[Federal Register: September 22, 2004 (Volume 69, Number 183)]
[Proposed Rules]
[Page 56738-56741]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22se04-23]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]