[Federal Register Volume 69, Number 16 (Monday, January 26, 2004)]
[Notices]
[Pages 3562-3564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1573]


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DEPARTMENT OF COMMERCE

International Trade Administration

Docket number: 031120285-3285-01


Certification and Submission of False Statements to Import 
Administration During Antidumping and Countervailing Duty Proceedings

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce

ACTION: Notice of Inquiry

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SUMMARY: The Tariff Act of 1930, as amended, requires that any person 
who provides factual information to Import Administration (IA) during 
an antidumping or countervailing duty proceeding must certify to the 
accuracy and completeness of such information. IA regulations set forth 
the specific content requirements for such certifications. IA may refer 
and has referred allegations of fraud regarding these certifications to 
the Department of Commerce's Office of Inspector General or to U.S. 
Customs and Border Protection, for appropriate disposition. However, IA 
currently has no regulations setting forth procedures for

[[Page 3563]]

investigating or potentially imposing sanctions against persons who 
certify and submit false statements to IA during antidumping or 
countervailing duty proceedings. IA is now considering proposing 
regulations that would establish procedures that the agency would 
follow when it has reason to believe that a person has certified and 
submitted false statements, or engaged in a scheme to certify and 
submit false statements, in the course of an antidumping or 
countervailing duty proceeding. The goal of this notice of inquiry is 
to collect information as to whether IA should consider such 
regulations and, if so, what procedures and administrative sanctions 
those regulations should establish.

DATES: Comments must be received within 60 days from the date of 
publication of this notice.

ADDRESSES: Written comments (original and six copies) should be sent to 
James J. Jochum, Assistant Secretary for Import Administration, U.S. 
Department of Commerce, Central Records Unit, Room 1870, Pennsylvania 
Avenue and 14th Street, N.W., Washington, D.C. 20230.

FOR FURTHER INFORMATION CONTACT: Elizabeth C. Seastrum, Senior Counsel, 
or Philip J. Curtin, Attorney Advisor, Office of the General Counsel, 
Office of Chief Counsel for Import Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 
20230, 202-482-0834 or 202-482-4224.

SUPPLEMENTARY INFORMATION:

Background

    The Tariff Act of 1930, as amended, requires any person who 
provides factual information to IA during an antidumping or 
countervailing duty proceeding to ``certify that such information is 
accurate and complete to the best of that person's knowledge.'' Tariff 
Act of 1930, as amended, Sec. 782(b), 19 U.S.C. Sec. 1677m(b). 
Department of Commerce regulations further stipulate that a company 
official, when submitting information to IA, must certify that ``(1) I 
have read the attached submission, and (2) the information contained in 
this submission is, to the best of my knowledge, complete and 
accurate.'' 19 CFR 351.303(g)(1). Legal counsel or other 
representatives for parties appearing before IA must certify that ``(1) 
I have read the attached submission, and (2) based on the information 
made available to me by (person), I have no reason to believe that the 
submission contains any material misrepresentations or omission of 
fact.'' 19 CFR 351.303(g)(2).
    IA may refer and has referred allegations of fraud regarding these 
certifications to the Department of Commerce's Office of Inspector 
General or to U.S. Customs and Border Protection for appropriate 
disposition. However, there are no regulations setting forth internal 
procedures for IA to investigate the behavior of professionals 
practicing before the agency and to remedy violations of the 
certification requirement.\1\ Similarly, there are no procedures to 
investigate and administratively sanction the behavior of company 
officials certifying to incomplete or inaccurate information.
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    \1\ In contrast, IA does have regulations that describe the 
agency's procedures for investigating and imposing sanctions for 
violations of administrative protective orders. 19 CFR part 354. 
Additionally, IA routinely responds to parties which have failed to 
cooperate during an antidumping or countervailing duty proceeding by 
use of its authority to apply adverse facts available, as 
appropriate. IA is not considering changing any aspect of these 
practices, which are based on statutory and regulatory provisions 
and judicial precedent.
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    In order to protect the integrity of its administrative processes, 
IA is now considering proposing regulations to govern its investigation 
of allegations of false statements to the agency during antidumping and 
countervailing duty proceedings and the imposition of sanctions 
including possible disbarment from practice before the agency against 
those persons found to have certified and submitted false statements or 
engaged in any scheme to provide such statements.
    The goal of this notice is to collect information from members of 
the bar who regularly practice before IA, as well as from interested 
members of the general public, in order to assist IA in determining 
whether to issue regulations pertaining to false statements and, if so, 
what those regulations should address. Therefore, comments are 
solicited until 60 days from the date of publication of this Notice of 
Inquiry. IA is particularly interested in comments relating to the 
questions set forth in the attached Appendix.

Comments

    Persons wishing to comment should file a signed original and six 
copies of each set of comments. The period for submission of comments 
will close 60 days after the publication of this notice in the Federal 
Register. The Department will consider all comments received before the 
close of the comment period in developing any regulatory proposal. 
Comments received after the end of the comment period will be 
considered if possible, but their consideration cannot be assured. The 
Department will not accept comments accompanied by a request that a 
part or all of the material be treated confidentially because of its 
business proprietary nature or for any other reason. The Department 
will return such comments and materials to the persons submitting the 
comments and will not consider them in development of any regulations. 
All comments responding to this Notice of Inquiry will be a matter of 
public record and will be available for public inspection and copying 
at Import Administration's Central Records Unit, Room B-099, between 
the hours of 8:30 a.m. and 5 p.m. on business days. The Department 
requires that comments be submitted in written form. The Department 
recommends submission of comments in electronic form to accompany the 
required paper copies. Comments filed in electronic form should be 
submitted either by e-mail to the webmaster below, or on CD-ROM. 
(Comments received on disk are likely to be damaged by postal radiation 
treatment.)
    Comments received in electronic form will be made available to the 
public in Portable Document Format (PDF) on the Internet at the IA Web 
site at the following address: http://ia.ita.doc.gov/.
    Any questions concerning file formatting, document conversion, 
access on the Internet, or other electronic filing issues should be 
addressed to Andrew Lee Beller, Import Administration Webmaster, at 
(202) 482-0866, email address: [email protected].

    Dated: January 20, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.

Appendix

(1) Are the current certification requirements sufficient to protect 
the integrity of IA's administrative processes? If not, should the 
current certification statements, as required by IA's regulation, be 
amended or strengthened? If so, how? For example, should the submission 
be identified more precisely, and the name of the company and date be 
more precise? Should the standard of knowledge be stronger or more 
precise? (Please propose language.) Does the statutory provision need 
to be amended or strengthened? If so, how? (Please propose language.) 
If the current certification requirements are sufficient, please 
comment why and whether improvements in existing procedures may be 
made.

[[Page 3564]]

(2) Should IA promulgate regulations establishing procedures for its 
investigations of allegations of fraud or false statements, including 
administrative sanctions against persons found to have committed fraud 
during antidumping or countervailing duty proceedings?
(3) What should be the definition or scope of the terms ``fraud'' or 
``false statements'' as they may relate to any regulations which IA may 
promulgate? Should there be a requirement of actual knowledge, or would 
a lesser intent requirement suffice? Should there be a standard for 
materiality, and what should it be? Must the regulations be limited to 
written materials certified and submitted to the Department, or may 
oral statements, such as at verifications, be covered as well?
(4) Who should be subject to these regulations? Should they cover only 
fraud or false statements committed by attorneys and other 
professionals appearing before the agency, or should they also cover 
the foreign and domestic companies subject to IA's determinations?
(5) What should be the standard for initiation of an investigation?
(6) Should IA conduct any such investigation, or should another unit 
outside IA but within the Department conduct the investigation? If 
within IA, should a special unit be established, or should the existing 
APO unit assume this task? If outside IA but within the Department, 
where should the responsibility be placed?
(7) Should there be discovery? What rules would govern discovery, and 
who would adjudicate any disputes that arise during discovery? Should 
the Department and the suspected individual have the right to compel 
witnesses and production of documents?
(8) Should any adjudicatory proceedings include a hearing? Who would 
preside at a hearing? Would this person be the final decision-maker in 
the proceeding? What rules would govern a hearing? If there is no 
hearing, who would be the decision-maker?
(9) What type of remedial sanctions should be imposed upon a finding 
that a person committed a fraud? Is disbarment from practice before the 
agency an appropriate remedy in some cases? What type of sanction would 
apply to non-attorneys or to company officials?
(10) Should the regulations establish a procedure for an appeal within 
the Department? Who would hear such appeals?
(11) Should the regulations contain a procedure by which disbarred 
persons may seek reinstatement? What standards should govern 
adjudications of reinstatement?
(12) Should final adjudicatory decisions be confidential or public?
(13) Please provide any additional views on any other matter commenters 
would like to raise, including the necessity of regulations and what 
these regulations should address, as well as comments on whether any 
statutory changes are needed. References to the recently amended 
statutory and regulatory procedures for certification at the Securities 
and Exchange Commission, pursuant to sections 302 and 906 of the 
Sarbanes-Oxley Act of 2002, might be useful, as well as any other 
agency enforcement schemes which might be instructive.
[FR Doc. 04-1573 Filed 1-23-04; 8:45 am]
BILLING CODE 3510-DS-S