./.  WORLD TRADE  
ORGANIZATION  TN/RL/W/162 
29 June 2004  
 
(04-2791) 
Negotiating Group on Rules Original:   English 
   
PROMPT ACCESS TO NON-CONFIDENTIAL INFORMATION 
(ARTICLES 6.4 AGREEMENT ON ANTI-DUMPING PRACTICES 
AND 12.3 AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES)
1 
 
Communication from the United States  
 
 
 The following communication, dated 28 June 2004, is being circulated at the request of the Delegation of the United States.  
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 The Members have agreed to take up the issue of clarifications and improvements to the Anti-
Dumping Agreement (ADA) and Agreement on Subsid ies and Countervailing Measures (ASCM).  In 
this effort, the United States proposed that this Group examine clarifications designed to improve 
prompt access to non-confidential information.2  While the Agreements recognize that confidential 
information may be protected from public disclosur e, in many cases the United States has found that 
interested parties do not even have prompt  access to supposedly "public" information. 
  Although Articles 6.4 ADA and 12.3 ASCM already address this issue
3, their language could 
be misunderstood to shield authorities from their obligation to allow interested parties access to 
non-confidential information.  There are at least fi ve aspects of Articles 6. 4 and 12.3 that could be 
misinterpreted to support an argument against pe rmitting any access to non-confidential information.  
First, Articles 6.4 and 12.3 require access to in formation "whenever practicable".  While the 
United States supports the view that authorities sh ould not be required to do the impracticable, it 
should be made clear that the "practicability" stan dard is intended to allow authorities to establish 
orderly access, not to circumscribe acc ess so that the purpose of Articles 6.4 and 12.3 is undermined.   
 
 Second, Articles 6.4 ADA and 12.3 ASCM require that access to non-confidential information be "timely".  It should be clarified that access should be as prompt as possible after the authority comes into possession of non-confidential in formation concerning an investigation, taking 
due account of the need to maintain orderly access, and,  in any event, in sufficient time to allow the 
interested party to defend its interests.  While Articles 6.1.2 ADA and 12.1.2 ASCM require prompt 
                                                     
 
1 The delegation of the United States has requested th at this paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB (04)/89), also be circulated as a formal document. 
2 TN/RL/W/35.  The issue raised in  this paper is limited to clar ifying and improving timely access to 
non-confidential information submitted or gathered during the course of a proceeding.  In a separate paper the 
United States may elaborate on its ideas with respect to confidential information under Articles 6.5 ADA and 
12.4 ASCM, and public notice and explanation of determinations under Articles 12 ADA and 22 ASCM. 
3 ADA Article 6.4 states that "the authorities shall whenever practicable provide timely opportunities 
for all interested parties to see all information that is relevant to the presentation of their cases, that is not 
confidential as defined in paragraph 5, and that is used by the authorities in an anti-dumping investigation, and to prepare presentations on the basis of this informat ion".  ASCM Article 12.3 contains nearly identical 
language. TN/RL/W/162 
Page 2  
 
access to non-confidential information presented in wr iting by a party, they do not cover information 
gathered by the authority itself.     Third, Articles 6.4 ADA and 12.3 ASCM require th at interested parties be permitted to "see" 
the non-confidential information.  Given that th e information is non-confidential, Members should 
clarify that parties may make photocopies of the information.   
  Fourth, interested parties are permitted to see the information "that is relevant to the 
presentation of their cases".  Members should clarify that  it is the interested party, not the authority, 
that may make the determination of relevance.   
 
 Fifth, Articles 6.4 ADA and 12.3 ASCM  require access to non-confidential information that is "used" in an investigation.  However, if au thorities misread these provisions as permitting them to 
deny access to any information that they do not use,  then interested parties may only have access to 
information that supports and does not detract from the authorities’ conclusions. 
 
 With these concerns in mind, Articles 6.4 ADA and 12.3 ASCM could be clarified and improved as follows:  1. Require authorities to establish a central location with fixed daily opening hours where 
interested parties can, without prior appointment, review and make copies of all 
non-confidential information that has been subm itted to or obtained by the authority for an 
investigation; 
 2. Require authorities promptly to place copies of all non-confidential in formation relating to 
each investigation in this central location, whether that information is submitted by an 
interested party, or obtained by the authority in any other manner; 
 3. Clarify that interested parties have access to  all non-confidential info rmation submitted to or 
obtained by an authority for an investigation, regardless of whether the authority considers a 
particular piece of information to be re levant to the presentation of their cases; 
 
4. Clarify that interested parties have access to  all non-confidential info rmation submitted to or 
obtained by an authority for an investigation,  regardless of whether the authority uses or 
intends to use a particular piece of information; 
 5. Clarify that the public shoul d be given equivalent access to review and make copies of all 
non-confidential information rela ting to any antidumping or count ervailing duty investigation. 
 
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