New regulations have come into effect on 3 May 2022 affecting anti-dumping, countervailing duties and safeguards.
The Trade Remedies (Miscellaneous Amendments) Regulations 2022 (Statutory Instrument 2022 No 414) amends the following 3 regulations:
Safeguards Regulations - Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers)(EU Exit) Regulations 2019
Dumping and Subsidy Regulations - Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019
Reconsideration and Appeals Regulations - Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019
For links to all UK trade remedy legislation click the references tab above.
The amendments can be summarised as follows:
An additional category of interested party is created introducing a distinction between overseas exporters and producers in the case of dumping, subsidy and safeguards.
Explicit provisions to allow for interested parties to apply for exemptions to anti-circumvention measures are now included in the dumping and subsidy regulations.
Changes have been made to the wording of the substance TRA analysis required in transition reviews.
Requirements to liberalise safeguards have been amended.
The requirement to open a public file for reconsideration of a TRA rejection of a dumping or subsidy application has been removed.
Each of these is analysed below.
Definition of interested party to distinguish between producers and exporters
The revised definition of interested party applies to anti-dumping, countervailing duties and safeguards. The analysis below focuses on anti-dumping. However, very similar points apply in relation to subsidy and safeguards. To the extent that there are differences these are highlighted at the end of this section.
The definition of interested party has been refined to add 'overseas producer' as a new category of interested party. The new category is defined:
An overseas producer is defined as “a person outside of the UK that produces goods”.
Previously the list of interested parties only included “an overseas exporter…of the goods concerned”. The amendment clarifies that 'overseas exporter' and 'overseas producer' are separate categories of interested party.
As to the logic of this change, the explanatory memorandum makes the following statement:
The amendment to the definition of “interested party” will ensure that a broader group of stakeholders can participate in TRA investigations.
At face value, it is not clear how the amendment broadens the group of stakeholders that can participate in TRA investigations. An overseas exporter may be selling goods produced by another company or goods that it has produced itself. Thus, it can be argued that the term overseas exporter is sufficiently broad to include both producing exporters and non-producing exporters.
The term 'overseas exporter' is not defined in the UK legislation [Correction 30.5.22 - the term 'overseas exporter' is defined in Paragraph 32(1) of Schedule 4 of the Taxation (Cross-Border Trade) Act 2018 as "a person outside the UK that exports goods to the UK". This doesn't change the analysis below]. However, in practice, the TRA has effectively made a distinction between exporters that are producing the product and those that are not. For example, in the recent exporter questionnaire for TD0014 (Heavy Plate from China), the following is stated in the introduction:
We are asking foreign exporters of Heavy Plate to complete this questionnaire to inform our review of whether the current anti-dumping measure should be maintained, varied, or revoked.
If you are an exporter of the goods subject to review to the UK but do not produce these goods, please complete Annex I, as well as sections of the questionnaire you are reasonably able to answer.
All exporters are invited to complete the questionnaire. Producing exporters are requested to complete the full questionnaire including annex II. Annex II includes questions on domestic sales and cost of manufacture. For those that are not producing the goods, they are invited to complete Annex I which focuses more on purchases of the goods and resales. Thus, the interpretation of 'overseas exporter' appeared to already include both types of exporter.
The WTO agreement does not make any formal distinction between the two types of exporter. Article 6.11 of the WTO anti-dumping agreement states:
For the purposes of this Agreement, “interested parties” shall include:
(i) an exporter or foreign producer or the importer of a product subject to investigation, or a trade or business association a majority of the members of which are producers, exporters or importers of such product;
Whilst exporters and producers are separately identified in Article 6.11, they are both identified within one category of interested party. The foreign producer may also be the exporter and importer of the product if it has related trading companies. At the same time, the producer, exporter and importer may all be separate companies. The producing/exporting category of interested party in the WTO agreement can accommodate both these possibilities.
Other parts of the WTO anti-dumping agreement are similarly flexible in accommodating different producer/exporter permutations. For example, in the provisions for establishing normal value in Article 2 several references are made to the “exporter or producer”. In the case of establishing cost of production, Article 184.108.40.206 states that “…costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation”.
The EU does not explicitly define interested parties but it is implicitly defined in Article 6.7 EU basic anti-dumping regulation:
...Union producers, trade unions, importers and exporters and their representative associations, users and consumer organisations, which have made themselves known in accordance with Article 5(10), as well as the representatives of the exporting country...
In this case, only 'exporters' are identified which implicitly is a broad term including producing and non-producing exporters. In EU questionnaires, exporting producers are requested to complete the full questionnaire. For subsidiaries/related companies that are not producers, an annex must be completed similar to the TRA questionnaire Annex I referred to above. There is a sample EU exporter questionnaire on the DG Trade website.
In addition, the Commission questionnaire state the following:
If your company does not produce the product under investigation please consult the officials in charge.
In the EU system, exporters that do not produce the product are not necessarily included the investigation.
In practical terms, it is important for an investigating authority to distinguish between a producing and non-producing exporter. An investigating authority needs producing exporters to complete a questionnaire in order to have the necessary information on export sales, domestic sales and cost of production. Exporters who are not producing, but who are related to the manufacturing companies concerned, also need to provide information on their export prices to independent customers in the overseas market.
At one level all export information is useful to an investigating authority in establishing and confirming total export volumes and prices. However, in most cases, information from non-producing unrelated exporters is not critical to any aspect of the case.
One case where data from unrelated exporters might be useful is where the manufacturer does not export the product at all. A trading company purchases the goods from the manufacturer in the exporting country and then sells them both in the domestic market and exports them to multiple countries. In such cases, the producer could only provide information on its cost of production and sales to the trading company, some of which may remain on the domestic market. Information on exports from the trading company to the market running would be useful in order to be able to establish export prices.
I have been involved in EU cases where this occurred. In my experience, at least in the past, the European Commission tried to avoid establishing export volume/price information from trading companies except where they are related. Only in cases where the manufacturer is making no export sales would the prices from unrelated trading companies be necessary (and that would be if the unrelated company was prepared to cooperate).
Taking all this into account, I am not totally convinced that this clarification is required as I think that ‘overseas exporter’ already included overseas producers that export.
Does this matter? There is perhaps some ambiguity created by the fact that the term ‘overseas exporter’ is used elsewhere in the regulations. For example, regulation 38 requires that the TRA must determine an anti-dumping amount for “overseas exporters to which this regulation applies”. In practical terms, anti-dumping amounts can only be applied by manufacturer. Thus, an unrelated trading company that exports the product to the UK could not have its own anti-dumping amount because it is free to source its products from any manufacturer. Anti-dumping duties have to be calculated by manufacturer rather than by exporter. Thus, in terms of regulation 38, the term overseas exporter clearly still includes “overseas producers”.
I do not believe that this ambiguity has any legal or policy significance. It is just a shame that this technical amendment could not be made in a more tidy way. Perhaps it would have been better to clarify regulation 2(b) to say an “overseas exporter or producer” rather than additng a new category of itnerested party. Alternatively, a definition of 'overseas exporter' could have been clarified to make it clear that this category includes both producing and non-producing exporters.
In terms of subsidies, the analysis is identical. However, whereas by definition normal value can only be calculated for a manufacturer, it is possible in some cases that a subsidy calculation could be done for a non-producing exporter. That said, to the extent that subsidies affect production (as many do), focus on producers would also be relevant.
For safeguards, company specific information is a lot less important. Although questionnaires may be sent to exporting companies, whether the companies produce or not actually makes little difference to the investigation. In terms of analysing threat of injury, production capacity could be considered and this information could only be gathered from producers rather than trading companies. But the distinction between producing and non-producing exporters seems much less important in the context of safeguards. Thus, it is hard to understand why this distinction was made in the context of the safeguards legislation.
In conclusion, for anti-dumping, the distinction between non-producing exporters and producing exporters is very significant in dumping calculations, but the implication that overseas exporters and overseas producers are different creates some legal ambiguities. For subsidy investigations, this distinction is less important but could still be critical for the calculation of benefit where subsidies affect production. For safeguards. there appears to be little logic to making this clarification.
In all cases, ambiguity is caused by the separate categories given the fact that producers that export are arguably a subset of overseas exporters. This could have been solved by amending (b) to say 'overseas exporter or producer' or by defining 'overseas exporter' as including both producing and non-producing exporters.
Reviews regarding exemption to anti-circumvention measures
The dumping and subsidy regulations have been amended to provide the possibility for exporters or importers to apply for an exemption to anti-circumvention measures. Anti-circumvention measures only apply to anti-dumping and countervailing duties.
Of the 43 EU measures transitioned, only a small number had existing circumvention measures (Bicycles, Biodiesel and Tube and Pipe Fittings of Iron & Steel). In the case of EU anti-dumping duties on bicycles there have been many exemptions accepted by the European Commission where companies were able to show that they were not associated with the circumvention.
This was a necessary amendment by the TRA to ensure that companies genuinely not associated with circumvention can be exempted from the measures. Explicit provisions to do this were not included in the previous legislation.
In order to be successful in obtaining an exemption the applicant must be able to show that they are not engaged with circumvention of the measures. Also, in the case of importers, they must also prove that they are not related to any of the exporters subject to the original measures that were found to be circumvented through a third country.
Change in wording of substantive TRA analysis required in transition reviews
Regulation 99A of the dumping and subsidy regulations previously required that the TRA assesses whether the application of anti-dumping or countervailing measures is “necessary and sufficient” to offset the dumping or subsidy.
The amended legislation now requires the TRA to consider whether the dumped or subsidised imports would 'continue or recur' if the measure is removed. This is more in line with the expiry review provisions of both Regulation 70 of the dumping and subsidy regulations and Article 11.3 of the WTO anti-dumping agreement.
The original “necessary and sufficient” wording comes from the interim review provisions. Regulation 69 of the dumping and subsidy regulations contains the same wording in relation to interim reviews.
Paragraph 21(3) of the T(CBT) Act 2018 states:
(3) Regulations 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 subsidised goods which has caused or is causing injury to a UK industry in the goods;
Similar language on 'necessary' and 'sufficient' is also included in the EU basic anti-dumping regulation and the WTO anti-dumping agreement. Article 11(3) of the EU rules includes the following (underlining added):
An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.
Likewise, article 11.2 of the WTO anti-dumping agreement also includes the term necessary in a similar context. However, it does not include the term ‘sufficient’.
There has been some WTO jurisprudence on the ‘necessary to offset ’ requirement of Article 11.2 and the 'likely to lead to continuation or recurrence of dumping and injury' of Article 11.3 of the WTO anti-dumping agreement. The WTO panel in US - DRAMS noted that the Article 11.2 interim review provisions do not explicitly include any reference to dumping being likely to recur. The panel found that this does not mean that WTO members are limited to a ‘present’ analysis and that a prospective analysis is foreclosed when conducting an Article 11.2 interim review. In reality, therefore, even though the ‘necessary’ standard must be met, this can still be done where the continued imposition of an anti-dumping duty is tied to the ‘recurrence’ of dumping (see para 6.43 of US - DRAMS for more detail). This may mean that there is no practical difference between the interim and expiry review requirements.
Thus, the amendment to the UK legislation may have no practical effect. I think that the amendment is helpful in clarifying explicitly that transition reviews are more akin to an expiry review than an interim review. The original legislation was drafted with the intention that the transition reviews would be like interim reviews as many of them as possible would be conducted prior to the expiry of the EU measures. However, the practical reality of the TRA's workload is that the transition reviews are generally being conducted in parallel to the EU expiry reviews. Thus, it does make sense to be clear that the analysis is similar to that of an expiry review, although legally I am not 100% convinced this was required given the WTO jurisprudence.
It might be asked why the UK and EU legislation includes 'necessary' and 'sufficient' in their interim review provisions while the Article 11(2) of the WTO anti-dumping agreement only includes 'necessary' as shown from the following extracts?
The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or....upon request by any interested party which submits positive information substantiating the need for a review....
Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping....
The first sentence of Article 11.2 of the WTO anti-dumping agreement establishes that an investigating authority can undertake an interim review 'upon request by any interested party which submits positive information substantiating the need for a review'. This is broad and allows evidence to be submitted that the level of dumping or subsidy has changed and the measure should be varied (upwards and downwards) or terminated. The second sentence makes it mandatory that WTO members provide the possibility for interested parties to request removal of the measure if continued imposition of the measure is no longer necessary to offset dumping. By adding the term 'sufficient' the UK and EU are explicitly providing for the possibility to increase the duty in an interim review. This is permitted by the first sentence of Article 11.2.
Definition of pace of liberalisation for safeguards
Paragraph17(4) of Schedule 5 of the Taxation (Cross-Border Trade) Act 2018 ("the Act") requires that a safeguard duty becomes progressively smaller from one year onwards. Likewise, Paragraph 18(5) requires that, where tariff rate quotas ("TRQs") apply, the amount of duty applied to goods subject to quota beyond a year becomes progressively smaller (whether by increases in the amount of the quota, decreases in the rates of import duty, or both).
In the current UK safeguard regulations, the term 'pace of liberalisation' is defined as the "process by which a safeguard duty or tariff rate quota becomes progressively smaller". This actually conflicts with the Act where it is the amount of duty that must be progressively reduced in the case of a TRQ. The safeguard regulations are mistaken in saying that the TRQ should become progressively smaller (the opposite of liberalisation!). In fact, if the liberalisation is made in terms of the quota levels, it should become progressively larger.
Thus, the safeguards regulations are amended to define the liberalisation in terms of the amount of import duty becoming progressively smaller or the amount of quota becoming progressively larger, or both.
This makes the necessary correction to the mistake in the safeguards regulations in relation to quota levels. This is an essential amendment. However, it can be noted that it still does not define liberalisation in an identical way to the Act. Both make reference to the “amount of duty” but, in fact, they refer to slightly different things in the Act and Regulations. In the Act, amount of duty is the total amount of duty paid by the imports which can be reduced either by reducing the rate of duty or increasing the duty free quota levels. In the Regulations, the amount of import duty refers to the rate of duty as distinct from the level of the quota.
I don’t see that this difference will create any legal problems and at least the clear error is corrected. However, as a tidying-up exercise, it might be seen as a bit sloppy that there is not full consistency between the Act and the Regulations.
No public file for reconsideration of TRA rejection of dumping or subsidy application
In the existing Reconsideration and Appeals Regulations, the TRA is required to open a public file for reconsideration of a TRA determination to reject an application for the initiation of a dumping or subsidy investigation.
The Regulations have been amended so that a public file is not required in such a situation. This makes sense as the application in itself is not public. This is because it is solely a matter between the applicants and the TRA. The applicants have either met the evidentiary burden or they have not and the TRA makes a determination on this. The views of other parties are not relevant.
This amendment, therefore, makes sense.
One small point is that the amending statutory instrument 2022 No 414 refers to "regulation 2 (public file)" when, in fact, the relevant regulation is regulation 4.