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New Requirements for Certification of Factual Information in AD/CV Proceedings

Wednesday, July 17, 2013
Sandler, Travis & Rosenberg Trade Report

The Department of Commerce has issued a final rule strengthening the requirements for certification of the accuracy and completeness of factual information submitted during antidumping and countervailing duty proceedings. This rule will apply to all AD/CV duty investigations initiated on the basis of petitions filed on or after Aug. 16 as well as other segments of AD/CV duty proceedings initiated on or after that date.

This rule revises the certification to identify the document and segment of the AD/CV proceeding to which the certification applies, who is making the certification and the date on which the certification was made. The amendments are also intended to ensure that parties and their counsel are aware of potential consequences for false certifications. The DOC issued these changes as an interim final rule in February 2011 and is now finalizing them with the following revisions based on comments received.

- Submissions may be identified in the certification by either the date they are due or the actual date they are filed.

- A company or government, and its representative, must maintain the original certification for five years following the filing of the submission. This requirement does not specify where, or the manner in which, the original certification should be maintained, nor does it prohibit a company or government from authorizing its representative to maintain the original certifications on behalf of its client.

- The company or government certification for submissions containing another party’s business proprietary information and to which a company or government has no access under administrative protective order regulations must be included in the public version of the document.

- Submissions containing both a company or government’s own information and third-party business proprietary information must be certified. However, parties only certify the public information and their own business proprietary information that they provide.

- All submissions containing factual information must be certified, including submissions containing information being moved from the record of one segment of a proceeding to the record of another segment. However, the certification requirement does not apply to procedural submissions; e.g., requests for extension of time limits, hearing requests, corrections to previously certified submissions, etc.

- There is now a government-specific certification that does not include a reference to U.S. criminal law; however, this is not intended to change any of the potentially applicable consequences or penalties for providing false statements to the U.S. government.

The DOC declined recommendations that it (1) provide comprehensive enforcement procedures for violations of this rule, (2) accept electronic signatures for certification purposes (though this will be reevaluated as future phases of the Import Administration Antidumping and Countervailing Duty Centralized Electronic Service System are implemented), (3) require certifications to list all individuals with significant responsibility for advising, preparing or reviewing part or all of the submission, (4) require representatives to make an inquiry reasonable under the circumstances before certifying that a submission is accurate and complete, and (5) require the factual information contained in a certification to be consistent with information submitted to other federal agencies.

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