[Federal Register: January 26, 2004 (Volume 69, Number 16)]
[Notices]
[Page 3562-3564]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja04-24]
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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: webmaster_support@ita.doc.gov.
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.
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(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]