised goods has caused or is
causing injury to a UK industry in those goods.

(4) References in this Schedule to a “subsidisation investigation” are to an
investigation under sub-paragraph (3).

Initiation of a dumping or a subsidisation investigation

9 (1) 40The TRA may initiate a dumping or a subsidisation investigation in relation
to goods only if—

Taxation (Cross-border Trade) BillPage 61

(a) it is requested to initiate an investigation in an application made—

(i) by or on behalf of a UK industry in the goods (“the applicant
UK industry”), or

(ii) in exceptional circumstances, by the Secretary of State,

(b) 5it is satisfied that the application contains sufficient evidence that—

(i) the goods have been or are being dumped in the United
Kingdom and the dumping has caused or is causing injury to
a UK industry in those goods, or

(ii) as the case may be, the goods have been or are being
10imported into the United Kingdom and are subsidised, and
the importation of the subsidised goods has caused or is
causing injury to a UK industry in those goods,

(c) it is satisfied that it appears from that evidence that—

(i) the volume of dumped goods (whether actual or potential),
15and the injury, is more than negligible, and the margin of
dumping in relation to those goods is more than minimal, or

(ii) as the case may be, the volume of subsidised goods (whether
actual or potential), and the injury, is more than negligible,
and the amount of the subsidy in relation to those goods is
20more than minimal, and

(d) the market share requirement is met or the TRA waives the
requirement in relation to the application.

(2) The market share requirement is met if—

(a) in the case of an application under sub-paragraph (1)(a)(i), the TRA
25is satisfied that the applicant UK industry has a share of the market
for like goods for consumption in the United Kingdom (whether
produced there or elsewhere) which is sufficient to justify initiating
the investigation;

(b) in the case of an application under sub-paragraph (1)(a)(ii), the TRA
30is satisfied that a UK industry in the goods has a share of the market
for like goods for consumption in the United Kingdom (whether
produced there or elsewhere) which is sufficient to justify initiating
the investigation.

(3) Regulations may make provision about—

(a) 35what constitutes or does not constitute an application made by or on
behalf of a UK industry for the purposes of sub-paragraph (1)(a)(i);

(b) when an application is made for the purposes of sub-paragraph
(1)(a);

(c) the information to be contained in such an application;

(d) 40the time limit for determining such an application;

(e) what constitutes or does not constitute “negligible” and “minimal”
for the purposes of sub-paragraph (1)(c)(i) or (ii);

(f) how it is to be determined for those purposes whether those
thresholds have been exceeded;

(g) 45what constitutes or does not constitute “the market for like goods for
consumption in the United Kingdom” and a UK industry’s “share”
of that market for the purposes of sub-paragraphs (1)(d) and (2);

(h) how any of those matters are to be determined for the purposes of
sub-paragraphs (1)(d) and (2).

Taxation (Cross-border Trade) BillPage 62

(4) If any of the requirements of sub-paragraph (1)(a) to (d) in respect of a
dumping or a subsidisation investigation (as the case may be) are not met,
the TRA must reject the application and notify the applicant accordingly
(unless it is the requirement in sub-paragraph (1)(a) that is not met because
5the application has been withdrawn).

(5) If the requirements of sub-paragraph (1)(a) to (d) in respect of a dumping
investigation are met, the TRA must—

(a) accept the application,

(b) notify the governments of the relevant foreign countries or
10territories,

(c) initiate the investigation,

(d) publish notice of its decision to initiate the investigation (including
notice of the goods which are the subject of the investigation), and

(e) notify the Secretary of State and interested parties (see paragraph
1532(3)) accordingly.

(6) If the requirements of sub-paragraph (1)(a) to (d) in respect of a
subsidisation investigation are met, the TRA must—

(a) accept the application,

(b) after the governments of the relevant foreign countries or territories
20have been invited to participate in consultations, initiate the
investigation,

(c) publish notice of its decision to initiate the investigation (including
notice of the goods which are the subject of the investigation), and

(d) notify the Secretary of State and interested parties accordingly.

(7) 25“Relevant foreign country or territory” means—

(a) in the case of an application for a dumping investigation, the
exporting foreign country or territory (within the meaning of
paragraph 1(2)) of the alleged dumped goods;

(b) in the case of an application for a subsidisation investigation, a
30foreign country or territory within whose territory is located a
foreign authority which is alleged to have granted one or more of the
subsidies in question.

(8) Notices under sub-paragraphs (5)(d) and (e) and (6)(c) and (d) must specify
the date of the initiation of the investigation.

(9) 35Nothing in this paragraph prevents the TRA initiating both a dumping
investigation and a subsidisation investigation in relation to the same goods
if the requirements of sub-paragraph (1)(a) to (d) are met in the case of each
investigation.

Conduct of a dumping or a subsidisation investigation

10 (1) 40Regulations may make provision about the conduct of a dumping or a
subsidisation investigation.

(2) Such regulations may, among other things, make provision about—

(a) the stages of an investigation;

(b) time limits for completion of a stage or of an investigation;

(c) 45the termination of an investigation in certain circumstances in
relation to some or all of the goods;

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(d) the information which must or may be provided or made available
by the TRA to others;

(e) requests by the TRA for information from others and the
consequences of not providing the information requested or of
5providing information which is false or misleading;

(f) requests by the TRA to visit premises in or outside the United
Kingdom and the consequences of not agreeing to such requests;

(g) the conduct of such visits;

(h) the consequences of otherwise impeding an investigation;

(i) 10the treatment of confidential or other information provided to or by
the TRA;

(j) the provision and conduct of oral hearings.

Provisional affirmative determinations and final affirmative or negative determinations

11 (1) In the case of a dumping investigation, an “affirmative determination” in
15relation to goods means a determination that—

(a) the goods have been or are being dumped in the United Kingdom,
and

(b) the dumping of the goods has caused or is causing injury to a UK
industry in those goods.

(2) 20In the case of a subsidisation investigation, an “affirmative determination”
in relation to goods means a determination that—

(a) the goods have been or are being imported into the United Kingdom
and are subsidised, and

(b) the importation of the subsidised goods has caused or is causing
25injury to a UK industry in those goods.

(3) At any stage during a dumping or a subsidisation investigation, the TRA
may make an affirmative determination, based on the evidence then before
it, in relation to goods which are the subject of the investigation (referred to
in this Schedule as “a provisional affirmative determination”).

(4) 30But the TRA may only make such a determination if it is satisfied that
interested parties (see paragraph 32(3)) have been given an adequate
opportunity to provide information to it regarding the investigation.

(5) The TRA must make a final determination in relation to each of the goods
which are the subject of a dumping or a subsidisation investigation.

(6) 35A final determination under sub-paragraph (5) in relation to goods is—

(a) an affirmative determination (referred to in this Schedule as a “final
affirmative determination”), or

(b) if the TRA determines that it cannot make an affirmative
determination in relation to the goods, a negative determination
40(referred to in this Schedule as a “final negative determination”).

(7) The TRA may make different final determinations in relation to different
goods which are the subject of the investigation.

(8) The TRA must—

(a) publish notice of its final negative determination or final negative
45determinations under sub-paragraph (5), and

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

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Termination of a dumping or a subsidisation investigation

12 A dumping or a subsidisation investigation in relation to goods terminates
(if it has not already terminated by virtue of provision made under
paragraph 10(1))—

(a) 5in a case where the TRA makes a final negative determination in
relation to the goods, when notice of that determination is published
under paragraph 11(8)(a),

(b) in a case where the TRA makes a final affirmative determination in
relation to the goods and determines that there is not a
10recommendation which it could make under paragraph 17(3) or (4)
in relation to them, when notice of that determination is published
under paragraph 17(10)(b),

(c) in a case where the TRA makes a final affirmative determination in
relation to the goods and makes a recommendation under paragraph
1517(3) or (4) in relation to them which the Secretary of State rejects,
when the notice of rejection is published under paragraph 20(3)(a), or

(d) in a case where the TRA makes a final affirmative determination in
relation to the goods and makes a recommendation under paragraph
17(3) or (4) in relation to them which the Secretary of State accepts, at
20the end of the day of publication of the public notice under section 13
giving effect to the recommendation.

Part 3 Provisional remedy: requiring a guarantee

TRA’s duty to recommend requiring guarantees

13 (1) 25This paragraph applies where the TRA makes a provisional affirmative
determination in relation to goods which are the subject of a dumping or a
subsidisation investigation.

(2) Goods in relation to which that determination is made are referred to in this
paragraph as relevant goods.

(3) 30The TRA may recommend to the Secretary of State—

(a) in the case of a dumping investigation that, in respect of all the
relevant goods, all importers of those goods should be required to
give a guarantee in respect of any additional amount of import duty
which would have been applicable, or potentially applicable, to the
35goods under section 13 if an anti-dumping amount had been applied
to the goods based on the provisional affirmative determination (“an
estimated anti-dumping amount”), or

(b) in the case of a subsidisation investigation that, in respect of all the
relevant goods, all importers of those goods should be required to
40give a guarantee in respect of any additional amount of import duty
which would have been applicable, or potentially applicable, to the
goods under section 13 if a countervailing amount had been applied
to the goods based on the provisional affirmative determination (“an
estimated countervailing amount”).

(4) 45The TRA may make a recommendation under sub-paragraph (3) only if it is
satisfied that requiring a guarantee in accordance with its
recommendation—

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(a) is necessary to prevent injury being caused during the investigation
to a UK industry in the relevant goods, and

(b) meets the economic interest test (see paragraph 25).

(5) The TRA may make different recommendations under sub-paragraph (3) for
5different relevant goods or descriptions of relevant goods, including by
reference to—

(a) specified overseas exporters or descriptions of overseas exporter;

(b) specified foreign countries or territories or descriptions of foreign
countries or territories.

(6) 10But the TRA may only make one recommendation under paragraph (a) or,
as the case may be, paragraph (b) of sub-paragraph (3) in relation to any
particular relevant good.

(7) And the TRA may make different recommendations under paragraph (a) or
(b) of sub-paragraph (3) for different relevant goods or descriptions of
15relevant goods only if the recommendations which it makes under that
paragraph when taken together cover all the relevant goods.

(8) If the TRA determines that there are one or more recommendations which it
could make under paragraph (a) or, as the case may be paragraph (b), of sub-
paragraph (3), it must make that recommendation or those
20recommendations (subject to sub-paragraphs (6) and (7)).

(9) If the TRA determines that there is no recommendation which it could make
under sub-paragraph (3), it must—

(a) publish notice of its provisional affirmative determination in relation
to the goods,

(b) 25publish notice of its determination that there is no recommendation
which it could make under sub-paragraph (3), and

(c) notify the Secretary of State and interested parties (see paragraph
32(3)) accordingly.

TRA’s recommendations regarding requiring a guarantee

14 (1) 30A recommendation under paragraph 13(3) to require the giving of a
guarantee in respect of goods must specify those goods and include—

(a) the TRA’s recommendation regarding—

(i) the form of the guarantee,

(ii) how an estimated anti-dumping amount or an estimated
35countervailing amount applicable to the goods should be
determined for the purpose of calculating the amount of the
guarantee,

(iii) how the amount of the guarantee should be calculated, and

(iv) the period during which the requirement to give a guarantee
40should apply, and

(b) such other content as regulations may require.

(2) The form of guarantee referred to in sub-paragraph (1)(a)(i) may be cash, a
bond or a bank guarantee.

(3) The recommendation referred to in sub-paragraph (1)(a)(ii) must be such
45that an estimated anti-dumping amount or an estimated countervailing
amount does not exceed—

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(a) the margin of dumping or, as the case may be, the amount of the
subsidy, in relation to the goods as determined by the TRA as part of
its provisional affirmative determination, or

(b) the amount which the TRA is satisfied would be adequate to remove
5the injury to a UK industry in the goods if that amount is less than
the margin of dumping or, as the case may be, the amount of the
subsidy referred to in paragraph (a).

(4) Regulations may make provision for the purposes of sub-paragraph (3)(b)
about how the amount which the TRA is satisfied would be adequate to
10remove the injury described in that provision is to be determined.

(5) The period referred to in sub-paragraph (1)(a)(iv)

(a) must not exceed 6 months in the case of a dumping investigation (but
see paragraph 16 regarding extensions), or 4 months in the case of a
subsidisation investigation, and

(b) 15if the recommendation is accepted by the Secretary of State, must
begin—

(i) on the day after the date of publication of the notice under
paragraph 15(4)(b), or

(ii) if later, on the day which is the day after the end of the period
20of 60 days beginning with the date of the initiation of the
investigation.

Secretary of State’s power to require a guarantee

15 (1) If the TRA makes a recommendation under paragraph 13(3), the Secretary of
State must decide whether to accept or reject the recommendation.

(2) 25The Secretary of State may reject the recommendation only if the Secretary
of State is satisfied that—

(a) requiring a guarantee in accordance with the recommendation does
not meet the economic interest test (see paragraph 25), or

(b) it is not otherwise in the public interest to accept the
30recommendation.

(3) If the recommendation is rejected, the Secretary of State must—

(a) publish notice of the TRA’s provisional affirmative determination in
relation to the goods, of the recommendation and of the rejection of
it,

(b) 35notify interested parties (see paragraph 32(3)) accordingly, and

(c) lay a statement before the House of Commons setting out the reasons
for rejecting the recommendation.

(4) If the recommendation is accepted, the Secretary of State must—

(a) publish notice of the TRA’s provisional affirmative determination in
40relation to the goods and of the recommendation,

(b) publish a notice that all importers of the goods specified in the
recommendation are required to give a guarantee in accordance with
the recommendation and regulations under paragraph 6 of Schedule
6, and

(c) 45notify interested parties accordingly.

(5) The notice under sub-paragraph (4)(b) must—

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(a) specify, in accordance with the TRA’s recommendation, the matters
referred to in paragraph 14(1)(a)(i) to (iv), and

(b) include such other content as regulations may require.

(6) For the purposes of this Schedule, “the period of a provisional remedy” in
5respect of goods means the period during which the requirement to give a
guarantee in respect of the goods applies.

(7) The period of a provisional remedy in respect of goods ceases (if it has not
already expired) when the dumping investigation or, as the case may be, the
subsidisation investigation in relation to the goods terminates.

10Extension of the period of a provisional remedy in a dumping investigation

16 (1) Regulations may make provision for, or in connection with, the extension by
the Secretary of State, on the recommendation of the TRA, of the period of a
provisional remedy which has been applied in respect of goods in the case
of a dumping investigation.

(2) 15Any such extension must not result in the period of the provisional remedy
being a period of more than 9 months beginning with the date when the
requirement to give a guarantee in respect of goods first applied.

(3) The regulations must require that if the period of a provisional remedy is
extended, the Secretary of State—

(a) 20publishes a revised notice under paragraph 15(4)(b) containing the
revised period of the provisional remedy in accordance with the
TRA’s recommendation, and

(b) notifies interested parties (see paragraph 32(3)) accordingly.

Part 4 25Definitive remedies: anti-dumping amount or countervailing amount

TRA’s duty to recommend an anti-dumping amount or countervailing amount

17 (1) This paragraph applies where the TRA makes a final affirmative
determination in relation to goods which are the subject of a dumping or a
subsidisation investigation.

(2) 30Goods in relation to which that determination is made are referred to in this
paragraph as relevant goods.

(3) In the case of a dumping investigation, the TRA may recommend to the
Secretary of State—

(a) that an additional amount of import duty (referred to in this
35Schedule as an “anti-dumping amount”) should be applicable for a
specified period to all the relevant goods except, in the case of goods
in respect of which an undertaking is accepted under provision
made by or under Part 5, during any period when the undertaking
applies, and

(b) 40how an anti-dumping amount applicable to the relevant goods
should be determined.

(4) In the case of a subsidisation investigation, the TRA may recommend to the
Secretary of State—

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(a) that an additional amount of import duty (referred to in this
Schedule as a “countervailing amount”) should be applicable for a
specified period to all the relevant goods except, in the case of goods
in respect of which an undertaking is accepted under provision
5made by or under Part 5, during any period when the undertaking
applies, and

(b) how a countervailing amount applicable to the relevant goods
should be determined.

(5) The TRA may make a recommendation under sub-paragraph (3) or (4) only
10if it is satisfied that the application of an anti-dumping amount or a
countervailing amount in accordance with its recommendation meets the
economic interest test (see paragraph 25).

(6) The TRA may make different recommendations under sub-paragraph (3) or
(4) for different relevant goods or descriptions of relevant goods, including
15by reference to—

(a) specified overseas exporters or descriptions of overseas exporters;

(b) specified foreign countries or territories or descriptions of foreign
countries or territories.

(7) But the TRA may only make one recommendation under sub-paragraph (3)
20or, as the case may be, sub-paragraph (4) in relation to any particular
relevant good.

(8) And the TRA may make different recommendations under sub-paragraph
(3) or (4) for different relevant goods or descriptions of relevant goods only
if the recommendations which it makes under that sub-paragraph when
25taken together cover all the relevant goods.

(9) If the TRA determines that there are one or more recommendations which it
could make under sub-paragraph (3) or, as the case may be, sub-paragraph
(4), it must make that recommendation or those recommendations (subject
to sub-paragraphs (7) and (8)).

(10) 30If the TRA determines that there is no recommendation which it could make
under sub-paragraph (3) or (4) (as the case may be), it must—

(a) publish notice of its final affirmative determination in relation to the
goods,

(b) publish notice of its determination that there is no recommendation
35which it could make under sub-paragraph (3) or (4), and

(c) notify the Secretary of State and interested parties (see paragraph
32(3)) accordingly.

TRA’s recommendations about an anti-dumping amount or a countervailing amount

18 (1) This paragraph applies to a recommendation by the TRA under paragraph
4017(3) or (4) in relation to goods.

(2) The specified period referred to in paragraph 17(3)(a) or (4)(a)

(a) must be such period as the TRA considers necessary to counteract—

(i) the dumping of the goods which has caused or is causing
injury to a UK industry in the goods, or

(ii) 45the importation of the subsidised goods which has caused or
is causing injury to a UK industry in the goods,

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(b) must not exceed 5 years (but see paragraph 21 regarding the
possibility of extensions or other variations to that period following
a review), and

(c) if the recommendation is accepted by the Secretary of State, must
5begin on the day after the date of publication of the public notice
under section 13 giving effect to the recommendation (see paragraph
20(4)(c)) unless the TRA is authorised by regulations under
paragraph 19 to recommend a date before then.

(3) The recommendation referred to in paragraph 17(3)(b) or (4)(b) as to how an
10anti-dumping amount or a countervailing amount applicable to goods
should be determined may be by reference to either or both of the
following—

(a) the value of the goods, and

(b) the weight or volume of the goods or any other measure of their
15quantity or size.

(4) But that recommendation must be such that an anti-dumping amount or a
countervailing amount applicable to goods does not exceed—

(a) the margin of dumping or, as the case may be, the amount of the
subsidy, in relation to the goods, or

(b) 20the amount which the TRA is satisfied would be adequate to remove
the injury to a UK industry in the goods if that amount is less than
the margin of dumping or, as the case may be, the amount of the
subsidy referred to in paragraph (a).

(5) Regulations may make provision for the purposes of sub-paragraph (4)(b)
25about how the amount which the TRA is satisfied would be adequate to
remove the injury described in that provision is to be determined.

(6) A recommendation under paragraph 17(3) or (4) must include such other
content as regulations may require.

19 (1) Regulations may make provision authorising the TRA, in specified
30circumstances, to recommend under paragraph 17(3) or (4) that the specified
period for which an anti-dumping amount or a countervailing amount
should apply to goods begins on a date (“the relevant date”) before the day
after the date of publication of the public notice under section 13 giving
effect to the recommendation.

(2) 35Such a recommendation may only be made in relation to goods in respect of
which a requirement to give a guarantee under paragraph 15 is applied (“the
provisional remedy”).

(3) “The relevant date” must be—

(a) in a case where a notice under paragraph 29(1) (registration) has
40been published in respect of the goods—

(i) a date during the period of 90 days before the beginning of
the period of the provisional remedy provided it is not a date
before the date of publication of that notice, or

(ii) a date during the period of the provisional remedy, or

(b) 45in any other case, a date during the period of the provisional remedy.

(4) Regulations may provide that, in the case of a recommendation made by
virtue of sub-paragraph (1), the recommendation as to how an anti-dumping
amount or a countervailing amount should be determined must be such that