Reconsideration and appeals statutory guidance
How the TRA will conduct reconsiderations for trade remedy anti-dumping, countervailing and safeguard trade remedies measures.
This guidance sets out how the Trade Remedies Authority (“TRA”) will conduct reconsiderations for trade remedy anti-dumping, countervailing and safeguard trade remedies measures.
Business wanting to understand trade remedies should 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 regarding the conduct of trade remedies reconsiderations in relation to decisions concerning anti-dumping, countervailing and safeguard measures:
- ‘reconsideration and appeals regulations’ refer to the Trade Remedies (Reconsideration and Appeals) (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
- Trade Remedies (Safeguards) (EU Exit) (Amendment) Regulations 2023
- Trade Remedies (Amendment) Regulations 2024
This statutory guidance explains how the legislation applies following these amendments.
Interested parties may apply for a reconsideration of certain ‘original decisions’ taken by the TRA. An original decision is a determination or a recommendation made by the TRA to the Secretary of State that is listed in Schedule 1 to the reconsideration and appeal regulations. Decisions taken by the Secretary of State cannot be reconsidered and must be appealed to the Upper Tribunal. This means, for example, that if the Secretary of State takes a different decision to that recommended by the TRA during the original investigation or review, the Secretary of State’s decision cannot be reconsidered and must be appealed to the Upper Tribunal.
A recommendation or determination made after an early review is not open to reconsideration and must be appealed to the Upper Tribunal.
An application for reconsideration of an original decision must be received by the TRA within one month, beginning on the day after notice of that decision is published or, if later, comes into effect. Where no notice is published, the application must be received within one month beginning on the day after the applicant has been notified of the TRA’s decision.
So, for example, where the timeframe begins on 28 February, an application for reconsideration must be received by the TRA no later than the corresponding date one month later (28 March). If this 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.
The TRA can only carry out a reconsideration when an application has been submitted and can only reconsider the original decision on the grounds in the reconsideration application.
The TRA should decide what information it will require to conduct the reconsideration, which may include information used in the original investigation or review and additional information sought from any person during the reconsideration.
Multiple applications for a reconsideration
The TRA has discretion to decide how it manages multiple applications for reconsiderations on the same measure.
Where the TRA has accepted more than one application for reconsideration of the same original decision, the TRA may make a single reconsidered decision. If the TRA decides to combine multiple requests for a reconsideration into a single reconsideration, it must communicate this to the relevant applicants and explain its decision. This will provide clarity to applicants on the breadth of grounds that have been raised and will give interested parties a chance to provide comments to the TRA on any or all of those grounds.
Where the TRA combines reconsideration applications, it may consider all confidential information submitted by interested parties in the multiple applications and in any submissions made during the course of the combined reconsideration.
If the TRA decides that multiple requests for reconsideration on the same measure should be run separately, confidential information submitted to the TRA in respect of each individual application must only be used in relation to that application.
Confidential information can only be used in other applications relating to the same measure with the express consent of the party submitting the information.. Confidential information will not be used to inform reconsiderations related to any other measure. Information placed on the public file is accessible to all and may be used in any investigation, review or reconsideration.
Following the conclusion of a reconsideration, the TRA may only uphold or vary the original decision. This is known as a “reconsidered decision”, even if the original decision has been upheld.
The TRA may decide that the original decision it made in the original investigation or review is still the correct one. If the TRA determines this, it will not make a formal recommendation to the Secretary of State. Instead, the TRA will notify the Secretary of State of the outcome of its reconsideration.
If the TRA decides to vary an original decision that was the subject of a public notice issued by the Secretary of State, it will send a recommendation to the Secretary of State in respect of the reconsidered decision.
If, following a reconsideration, the Secretary of State wants to take a decision other than in accordance with that recommended by the TRA, the Secretary of State must consider whether there is sufficient evidence in the reconsideration to take a different decision. If the Secretary of State decides that there is insufficient evidence, they can ask the TRA for advice, information or other support with taking that decision.
The Secretary of State must consult the TRA before asking for advice, information or other support when intending to apply a measure other than in accordance with the TRA’s reconsidered recommendation. During this consultation, the Secretary of State and the TRA should agree an appropriate period of time during which this support should be given, so that the reconsideration is completed in a timely manner.
The advice, information or other support from the TRA to the Secretary of State may include, but is not limited to:
- recalculations of injury / dumping / subsidisation rates
- advice on whether an alternative measure would meet the Economic Interest Test (EIT)
- providing information 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
If interested parties disagree with the outcome of an early review, they are able to submit an appeal to the Upper Tribunal. Reconsideration of the TRA determination or recommendation in an early review is not available.
For further information on early reviews, please see the relevant guidance for dumping and subsidy early reviews and safeguard early reviews.
An appeal is the process by which interested parties can apply to challenge a decision made by the Secretary of State, or specific decisions taken by the TRA. Appellants can challenge decisions that are taken by either the Secretary of State in relation to a measure, or the outcome of a reconsideration undertaken by the TRA. Interested parties must submit applications for an appeal to the Upper Tribunal, which will hear the appeal.
At the end of the appeal process, the Upper Tribunal can dismiss the appeal, or set aside all or part of the decision to which the appeal relates. If the Tribunal sets aside all or part of the TRA’s reconsidered decision, it will refer the matter back to the TRA with a direction to reconsider the reconsidered decision and make a new decision in accordance with the Tribunal’s ruling.
The TRA may receive an application for a reconsideration and a request for an early review of the same measure. Applications for a reconsideration may be submitted by different interested parties and the grounds may vary.
An interested party may thus apply for a reconsideration of an original decision relating to a measure which is already subject to an early review initiated by the TRA. Similarly, the Secretary of State may ask the TRA to conduct an early review of a measure which is already the subject of a reconsideration. Where this happens, the TRA must run the early review and reconsideration at the same time.
Once a reconsideration request has been accepted, the TRA should 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. The TRA should do this in a timely manner following the initiation of an early review, to allow reconsideration applicants the chance to ask questions of the TRA and understand how an early review may impact the reconsideration. The TRA should also notify the Secretary of State if a reconsideration is initiated after the TRA has begun an early review, providing the Secretary of State with an understanding of how this may affect the early review.
Although the early review and reconsideration will be conducted at the same time, where confidential information is received as part of one process, it cannot be disclosed or used as part of another process without the specific consent of the party providing the information.
The TRA can ask parties providing confidential information as part of a reconsideration for their consent to use that information in a parallel early review (or vice versa). Confidential information that was used in the original investigation can be used during both processes. However, confidential information submitted as part of either the early review or reconsideration cannot be considered in the other process without that consent. Non-confidential information that is submitted and placed on the public file can be used in both processes.
If any early review is completed before the TRA has made its recommendation in a corresponding reconsideration, the TRA must take the outcome of the early review into account in the reconsideration. If a reconsideration is completed before the parallel early review, the TRA must take the outcome of the reconsideration into account in the early review. The TRA will also notify the Secretary of State of the outcome of any reconsideration where it does not make a recommendation to the Secretary of State, should it conclude the reconsideration before the early review.
Where the reconsideration has varied the original measure, this will allow the Secretary of State to take the outcome of a reconsideration into account when making a decision on the TRA’s recommendation following an early review.
If the TRA provides the Secretary of State with a recommendation in an early review, and the Secretary of State implements a change to the measure, the TRA will inform interested parties of that change and explain how it may affect the applicants’ reconsideration grounds.
As part of taking into account the outcome of the early review in the reconsideration, the TRA should consider whether it is appropriate to permit existing applicants to amend their grounds for reconsideration in light of any changes to the measure following the early review. Other parties may also provide submissions to the TRA relating to any such change. The TRA should continue the reconsideration, but the applicant may at any point request the TRA terminates its reconsideration, including after the conclusion of an early review. If there is more than one applicant, then they would all have to agree for the reconsideration to be terminated.
The TRA should reference the outcome of a concluded parallel early review in the corresponding reconsideration report (or vice versa, depending on which is concluded first) together with, where appropriate, any information relevant to both the early review and reconsideration.
The outcome of a reconsideration is appealable but not subject to reconsideration. The outcome of an early review is also appealable but not subject to reconsideration.