Safeguard investigations and reviews
How the TRA will conduct new investigations and reviews into trade remedy safeguard measures.
This guidance sets out how the Trade Remedies Authority (“TRA”) will conduct new investigations and reviews of existing safeguard measures.
It gives direction on when and how the TRA will provide the Secretary of State with alternative options for remedies in a safeguard investigation or review.
It also provides direction on the Secretary of State’s ability to request a reassessment of the TRA’s determinations and recommendations in certain circumstances.
Read guidance on how the TRA should conduct the Economic Interest Test (EIT).
For businesses wanting to understand UK trade remedies and investigations, please read the TRA’s guidance on the UK trade remedies investigations process.
This statutory guidance explains how the following legislation should be interpreted by the TRA as regards investigations and reviews of safeguard measures:
- ‘safeguard regulations’ refers to the Trade Remedies (Increase in Imports) (EU Exit) Regulations 2019
- ‘TCBT Act’ refers to the Taxation (Cross-border Trade) Act 2018
The above legislation has been amended, including by:
- schedule 19 of the Finance (No. 2) Act 2023
- the Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) (Amendment) Regulations 2023
- the Trade Remedies (Amendment) Regulations 2024
During the course of an investigation, the TRA may consider recommending to the Secretary of State the application of a provisional measure, where goods have been or are being imported into the United Kingdom in increasing quantities, and importation in increased quantities has caused, or is causing serious injury to UK producers of those goods. A provisional measure could either be a provisional safeguarding amount (additional import duty), or tariff rate quota (TRQ).
In making a recommendation for the application of a provisional measure or TRQ, the TRA will not provide alternative options to the Secretary of State.
Before the TRA recommends a provisional safeguarding amount or TRQ to the Secretary of State, it will conduct the EIT. When making its recommendation, the TRA must advise the Secretary of State whether and why it considers that applying a provisional measure during the period it would be in force would meet the EIT. The Secretary of State must have regard to the TRA’s conclusions on the EIT but may impose a provisional measure irrespective of those conclusions. Read more information on the EIT.
If the Secretary of State decides that it is in the public interest to apply a provisional measure other than in accordance with the TRA’s recommendation, the TRA may be asked to provide advice, information or other support to assist with that decision. This may include information relating to whether any such provisional measure meets the EIT. The Secretary of State must consult the TRA on what form of advice, information or other support is required to aid the Secretary of State’s decision.
Before making its final determination in new safeguard investigations, the TRA must publish its Statement of Intended Final Determination (SIFD), allowing for interested parties and contributors to comment, and provide views, on its findings and the proposed determination. This includes any intended definitive safeguarding amount or TRQ and, if applicable, alternative options the TRA considers appropriate to counteract the serious injury that has been or is being caused to UK industry. The TRA has discretion as to whether it should publish a SIFD before making its final determination in relation to safeguard reviews.
The TRA will allow an appropriate period for interested parties and contributors to provide comments on the SIFD It is for the TRA to determine what constitutes an ‘appropriate period’ in each case. However, unless exceptional circumstances apply, it should be no less than two weeks.
When the TRA provides the Secretary of State with its final recommendation it must advise whether and why it considers that applying a definitive safeguarding amount or TRQ to the relevant goods, in accordance with its recommendation, would meet the EIT. The TRA’s starting assumption for recommending a safeguarding measure or TRQ should be that it should be in place for 4 years and the duty for a measure should be calculated as ad valorem. The TRA may recommend another type of measure if it considers it appropriate.
The TRA may present to the Secretary of State alternative options for introducing a definitive safeguarding amount or TRQ on imports of the goods concerned or goods subject to review. Any such options provide the Secretary of State with greater flexibility and choice when deciding whether any definitive measure is in the public interest. Where alternative options are provided as part of a recommendation, the TRA must set out its reasons for including each option, as well as indicating which option it prefers and why.
The TRA may consider providing alternative options alongside the recommendation where it considers appropriate in relation to:
- new investigations
- early reviews
- mid-term reviews
- extension reviews
- international dispute investigations
The TRA may include alternative options at the following points in an investigation or review:
- in the SIFD. Any alternative options set out in the SIFD may differ to those within a final recommendation, should the TRA deem it appropriate to revise options based on any evidence or information received following publication of the SIFD. If the alternative options in the TRA’s final determination differ from the options set out in the SIFD, the TRA must explain the reasons for this change in its recommendation or relevant notice. The TRA may provide interested parties and contributors with an opportunity to comment if there are any changes to alternative options between the SIFD and final determination
- in the final recommendation to the Secretary of State
- in a reassessed final recommendation to the Secretary of State
Assessing and identifying when to provide alternative options
The TRA may provide alternative options when:
- the TRA identifies potential volatility in the market
- interested parties or contributors make a submission that a measure other than a 4-year ad valorem duty is more appropriate
- where the TRA considers that a period of less than the maximum length of time it can recommend (4 years) is a more appropriate duration for a definitive measure
- there are any other reasons the TRA considers relevant
In assessing whether alternative options are appropriate to include in its recommendation to the Secretary of State, the TRA may consider factors such as:
- a change in the type of duty
- a change in the amount of duty
- a change in the duration of measure
The TRA’s obligations when providing alternative options
If the TRA concludes that a 4-year ad valorem duty measure would not meet the EIT, but an alternative form of measure (e.g. a TRQ) would, it must provide the alternative measure as an option in its recommendation.
Where the conditions to put a measure in place exist but no forms of measure would meet the EIT, the TRA’s preferred option in the recommendation should be that no measure be implemented. The TRA must consider providing at least one alternative option, which should ordinarily be a 4-year ad valorem measure. The TRA may also include an additional alternative option if it may be more appropriate than a 4-year ad valorem measure.
Alternative options and the Secretary of State’s decision
Whether the TRA provides a single option or a preferred option with alternative options as part of its recommendation, the Secretary of State can take a different decision. This means the Secretary of State can decide to impose a different measure to those set out by the TRA in its final recommendation where it is in the public interest to do so because, for instance, of national security or public health reasons.
Alternatively, the Secretary of State can ask that the TRA to reassesses its final recommendation. A reassessed recommendation may also contain alternative options. For more information, please review the section on reassessment powers in this guidance.
Submissions from interested parties / contributors on alternative options
Interested parties and contributors may propose options for a new, definitive safeguard remedy or variations to existing safeguard measures and should provide supporting information where possible. The TRA should have regard to any such proposals and explain how it has used any supporting information when deciding whether to provide the Secretary of State with alternative options in both the SIFD and its final recommendation.
The TRA may also take into account evidence and information submitted by interested parties – in addition to any submissions on a preferred form of measure – in the course of the investigation or review when providing alternative options.
The Secretary of State has the power, in certain circumstances, to ask that the TRA reassess a recommendation that it has made following a safeguard investigation or a review. This reassessment may be on a specific part of a recommendation or on the entire recommendation.
The Secretary of State cannot ask the TRA to reassess its recommendation when it provides provisional safeguarding measures, or as part of an early review of a safeguarding measure.
Conditions for a reassessment
The Secretary of State may request a reassessment when the Secretary of State considers that:
- there is information that the TRA did not take into account in its investigation or review that is relevant to the recommendation
- the TRA has made an error in relation to its recommendation
- exceptional circumstances make the request appropriate
The Secretary of State must consult with the TRA before requesting a reassessment. If, following a consultation with the TRA, the Secretary of State asks the TRA to reassess its recommendation, the TRA must update its public file with anything it considers material to the investigation, including:
- changes to investigation or review timelines if the timelines are affected by the reassessment
- non-confidential versions of information that is being considered in the reassessment. If no non-confidential summary has been supplied, the TRA may reject this information (other than in exceptional circumstances when the provider of the information has provided an adequate justification for not doing so in a statement of reasons)
- any specific requests from the Secretary of State, including their request to conduct a reassessment of the TRA’s recommendation
The Secretary of State will consult the TRA on the reasons for the reassessment request, the scope of the reassessment, the impact of conducting the reassessment on the timelines for completion of the investigation or review, how the TRA will report on the reassessment and anything else considered appropriate. This is to provide the TRA with an opportunity to comment on the operational impact and deliverability of any such request for a reassessment.
If the Secretary of State provides confidential information to the TRA, the Secretary of State must also provide a non-confidential version of that information (other than in exceptional circumstances when the Secretary of State has provided an adequate justification for not doing so in a statement of reasons).
The Secretary of State may also request that the TRA re-conduct the EIT as part of its reassessment.
Assessment of new information
The Secretary of State may identify information that they consider relevant which the TRA did not take into account during the original safeguard investigation or review. Prior to asking the TRA to reassess its recommendation to consider this information, the Secretary of State will consult the TRA to confirm that the information:
- has not been considered previously by the TRA and is new information from the period of investigation used by the TRA in its investigation or review
- is verifiable
- is in a format that the TRA can use
- could not have been submitted by interested parties or contributors within the timelines set by the TRA during the course of the investigation or review
Error in a TRA recommendation
The Secretary of State may identify an error in the TRA’s recommendation that requires the TRA to conduct a reassessment. Prior to requesting the TRA to reassess its recommendation to address the error, the Secretary of State will consult the TRA. During the consultation, the Secretary of State and the TRA will discuss whether the error is likely to be quick and simple to correct or will require a more fundamental reassessment.
Outcome of a reassessment
Following a reassessment, unless the TRA determines that a new measure should not be put in place, or an existing measure be allowed to expire, it must make a new recommendation to the Secretary of State. The previous recommendation will be superseded but must be referenced in the new recommendation.
Where – following a reassessment - the TRA finds no new measure should be put in place, or an existing measure should be revoked or allowed to expire, the TRA should still provide its reassessed determination to the Secretary of State at least two working days before issuing a public notice. There would be no decision for the Secretary of State in these circumstances.
The outcome of the reassessment should be published in a report on the public file, along with the reasons the TRA arrived at the final outcome. The report must also address any particular considerations (such as the reasons for requesting a reassessment) discussed in the consultation between the Secretary of State and the TRA prior to commencing the reassessment and specified by the Secretary of State in their reassessment request.
The Secretary of State may ask the TRA for advice, information or other support if the Secretary of State intends to:
- apply a measure other than in accordance with the TRA’s recommendation
- revoke a measure in the absence of a recommendation from the TRA
The TRA must comply with the request, after having been consulted by the Secretary of State. The Secretary of State will discuss with the TRA the reasons why the Secretary of State made the request, the scope of the request, the impact of providing the advice, information or other support on the timelines for completion of the investigation or review and how the TRA will report on the request.
During the consultation, the Secretary of State and the TRA will also agree a date on which the request may need to be rescinded if there is a strong possibility of exceeding timeframes set by international agreements.
The advice, information or other support may include:
- recalculations of injury rates
- advice on whether an alternative measure would meet the EIT
- providing information to the Secretary of State to allow amendment of the scope or type of the measure
- verifying information the Secretary of State intends to take into account when making their decision
After the Secretary of State has made a decision on a TRA recommendation following an investigation or review, the Secretary of State may, within 30 days (and in exceptional circumstances, 60 days) of the application, variation, extension or suspension of a safeguarding measure, request that the TRA conduct an early review.
An early review may assess whether to vary or maintain the level or duration of a measure imposed or revoke it following that decision. The Secretary of State cannot request an early review of a measure that has been maintained or varied following an early review.
The Secretary of State may request an early review when the Secretary of State considers that:
- there is information that the TRA did not take into account in its original investigation or review that is relevant to the measure
- the TRA has made an error in relation to its recommendation
- exceptional circumstances make the request appropriate
The TRA must comply with the request to conduct an early review, after having been consulted by the Secretary of State. The consultation between the Secretary of State and the TRA is to determine how the early review could be conducted, the intended scope of the review, the duration of the review, how the TRA will report on the review (to the Secretary of State or published for comment) and whether an EIT is required as part of that review.
If an early review is initiated, a notice of initiation will be published on the TRA’s public file, along with anything the TRA considers to be material to the early review. The TRA will be able to use information, both confidential and non-confidential, that was submitted during the original investigation or review, alongside other information that the Secretary of State may request the TRA reviews.
Before making its final determination, the TRA may publish a SIFD, allowing for interested parties and contributors to comment on its summary of facts and the proposed determination.
If the TRA makes a determination to vary or revoke a measure following an early review, the TRA must provide a new recommendation to the Secretary of State, including any alternative options the TRA considers appropriate to include (see guidance section on alternative options). The TRA should include the rationale for its recommendation, including the information it has used in reaching its conclusions. This may include explaining how information or analysis led to recalculation of injury or any changes to the EIT.
The TRA may find, after initiating an early review following its consultation with the Secretary of State, that a review of the grounds of an early review is no longer feasible. If this is the case, the TRA will provide the Secretary of State with advice that the early review should no longer continue. The Secretary of State will then decide whether to terminate the review. The reasons for this decision will be published on the public file following the Secretary of State’s decision.
To see how early reviews may interact with reconsiderations and appeals, please see the relevant guidance.