SIMA Registry Public Consultations
Summary of Stakeholder Responses
On January 30, the Canada Border Services Agency (CBSA) posted a consultation notice regarding the Registry and Disclosure unit’s proposed modernization of disclosure practices relating to its anti-dumping and countervailing program. The purpose of the consultation was to explore ways to make our services more secure, efficient and responsive to stakeholder needs. Written submissions were requested by February 20, 2017 and 12 submissions were received in total. The following report provides a summary of this feedback.
Two-business day service standard to action exhibit requests from stakeholders
The CBSA proposed that it maintain a two-business day service standard in fulfilling exhibit requests. This standard was qualified by the necessity of additional time required for courier delivery outside of Ottawa. This proposal was viewed positively by respondents although it was recognized that in most cases, the CBSA already maintains this standard on a routine basis. Qualifications to this opinion are provided below.
Sufficiency of Two-Business Days
Scenarios exist where the two-business day standard is not considered sufficient. This generally applies to last-minute submissions prior to the close of Record in which it is necessary to promptly access the exhibit and provide rebuttals before the Record’s close. Where counsel is acting on behalf of foreign clients, expedited access to exhibits becomes more critical as inherent delays already exist in preparing rebuttals. To address this issue, a respondent recommended that the service standard be reduced from two-business days to a 24 hour period with notification to counsel of last minute filings.
An additional concern was that counsel, when located outside of the Ottawa area, would incur added delays in receiving disclosures as they were unable to retrieve disclosures directly from the registry, and, thereby prejudiced by the existing system.
Reduced Time for Documents to Appear on Exhibit List
A broader concern for most respondents is the amount of time it takes for documents filed with the registry to appear on the exhibit listing. This reduces the timeliness of exhibit availability and can be an important factor in time sensitive cases. Respondents believe this can be attributed to clarification issues surrounding confidentiality of submissions.
A recommended solution is to apply a two-business day service standard for posting exhibits to the exhibit listing. After public notification of this standard, filing parties would be responsible for ensuring that submitted documentation had been properly vetted and free of confidential information prior to submission to the CBSA. Where exhibits have been received that cannot be disclosed, it is recommended that the CBSA still post these documents to the exhibit listing within two business days of receipt, along with a notation indicating that availability for disclosure is pending. Where an issue regarding the exhibit arises, the confidential disclosures of the exhibit should still be provided to counsel who have filed undertakings within two business days. The party that filed the exhibit would likewise be given two business days to file a public version of the confidential exhibit. If appropriate non-confidential disclosures are not made, counsel could subsequently be directed by the CBSA to delete all confidential/non-confidential exhibits.
One respondent also noted an apparent discrepancy with regard to timeframes indicated on the CBSA website and the current proposal. The website specifies that stakeholders should allow 48 hours for the processing of exhibit requests where the current proposal indicates two-business days. Likewise the investigation schedule example indicates that the close of record, filing of case arguments and filing of reply submissions impose a deadline of noon on the due date. However, confidential versions of case arguments will be distributed on “the day following their respective due dates”. The respondent recommends that these deadlines be consistent and reflect 48-hour and 24-hour time periods respectively.
Respondent suggestions to facilitate processing times and improve access to exhibits include:
- Placing RFIs on the CBSA website on the day of Initiation thereby eliminating the need for emailed requests to the Registry
- Making non-confidential exhibits accessible on the CBSA website and reducing the number of exhibit requests
- Providing of a secure data room with password protection that is IP secured. This would allow counsel greater autonomy to file and access information and eliminate delays.
- Making disclosures available at local CBSA offices to limit delays in receiving exhibit requests by counsel outside the Ottawa area.
For most respondents, the two-business day service standard has already been recognized as the status quo and, therefore, is not perceived as a value added service. Of greater value to stakeholders would be a reduction in the time taken to place documents on the exhibit listing once they have been received by the CBSA.
Distribution of exhibits on USB keys or on DVDs
The CBSA proposed that counsel may elect to receive exhibit distributions on DVD or USB, with a requirement that all USB keys must be returned to the CBSA at the end of an investigation. Feedback on this practice provided a variety of responses from indifference to the use of either USB or DVDs, or a preference for one over the other. There was a slightly higher preference for the use of USBs supported by the following:
- Greater storage capacity of USBs
- USBs are more securable
- Requirement to return USBs provides the CBSA with greater assurance over the security of information but it is recognized that USBs are more susceptible to viruses
- DVD technology is being phased out where recent laptops are produced without DVD drives
However, one respondent who preferred the use of DVDs referenced greater ease of information retrieval and less administrative burden since there was no requirement to return DVDs.
In the distribution of exhibit materials, it would seem that providing for a choice of medium would satisfy more stakeholders, otherwise USBs were slightly preferred but there would not be a strong objection to either.
Proactive disclosure of exhibits
Currently, counsel must make a request for disclosure of exhibit documents. Using Proactive Disclosure the CBSA would release exhibit documents at three scheduled dates in the investigation. The first disclosure would occur two days after the close of record.
Generally, there was little support for Proactive Disclosures in the format proposed. The feedback provided below was shared by most of the respondents.
Issues related to Proactive Disclosures:
- Current practice allows for release of documents on request, allowing parties to comment on these exhibits either throughout the process or during case arguments. Limitation to three disclosure dates would not allow for ongoing response from counsel on importer/exporter submissions throughout the proceedings. This limits the CBSA’s ability to follow up on provided information with supplemental RFIs.
- Industry’s ability to participate in proceedings, including submission of case briefs, may be hindered by the scheduled timing of disclosures. As arguments cannot be submitted until after the close of record this date would not allow opportunity to provide additional information to the record to support such arguments. Additionally, the proposed scheduled disclosure date does not allow parties sufficient time necessary to defend their interests. This requires a review of exhibits, analysis of data, conducting legal research, formulating legal arguments and drafting a case brief before the deadline for case arguments.
Recommendations by Respondents:
Proactive disclosures should be supplemented with an ability to request specific exhibits ahead of scheduled disclosure dates. If the CBSA implements proactive disclosures they should be provided more frequently than the suggested three releases. A variety of alternative suggestions for release schedules are provided below
Alternative Release Schedules Proposed by Respondents
A range of alternative release schedules for Proactive Disclosure were proposed
- Increase Proactive disclosures to the following four periods during the investigation:
- receipt of the exporter responses to RFIs
- close of the record
- receipt of case arguments
- receipt of reply submission
- Increase Proactive disclosures to the following 10 periods during the investigation:
- five business days following the initiation of the investigation;
- five business days following the due date of the importer RFIs;
- five business day following the due date of the exporter RFIs;
- ten business days before the CBSA’s preliminary determination;
- two days following the CBSA’s preliminary determination (with copies of the exporter ruling letter to counsel);
- seven business days before the start of the verification period;
- three days before the close of the record;
- one day after the close of the record;
- one business day after the due date of the case arguments; and
- one business day after the due date of the reply arguments.
- Continuous release. The registry should automatically send any new exhibits to counsel when they are added to the exhibit list, provided counsel has agreed to pay for the extra charges that would be incurred.
There was significant concern that the proposed timing of Proactive Disclosures would reduce transparency and impose an unachievable administrative burden on counsel thereby preventing them from adequately defending the interests of their clients. To reduce potential questions of procedural fairness, initial Proactive Disclosures would be better placed at an earlier point in the investigation process and supplemented with an ability to request specific exhibits ahead of scheduled disclosure dates.
The CBSA sought feedback on the current undertaking requirements that must be met by counsel when requesting exhibit disclosures. Specifically addressed was whether such requirements should be updated as changes in technology may affect the way that information is used and accessed.
A range of responses from satisfaction with the current system to a desire to change methodologies were submitted. Recommendations for improvement reflect the need for multiple counsel in a firm to simultaneously access exhibit information thereby necessitating the ability to download documentation to a shared repository. Currently, standard undertakings preclude downloading of information to a computer. Respondents recommend that the CBSA adopt a similar policy to that of the CITT which recently allowed counsel to download information provided it adhere to the following conditions:
- ensure that the files, computers and other electronic devices the confidential exhibits are downloaded onto will be both physically and digitally secured at all times
- the files will be located behind an additional security wall such that only counsel that have signed an undertaking are able to access the documents
- any and all copies will be deleted upon conclusion of the matter from all computers, databases and other electronic devices
- the information will at all times otherwise remain subject to the terms of counsel’s undertaking
The following represents the variety of additional recommendations provided. The first four were received by more than one respondent while the remaining were received by the same single source.
- Electronic document submissions (EDI) is preferred for all document transfers including confidential documents, decisions and undertakings.
- The CBSA should migrate to the cloud for document submissions and access. This would provide enhanced confidential submissions, reduced timelines for access to exhibits and easier file transfer protocols that allow for submission of files greater than 10 MB. The latter would facilitate RFIs that significantly exceed the current 10 MB threshold.
- When new exhibits have been posted subsequent to a party’s exhibit request, these new submissions should be included in the response.
- Greater standards should be developed for non-confidential summaries to ensure they consistently provide a reasonable context for redacted information.
- In addition to the regular release of confidential disclosures, non-confidential summaries should be posted through an online portal.
- To reduce the requirement to be vetted prior to disclosure in each new case, the CBSA should maintain a roster of counsel to which previous disclosures had been provided. After initial vetting, counsel could then automatically receive disclosure without the need to submit undertakings for each new case. Each counsel would be obligated to ensure the ongoing accuracy of vetted information such as address changes, professional status etc.
- The Registry should send an email notification within 24 hours to parties and counsel each time new exhibits are added to the record. The CBSA website should be updated daily to accurately reflect new inclusions to the exhibit list.
- Establishing a standardized file naming protocol would facilitate easier navigation of documents released by the registry. A suggested naming standard is provided below:
[Investigation abbreviation]_[Party Name]_[Type of Filing]_[PRO/NC]_[Exhibit/Appendix/Attachment] [#]_[Description].xxx
- Provide access to standard forms such as Letter of Authorization and Disclosure of Undertakings on the CBSA website to eliminate the need to request the most up to date version from the registry.
- Submission of a standardized form entitled “Request to Duplicate Confidential Materials” should replace the current procedure of submitting a written request required for counsel that wishes to duplicate documents. Similarly, standard forms for “Certificates of Destruction” should replace the requirement for written letters when demonstrating that confidential information has been destroyed at the conclusion of an investigation.
Many of the proposals received reflect a desire for improved use of modern technology and increased access to information. Two submissions were related to parts of the program other than the registry and were forwarded to the appropriate area for further consideration.
The CBSA greatly appreciates the feedback it received on its SIMA Registry Modernization and Disclosure Practices. It will further review the suggestions received to determine what improvements it can make to its processes.
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