Certification of Factual Information To Import Administration During Antidumping and Countervailing Duty Proceedings: Supplemental Interim Final Rule

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Supplemental interim final rule and request for comments.

SUMMARY:

The Department of Commerce (“the Department”) is issuing this interim final rule to supplement an interim final rule published on February 10, 2011 (Interim Final Rule), which governs the certification of factual information submitted to the Department by a person or his or her representative during antidumping (“AD”) and countervailing duty (“CVD”) proceedings. This supplemental interim final rule concerns the certifications required of foreign governments.

By this supplemental interim final rule, foreign governments will be allowed to submit certifications in either the format that was in use prior to the effective date of the Interim Final Rule or in the format provided in the Interim Final Rule. This supplemental interim final rule will remain in effect until such time as a final rule is published. All other aspects of the Interim Final Rule remain in effect and fully apply to all parties and their counsel. Companies should continue to use the company certification provided for in the Interim Final Rule. Representatives of companies or governments should continue to use the representative certification provided for in the Interim Final Rule. The Department is also requesting comments on the appropriateness of requiring foreign governments to submit the certification provided for in the Interim Final Rule, as discussed in more detail below. The Department is not soliciting comments with respect to any other issues concerning the Interim Final Rule as the deadline for such comments has expired.

DATES:

Effective date: The effective date of this supplemental interim final rule is September 2, 2011.

Applicability date: This supplemental interim final rule will apply to all investigations initiated on the basis of petitions filed on or after September 2, 2011, and other segments of AD/CVD proceedings initiated on or after September 2, 2011, as well as all ongoing investigations and ongoing segments of proceedings. Those foreign governments that submitted certifications between March 14, 2011, the effective date of the Interim Final Rule, and September 2, 2011 that did not conform with the certification formats required by the Interim Final Rule will have 30 days to submit certifications that conform with the formats provided for in this supplemental interim final rule.

Request for public comment: The Department is requesting public comment on this supplemental interim final rule. To be assured of consideration, comments must be received no later than October 3, 2011. The Department is not soliciting rebuttal comments. All comments should refer to RIN 0625-AA66. The Department intends to issue a final rule within a year after the publication of this supplemental interim final rule.

ADDRESSES:

In order to ensure the timely receipt and consideration of comments, the Department requires commenters to make on-line submissions, using the http://www.regulations.gov Web site, unless they do not have access to the Internet. Comments to this notice should be submitted under docket number ITA-2010-0007. To find this docket, enter the docket number in the “Enter Keyword or ID” window at the http://www.regulations.gov home page and click “Search.” The site will provide a search-results page listing all documents associated with that docket number. Find a reference to the supplemental interim final rule notice by selecting “Rule” under “Document Type” on the search-results page, and click on the link entitled “Submit a Comment.” The http://www.regulations.gov Web site provides the option of making submissions by filling in a comments field, or by attaching a document. ITA prefers submissions to be provided in an attached document. (For further information on using the http://www.regulations.gov Web site, please consult the resources provided on the Web site by clicking on the “Help” tab.)

Commenters who do not have access to the Internet may submit the original and two copies of each set of comments by mail or hand delivery/courier. All comments should be addressed to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, Room 1870, Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230.

The Department will consider all relevant comments regarding the supplemental interim final rule that are received before the close of the comment period. The Department will not accept comments accompanied by a request that part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. All comments responding to this notice will be a matter of public record and will be available for inspection at Import Administration's Central Records Unit (Room 7046 of the Herbert C. Hoover Building) or on the Federal eRulemaking Portal (“Portal”) at http://www.regulations.gov.

Any questions concerning file formatting, document conversion, access to the Internet, or other electronic filing issues should be addressed to Andrew Lee Beller, Import Administration Webmaster, at (202) 482-0866, e-mail address: webmaster-support@ita.doc.gov.

FOR FURTHER INFORMATION CONTACT:

Rebecca Cantu, Attorney, Office of the General Counsel, Office of Chief Counsel for Import Administration, or Myrna Lobo, International Trade Analyst, Office 6, Import Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230, 202-482-4618 or 202-482-2371, respectively.

SUPPLEMENTARY INFORMATION:

Background

In the Interim Final Rule (see Certification of Factual Information to Import Administration During Antidumping and Countervailing Duty Proceedings: Interim Final Rule, 76 FR 7491 (February 10, 2011)) the Department invited comments and rebuttal comments from the public by May 11, 2011 and June 27, 2011, respectively. Subsequently, the Department reopened the period for rebuttal comments until July 14, 2011 because interested parties were unable to file their rebuttal comments within the established deadline due to technical difficulties with the Portal. See Interim Final Rule on Certification of Factual Information To Import Administration During Antidumping and Countervailing Duty Proceedings: Reopening of Rebuttal Comment Period, 76 FR 39770 (July 7, 2011).

Some of the comments received in response to the Interim Final Rule discussed the appropriateness of requiring foreign governments and their officials to submit a certification that one commenter claims includes an acknowledgement that the certifying individual may be subject to criminal sanctions under U.S. law (including, but not limited to 18 U.S.C. 1001). This reference to 18 U.S.C. 1001 was not contained in the prior version of the certification. Some parties contend that it is inappropriate for the Department to impose a certification requirement that, these parties claim, subjects foreign government officials to potential liability from which they are immune, absent limited exceptions, pursuant to U.S. statutory law (e.g., the Foreign Sovereign Immunities Act) and common law.

In addition, the new certification requirements include language which, certain parties claim, imposes additional, enforceable legal obligations on foreign governments. These parties have identified language in the new certifications which indicates that the submitter is aware that the Department may preserve the submission for purposes of determining the accuracy of a certification, even if a party otherwise withdraws the submission from the record, and also language which indicates that the submitter must maintain the original of the certification for a five-year period. These parties contend that the purported additional legal obligations which this language imposes are also contrary to principles of sovereign immunity.

The Department requires additional time to analyze these comments as they relate specifically to the government certifications, to obtain public views on the comments described above, and to address fully the parties' comments. We are therefore supplementing the Interim Final Rule to allow foreign governments to submit certifications in either the format that was in use prior to the Interim Final Rule (which does not include the statutory reference or language described above) or in the new format provided in the Interim Final Rule until such time as a final rule is published. This supplemental interim final rule is applicable only to foreign government certifications (i.e., it is not applicable to company certifications or representative certifications).

Issuance of Supplemental Interim Final Rule

In light of the comments received on the Interim Final Rule regarding the appropriateness of requiring foreign governments to provide certifications that include the new language provided for in the Interim Final Rule, the Department is hereby publishing a supplemental interim final rule pertaining to the government certifications that must accompany factual submissions in AD/CVD proceedings. This supplemental interim final rule, like the Interim Final Rule, is part of the ongoing rulemaking process whereby the Department is seeking to strengthen the certification requirements for all parties. This supplemental interim final rule allows foreign governments to submit certifications in either the format that was in use prior to the effective date of the Interim Final Rule or in the format provided in the Interim Final Rule until such time as a final rule is published.

Classification

This supplemental interim final rule has been determined to be not significant for purposes of Executive Order 12866.

The Department finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment before this regulation becomes effective. The purpose of this supplemental interim final rule is to permit foreign governments to file certifications in either the format that was in use prior to the effective date of the Interim Final Rule or in the format provided in the Interim Final Rule in order for the Department to have sufficient time to analyze fully the comments received for the Interim Final Rule. Any delay could impede the ability of foreign governments to participate in ongoing AD and CVD proceedings, including their ability to submit information, and as a result, any delay could negatively impact the Department's ability to administer the AD and CVD law. Thus, providing prior notice would be contrary to the public interest. For the same reasons, it would be contrary to the public interest to allow the public an opportunity to comment on this rule before it became effective. Since this is a supplement to the interim final rule, the public will have an opportunity to comment on this supplement until the end of the comment period. The Department will consider those comments before announcing the final rule.

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 certified to the Chief Counsel for Advocacy, Small Business Administration, that the proposed rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published with the Interim Final Rule. The changes made by this rule do not change this conclusion, and a final regulatory flexibility analysis is not required and has not been prepared.

Paperwork Reduction Act

It has been determined that this rulemaking is not subject to the Paperwork Reduction Act.

Executive Order 13132

It has been determined that the 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

For the reasons stated above, 19 CFR part 351 is amended 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(g) is revised to read as follows: