Guidance

Reconsiderations of our determinations or recommendations

Updated 23 May 2024

Legal framework

Primary legislation in the Taxation (Cross-border Trade) Act 2018 (the Taxation Act)

[Paragraph 30 of Schedule 4] and paragraph 29 of Schedule 5 of the Taxation Act provide for regulations to govern reconsideration of or appeal against our decisions.

Secondary legislation in The Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019 (the R&A Regulations)

The R&A Regulations provide the process for the reconsideration of decisions taken in connection with our dumping, subsidy and safeguard investigations and reviews.

Introduction to reconsiderations

When we make certain decisions, determinations or recommendations in a trade remedy investigation, we can be asked to reconsider them. When we carry out the reconsideration process, the decision, determination or recommendation we are reviewing is called the ‘original decision’. Once we complete our reconsideration, we will either uphold or vary that original decision. From this point, it will be known as a ‘reconsidered decision’, even if it has not changed.

Initiation

Schedule 1 to the R&A Regulations sets out a list of decisions that can be reconsidered and regulations 9(2) to 9(6) of the R&A Regulations set out who can apply for a reconsideration in each case. In most cases, any interested party can apply, but in some cases, such as where the decision is to reject an application to us to initiate a new investigation or review, only the person who made the application can apply.

If we receive multiple applications for reconsideration of an original decision, we may make a single reconsidered decision.

Decisions made within an investigation cannot be challenged until the investigation is complete. This means provisional determinations made during the investigation are not subject to reconsideration.

We must receive any application to reconsider an original decision within one month beginning on the day after the notice of that decision is published or, if later, within one month beginning on the day after the notice comes into effect. Where there is no requirement for a decision to be published (for instance, when we reject an application to initiate an investigation), we must receive the request for reconsideration within one month beginning on the day after we notify the applicant of our decision. If the deadline falls on a Saturday, Sunday or UK bank holiday, an application received on the following working day will be deemed to have been submitted in time. For example, where the time frame begins on 28 February, an application for reconsideration must be received by the TRA no later than the corresponding date one month later, i.e. 28 March. If 28 March falls on a Saturday, the relevant deadline would be Monday, 30 March.

To apply for a reconsideration, you will need to submit your application via our Trade Remedies Service.

In addition to applying within the deadline, you should:

• set out the grounds for the application
• explain the outcome you are looking for
• demonstrate that you are eligible to apply for a reconsideration of this decision.

When we receive an application, we will consider the request carefully. If we decide to accept it, we will either notify the applicant directly or, if the original decision was published in a notice, we will publish a notice on the Trade Remedies Service to say that it is being reconsidered.

If an application doesn’t meet the three criteria set out above (‘non-conforming application’), we may reject the application. We can still accept it if we decide it’s appropriate to do so.

If we receive an application for reconsideration outside the timeframe, we will normally reject it. However, if the applicant provides reasons for the late application, we may consider it appropriate to accept the application, although this also depends how far beyond the deadline the application is made.

If we decide to reject an application for reconsideration for any reason, we will notify the applicant of our decision and advise them of their right to appeal to the Upper Tribunal.

Analysis

When we reconsider a decision, we will follow a process in which we re-examine relevant information we hold on the case against the grounds for reconsideration set out in the application(s), testing both our processes and our conclusions. At the end of this process, we may decide either to uphold the original decision or to vary the original decision. In each case the result will be a ‘reconsidered decision’.

Considerations

As part of this process, we may:

• request further information from the applicant and/or from any other person and set a time limit for responses
• review relevant material, which may include:
• information we have asked for
• the application and any information provided with it
• any information obtained from secondary sources
• carry out hearings, see hearings guidance
• disregard information if it has been submitted outside the time limit we have given or does not conform to our request
• take any other action we think is appropriate in line with the relevant regulations

We may ask interested parties, contributors and anyone else for further submissions to inform the reconsideration, and will consider responses, providing they are submitted within our deadlines and in a form we can use. Our process for handling submissions and confidential information is explained in our providing confidential information and non-confidential summaries guidance.

We will also draw on information in the application for reconsideration and refer to secondary sources where necessary.

Non-cooperation in the reconsideration process

If a party does not cooperate with us during the reconsideration or they significantly impede its progress, we may consider them to be non-cooperative and we may disregard the information they supply. This will not apply if they acted to the best of their ability to cooperate or if they can demonstrate that to comply with our request for information would be unreasonably burdensome on them.

Disputes relating to a point of law

If we identify that an application for reconsideration relates to a dispute on a point of law, we can refer this to the Upper Tribunal. If we do so, we will notify the applicant of this. We will do so directly if there was no published notice of the original decision. If the original decision was published, we will publish a notice via the Trade Remedies Service which sets out the questions we have referred. The reconsideration process will not conclude until we receive a decision from the Upper Tribunal.

Withdrawing an application for a reconsideration

If you apply for a reconsideration, you can contact us through the Trade Remedies Service to withdraw your application. This must be done before we have communicated the outcome of our reconsideration.

If we accept your request to withdraw the application, we will terminate the reconsideration and either notify you directly through the Trade Remedies Service or, if the original decision you asked to be reconsidered was published by notice, we will publish a Notice of Termination for the reconsideration via the Service.

If the reconsideration has multiple applicants, it cannot be terminated unless all applicants agree with the termination. We will publish a notice explaining our intention to terminate the reconsideration, inviting the other applicants to either agree or object. If any applicants do not agree with the request for termination, the reconsideration process will continue.

Outcome

At the end of the reconsideration process, we will either decide to:

• uphold the original decision if we are satisfied it was correct, or
• vary the original decision

If we uphold the original decision, will notify the Secretary of State accordingly at least two working days before publishing a notice of the reconsidered decision, or notifying the applicant directly via the Trade Remedies Service (where the original decision was not published). If we uphold the original decision after a reconsideration of our recommendation following a transition review, we will notify the Secretary of State at least 30 working days before publishing a notice of the reconsidered decision.

If we vary the original decision, we will send a recommendation to the Secretary of State in respect of the reconsidered decision. If the reconsidered decision is not a recommendation (for example, a reconsidered decision to accept an application), we will notify the Secretary of State.

If our recommendation is rejected, the Secretary of State will publish a notice of our reconsidered decision and the Secretary of State’s rejection of the recommendation, and lay a statement in the House of Commons setting out their reasons for rejecting the recommendation.

If our recommendation is accepted, the Secretary of State will publish a notice of our reconsidered decision and the Secretary of State’s acceptance of the recommendation, and give effect to that decision.

The Secretary of State may also take a different decision from the one we recommended. In order to take a different decision, the Secretary of State must find that an alternative measure is in the public interest. The Secretary of State may ask us to provide further advice, information or other support to allow them to make their decision. If the Secretary of Stage decides to take a different decision, they must reject our recommendation.

The Secretary of State may not request us to reassess our reconsidered decision.

Making an appeal to the Upper Tribunal

A reconsidered decision may provide a right of appeal to the Upper Tribunal.

Details on how to appeal will be given in the published notice of the reconsidered decision or in our notification to the applicant.

Parallel process of an early review and a reconsideration

We may receive an application for a reconsideration as well as a request by the Secretary of State to conduct an early review relating to the same measure. Where this happens, we will run the early review and reconsideration in parallel as separate cases at the same time. Once a reconsideration request has been accepted, we will notify interested parties if an early review has been initiated and make them aware that any findings in the early review may potentially impact the reconsideration. We will also notify the Secretary of State if a reconsideration is initiated after we begun an early review, providing the Secretary of State with an understanding of how this may affect the early review.

If any early review is completed before we make recommendation in a corresponding reconsideration, we will take the outcome of the early review into account in the reconsideration. If a reconsideration is completed before the parallel early review, we will take the outcome of the reconsideration into account in the early review.

For further information on early reviews see reviews of anti-dumping and countervailing measures guidance and reviews of safeguard measures guidance.