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

an anti-dumping amount or a countervailing amount applicable for all or
part of the relevant period must not exceed a particular amount.

(5) “The relevant period” is the period—

(a) beginning with the relevant date, and

(b) 5ending with the date of publication of the public notice under section
13 giving effect to the recommendation.

Secretary of State’s power to accept or reject a recommendation

20 (1) If the TRA makes a recommendation under paragraph 17(3) or (4), the
Secretary of State must decide whether to accept or reject the
10recommendation.

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

(a) the application of an anti-dumping amount or a countervailing
amount to goods in accordance with the recommendation does not
15meet the economic interest test (see paragraph 25), or

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

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

(a) publish notice of the TRA’s final affirmative determination in
20relation to the goods, of the recommendation and of the rejection of
it,

(b) notify 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) 25If the recommendation is accepted, the Secretary of State—

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

(b) must notify interested parties accordingly, and

(c) 30is required under section 13 to make provision by public notice to
give effect to the recommendation.

(5) See paragraphs 21 and 22 for variation or revocation of the application of an
anti-dumping amount or a countervailing amount.

Reviews of continuing application of an anti-dumping amount or a countervailing amount

21 (1) 35Regulations may make provision for, or in connection with, reviews by the
TRA of the continuing application of an anti-dumping amount or a
countervailing amount to goods.

(2) References in this paragraph to “a review” are to a review by virtue of
provision made under sub-paragraph (1).

(3) 40Regulations under sub-paragraph (1) may, among other things, provide for
a review to consider—

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

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

(ii) in the case of a countervailing amount, the importation of the
5subsidised goods which has caused or is causing injury to a
UK industry in the goods;

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

(c) 10whether injury to a UK industry in the goods would be likely to
continue or recur if the application of an anti-dumping amount or a
countervailing amount to the goods were to expire, or it were to be
varied or revoked;

(d) whether activity is being undertaken to circumvent the application
15of an anti-dumping amount or a countervailing amount to goods and
whether the application should be varied to prevent that;

(e) whether the application of an anti-dumping amount or a
countervailing amount to goods in the case of a particular overseas
exporter, or a particular description of overseas exporter, should be
20varied;

(f) the goods or description of goods to which an anti-dumping amount
or a countervailing amount is applicable.

(4) Regulations under sub-paragraph (1) may, among other things, make—

(a) provision for the TRA to investigate certain matters;

(b) 25provision for the period for which an anti-dumping amount or a
countervailing amount applies to goods by public notice under
section 13 to be treated as continuing (where it would otherwise
cease to do so) while a review in relation to the application of the
amount is ongoing;

(c) 30provision for the suspension, by public notice given by the Secretary
of State, of the application of an anti-dumping amount or a
countervailing amount while a review in relation to it is ongoing;

(d) other provision about the conduct of a review.

(5) Paragraph 10(2) applies to regulations made by virtue of sub-paragraph
35(4)(d) in relation to a review as it applies to regulations under paragraph
10(1) in relation to an investigation.

(6) Regulations may make provision for or in connection with—

(a) the TRA recommending to the Secretary of State that the application
of an anti-dumping amount or a countervailing amount to goods
40should be varied or revoked, and

(b) the Secretary of State accepting or rejecting such a recommendation.

(7) Where, by virtue of provision made under sub-paragraph (6), the Secretary
of State accepts a recommendation that the application of an anti-dumping
amount or a countervailing amount to goods should be varied or revoked,
45the Secretary of State—

(a) must publish notice of the recommendation and of the acceptance of
it,

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

(c) is required under section 13 to make provision by public notice to
50give effect to the recommendation.

(8) The variation of the application of an anti-dumping amount or a
countervailing amount to goods which the TRA may recommend to the
Secretary of State by virtue of regulations under sub-paragraph (6) may,
among other things, include—

(a) 5varying the goods or descriptions of goods to which an anti-
dumping amount or a countervailing amount is applicable
(including so that it is applicable to goods or descriptions of goods to
which it has not previously been applicable);

(b) varying the period for which an anti-dumping amount or a
10countervailing amount is applicable (including extending it beyond
the 5 year period referred to in paragraph 18(2)(b));

(c) varying how an anti-dumping amount or a countervailing amount
should be determined.

(9) Regulations under sub-paragraph (6) may provide that the TRA may
15recommend that the application of an anti-dumping amount or a
countervailing amount as varied should be applicable to goods from a date
(“the relevant date”) before the date of publication of the public notice under
section 13 giving effect to the recommendation.

(10) Such a recommendation may only be made if—

(a) 20a notice under paragraph 29(1) (registration) has been published in
respect of the goods, and

(b) the relevant date is not a date before the date of publication of that
notice.

Variation or revocation following an international dispute decision

22 (1) 25Regulations may make provision for or in connection with—

(a) the TRA recommending to the Secretary of State that the application
of an anti-dumping amount or a countervailing amount to goods
should be varied or revoked in light of an international dispute
decision, and

(b) 30the Secretary of State accepting or rejecting such a recommendation.

(2) The regulations may, among other things—

(a) provide for the TRA to investigate certain matters for the purposes
of determining whether to make a recommendation to the Secretary
of State and what to recommend;

(b) 35make provision about the conduct of such an investigation;

(c) provide for the suspension, by public notice given by the Secretary
of State, of the application of an anti-dumping amount or a
countervailing amount.

(3) Paragraph 10(2) applies to regulations made by virtue of sub-paragraph
40(2)(b) in relation to an investigation as it applies to regulations under
paragraph 10(1) in relation to a dumping or a subsidisation investigation.

(4) Where, by virtue of provision made under the regulations, the Secretary of
State accepts a recommendation that the application of an anti-dumping
amount or a countervailing amount to goods should be varied or revoked,
45the Secretary of State—

(a) must publish notice of the recommendation and of the acceptance of
it,

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

(c) is required under section 13 to make provision by public notice to
give effect to the recommendation.

(5) The variation of the application of an anti-dumping amount or a
countervailing amount to goods which the regulations may provide for
5may, among other things, include any of the variations mentioned in
paragraph 21(8).

(6) An “international dispute decision” means—

(a) a report of a panel or Appellate Body that is adopted by the Dispute
Settlement Body of the WTO, or

(b) 10if not within paragraph (a), a decision under the dispute settlement
procedures of an arrangement relating to trade to which Her
Majesty’s government in the United Kingdom is a party with the
government of another country or territory.

Part 5 15Undertakings

Acceptance of undertakings

23 (1) Where the TRA determines to recommend to the Secretary of State under
paragraph 17(3) or (4) that an anti-dumping amount or a countervailing
amount should be applicable to goods, the TRA may also recommend to the
20Secretary of State the acceptance of an undertaking in respect of the goods.

(2) In this Part, an “undertaking” means—

(a) in the case of the dumping of goods, an undertaking offered by an
overseas exporter of the goods—

(i) to revise the overseas exporter’s prices for export to the
25United Kingdom, or

(ii) to cease exports to the United Kingdom at prices which cause
the goods to be dumped;

(b) in the case of subsidised goods—

(i) an undertaking offered by an overseas exporter of the goods
30to revise the overseas exporter’s prices for export to the
United Kingdom, or

(ii) an undertaking offered by a relevant foreign government to
eliminate or limit the importation into the United Kingdom
of the subsidised goods or to take other measures concerning
35its effects.

(3) “A relevant foreign government” means the government of a foreign
country or territory—

(a) which granted one or more of the countervailable subsidies in
question, or

(b) 40within whose territory is located a foreign authority which granted
one or more of those subsidies.

(4) Regulations may make provision about—

(a) recommendations by the TRA under sub-paragraph (1);

(b) the acceptance of undertakings by the Secretary of State on such a
45recommendation.

(5) The regulations must secure that the TRA may request an undertaking in
respect of goods only—

(a) at a time after it has made a provisional affirmative determination in
relation to the goods, and

(b) 5if such other requirements as the regulations may specify are met.

(6) The regulations must secure that the TRA may recommend the acceptance
of an undertaking in respect of goods to the Secretary of State only if it is
satisfied that—

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

(i) 10the dumping of the goods to a UK industry in those goods, or

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

(b) acceptance of the undertaking meets the economic interest test (see
paragraph 25), and

(c) 15it is appropriate to accept the undertaking.

(7) The regulations may make provision for the purposes of sub-paragraph
(6)(c) about the circumstances where it is or is not appropriate to accept an
undertaking.

(8) Those circumstances may include that the terms and conditions of an
20undertaking include provision for the provision of information to enable the
monitoring of compliance with the undertaking.

(9) The regulations must require that if the Secretary of State accepts an
undertaking, the Secretary of State—

(a) publishes a notice to that effect, and

(b) 25notifies interested parties (see paragraph 32(3)) accordingly.

Reviews of undertakings etc

24 (1) Regulations may make provision for or in connection with—

(a) monitoring compliance with an undertaking;

(b) investigations by the TRA of breach of an undertaking;

(c) 30reviews by the TRA of the continuing application of an undertaking;

(d) the circumstances in which an undertaking ceases to apply;

(e) the acceptance of a new undertaking in place of an existing
undertaking.

(2) Regulations under sub-paragraph (1)(c) may, among other things, provide
35for a review to consider—

(a) whether the continuing application of the undertaking is sufficient to
eliminate the injurious effect of—

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

(ii) the importation of the subsidised goods to a UK industry in
40the goods;

(b) whether the continuing application of the undertaking is
appropriate.

(3) Paragraph 10(2) applies to regulations under sub-paragraph (1)(b) or (c) in
relation to an investigation or review as it applies to regulations under
45paragraph 10(1) in relation to a dumping or a subsidisation investigation.

(4) The reference in sub-paragraph (1)(e) to the acceptance of a new
undertaking is to the acceptance of an undertaking in respect of goods by the
Secretary of State, on the recommendation of the TRA.

(5) Sub-paragraphs (4) and (6) to (9) of paragraph 23 apply to regulations under
5sub-paragraph (1)(e) in relation to the acceptance of new undertakings by
virtue of those regulations as they apply to the acceptance of undertakings
by virtue of regulations under paragraph 23(4).

(6) References in sub-paragraph (1) to an “undertaking” (other than the
reference in sub-paragraph (1)(e) to a “new undertaking”) are to an
10undertaking accepted by the Secretary of State by virtue of regulations
under paragraph 23(4) or sub-paragraph (1)(e).

Part 6 Supplementary

The economic interest test

25 (1) 15This paragraph applies if the TRA or the Secretary of State is considering, for
the purposes of this Schedule, whether the TRA or the Secretary of State is
satisfied that the application of an anti-dumping remedy or anti-subsidy
remedy meets or does not meet the economic interest test.

(2) The economic interest test is met in relation to the application of an anti-
20dumping remedy or anti-subsidy remedy if the application of the remedy is
in the economic interest of the United Kingdom.

(3) That test is presumed to be met unless the TRA or, as the case may be, the
Secretary of State is satisfied that the application of the remedy is not in the
economic interest of the United Kingdom.

(4) 25When considering whether the application of an anti-dumping remedy or
anti-subsidy remedy is not in the economic interest of the United Kingdom,
the TRA or the Secretary of State must—

(a) take account of the following so far as relevant—

(i) the economic significance of affected industries and
30consumers in the United Kingdom,

(ii) the likely impact on affected industries and consumers in the
United Kingdom,

(iii) the likely impact on particular geographic areas, or particular
groups, in the United Kingdom, and

(iv) 35the likely consequences for the competitive environment, and
for the structure of markets for goods, in the United
Kingdom, and

(b) take account of such other matters as the TRA or, as the case may be,
the Secretary of State considers relevant.

(5) 40In this paragraph—

(a) references to the application of an anti-dumping remedy are to—

(i) requiring the giving of a guarantee under paragraph 15,

(ii) applying an anti-dumping amount to goods, or

(iii) accepting an undertaking under provision made by or under
45Part 5;

(b) references to the application of an anti-subsidy remedy are to—

(i) requiring the giving of a guarantee under paragraph 15,

(ii) applying a countervailing amount to goods, or

(iii) accepting an undertaking under provision made by or under
5Part 5;

(c) “affected industries and consumers” means industries and
consumers that would be affected if the anti-dumping remedy or
anti-subsidy remedy were, or were not, to be applied;

(d) “industries” includes—

(i) 10producers and suppliers of goods or services, and

(ii) importers, distributors and retailers of goods;

(e) “consumers” includes users of goods or services.

Suspension of anti-dumping or anti-subsidy remedies

26 (1) Regulations may make provision for or in connection with—

(a) 15the TRA recommending to the Secretary of State that the application
of an anti-dumping remedy or anti-subsidy remedy should be
suspended, and

(b) the Secretary of State accepting or rejecting such a recommendation.

(2) The regulations must secure that the TRA may make such a
20recommendation to the Secretary of State only if the TRA is satisfied that
market conditions have temporarily changed such that the injury caused to
a UK industry in the goods would be unlikely to recur as a result of the
suspension.

(3) Regulations may make provision for the purposes of sub-paragraph (2)
25about what constitutes or does not constitute “market conditions” or a
temporary change in such conditions.

(4) Regulations under sub-paragraph (1) may, among other things, make—

(a) provision for the TRA to investigate certain matters;

(b) provision about the conduct of such an investigation;

(c) 30provision about the period for which a suspension may have effect;

(d) provision about whether that period counts towards the period for
which the suspended remedy applies.

(5) Paragraph 10(2) applies to regulations under sub-paragraph (4)(b) in
relation to an investigation as it applies to regulations under paragraph 10(1)
35in relation to a dumping or a subsidisation investigation.

(6) Where, by virtue of provision made under sub-paragraph (1), the Secretary
of State accepts a recommendation that the application of an anti-dumping
remedy or anti-subsidy remedy should be suspended, the Secretary of
State—

(a) 40must publish notice of the recommendation and of the acceptance of
it,

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

(c) is required under section 13 to make provision by public notice to
give effect to the recommendation.

(7) 45References in this paragraph to the application of an anti-dumping remedy
or anti-subsidy remedy have the same meaning as in paragraph 25.

Not subject to both application of an anti-dumping amount and a countervailing amount

27 (1) An anti-dumping amount is not applicable to goods if a countervailing
amount is already applicable to the goods (and vice versa) for the purpose
of dealing with the same situation arising from the dumping of goods or
5export subsidisation.

(2) Regulations may make provision about what constitutes or does not
constitute “export subsidisation” for those purposes.

Investigations regarding repayments and discharge of a guarantee

28 (1) Regulations may provide for the TRA to investigate specified matters for the
10purpose of determining whether—

(a) a repayment of an anti-dumping amount or a countervailing
amount, or interest paid in respect of any such amounts, should be
made under regulations made under paragraph 10 of Schedule 6;

(b) the whole or a part of a guarantee given under paragraph 15 should
15be discharged under regulations made under paragraph 6 of
Schedule 6.

(2) The regulations may make provision about the conduct of any such
investigation.

(3) Paragraph 10(2) applies to those regulations in relation to such an
20investigation as it applies to regulations under paragraph 10(1) in relation to
a dumping or a subsidisation investigation.

Registration

29 (1) The Secretary of State may publish a notice of goods—

(a) which are the subject of an investigation or other proceedings under
25provision made by or under this Schedule, and

(b) to which an anti-dumping amount or a countervailing amount may
be applied or the existing application of an anti-dumping amount or
a countervailing amount to which may be varied.

(2) HMRC must register goods in respect of which such a notice is published.

(3) 30Regulations may make provision for, or in connection with, the registration
by HMRC of goods—

(a) to which an anti-dumping amount or a countervailing amount may
be applied, or

(b) the existing application of an anti-dumping amount or a
35countervailing amount to which may be varied.

Reconsideration, reviews and appeals

30 Regulations may make provision for or in connection with—

(a) the reconsideration by the TRA of decisions made by the TRA under
provision made by or under this Schedule, and

(b) 40the review or appeal of decisions made by the TRA or the Secretary
of State under provision made by or under this Schedule.

Notices

31 (1) Where a notice is required to be published or given by a provision made by
or under this Schedule, regulations may make provision about—

(a) the form of the notice;

(b) 5its content;

(c) the manner of publication;

(d) the means by which it is given;

(e) the time or date on which it is published or given or is to be treated
as published or given.

(2) 10Such regulations may, among other things, provide—

(a) for some of the content of the notice to be contained in a separate
report to which the notice refers, and

(b) for that report to be published or for it to be given, or otherwise made
available to, the persons to whom the notice is required to be given.

(3) 15The provision made by regulations under this paragraph about the content
of a notice is in addition to any such provision made by or under any other
provision of this Schedule.

(4) Sub-paragraph (1)(c) does not apply to a public notice under provision made
under paragraph 21(4)(c) or 22(2)(c) (see section 37(5)).

20Interpretation

32 (1) In this Schedule—

• “anti-dumping amount” has the meaning given by paragraph 17(3);

• “the amount of the subsidy”, in relation to goods, has the meaning
  given by paragraph 4;

• 25“countervailable subsidy” has the meaning given by paragraph 3(2);

• “countervailing amount” has the meaning given by paragraph 17(4);

• “dumped” and “dumping” have the meaning given by paragraph 1(1);

• “dumping investigation” has the meaning given by paragraph 8(2);

• “final affirmative determination”, in relation to goods, has the meaning
  30given by paragraph 11(6)(a);

• “final negative determination”, in relation to goods, has the meaning
  given by paragraph 11(6)(b);

• “foreign authority” has the meaning given by paragraph 3(4);

• “foreign country or territory” means a country or territory outside the
  35United Kingdom;

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

• “injury” to a UK industry in particular goods has the meaning given by
  paragraph 5;

• 40“interested parties” has the meaning given by sub-paragraph (3);

• “like goods”, in relation to goods, has the meaning given by paragraph
  7;

• “the margin of dumping”, in relation to goods, has the meaning given
  by paragraph 2;

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

Taxation (Cross-border Trade) BillPage 79

• “the period of a provisional remedy”, in respect of goods, has the
  meaning given by paragraph 15(6);

• “provisional affirmative determination”, in relation to goods, has the
  meaning given by paragraph 11(3);

• 5“regulations” means regulations made by the Secretary of State;

• “subsidisation investigation” has the meaning given by paragraph 8(4);

• “subsidised” and “subsidisation” have the meaning given by
  paragraph 3(1);

• “subsidy” has the meaning given by paragraph 3(3);

• 10“UK industry”, in particular goods, has the meaning given by
  paragraph 6;

• “the WTO Agreement” means the agreement establishing the WTO
  signed at Marrakesh on 15 April 1994.

(2) References in this Schedule to the economic interest test are to be construed
15in accordance with paragraph 25.

(3) References in a provision of this Schedule to “interested parties” means the
governments of such foreign countries or territories, or such other persons,
as may be specified in regulations made under this sub-paragraph for the
purposes of the provision in question.

Section 13

20SCHEDULE 5 Increase in imports causing serious injury to UK producers

Part 1 Key definitions

Meaning of importation in “increased quantities”

1 (1) 25For the purposes of this Schedule, goods are imported into the United
Kingdom in “increased quantities” if—

(a) the volume of imports of the goods increases, whether in absolute
terms or relative to the total production in the United Kingdom of
like goods and directly competitive goods, and

(b) 30that increase is significant.

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

(a) about how it is to be determined whether or not there has been an
increase in the volume of imports;

(b) about how the amount of the increase is to be determined;

(c) 35about what constitutes or does not constitute a “significant” increase,
including provision for an increase not to constitute a “significant”
increase if it was foreseeable.

(3) “The total production in the United Kingdom of like goods and directly
competitive goods” has the same meaning as in paragraph 3.

(4) 40See paragraphs 4 and 5 for the meaning of “like goods” and “directly
competitive goods”.