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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere
WTO Standard: Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information) or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities.
Such information shall not be disclosed without specific permission of the party submitting it (footnote omitted). (AD Agreement, Art. 6.5; SCM Agreement, Art. 12.4)
Argentina | Bolivia | Brazil | Canada | Chile | Colombia | Costa Rica | Dominican Republic | Ecuador | El Salvador | Guatemala | Honduras | Jamaica | Mexico | Nicaragua | Panama | Paraguay | Peru | Saint Lucia | Trinidad & Tobago | United States | Uruguay | Venezuela
The standards of the WTO are directly applied.
Furthermore, Decree 766/94 foresees that the Commission takes precautions to protect confidential information, concerning its use and storage, and establishes appropriate responsibilities and sanctions for staff who break any rules established to this end. (Decree 766/94, Art. 92).
When initiating the investigation, the Technical Secretariat shall open a separate file, in which shall be placed the documents which the authorities, the complainant or the interested parties have determined are of a confidential nature.
Such documents shall be treated as confidential provided that the authority considers that they are grounds for so doing.
Information which has been received as confidential may only be utilized by the Technical Secretariat for the purposes for which it was requested.
Such information may not be disclosed without the specific authorization of the party providing it. Bi-ministerial Decision, Art. 17.
Information, which is, by nature, confidential, or submitted subject to the requirements for confidentiality, shall be treated as such and not disclosed without the express authorization of the party submitting it, provided that said confidentiality is well-founded. Information classified as confidential shall be processed separately. (Dec. 1602/95 - Art. 28.caput, Dec. 1751/95 - Art. 38.caput). In the event that information classified as confidential does not fully merit that classification and if the supplier of the information refuses to disclose any of it, even in summary form, said information may not be taken into consideration, unless convincingly proven by an appropriate source to be accurate. (Dec. 1602/95 - Art. 28.2, Dec. 1751/95 - Art. 38.2).
Section 85 of the Special Import Measures Act (SIMA), section 45 of the Canadian International Trade Tribunal Act and section 14 of the Tribunal rules provides that where information is designated as confidential, the Deputy Minister of National Revenue and the Tribunal shall each treat such information as confidential.
Prior to commencement of a hearing in a proceeding, the Tribunal may make confidential information available to independent counsel who have provided an undertaking of non-disclosure.
Any information that is, by its nature, deemed confidential (for example, because its release would impart a significant advantage to a competitor, or would have a significantly prejudicial impact on the person providing the information, or on a third person other than the recipient), and any information that the parties to an antidumping/subsidy investigation have submitted in confidence and with sufficient justification, must be treated as such by the Commission. Such information may not be released without the express permission of the party that submitted it. (Supreme Decree No. 16, Ministry of External Relations, published in the Diario Oficial on May 17, 1995).
INCOMEX, on initiating the proceeding, shall keep a separate file for those documents that the authorities, petitioner, or interested parties provide as confidential.
Such documents shall be handled confidentially, as provided for in the Constitution, and may only be examined by the authorities. Those who provide confidential documents should attach non-confidential summaries of them, as well as the justification of the request for confidential treatment.
Such summaries shall be sufficiently detailed to allow for a reasonable understanding of the substance of the information provided confidentially.
In exceptional circumstances, where a sufficient showing is made, those parties may indicate that such information cannot be summarized.
If INCOMEX considers that the documents provided as confidential documents should not be so considered, it shall request the person providing them to lift their confidential status, or to show why he refrains from doing so. The confidential nature of a document may not be raised as an objection to a request for it made by the authorities in the proper performance of their functions.
The authorities are responsible for ensuring the confidential handling of such documents when they are considered in the course of the proceedings referred to by this decree. The information provided confidentially shall not be revealed without express authorization of the party who has provided it. In implementing the provisions of this article, when documents are provided as confidential documents and the respective non-confidential summaries are not attached, or the confidentiality is not mentioned, or the confidentiality is not lifted when INCOMEX so requests, or the reasons why the party providing the documents refrains from doing so are not given, or when they are not duly justified, it is possible to ignore the documentation submitted as confidential, unless a convincing showing is made, from an appropriate source, that the information is correct. In the proceedings provided for in this chapter, the rules on access to the file and confidentiality of confidential documents provided for in Articles 58 and 59 should be observed.
Any information which is by nature confidential, (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom he acquired the information) or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities.
Such information shall not be disclosed without specific permission of the party submitting it (the endnote is omitted).
Information shall be considered confidential if its disclosure or publication might injure the competitive position of the enterprise concerned.
A separate file, which may be inspected only by the competent authorities, shall be opened for confidential information provided by the applicant, other interested parties or the authorities. When confidential information is introduced into the investigation, it must be accompanied by a non-confidential summary. If the investigating authority considers that the documentation introduced as confidential does not warrant that description, it shall request the provider of the information to waive confidentiality.
If the provider refuses to waive the confidentiality of the information without good cause, the investigating authority may disregard such information for the purposes of the investigation, just as when confidential information is provided without a non-confidential summary. Access to confidential information shall be restricted to the competent authorities in the exercise of their functions, in the course of which confidentiality must be duly maintained.
El Salvador notifies in accordance with the provisions of the Antidumping and Subsidies and Countervailing Measure Agreements.
The Commission shall not disclose confidential information supplied to it by an interested party to the other interested parties unless the party submitting the information agrees to such disclosure.
Information is considered confidential if
(a) because of the nature of the information, disclosure of it would be of significant competitive advantage to a competitor; or
(b) its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information.
Information treated as confidential under this section shall not be disclosed by anyone who received such information by virtue of the provisions of this Act otherwise than in the discharge of his functions under this Act. Any person who contravenes the provisions shall be guilty of an offence and shall be liable on summary conviction before a Resident Magistrate to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment. Where a person who provides the Commission with evidence pursuant to the provisions of this Act wishes some or all of the evidence to be kept confidential, the person shall submit, at the time the evidence is provided, a statement identifying the evidence that he wishes to be kept confidential and stating the reason therefore.
In accordance with the provisions of Articles 158 of the Regulations and Articles 6.5 of the Agreement on Application of Article VI of the General Agreement on Tariffs and Trade of 1994 and 12.4 of the Agreement on Subsidies and Countervailing Measures, in order for the information provided by one of the parties concerned to be considered confidential, and for it in turn to be revealed to the individuals who are authorized for such purpose, the party having provided it must state in writing express consent to its being reviewed by the legal representatives of the other parties.
Likewise, only individuals (representatives of the parties concerned in the administrative investigation) who have the authorization of the investigating authority for such purpose are allowed access to confidential information, except for information considered privileged trade information.
For an individual to obtain authorization from the investigating authority to have access to the confidential information, such individual must first meet the requirements provided for in Articles 159 and 60 of the Regulations.
These requirements are:
i) To present to the Secretariat a written request showing the need to review the confidential information;
ii) In the event of being an attorney, to present the official documents attesting to the fact that the petitioner is a duly licensed attorney at law with a degree to practice in national territory, in accordance with the applicable laws. (If the petitioner is not an attorney, such petitioner must be assisted by a duly licensed attorney who has met the requirements referred to in items v) and ix), having common responsibility for the undue use of the confidential information).
iii) To present the original document attesting to representation or a certified copy thereof;
iv) To exhibit the public document attesting to the name and authority of the official of the enterprise granting the representation or a certified copy thereof;
v) To be a resident of Mexico;
vi) To assume and present the commitment of confidentiality under the terms disposed by the Secretariat in accordance with the provisions of the Law and in these Regulations;
vii) To show in writing knowledge of the responsibilities and penalties the individual could incur in the event of violating the confidentiality of the information with which such individual is being entrusted;
viii) To show in writing the reasons for which the confidential information the individual asks to review is relevant to the defense of such individual's case.
In such situation, the Secretariat may determine when it is considered that the confidential information may be useful in the defense of the case in question;
ix) To make a commitment to the Secretariat to return the original versions of notes or summaries drawn up in the review of the confidential information within ten days after the final decision has been handed down;
x) Not to have been convicted through a final and conclusive sentence for an intentional offense or administrative violation;
xi) To have a good personal and professional reputation;
xii) Not to have been a member of, have occupied an executive post in, or have acted as proxy or salaried agent of the enterprise the individual intends to represent nor of any of the concerned adversaries or assistants in the proceedings under way during the past year; and
xiii) Show some kind of security for the amount the Secretariat may establish in accordance with the fiscal laws in the event the individual commits an illegal act.
Article 159 of the Regulations establishes that the confidential information persons authorized by the investigating authority have the right to review shall be for strictly personal use and shall not be transferable for any reason. Article 161 of the Regulations establishes that confidential information shall be reviewed in the offices of the investigating authority and in the presence of an official of that office.
For this purpose the person authorized to access the confidential information shall be given reasonable time to review it, during which time such person will be able to prepare notes or summaries.
Likewise, when it so deems desirable, the investigating authority may provide copies of such information, indicating the requirements the authorized person must observe in handling such information and for its return.
In accordance with part VI of Article 93 of the Law, assuming that the confidential information is disclosed or used for personal benefit, a fine shall be levied proportional to the damage caused or to the benefit obtained by the disclosure or use of such information.
This shall be without prejudice to the corresponding criminal and civil penalties.
The evidence and information submitted by each of the interested parties shall be made known to each of the parties involved, except for that which has been consigned as confidential information, which will be treated as such by the Ministry of Industry and Commerce.
Nonetheless, in this case, the party that submits such information must provide non-confidential summaries of it or, in exceptional circumstances when this is not possible, set forth the reasons why such summaries cannot be provided.
When in the view of the Ministry of Industry and Commerce the application for certain information to be considered confidential is not justified, and the party that has provided it does not wish to authorize its disclosure in general or summarized terms, unless it is shown convincingly, from an appropriate source, that the information is correct.
The Dumping and Subsidies Commission shall ex officio or at the request of a party decide that information presented by the parties is by nature confidential.
Confidential information presented by the parties to an anti-dumping or subsidies investigation shall be accompanied by a non-confidential summary thereof and, upon good cause, shall be treated as such by the authorities. Where information is deemed confidential either by its nature or at the request of one of the parties and the interested party has not shown good cause or submitted the corresponding non-confidential summary, the Commission's Technical Secretariat shall request it to justify the confidential nature of the information and provide the corresponding non-confidential summary within three (3) days.
These summaries should be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence.
In exceptional circumstances, the parties may indicate that such information is not susceptible of summary, and in such circumstances, a statement of the reasons why summarization is not possible must be provided. Where the parties which provided confidential information do not present the relevant justification or the corresponding non-confidential summary within the time-limit fixed, the Commission may decide not to take this information into account, unless it can be convincingly demonstrated by an appropriate source that the information is correct, or it may order its return, whichever is appropriate.
Any information provided to the Authority on a confidential basis by any person in the course of an investigation will be treated as confidential by the Authority and will not be disclosed to any other person without the specific authorization of the person providing such information. (Sec. 20(1)).
A request for disclosure of business confidential data under administrative protective order ("APO") generally should be filed with the Commerce Department within 30 days after the date on which the notice of initiation was published in the Federal Register.
The APO application describes in general terms the business confidential information requested and sets forth the reasons for the request.
Upon receipt of the application, the Commerce Department will process the application and issue an administrative protective order which requires all proprietary information presented to, or obtained by Commerce, during an AD or CVD proceeding, to be disclosed to the representatives (usually the attorneys) of the interested parties who are parties to the proceeding.
Privileged information and classified information of a type for which there is a clear and compelling need to withhold from disclosure is exempt from being disclosed under an APO.
The representatives are not permitted to provide copies or discuss in any way the business confidential information received under APO.
Such action would be considered a breach of the APO and could lead to severe penalties, such as disbarment.
Business proprietary information is made available to authorized applicants under an APO issued by the ITC in an investigation.
An APO application must be received within seven days after publication in the Federal Register of the ITC's initiation notice in a preliminary phase investigation, or no later than 21 days before the scheduled date for the ITC's hearing in the final phase of investigation.
As in the case of APO issued by Commerce, the representatives of an interested party are not permitted to provide copies of the business confidential information received under APO to individuals not subject to APO, nor can they discuss such information with individuals not subject to APO.
Such action would be considered a breach of the APO and could lead to severe penalties, such as disbarment.
Any information which is by nature confidential or which is provided on a confidential basis by parties shall, upon good cause shown, be treated as such by the implementing authority. Such information shall not be disclosed without specific permission of the party submitting it. Information deemed to be confidential shall not be incorporated in the records of the proceedings and shall be known only to the implementing authority.
Interested parties providing confidential information must furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary, stating the reasons why summarization is not possible. If a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, such information may be disregarded unless it can convincingly be demonstrated that the information is correct.
The Commission and Technical Secretariat shall not disclose any information when the party providing such information requests that it should be treated as confidential. (1992 Law, Art. 48).
The party concerned shall indicate the grounds for treating the information as confidential... . A request for confidential treatment shall be dealt with according to whether disclosure of the information would be of significant advantage to a competitor or would have any other adverse effect upon the person providing the information or upon a third party. (Id.).
Where the Technical Secretariat considers that the request is not warranted, the information shall be attached to the file without prejudice to the informant's right to withdraw it if he so wishes. (1992 Law, Art. 50).
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