ITA Strengthens Certification Language for Firms, Etc. Submitting AD/CV Info

This interim final rule will apply to all investigations initiated on the basis of petitions filed on or after March 14, 2011 and other segments of AD/CVD proceedings initiated on or after this date.

Comments are due by May 11, 2011.

(ITA explains that it is issuing an interim final rule in order to give interested parties an opportunity to submit comments, as a significant amount of time has passed since its proposed rule was issued in September 2004. See ITT’s Online Archives or 10/01/04 news, 04100110, for BP summary of the 2004 proposed rule.)

Highlights of ITA Responses to Comments

The following are highlights of ITA’s responses to the 16 comments it received on its September 2004 proposed rule:

More Specificity Added to Certification & Reference to False Statement Penalty

ITA states that the interim rule does not expand existing legal obligations regarding the certification that accompanies factual submissions in AD/CV proceedings, but rather strengthens the current certification in order to:

• identify the submission to which the certification applies;
• identify which segment of an AD/CV duty proceeding the certification applies to;
• identify who is making the certification;
• indicate the date on which the certification was made; and
• make clear that parties and their representatives are subject to serious consequences for false certifications.

Listing AD/CV Segment on Certification Meant to Prevent “Blank Check” Signing

Requiring the identification of the particular segment of the AD/CV duty proceeding that the certification applies to is intended to ensure that the signer is aware of the exact submission to which he or she is certifying and is responsible for. In addition, this provision will help to prevent the use of a generic “blank check” certification that could simply be copied and attached to a submission irrespective of whether the signer had reviewed the submission.

Person(s) Identified as Accountable for Certification Accuracy Should Complete It

ITA has concluded that in order for a certification to be effective, there must be an individual (or a very limited number of individuals) to hold accountable for the accuracy and completeness of the entire submission based on that person(s)’s knowledge of the entire submission. Therefore the person(s) that the submitting party has identified as accountable for the accuracy and completeness of the entire submission should complete the certification.

False Certifications Subject to Fines & Imprisonment, Adverse Facts Available

ITA states that it does not have the authority or resources to create specific sanctions for false certifications, but it is adding a reference to 18 USC 1001 in the certification which reminds parties that serious consequences exist for false certifications to the U.S. government. (The penalties under 18 USC 1001 include fines and imprisonment of up to five years, etc.) In addition, if a party is found to have violated 18 USC 1001, ITA reserves the right to protect its administrative process through appropriate steps. For example, false certifications could result in unverifiable information which could signify that a respondent has failed to cooperate to the best of his ability, resulting in the ITA’s application of adverse facts available.

Governments Must Also Submit Certifications if Applicable, Such as CV Cases

The text of the company/government certification has been amended to include the term “Government” to clarify that it is applicable to both companies and governments, such as in CVD proceedings where a government is an interested party and presents information to ITA.

Use Date Certification Is Signed, Even if Prior to Filing Date

Certifications should be dated the day they are signed and, assuming a submission is completed prior to filing date, certifications may be signed and dated prior to filing date.

Can Submit Copy of Certification but Maintain Original for 5 Years

ITA has decided that requiring an original certification to be filed with ITA (as proposed) may be overly burdensome and is therefore allowing copies of the certification to be submitted instead. However, the original certifications must be maintained for a five-year period beginning the date the certification is filed. In addition, the original certification must be available for inspection by ITA upon request.

Highlights of Interim Final Rule

The following are highlights of the interim final rule:

Company/Government Certifications Expanded to Add New Elements

Under revised 19 CFR 351.303(g), with each submission containing factual information in an AD/CV proceeding, the person(s)¹ officially responsible for the factual information must file with that submission the following company/government certification:

I, (PRINTED NAME AND TITLE) , currently employed by (COMPANY NAME or GOVERNMENT), 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) (CASE NUMBER) or THE (DATES OF POR) (ADMINISTRATIVE OR NEW SHIPPER) REVIEW UNDER THE (ANTIDUMPING OR COUNTERVAILING) DUTY ORDER ON (PRODUCT) FROM (COUNTRY) ) (CASE NUMBER) or THE SUNSET REVIEW OR CHANGED CIRCUMSTANCE REVIEW OR SCOPE RULING OR CIRCUMVENTION INQUIRY OF AD/CVD ORDER ON (PRODUCT) FROM (COUNTRY) (CASE NUMBER). I certify that the information contained in this submission is accurate and complete to the best of my knowledge. I am aware that the information contained in this submission may be subject to verification or corroboration (as appropriate) by the U.S. Department of Commerce. I am also aware that U.S. law (including, but not limited to, 18 U.S.C. 1001) imposes criminal sanctions on individuals who knowingly and willfully make material false statements to the U.S. Government. In addition, I am aware that, even if this submission may be withdrawn from the record of the AD/CVD proceeding, the Department may preserve this submission, including a business proprietary submission, for purposes of determining the accuracy of this certification. I certify that I am filing a copy of this signed certification with this submission to the U.S. Department of Commerce and that I will retain the original for a five-year period commencing with the filing of this document. The original will be available for inspection by U.S. Department of Commerce officials.

Signature: ____________________________________

Date: ____________________________________

(In current 19 CFR 351.303(g), the “company” certification must be made by the person officially responsible for the presentation of factual information, but it is very brief, and reads as follows: I, (name and title), currently employed by (person), 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.)

Representative Certifications Expanded to Add New Elements

The interim final rule contains a separate but substantially similar certification for the legal counsel or other representative which must be submitted in addition to the above certification if the manufacturer/government has legal counsel or another representative. (See rule for complete text of the certification.)

¹For multiple person certifications, all persons should be listed in the first sentence of the certification and all persons should sign and date the certification. In addition, singular pronouns and possessive adjectives should be changed accordingly, e.g., “I” should be changed to “we” and “my knowledge” should be changed to “our knowledge.”

(FR Pub 02/10/11, D/N ITA-2010-0007)