Confidentiality and Disclosure Guidelines for SIMA Proceedings

Note:

The SIMA Registry and Disclosure Unit will no longer accept paper submissions, unless prior consent is sought and obtained from a Disclosure Officer. To make such a request, please contact the SIMA Registry at simaregistry-depotlmsi@cbsa-asfc.gc.ca.

Introduction

These guidelines outline the Canada Border Services Agency's (CBSA) policies and procedures with respect to the submission of information (confidential and non-confidential) to the CBSA, and the disclosure of confidential information under the Special Import Measures Act (SIMA).

Definitions

The following definitions apply:

SIMA proceedings include dumping and subsidy investigations, scope proceedings, anti-circumvention investigations, re-investigations, normal value reviews, expedited reviews and expiry review investigations.

Parties to these proceedings can include the Canadian complainant, any domestic or foreign producer, and exporters to Canada or importers into Canada of the goods under investigation. Parties can also include an association of domestic or foreign producers, an association of exporters to Canada or importers into Canada of goods under investigation, the government of any country mentioned in the dumping or subsidy complaint, and any trade unions representing Canadian workers that indicate an interest in participating. A party could also be any other person who, because their rights or pecuniary interests may be affected or for any other reason, may be entitled to be heard by the President before the President disposes of the proceeding under SIMA.

Counsel includes any person, other than a director, servant or employee of the party, who acts in the proceedings on behalf of the party, not limited to legal counsel.

Confidential information generally includes personal or financial information, business proprietary information, or third party information. Persons submitting information to the CBSA in a SIMA proceeding may designate as confidential any portion of the data which they wish to have maintained in confidence. The CBSA may reject a confidentiality designation if it considers the designation unwarranted. The submitting party can either withdraw the designation or provide further explanation as to why the information is confidential.

A Disclosure Undertaking is a form that prescribes the conditions under which disclosure of confidential information is granted, and contains the counsel’s agreement to these conditions. A Disclosure Undertaking is available in the Counsel Toolkit.

Form Templates

The following forms are referenced throughout these guidelines:

  • Letter of Authorization
  • Disclosure Undertaking
  • Disclosure Undertaking (Non-resident Counsel)
  • Certificate of Destruction
  • Designation of Confidential Information

Templates for these forms are available in the Counsel Toolkit.

Submitting Information to the CBSA in SIMA Proceedings

Format of Information Submitted

You must submit your response electronically, via e-mail (with size of 10 MB or less), on CDs, DVDs or USB drive. Submit the confidential information and the non-confidential edited version or summary separately, labelled as follows: CONFIDENTIAL or NON-CONFIDENTIAL, company name, date and SIMA case file number (insert case file #). Due to CBSA e-mail size restrictions, e-mailed submissions with a size greater than 10 MB cannot be accepted. Paper submissions will only be accepted with prior approval from a Disclosure Officer.

Use the YYYY-MM-DD format for all dates. For example, write October 23, 2019 as 2019-10-23.

Narrative or text responses must be provided in Microsoft Word compatible format. Spreadsheets or data responses must be provided in Microsoft Excel compatible format. Files may be submitted in a compressed ZIP format, but not RAR.

Your response must state each numbered question followed by a complete response. If a question does not apply to your company or requests information in a format that is different than that in which it is maintained, an explanation as to why the question does not apply or how the information was adjusted to respond to the question is required.

Your response must be in either English or French. Any source material that you provide must be in the document’s original language and must be accompanied by a translation in either English or French.

Submission of Non-Confidential Information Only

Where a submission contains no confidential information, each page must be marked "non-confidential." The submission must be accompanied by a cover letter stating that it does not contain any confidential information and can be released to the public.

Submission of Confidential Information

In the case that a submission contains confidential information, the confidential version must:

  • clearly identify confidential information by enclosing it within square brackets and highlighting all confidential information therein; and
  • have "confidential" stamped on every page, including all attachments.

Further, when you are providing confidential information for the first time in respect of a SIMA proceeding, a Designation of Confidential Information must also be provided. Please refer to the Designation of Confidential Information template available in the Counsel Toolkit.

Examples of Confidential Version

As an example, the following would be considered as an acceptable confidential version.

The selling price of product ABC to our Canadian distributor was US$ [25.99] per unit.

Note:

The highlighted text must clearly be legible.

Please ensure that the highlight does not render the text undecipherable when the information is converted electronically to PDF format.

In some cases (e.g. appendices and excel data), simply highlighting the confidential information, without the use of brackets, will be considered sufficient. To this effect, the following example represents an acceptable confidential version of a listing of export sales to Canada.

1 2 3 4 5 6 7
IMPTR DATSHIP INVNUM INVDATE QUANTITY EXTSP NETSP
XX Inc. 2016-02-16 14064555 2016-02-16 500 MT $500,000 $450,000
YY Inc. 2016-03-14 14179020 2016-03-12 250 MT $225,000 $202,500
ZZ Inc. 2016-04-14 14253018 2016-04-16 300 MT $330,000 $297,000

In order for submissions containing confidential information to be accepted as exhibits and taken into consideration by the CBSA, a Designation of Confidential Information must be on record with the CBSA regarding the subject proceeding, and a non-confidential version of the information must be provided in each instance.

The non confidential version is a public version of the same document with the confidential information fully removed, and must contain sufficient detail to enable readers to understand the nature of the submitted information, as they are provided to other parties involved in the proceeding and members of the public upon request.

A non-confidential version may be submitted either as a bracketed version, or as summary, as described below:

  1. Non-Confidential Bracketed Version

    This is a duplicate of the confidential version with all confidential information removed. The parts where confidential information was deleted should clearly be identified in square brackets and highlighted. Only confidential information may be removed, and a sufficient level of detail must be left in the non-confidential bracketed version to provide a clear understanding of the substance of the information.

    Examples of Non-Confidential Bracketed Version

    As an example, the following would be considered as an acceptable non-confidential bracketed version.

    The selling price of product ABC to our Canadian distributor was US$[] per unit.

    Note:

    The spacing between the brackets [] should reflect the same number of spaces as in the confidential version.

    Do not use “shading”, “font colors” or any other type of masking to hide confidential information in the non-confidential version. You must delete (remove) the confidential information in the non-confidential version.

    In some cases (e.g. appendices and excel data), it will be considered sufficient to simply remove the confidential information, and not use brackets or highlights to identify parts where confidential information had been deleted. To this effect, the following example represents an acceptable non-confidential bracketed version of a listing of export sales to Canada.

    1 2 3 4 5 6 7
    IMPTR DATSHIP INVNUM INVDATE QUANTITY EXTSP NETSP
    2016-02-16 14064555 2016-02-16
    2016-03-14 14179020 2016-03-12
    2016-04-14 14253018 2016-04-16
  2. Non-Confidential Summary Version

    Where deleting information for a non confidential bracketed version would not leave enough detail to provide an understanding of the confidential information removed, a non confidential summary of the deleted information must be included, describing the confidential information that has been removed, the name of the party and the reason why the information must remain confidential.

Rejection of a Submission

A non-confidential version is inadequate if it contains insufficient detail to convey a reasonable understanding of the substance and the nature of the information submitted in the confidential version. Further, the CBSA reserves the rights to determine whether a designation of information as confidential is warranted or not.

The CBSA will reject a confidential exhibit and not use it in any proceedings if, following the CBSA’s notification of any deficiencies, and within the specified timeframe, the submitting party fails:

  • to submit a satisfactory explanation of why the information has been designated as confidential, or does not withdraw the designation; and/or
  • to provide an adequate non-confidential bracketed version or non-confidential summary, or justify why it cannot be provided.

Disclosure of Confidential Information in SIMA Proceedings

Non-confidential exhibits are disclosed to any person on request. Confidential exhibits may be disclosed pursuant to subsection 84(3) of SIMA to independent counsel representing a party to the SIMA proceeding for which the exhibits relate, and who have valid Disclosure Undertakings.

Disclosure Undertaking

By signing a Disclosure Undertaking, counsel agrees:

  • to use the information exclusively for duties performed in respect of the proceeding;
  • not to divulge the information except to personnel of the Trade and Anti-dumping Programs Directorate;
  • to protect the information in a specified manner;
  • to destroy the information on completion of the proceeding, or if they no longer represent the party, and notify the CBSA of the destruction of the information; and
  • to report any violations or suspected violations of a Disclosure Undertaking to the CBSA.

The Disclosure Undertaking must be signed by counsel certifying to these matters. Please refer to the Disclosure Undertaking template available in the Counsel Toolkit.

A Disclosure Undertaking is valid from the date it has been approved and expires on December 31 of the fifth year. If counsel represents parties in future SIMA proceedings, he/she can submit a copy of the valid Disclosure Undertaking and a letter of authorization signed by the party he/she represents in order to obtain access to confidential exhibits.

Counsel will be notified if the Disclosure Undertaking has been approved by a Director of the Trade and Anti-dumping Programs Directorate. Where disclosure is not granted, a letter to counsel will provide reasons.

The CBSA may reject a disclosure undertaking request where there is reason to believe that counsel has violated a Disclosure Undertaking in the past with the CBSA, with the Canadian International Trade Tribunal or with a NAFTA or CUSMA Binational Panel.

The CBSA may also suspend a counsel’s disclosure undertaking if a Certificate of Destruction is not submitted in a timely manner. Please refer to the section on Change of Counsel and Destruction of Confidential Information within this guideline.

Non-Resident Counsel

The CBSA may disclose confidential information to counsel who is not a resident of Canada under certain conditions. The non-resident counsel must submit a completed Disclosure Undertaking as well as a copy of the letter of authorization, signed by the party they represent, informing the CBSA that they have retained such counsel to represent them in the proceedings. In addition, non-resident counsel must agree to have access to confidential information under the direction and control of a Canadian counsel who has been authorized by the CBSA to receive disclosure in the proceedings. The non-resident counsel must agree to access the confidential information at the Canadian offices of Canadian counsel, or at the offices of the CBSA in Ottawa, Ontario. The disclosure undertaking for a non-resident counsel is valid for one time use only. Please refer to the Disclosure Undertaking (Non-resident Counsel) template, available in the Counsel Toolkit, for complete information on the declarations, undertakings and acknowledgements necessary from non-resident counsel and Canadian counsel in this regard.

Obtaining Confidential Information

Counsel may obtain copies of confidential exhibits for a SIMA proceeding by submitting to the SIMA Registry a copy of their valid Disclosure Undertaking and a letter of authorization confirming that they represent a party to the proceeding. Counsel should clearly identify the specific exhibit numbers they wish to obtain. The CBSA’s service standard is to process these requests within two business days.

The CBSA will add new information to its online listing of exhibits semi-weekly, on Tuesdays and Thursdays by 3:00 PM, EST. During high volume periods, the website may be updated more frequently.

Requesting Permission to Share Company-Specific Information

In the course of a SIMA proceeding, counsel may submit exhibits with confidential information relating to companies other than their clients. Counsel with a valid Disclosure Undertaking may request permission from the Director of SIMA Operational Policy to share the confidential version of an exhibit with the company they are representing, where the information contained in the exhibit is specific to that company.

Change of Counsel

Where a party to a proceeding changes counsel, the party must submit a letter identifying the previous counsel and stating that such counsel no longer acts on its behalf and a letter of authorization identifying the new counsel. In such cases, the first counsel must destroy confidential exhibits and materials that have been obtained pursuant to the proceeding and confirm their destruction, by providing the CBSA with a certificate of destruction. Please refer to the Certificate of Destruction template available in the Counsel Toolkit. These activities must be completed within 30 days after the party filed notice with the CBSA that counsel has changed.

Destruction of Confidential Information

Counsel must destroy all exhibits and materials containing information disclosed under the conditions of the Disclosure Undertaking, including notes, charts and memoranda based on such information at the completion of a SIMA proceeding. Counsel must provide a written statement to the CBSA within 45 days of the completion of a SIMA proceeding certifying to these matters. Please refer to the Certificate of Destruction template available in the Counsel Toolkit.

In cases of an appeal to a CBSA finding, to the Federal Court of Appeal or the CITT, and/or judicial review, a postponement of destruction of confidential information may be requested by a counsel. For more information, please contact the SIMA Registry.

Release of Confidential Information to Canadian Courts, Tribunals and Panels

Confidential exhibits are released to the Canadian International Trade Tribunal, any Court in Canada, a Binational or World Trade Organization (WTO) Panel. These organizations will use the information to fulfill their responsibilities under Canadian law, NAFTA, CUSMA or WTO Agreements. The confidential information is subject to the rules of procedure of the Court or Panel to which it is provided.

Offence Provisions

Section 96.4 of SIMA outlines the offences and penalties for contraventions of disclosure provisions. An offence is committed where a person uses information disclosed to that person for any purpose other than the purpose for which it was disclosed. This includes contraventions of conditions imposed by the CBSA in a Disclosure Undertaking.

Every person who commits one of the above offences is guilty of an indictable offence and liable to a fine of not more than $1,000,000; or an offence punishable on summary conviction and liable to a fine of not more than $100,000.

Further Information

For further information regarding disclosure provisions, please contact the SIMA Registry.

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