[Federal Register Volume 69, Number 183 (Wednesday, September 22, 2004)]
[Proposed Rules]
[Pages 56738-56741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21209]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 040722214-4214-01]
RIN 0625-AA66


Certification of Factual Information To Import Administration 
During Antidumping and Countervailing Duty Proceedings

AGENCY: International Trade Administration, Commerce.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The Department of Commerce (``the Department'') is proposing 
to amend a regulation, which governs the certification of factual 
information submitted to the Department by a person or their 
representative during antidumping and countervailing duty proceedings. 
The proposed amendments are intended to strengthen the current 
certification requirements, so that it is clear what has been 
certified, by whom and when, and so that parties and their counsel are 
aware of the potential consequences of false certifications.

DATES: Written comments must be received by November 22, 2004.

ADDRESSES: Address written comments to James J. Jochum, Assistant 
Secretary for Import Administration, U.S. Department of Commerce, 
Central Records Unit, Room 1870, 14th and Constitution Ave., NW., 
Washington, DC 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, NW., Washington, DC 
20230, 202-482-0834 or 202-482-4224.

SUPPLEMENTARY INFORMATION:
    Background: The Tariff Act of 1930, as amended, requires that any 
person who provides factual information to the Department during an 
antidumping or countervailing duty proceeding must certify to the 
accuracy and completeness of such information. See 19 U.S.C. 1677m(b). 
Department regulations set forth the specific content requirements for 
such certifications. See 19 CFR 351.303(g). The current language of the 
certification requirements does not address certain important issues. 
For example, the current language does not require the certifying 
official to specify the document or the proceeding for which the 
certification is submitted, or even the date on which the certification 
is submitted.
    Therefore, on January 26, 2004, the Department published a Notice 
of Inquiry in the Federal Register, and asked whether the current 
certification requirements are sufficient to protect the integrity of 
Import Administration's (``IA'') administrative processes and, if not, 
whether the current certification statements should be amended or 
strengthened and, if so, how. Certification and Submission of False 
Statements to Import Administration During Antidumping and 
Countervailing Duty Proceedings--Notice of Inquiry (``NOI''), 69 FR 
3562. (The Department also solicited views on the broader question of 
submission of false statements to IA. The views received with regard to 
this question are not addressed here.) The Department received comments 
in response to the NOI through March 26, 2004. The comments which 
concerned the question of certifications provided general 
recommendations for amending the certification requirements, as well as 
comments suggesting specific adjustments to the certifications filed by 
company officials and their representatives.
    General recommendations for amending the certification 
requirements: These suggestions include several comments proposing that 
the Department add language to the certification emphasizing the 
possible penalties for certification and submission of false 
statements. Suggested additions would include the fact that factual 
submissions may be verified, the possible use of adverse

[[Page 56739]]

facts available, the applicability of provisions of the criminal code 
concerning false claims made to the U.S. government (18 U.S.C. 1001; 31 
U.S.C. 3729), and any sanctions which IA may develop under new 
enforcement regulations. Another commenter suggests that the Department 
remind parties and counsel prior to all ex parte meetings, 
verifications and hearings that their obligation to provide truthful 
factual information extends to those proceedings.
    Department Position: The Department has adopted the first 
suggestion, to the extent that the proposed amendment states that 
criminal sanctions may be imposed for making false statements to the 
government. The Department has not included the second suggestion in 
the proposed amendment, but the Department agrees that parties and 
counsel have an obligation to provide truthful factual information in 
all proceedings before the Department, per 18 U.S.C. 1001.
    Suggestions for specific adjustments to the certifications: 
Comments regarding the certifications filed by company officials 
include one comment proposing that the Department require that: the 
certification be executed on the basis of personal knowledge or 
reasonable inquiry regarding the underlying facts; the certifying 
official keep records demonstrating the extent of inquiry; and, the 
certifying official inform the Department if he or she later becomes 
aware that certified information is materially false or incorrect. 
Several other commenters suggest that the Department require the 
identification of the actual submission being certified by date and 
title. Another commenter states that each certification should 
correlate with each response, so that a generic photocopy may not be 
used, as is now often the case. One other commenter suggests that the 
certifications clarify that they apply to all parties that submit 
information in the proceeding. Of particular concern to this commenter 
is information submitted by third-parties--for example, in non-market 
economy (NME) cases, producers of subject merchandise submitting 
information related to factors of production. Another commenter 
suggests that the Department require certifications from supervisory 
personnel, as well as from the individuals who prepare specific 
portions of a submission. A comment regarding specific adjustments to 
the certifications filed by legal or other representatives proposes 
that the above-suggested changes made in the certification by company 
officials be incorporated into the certification by counsel. Another 
commenter suggests that certification for counsel should bind not just 
the individual lawyer but that lawyer's entire firm.
    Department Position: The Department has attempted to incorporate 
each of these suggestions, to a certain extent, in this proposed 
amendment. First, certifying company officials would be required to 
have ``a reasonable basis to formulate an informed judgment as to the 
accuracy and completeness of the information contained in this 
submission,'' consistent with the statute. Their legal or other 
representatives would be required to make ``an inquiry reasonable under 
the circumstances'' prior to certifying to the best of their knowledge 
that the submission is accurate and complete. Second, the company would 
be required to maintain the original certification and have it 
available for inspection upon verification of the questionnaire 
responses. Finally, the company officials and their legal or other 
representatives would certify that ``this certification is deemed to be 
continuing in effect,'' thus requiring the certifying person to inform 
the Department if he or she possesses knowledge or has reason to know 
of a material misrepresentation or omission of fact in the submission 
or in any previously certified information upon which the submission 
relies.
    In addition, the proposed amendment would establish that 
submissions of factual information be certified by date and title. 
Also, the proposed amendment has been set up so that each specific 
submission to the Department be certified separately. Next, the 
proposed amendment would require the name of the individuals with 
significant responsibility for preparing specific portions of each 
submission to the Department, in addition to the name and title of 
supervisory personnel. These changes have been incorporated into the 
certification by counsel. Finally, the Department has not adopted the 
suggestion that certification for counsel bind counsel's entire firm 
because that is an issue beyond the scope of this exercise.
    Comments in favor of the status quo: Several commenters argue that 
the current certifications are adequate and effective, particularly 
since the existing rules of professional conduct for attorneys prevent 
the knowing submission of false evidence. Furthermore, one commenter 
argues that attorneys cannot be asked to certify either the 
completeness or accuracy of the factual submission, as to do so would 
be to impose on attorneys a standard of care that, as a practical 
matter, cannot be met.
    Department Position: The Department has not adopted these 
suggestions. In its experience, the Department has not found the 
current certification requirements do not address certain important 
issues, notwithstanding the existing rules of professional conduct. 
Furthermore, while the Department understands that attorneys are in a 
difficult position when it comes to certifying the completeness and 
accuracy of a factual submission prepared by their client, the 
Department believes that the standard that would be established by the 
proposed amendment does not impose an unreasonable burden on attorneys. 
Specifically, the Department would require ``an inquiry reasonable 
under the circumstances.'' The Department would expect that attorneys 
perform due diligence on factual submissions in AD/CVD proceedings in 
the same manner that they would perform due diligence on any other 
factual submission to which they are certifying as to its completeness 
and accuracy.
    Proposed Amendment to Regulation: After analyzing the information 
collected from comments regarding the Notice of Inquiry, the Department 
proposes to amend the certification language in the regulation. New 
requirements in the proposed certifications would include the specific 
date on which the submitted information is certified. Further, the 
certifications would identify the specific material to which the person 
is certifying. The certification for the person's legal counsel or 
other representative would be amended to require certification that the 
information is accurate and complete to the best of legal counsel's or 
other representative's knowledge, after an inquiry reasonable under the 
circumstances.
    The certifications would also list the individuals with significant 
responsibility for preparing the specific material (in the case of 
companies), and the individuals with significant responsibility for 
advising, preparing or reviewing the specific material (in the case of 
legal or other representatives). In addition, the certifications would 
emphasize that they continue to be in effect throughout the proceeding, 
and if the certifying person possesses knowledge or has reason to know 
of a material misrepresentation or omission of fact in the submission 
or in any previously certified information upon which the submission 
relies, that person must report such to the Department.
    In addition, the certifications would remind certifying persons of 
the

[[Page 56740]]

possible sanctions that might be levied against them for making false 
statements to the government. The Department wishes to emphasize that 
the possible sanctions may eventually include those levied by the 
Department, including debarment from Department proceedings, if or when 
the Department implements procedures for investigating allegations, 
determining the degree of culpability, and leveling sanctions for 
making false statements to the Department.
    The certifications would also require that company officials 
maintain the original certification in their records for Departmental 
inspection at verification. Their legal or other representatives must 
maintain a copy of their certification in their records during the 
pendency of the proceeding; they should file the original with the 
Department.

Classification

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., the Chief Counsel for Regulation at the Department of Commerce 
has certified to the Chief Counsel for Advocacy, Small Business 
Administration, that the proposed rule, if promulgated as final, will 
not have a significant economic impact on a substantial number of small 
entities. The amendment would have little or no economic impact on the 
companies or their legal or other representatives since it only alters 
existing requirements. The amendment would have few, if any, new 
paperwork burdens since it only requires a small amount of additional 
supplemental information. IA possesses limited information regarding 
the number of entities that might be affected by this proposed 
rulemaking. In 2003, IA conducted 112 antidumping and countervailing 
duty investigations and reviews (excluding sunset reviews and 
suspension agreements), including initiation of 41 antidumping and 
countervailing duty investigations and completion of 71 antidumping and 
countervailing duty reviews. However, IA is unable to estimate the 
number of entities that participated in each of these investigations 
and reviews, and is therefore unable to estimate the number of entities 
affected by the proposed rulemaking. Furthermore, IA is unable to 
estimate the number of entities affected that may be considered small 
entities.

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a collection of 
information subject to the requirements of the Paperwork Reduction Act 
of 1995 unless that collection of information displays a currently 
valid Office of Management and Budget (OMB) Control Number. This 
proposed rulemaking involves collection-of-information requirements 
subject to review and approval by the OMB under the Paperwork Reduction 
Act. Collection activities are currently approved by the OMB under 
control numbers 0625-0105, 0625-0148 and 0625-0200.

Executive Order 12866

    It has been determined that the proposed rulemaking is not 
significant for purposes of Executive Order 12866.

Executive Order 12612

    It has been determined that the proposed rulemaking does not 
contain federalism implications warranting the preparation of a 
federalism assessment.

List of Subjects in 19 CFR Part 351

    Administrative practice and procedure, Antidumping duties, Business 
and industry, Confidential business information, Countervailing duties, 
Investigations, Reporting and recordkeeping requirements.

James J. Jochum,
Assistant Secretary for Import Administration, Department of Commerce.
    For the reasons stated in the preamble, the Department of Commerce 
proposes to amend 19 CFR part 351 as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

    1. The authority citation for 19 CFR part 351 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 
note; 19 U.S.C. 1671 et seq; and 19 U.S.C. 3538.

    2. Section 351.303 is proposed to be amended by revising paragraph 
(g) to read as follows:


Sec.  351.303  Filing, format, translation, service, and certification 
of documents.

* * * * *
    (g) Certifications. A person must file with each submission 
containing factual information the certification in paragraph (g)(1) of 
this section and, in addition, if the person has legal counsel or 
another representative, the certification in paragraph (g)(2) of this 
section:
    (1) For the person(s) officially responsible for presentation of 
the factual information:

COMPANY CERTIFICATION

    On this----day of (MONTH), (YEAR), I, (PRINTED NAME AND TITLE), 
currently employed by (COMPANY NAME), certify that I prepared or 
otherwise supervised the preparation of the attached submission of 
(IDENTIFY THE SPECIFIC SUBMISSION BY TITLE AND DATE) pursuant to the 
(INSERT ONE OF THE FOLLOWING: THE (ANTIDUMPING OR COUNTERVAILING 
DUTY) INVESTIGATION OF (PRODUCT) FROM (COUNTRY) or THE (DATES OF 
POR) (ADMINISTRATIVE or NEW SHIPPER) REVIEW UNDER THE (ANTIDUMPING 
OR COUNTERVAILING) DUTY ORDER ON (PRODUCT) FROM (COUNTRY). I certify 
that I had sole or substantial responsibility for preparation (or 
supervision of the preparation) of this submission and have a 
reasonable basis to formulate an informed judgment as to the 
accuracy and completeness of the information contained in this 
submission. If I supervised the preparation of this submission, I 
list below those other individuals with significant responsibility 
for preparation of part or all of the submission. I certify that the 
information contained in this submission is, to the best of my 
knowledge, accurate and complete. I am aware that this certification 
is deemed to be continuing in effect, such that I must notify Import 
Administration, in writing, if at any point in this segment of the 
proceeding I possess knowledge or have reason to know of any 
material misrepresentation or omission of fact in this submission or 
in any previously certified information upon which this submission 
relies. I am aware that the information contained in this submission 
is subject to verification by the Department. I am also aware that 
U.S. law imposes criminal sanctions (including, but not limited to, 
18 U.S.C. 1001) on individuals who knowingly make misstatements to 
the U.S. government. I also certify that the original of this signed 
certification will be maintained as part of my company's official 
records and will be available for inspection by Department of 
Commerce officials during any verification.

 Signed:---------------------------------------------------------------
 Date:-----------------------------------------------------------------

    I supervised the preparation of this submission. The following 
is a list of those other individuals with significant responsibility 
for preparation of part or all of the submission:

 Printed Name :--------------------------------------------------------
 Title:----------------------------------------------------------------
 Section:--------------------------------------------------------------

 Printed Name :--------------------------------------------------------
 Title:----------------------------------------------------------------
 Section:--------------------------------------------------------------

    (2) For the person's legal counsel or other representative:

REPRESENTATIVE CERTIFICATION

    On this----day of (MONTH), (YEAR), I, (PRINTED NAME), with (LAW 
FIRM or OTHER FIRM), counsel or representative to (COMPANY OR 
PERSON), certify that I have read the attached submission of 
(IDENTIFY THE SPECIFIC SUBMISSION BY TITLE AND DATE) pursuant to the 
INSERT ONE OF THE FOLLOWING: THE (ANTIDUMPING OR

[[Page 56741]]

COUNTERVAILING DUTY) INVESTIGATION OF (PRODUCT) FROM (COUNTRY) or 
THE (DATES OF POR) (ADMINISTRATIVE or NEW SHIPPER) REVIEW UNDER THE 
(ANTIDUMPING OR COUNTERVAILING) DUTY ORDER ON (PRODUCT) FROM 
(COUNTRY). Based on the information made available to me and 
knowledge acquired by me in my role as adviser, preparer or reviewer 
of the submission, and after an inquiry reasonable under the 
circumstances, I certify that to the best of my knowledge the 
submission is accurate and complete. If I supervised the advising, 
preparing or review of this submission, I list below those other 
individuals with significant responsibility for advising, preparing 
or reviewing part or all of the submission. I am aware that this 
certification is deemed to be continuing in effect, such that I must 
notify Import Administration, in writing, if at any point in this 
segment of the proceeding I possess knowledge or have reason to know 
of a material misrepresentation or omission of fact in this 
submission or in any previously certified information upon which 
this submission relies. I am aware that U.S. law imposes criminal 
sanctions (including, but not limited to, 18 U.S.C. 1001) on 
individuals who knowingly make misstatements to the U.S. government. 
I certify that I am filing the original of this signed certification 
with this submission to the Department of Commerce and that I will 
retain a copy during the pendency of this proceeding.

 Signed:---------------------------------------------------------------
 Date:-----------------------------------------------------------------

    I supervised the advising, preparing or review of this 
submission. The following is a list of those other individuals with 
significant responsibility for advising, preparing or reviewing part 
or all of the submission:

 Printed Name :--------------------------------------------------------
 Title:----------------------------------------------------------------
 Section:--------------------------------------------------------------

 Printed Name :--------------------------------------------------------
 Title:----------------------------------------------------------------
 Section:--------------------------------------------------------------

[FR Doc. 04-21209 Filed 9-21-04; 8:45 am]
BILLING CODE 3510-DS-P