Regulations on information collection, hearing and information analysis for trade remedies investigation in the UK
1. Collecting information
1.1. Collecting information on a sample basis
If the competent authority, in particular the UK Trade Remedies Authority (TRA), considers it appropriate, they may collect industry information from a limited number of businesses on a representative sample basis. This is known as a limited examination and may apply to:
Types of goods
UK manufacturers
Purchases of similar or directly competitive goods in the UK
Anything else they consider appropriate.
When doing this, they will only consider applications from interested parties. Late submissions will not be included in any limited examination.
Guidance for interested parties to participate in investigations and provide information
If interested parties wish to contribute information to an investigation, they will need to register their “interest” on the Competent Authority’s online Trade Remedies Service Portal. The Competent Authority will set a registration deadline specified in the Competent Authority’s Notice of Initiation of an Investigation. It is possible to register as an interested party or as a contributor to the investigation. This means that the registrant can complete the Competent Authority’s questionnaire to provide data to the Competent Authority’s investigation.
If an interested party or contributor registers late, the Competent Authority will decide whether to include them in the information collection process; if so, the TRA will issue them a questionnaire to complete, provided that their participation does not impede the progress of the investigation.
The difference between interested parties and contributors
An interested party is any party directly involved in the Authority’s investigation, including:
The government of a relevant foreign country or territory;
An exporter or importer of the goods concerned;
A UK manufacturer of like or directly competitive goods;
A trade or business association representing one or more parties.
Meanwhile, a contributor is defined as: an individual or organisation that is not an interested party but has contacted the Authority to be able to participate in the investigation, for example by contributing to hearings or submitting additional information.
How to interact with interested parties and contributors to the investigation
In order to carry out its investigations, the Authority requests interested parties and relevant persons to provide information and comments. This information and documents include accounting records, company-specific data and valuation reports, valuation practices (for determining the dumping threshold), and various other types of information.
The Authority will issue questionnaires to interested parties and registered contributors. It will consider all information received from interested parties and contributors, provided that it is objective and verifiable.
Please note that if the Authority is not aware of an interested party, the TRA cannot issue a questionnaire to them. The TRA will not issue any further questionnaires after the announcement of the expected final decision has been published.
The competent authority may request additional information during the course of the case. Both interested parties and contributors may provide additional information as they feel necessary even after completing the questionnaire, provided that the investigation is still within the time limit.
The information collected will also be detailed to each subject of the investigation (HS code) to serve the purpose of providing appropriate and satisfactory measures for each subject or group of subjects. For example, the UK Trade Remedies Authority (TRA) has begun to consider the transition to anti-dumping and anti-subsidy measures on imports of hot-rolled flat steel from China to determine whether duties are still necessary.
The HS codes subject to each survey are 72 08 10 00 00, 72 08 40 00 00, 72 11 19 00 10, 72 08 26 00 00, 72 08 52 99 00, 72 25 30 90 00, 72 08 27 00 00, 72 08 53 10 00, 72 25 40 60 90, 72 08 36 00 00, 72 08 53 90 00, 72 25 40 90 00, 72 08 37 00 10, 72 08 37 00 90, 72 08 54 00 00, 72 26 19 10 90, 72 08 38 00 10, 72 08 38 00 90, 72 08 39 00 10, 72 08 39 00 90, 72 08 40 00 10, 72 08 40 00 90, 72 11 13 00 00, 72 26 91 91 00, 72 11 14 00 10, 72 11 14 00 90, 72 26 91 99 00, 72 11 19 00 90, 72 08 25 00 00, 72 08 52 10 00 and 72 25 19 10 90.
The interested parties are requested to provide the necessary information related to each HS code above to serve the investigation.
To assess the loss to the domestic industry, information and data during the period from April 1, 2018 to March 1, 2022 are collected and reviewed.
Excluded products are stainless steel products and grain-oriented silicon electrical steel; tool steel and high-speed steel products; products not in coils, without relief patterns, with a thickness of more than 10mm and a width of 600mm or more; Products not in coils, without relief patterns, with a thickness of 4.75mm or more but not exceeding 10mm.
Site visits and information gathering
The Competent Authority may conduct site visits to UK manufacturers to obtain information, verify information provided to the Competent Authority or to assist in an investigation by the Competent Authority.
Following a site visit, the Competent Authority will prepare a written report of the visit. The TRA will then summarise this non-confidential report within an agreed timeframe. The Competent Authority will publish this non-confidential report on the Trade Measures Service online.
Through this information gathering exercise, the private sector also sees opportunities to express their views and provide input into the direction of overall trade policy, which aims to rebuild UK export markets and ensure that foreign manufacturers do not cause significant harm to UK industries when goods are imported into the UK under FTAs.
Private parties can ensure that their voices are heard in negotiations and investigations. They can do so through engagement with relevant trade associations within the Trade Advisory Groups to inform the government’s trade position, as well as through direct access to the government. It is important that private parties ensure that any proposed objectives are specific and achievable if they are to maximise the likelihood that they will be incorporated into the government’s policy position.
Conducting hearings
The Authority may conduct hearings at any time during the investigation, at the request of an interested party or on the initiative of the Authority.
Analysis of information collected
The Authority will analyse all evidence collected. They will consider information received from UK applicants, other interested parties, contributors and any other sources they have requested, provided that the information:
+ Can be verified;
+ Allows the Competent Authority to use the information without undue difficulty;
+ Is provided to the Competent Authority in the format requested and within the time limits specified.
The Competent Authority will not consider oral statements made during the hearing unless:
+ The statements are reproduced in writing;
+ Written copies are provided to interested parties and contributors.
Confidential information may be disregarded if the person providing the information fails to provide a non-confidential summary or statement of reasons unless, in the Competent Authority's discretion, the Competent Authority is satisfied that the information is accurate.
To assist in this process, the SPS authority may use “available data” to fill in any gaps. This will be done with caution and, where possible, will be verified from independent sources. Available data may include information contained in the original application to the Competent Authority for investigation, from various interested parties or from independent secondary sources such as customs declarations and official import statistics.
Data is also updated to facilitate reviews and reassessments of SPS decisions, even though sufficient data has previously been collected to apply a SPS measure. A typical example of this can be found in the Box below.
UK Trade Remedies Authority collects data to review tariff quota exemption for steel
The UK Trade Remedies Authority (TRA) on February 28, 2022 began collecting data from stakeholders to review its tariff quota exemption for steel. Specifically, in this case, if the collected information is sufficient to provide evidence that the trade remedy measures need to be changed, Indian hot-rolled coil (HRC) and Vietnamese hot-dip galvanized coil (HDG) may be subject to the application of safeguard measures, despite having been previously exempted.
The stakeholder, UK Steel, has lobbied TRA to review the trade remedy measures, with the information used as evidence being statistics on large volumes of HRC from India and HDG from Vietnam. When Indian mills exceed their quarterly quotas under the EU safeguard order, they typically turn to the UK for high prices as soon as the quotas are reset.
Only recently, Indian mills have been among the most active producers in the UK, offering around £750/tonne ($1,006/tonne) ddp West Midlands for HRC when most domestic and European mills are struggling to maintain £800/tonne ddp and above.
Buyers say they have had no choice but to turn to imports of some related commodities in 2021, particularly Vietnamese HDG, due to difficulties in sourcing raw material from European mills. Traders say the European quota is rarely met for HDG, but mills here blame this on import competition.
TRA said its review will assess whether the exemptions for imports from developing countries need to be revised based on updated import data. Both India and Vietnam have exceeded the 3% limit set by the World Trade Organization (WTO), meaning they are likely to fall within the scope of trade remedies measures.
The TRA announced on 28 February 2022 that it may exclude imports that have fallen below 3% of total volume. Companies can register their interest in the case within seven days and comment by 15 March 2022.
Following its formal exit from the EU, the UK has introduced the following new legislation to establish its own domestic trade remedies policy.
The Trade Act – passed on 29 April 2021 – provides for the role of the UK Trade Remedies Authority (TRA) – a new entity established from the Trade Remedies Investigation Department (TRID). The TRA is the government body responsible for conducting investigations, consulting with stakeholders and making recommendations to ministers and the government on UK trade remedies.
The Taxation (Cross-Border Trade) Act 2018 (TCTBA 2018) – the instrument that codifies WTO rules into UK law. Annexes 4 and 5 of the TCTBA set out the principles for how trade remedy investigations are to be conducted and set out the criteria for relevant infringements.
The secondary legislation is implemented under the Taxation Act 2018 (which sets out the main legal framework with additional provisions on the requirements for initiating a trade defence investigation and the scope and procedures for such investigations).
Similar to many countries around the world, including Vietnam, there are three trade policy instruments referred to in UK law to combat imports that cause or threaten injury to domestic industries.
One is anti-dumping measures: dealing with the issue of imported goods being sold in the UK at a price lower than their normal value in the country from which they are exported.
Two are countervailing measures: dealing with the issue of imported goods being subsidised by a foreign government.
Three are safeguard measures: protecting domestic industries from an unforeseen increase in imports.
Notable points
After leaving the EU, the UK remains a member of the WTO and, in essence, the UK's SPS content is still based on WTO regulations. However, UK law will have some notable differences from EU SPS law, while adding progressive principles consistent with the UK domestic legal system to help the economy and domestic manufacturing industries have legal and progressive "defense" tools.
Accordingly, the UK's SPS regulations in the transition period have some noteworthy points as follows.First, the UK's SPS mechanism requires ensuring both public interests and economic interests. Regarding public interest, similar to the commitment when it was an official member of the EU, the UK will not apply trade remedies if this is not consistent with the public interest (i.e., in addition to considering the situation of the domestic manufacturing industry, the investigating country also needs to consider the situation and views of importers, industry associations, consumer representative organizations and downstream businesses).
As for considering economic interests, the UK requires not only a purely economic assessment, but also a political judgment factor, to confirm whether the UK can stand firm or build an independent trade remedy agency after leaving the EU.
The UK Trade Remedies Authority (TRA) also applies (with some exceptions) an “economic benefits test” to determine whether the application of measures is in the UK’s economic interests (generally, the expected impact on the UK of applying a TSP measure is compared with the impact of not applying the measure or introducing a different measure).
A notable feature of the UK TSP regime is that UK law requires the application of the lower duty rule in all investigations and reviews. Therefore, the TRA will also apply the “lower duty rule”. It stipulates that the lower duty rule, i.e. the anti-dumping or anti-subsidy duty, should be at a level sufficient to remove the injury. This rule is optional under WTO rules but mandatory under UK law.
Information for economic benefit assessment: A notable new feature of the Foreign Office’s role
Any trade remedy measure, including provisional measures, that is applied must be in the UK’s economic interest. The Trade Remedies Authority (TRA) will consider economic benefit in its investigations based on information from industry. The Authority will only apply if it has determined that the imports it is investigating are causing injury to UK industry.
A notable new feature is the Foreign Office’s role in assessing trade remedies in the UK’s interest. A typical example of this can be found in the box below:
The role of the UK Foreign Office in assessing trade remedies
On 22 March 2022, the UK Secretary of State for International Trade ‘called on’ the TRA to reconsider its review of the trade remedy measure on steel in the UK’s national interest.
This call marks the first time the Foreign Secretary has used the new powers established under the Trade Remedies (Review and Review of Transitional Trade Measures) Regulations 2022, which place the Foreign Secretary in charge of the review and its outcome. The Foreign Secretary’s letter calls for a review and provides guidance to the TRA on how to obtain information from the public record of the review.
TRA has been asked to conduct an aggregate analysis of steel products, in addition to the analysis of individual product categories in the initial assessment that the regulations provided. The UK Government believes that an aggregate level analysis may better reflect the overall nature of the steel industry, given its significant impact on many sectors of the UK economy as well as critical infrastructure projects.
The power to “call” for a review of the SPS measure was established as part of the ongoing review of the UK’s trade defence framework published on 30 June 2021, which aims to ensure that TRA and the Government are able to protect UK industries from unfair trade practices and promote rules-based free trade.
TRA has been working closely with the Department of International Trade to prepare for further action and looks forward to assisting the Secretary of State in completing the review, which is expected to be completed by June 30, 2022.
Issuing a Draft Final Determination Statement
Before issuing a final affirmative or negative determination of the new safeguard measure, the Authority will issue a statement of its proposed final determination. (This is known as a Statement of Essential Facts in a Dumping or Subsidy Case.)
This statement will describe what the Authority’s final determination is likely to be. It will also include:
+ A summary of all the facts the Authority considered during the investigation;
+ The reasons for any denial of information provided;
+ The issues raised by the information gathering and processing process leading to the decision.
The Competent Authority will contact any interested parties whose information has been used in the investigation to ensure that they understand how that information will be used to assist the Competent Authority in reaching its conclusions.
The Competent Authority will publish the statement on the Online Trade Measures Service Portal and will invite interested parties, contributors and anyone else who has provided information within the stated period. The Competent Authority will consider those comments before making its final decision.
Making the Competent Authority's Final Decision
Having considered the comments on its draft decision, the Competent Authority will make its final decision.
