[Federal Register Volume 76, Number 28 (Thursday, February 10, 2011)]
[Rules and Regulations]
[Pages 7491-7500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2761]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
RIN 0625-AA66
[Docket No.: 0612243022-1049-01]
Certification of Factual Information to Import Administration
During Antidumping and Countervailing Duty Proceedings: Interim Final
Rule
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Interim final rule and request for comments.
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SUMMARY: The Department of Commerce (``the Department'') is amending
its regulation 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. The amendments are intended to strengthen the current
certification requirements. For example, these amendments revise the
certification in order to identify to which document the certification
applies, to identify to which segment of an AD/CVD proceeding the
certification applies, to identify who is making the certification, and
to indicate the date on which the certification was made. In addition,
the amendments are intended to ensure that parties and their counsel
are aware of potential consequences for false certifications. The
Department is also requesting comments on this interim final rule.
DATES: The effective date of this interim final rule is March 14, 2011.
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 March 14, 2011.
Request for Public Comment: The Department seeks public comment on
this interim final rule. To be assured of consideration, comments must
be received no later than May 11, 2011 and rebuttal comments must be
received no later than June 27, 2011. All comments should refer to RIN
0625-AA66. The Department intends to issue a final rule no later than
nine months after the publication of this interim final rule.
ADDRESSES: All comments must be submitted through the Federal
eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2010-
0007, unless the commenter does not have access to the internet.
Commenters that 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, 14th Street and Constitution Ave., NW.,
Washington, DC 20230.
The Department will consider all comments 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) and on the Federal eRulemaking Portal at
www.Regulations.gov. and the Department's Web site at http://www.trade.gov/ia/.
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, e-mail address: [email protected].
FOR FURTHER INFORMATION CONTACT: William Isasi, Senior Attorney, Office
of the General Counsel, Office of Chief Counsel for Import
Administration, or Myrna Lobo, International Trade Compliance Analyst,
Office 6, Import Administration, U.S. Department of Commerce, 1401
Constitution Ave., NW., Washington, DC 20230, 202-482-4339 or 202-482-
2371, respectively.
SUPPLEMENTARY INFORMATION:
Background
Section 782(b) of the Tariff Act of 1930, as amended, (``the Act'')
requires that any person providing information to the Department during
an AD/CVD proceeding must certify to the accuracy and completeness of
such information. 19 U.S.C. 1677m(b). Department regulations set forth
the specific content requirements for such certifications. 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 signed.
[[Page 7492]]
Therefore, on January 26, 2004, the Department published a notice
of inquiry in the Federal Register, and inquired as to 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. See Certification and
Submission of False Statements to Import Administration During
Antidumping and Countervailing Duty Proceedings-Notice of Inquiry, 69
FR 3562 (January 26, 2004) (``Notice of Inquiry'').
Based on the comments received in response to the Notice of
Inquiry, the Department published a Notice of Proposed Rulemaking and
Request for Comments in the Federal Register, proposing to amend the
current regulation, which governs the certification of factual
information submitted to the Department. See Certification of Factual
Information To Import Administration During Antidumping and
Countervailing Duty Proceedings-Notice of Proposed Rulemaking and
Request for Comment, 69 FR 56738 (September 22, 2004) (``Notice of
Proposed Rulemaking''). The Department proposed specific boilerplate
language for the certifications and requested comments on the proposed
amendment.
The Department received 16 submissions in response to the Notice of
Proposed Rulemaking through December 7, 2004. The submissions included
a wide variety of positions. Some commenters were opposed to the
amendments, others supported the amendments, and many provided general
recommendations for amending the certification requirements, as well as
comments suggesting specific changes in the text of the certifications.
In addressing these comments, the Department notes that at least one
commenter has requested a hearing. The Administrative Procedure Act
does not require the Department to hold a hearing. 5 U.S.C. 553. Given
the numerous detailed submissions received from a variety of parties,
the Department finds a hearing unnecessary. After evaluating the
comments, the Department decided that additional consultation with the
Office of Inspector General and the Department of Justice was necessary
in order to ensure that all concerns could be adequately addressed.
Furthermore, because it has been several years since we last received
comments on the proposed changes to the certification requirements, we
have decided, as set forth above, to implement these changes through an
interim final rule, thereby affording parties an additional opportunity
to comment on these regulations.
Analysis of Comments
General Comments on Proposed Changes To the Certification
1. The Department's Authority To Change the Certification
Multiple commenters questioned whether the Department has authority
to change the certification. In particular, one commenter argued that
section 782(b) of the Act explicitly provides the nature of the
certification to be rendered, namely, the certification is to be
provided by the ``person providing factual information,'' and the
person must certify ``to the best of that person's knowledge.'' This
commenter concluded that in changing the certification requirements the
Department may be expanding the certification obligation beyond that
established by Congress and, thus, acting inconsistently with the law.
Response: The amendments to the certification that the Department
has adopted in this notice do not expand the legal obligations set out
in the Act. Rather, these amendments serve to identify more
specifically the document to which a certification applies and to note
the penalty that already exists in the law for providing false
statements to the Government, including false certifications. In this
regard, the Department has updated the language in the certification to
more closely track the language found in Section 782(b) of the Act.
2. Equal Application to All Parties
One commenter argued that any new certification requirements should
apply equally to petitioners and respondents.
Response: All parties submitting factual information to the
Department must comply with the certification requirements including
respondents and petitioners.
3. Date of Signature on the Certification
The Department proposed to require new certifications to include
the specific date on which the submitted information is certified. Most
commenters did not oppose this proposal. Other commenters argued that
the requirement was unnecessary, but did not oppose it. Some commenters
opposed the date requirement for company/government certifications,
noting that certifications are sometimes signed a few days before the
date of the submission itself, and argued that this could cause
confusion with respect to what date to use on the certification.
Further, they argued that this requirement could be burdensome to
companies that are making multiple filings simultaneously. These
commenters, however, did not oppose the date requirement for the
representative certification, but recommended requiring the date to be
noted only once in the certification.
Response: Because there were no substantive objections to including
the signature date on the certification, the Department will require it
on the certification. The Department does not agree with the logistical
concerns raised (e.g., confusion arising from certifications being
signed and dated 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. Finally, the Department agrees that certifications only need to
be dated once on the date of signature, and we have altered the
certifications accordingly.
4. Identification of the Particular Submission to which the
Certification Applies
The Department proposed that certifications should identify the
specific material to which the person is certifying. Most commenters
did not oppose this proposed change. For example, one commenter
supported the proposed change because, in their experience, a
certifying official sometimes signed ``blank checks'' for multiple
future submissions that the official may not read. This commenter
argued that identifying the actual submission would prevent this
practice. Commenters who opposed this requirement argued that this
requirement was redundant because certifications apply to the
submissions to which they are attached.
Response: Because there were no substantive objections to
identifying the submission to which the certification pertains, the
Department has decided to adopt this change to the certification. This
revision is intended to ensure that the signer is aware of the exact
submission to which he or she is certifying and for which he or she is
responsible. 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. Further, identifying the submission to which a
certification applies would assist in linking the certification to its
[[Page 7493]]
submission in the event that the certification became detached.
5. Level of Accuracy and Completeness Contemplated by the Certification
One commenter argued that the Department must ensure that the new
certification includes definitions that are sufficiently broad to cover
all violations that may have a material effect on the outcome under the
specific facts and circumstances of the segment \1\ of the AD/CVD
proceeding in which the certification is submitted. This commenter
argued that the definition should not only include the knowing
submission of false information, but also the failure to take
reasonable care in assuring the completeness and accuracy of
information. Multiple commenters argued that the Department should only
impose well-defined standards on parties; otherwise the certification
requirements would impose unfairly vague legal standards. In addition,
and as noted infra at Comment 17, many parties submitted comments on
defining the level of inquiry a representative must undertake to
determine whether a submission is accurate and complete before
certifying the submission.
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\1\ An AD/CVD proceeding consists of one or more segments. For
example, an AD or CVD investigation, an administrative review of the
resulting AD/CVD order, and a scope inquiry under the AD/CVD order
each would constitute a segment of the proceeding. See 19 CFR
351.102 (``Segment of proceeding'').
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Response: The Department has not adopted the commenters' proposal.
We disagree that additional definitions regarding the level of accuracy
and completeness are needed. The correct standard to which parties are
held is the standard provided in the Act. See section 782(b) of the
Act. Furthermore, we believe the certification language is sufficiently
precise to accomplish the purpose intended and, thus, there is no need
to include additional definitions. See 19 CFR 351.304(g).
6. Specification of Enforcement Procedures
In the proposed revisions to the certification regulation, the
Department did not specify the enforcement procedures that would be
available. Some commenters argued that in order for the certifications
to be effective, the Department must establish specific enforcement
procedures. For example, one commenter argued that the Department
should specify its procedures for conferring with the Inspector
General's Office and law enforcement agencies, such as the Department
of Justice. This commenter also argued that the Department should
formulate guidelines that permit the Department to maintain records to
be used in any investigation of misconduct rather than allowing a
company to terminate participation and withdraw its submissions.
Further, this commenter argued that the Department should draft
regulations for investigation of inaccurate or incomplete factual
information that mirror those outlined in the Department's regulations
for violations of administrative protective orders.
Response: The Department has not adopted the commenters' proposal
to establish enforcement procedures. As explained supra at Comment 1,
the amended certifications serve to clarify and strengthen already
existing obligations regarding the submission of information to the
Department. The inclusion of a warning pursuant to 18 U.S.C. 1001 in
the revised certification makes plain the consequences of a false
certification. These consequences were implicit under the previous
certification requirement. The inclusion of this warning does not
indicate that the Department thinks it is necessary to establish
comprehensive enforcement procedures for certification violations.
Rather, certification violations would continue to be referred to the
appropriate offices better equipped to handle such matters, such as the
Department's Office of the Inspector General. These offices would
employ their normal procedures for handling possible violations of 18
U.S.C. 1001. Additionally, we note that unlike our statutory authority
to promulgate Administrative Protective Orders which includes an
enforcement authority (see 19 U.S.C. 1677f(c)), there is no specific
statutory authority for the Import Administration, itself, to
investigate and impose sanctions with respect to certification
violations, except through those available more broadly to the
Inspector General's Office. See also 19 CFR part 354.
With regard to concerns that parties may withdraw information from
the record of the AD/CVD proceeding, the Department notes, as an
initial matter, that it does not permit parties to withdraw public
submissions from the record of AD/CVD proceedings. While the Department
does permit parties to withdraw business proprietary submissions from
the record of AD/CVD proceedings, the Department intends, where
necessary, to preserve business proprietary submissions in order to
determine whether a false certification has been filed. The Department
may preserve these submissions pursuant to its general authority to
protect its administrative process. Thus, while a party may terminate
participation in an AD/CVD proceeding and withdraw its business
proprietary submissions, such a withdrawal of submissions would only
apply to the AD/CVD proceeding, and not the Department's investigation
of a false certification. The Department has updated the certification
language in order to ensure that parties are aware that the Department
may preserve business proprietary submissions to investigate false
certifications even if a party withdraws its submissions from an AD/CVD
proceeding.
7. Specification of Sanctions
The Department proposed including in the certification a reference
to criminal sanctions that exist under 18 U.S.C. 1001 for those
individuals who knowingly make misstatements to the U.S. Government.
One commenter supported this proposal, arguing that reference to 18
U.S.C. 1001 underscored the seriousness of falsely certifying a factual
submission. Multiple commenters argued that the Department must
establish additional specific sanctions in order for the certifications
to be effective. For example, one commenter argued that sanctions
should include referring the matter for criminal prosecution,
subjecting companies to full scale audits, barring company officials
from future certifications, imposing adverse facts available, and
barring representatives from practicing before the Department.
Another commenter generally agreed with the proposal but noted that
the language referenced 18 U.S.C. 1001, but not the rules of
professional conduct. This commenter suggested that it would also be
useful to indicate that false statements would be referred to the
appropriate bar association. One commenter opposed the proposal,
arguing that by characterizing 18 U.S.C. 1001 as applying to knowingly
made misstatements, the Department's proposal over-reaches because the
statute deals only with ``material'' matters. Further, subsection (b)
of 18 U.S.C. 1001 excludes from the scope of subsection (a)
representations made in the context of a judicial proceeding. According
to this commenter, this exclusion was created to avoid chilling
advocacy in judicial fora and because there were already statutes
addressing and punishing those who willfully mislead the judicial
branch. The commenter concluded that these exemptions were equally
applicable to proceedings before the Department.
This commenter also argued that, under the WTO Agreements, the
United States had agreed on the consequences to interested parties who
fail to
[[Page 7494]]
cooperate with investigating authorities, i.e., Article 6.8 of the
Agreement on Implementation of Article VI of the GATT 1994 (the
Antidumping Agreement)--adverse facts available. Thus, this commenter
concluded that application of 18 U.S.C. 1001 is a remedy beyond that
which the WTO Agreements permit. Another commenter argued that the
reminder in the certification did not accurately reflect 18 U.S.C.
1001. This commenter noted that the law provides criminal sanctions for
``false, fictitious, or fraudulent statements'' rather than
``misstatements'' as noted in the proposed certification. Another
commenter argued that, given the sanctions available in the AD/CVD
proceeding and the code of professional conduct governing legal
counsel, it was doubtful whether any legitimate purpose could be served
by recourse to criminal sanctions. This commenter was concerned that
such sanctions could deter parties from submitting information, the
accuracy of which cannot be absolutely certified (e.g., information
from sub-contractors).
Response: The Department has made changes to its proposed
certification based on these comments. First, the Department agrees
with those commenters that argued that the text of the certification
should follow more precisely the statutory language found in 18 U.S.C.
1001, and we have updated the text of the certification accordingly.
Additionally, we have added a reference to 18 U.S.C. 1001 which reminds
parties that serious consequences exist for false certifications,
thereby strengthening the certification process. The Department
disagrees, however, with those commenters that argue the Department
should adopt specific sanctions. The Department does not have the
authority or resources to create independent sanctions for false
certifications. Sanctions for false certifications will be determined
by the offices to which the Department refers alleged certification
violations under 18 U.S.C. 1001 (e.g., the Department's Office of the
Inspector General). However, if a party is found to have violated 18
U.S.C. 1001, the Department reserves the right to protect its
administrative process through appropriate steps.
The Department also disagrees that the judicial exception found in
18 U.S.C. 1001(b) is applicable to AD/CVD proceedings before the
Department. The terms of this exception apply only to judicial
proceedings, and not Executive Branch agency proceedings.
The Department disagrees with the arguments related to the WTO
Agreements, including Article 6.8 of the Antidumping Agreement.
Including a reference in the certifications to the U.S. Government's
standard admonition regarding false statements in no way contravenes
the United States' obligations under the WTO Agreements. This is a
common reference included in many Government agencies' forms. This
reference promotes the integrity of the Government's administrative
processes. The Department also disagrees that Article 6.8 of the
Antidumping Agreement limits the Government's ability to protect the
integrity of its administrative process.
With regard to referring matters to state bar associations, it is
not the Department's general practice to become involved in proceedings
before state bar associations regarding allegations of attorney
misconduct. Such efforts could result in excessive expenditures of time
and personnel. Notwithstanding the Department's general practice, the
Department reserves the right to refer matters to state bar
associations when the Department determines that the circumstances
warrant such a referral.
With regard to arguments that the Department should impose adverse
facts available under Section 776 of the Act for false certifications,
the Department notes that filing a false certification could result in
the application of adverse facts available for a respondent. 19 U.S.C.
1677e. For example, false certifications could result in unverifiable
information and could signify that a respondent had failed to cooperate
to the best of its ability within the meaning of Section 776 of the
Act. In such instances where the criteria in Section 776 of the Act are
met, the Department could apply adverse facts available in its
determination.
With regard to arguments pertaining to the submission of third
party information (e.g., information from sub-contractors), the
culpability standards established in 18 U.S.C. 1001 that require, for
example, actions made knowingly and willfully, provide relevant
protections. Furthermore, the Department notes that this standard has
been successfully applied to parties submitting information to the
Government in a wide variety of circumstances and the Department
expects that this standard is equally workable in an AD/CVD proceeding.
Comments on Proposed Changes to the Company/Government Certification
8. Requirement for Companies To Keep Signed Original Certifications in
its ``Official Records''
The Department proposed including an obligation for certifying
company officials to maintain the original certification in their
company's official records. Many commenters did not oppose this
suggestion. One commenter argued that using the phrase ``official
records'' unduly complicates the matter, while another commenter stated
that this requirement had no practical utility and does not improve the
accuracy or completeness of a factual submission. Additionally, this
latter commenter stated the term ``official records'' was undefined and
unclear. Moreover, this commenter argued that it was unclear how long a
company must maintain the original in its records. Another commenter
argued that companies may prefer legal counsel to maintain the original
copy of the certifications, in which case providing the Department with
original documents could violate attorney-client privilege.
Response: Some commenters argued that requiring original
certifications to be filed with submissions is unduly burdensome. See
Comment 14 infra (describing this argument in more detail). The
Department finds that requiring the originals to be available for
inspection strikes a reasonable balance between the need for the
Department to be able to verify the original certifications without
placing a burden on parties to file original certifications with each
submission. This is no different than the requirement that respondent
companies and governments retain original source documentation for
Department officials to examine during the course of on-site
verifications.
However, in order to avoid any confusion regarding both the
definition of ``official business records'' and the time period for
which parties are responsible for maintaining originals, we have
revised the certification to state: ``* * * 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.'' Thus, parties are required to maintain the
original certifications in a manner that allows the Department to
review them during any verification pursuant to 782(i) of the Act. 19
U.S.C. 1677m(i). Alternatively, the Department could require parties,
on a case-by-case basis, to send the original to the Department after
the submission has been filed. In addition, parties need to retain the
originals for a five-year period commencing with the filing of the
document. This five-year period is consistent with the statute of
limitations for prosecution under 18 U.S.C. 1001. See 18 U.S.C. 3282.
With regard to the commenter's concern about possible violations of
attorney-client privilege, the
[[Page 7495]]
Department is specifically requesting that companies and governments,
and not legal counsel, maintain the company's or government's original
certifications. Thus, maintenance of the certifications should not
implicate attorney-client privilege.
9. Requirement To List Person(s) Officially Responsible for
Presentation of the Factual Information
The Department proposed that the person(s) officially responsible
for the presentation of factual information certify that he or she
``had sole or substantial responsibility for preparation (or the
supervision of the preparation) of the submission and have a reasonable
basis to formulate an informed judgment as to the accuracy and
completeness of the information contained in the submission.'' One
commenter argued that this proposal was necessary because the current
certification provides no assurance that the certifying official has
any real knowledge of the underlying facts to which they are
certifying. Many commenters did not object to this proposal. Some
commenters argued that the term ``substantial responsibility,''
``reasonable basis'' and ``informed judgment'' were sufficiently vague
to subject parties to uncertain legal standards. In addition, one
commenter argued that submissions in AD/CVD cases can involve many
thousands of pages of data, obtained from many sources, including
related companies. As a result, it is unrealistic to expect one person
to ensure total accuracy. Another commenter argued that this proposal
raised problems because it assumes a strict supervisory hierarchy in
companies (or governments) when often such a hierarchy is not clearly
discernable. In such instances, it would be difficult for any person to
provide a certification with regard to supervision of others
significantly involved in the preparation of a submission.
Response: The Department is obligated to calculate AD/CVD margins
as accurately as possible. Rhone Poulenc, lnc. v. United States, 899 F.
2d 1185, 1191 (Fed. Cir. 1990). To accomplish this task, the Department
must be presented with accurate and complete information and, thus must
hold parties responsible for submitting accurate and complete
information. In this regard, it would be ineffective for the Department
to have numerous individuals held accountable for certain portions of a
submission. See also Comment 10 infra. In such circumstances, it could
be very difficult for the Department to hold a person(s) responsible
for his or her certification because that person could argue that any
inaccuracies or incompleteness were attributable to another person
responsible for another portion of the submission. In addition, it is
important that the information, as a whole, be evaluated for accuracy
and completeness. Permitting piecemeal certifications would allow
parties to present information to the Department without ever engaging
in this overall evaluation. Rather, in order for a certification to be
effective, there must be an individual (or a very limited number of
individuals) \2\ to hold accountable for the accuracy and completeness
of the entire submission based on that person(s)'s knowledge of the
entire submission. The person(s) that the submitting party has
identified as accountable for the accuracy and completeness of the
entire submission should complete the certification.
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\2\ While it is optimal to have only one person sign the
certification, the Department recognizes that sometimes this could
be impossible because of the size or organization of a company or
government. For instance, if different subsidiaries from a
multinational company were presenting information to the Department
in one submission, there may be more than one person officially
responsible for presenting the information. The Department expects
that this situation would be the exception rather than the rule.
Under such circumstances, the Department expects the persons to work
together to ensure the accuracy and completeness of the entire
submission, rather than only certifying to a portion of the
submission.
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The Department disagrees with the argument that is premised on a
lack of hierarchies in companies or governments. It has not been the
Department's experience that companies and governments are unable to
identify a responsible person(s) to complete certifications due to a
lack of hierarchy in their organizational structures. In order to
function, companies and governments must both establish clear chains of
authority. The Department expects that companies and governments will
consider these chains of authority when identifying the party(s)
responsible for the submission of factual information. Accordingly, the
Department has not made any changes to the proposed certification based
on these comments.
10. Requirement To List on Certifications Other Individuals With
Significant Responsibility for Preparation of Part or All of the
Submission
The Department proposed including within the certification a list
of all individuals with significant responsibility for part or all of
the submission. Several comments were received in response to this
proposal. Some commenters stated that it raised issues of
confidentiality/business proprietary information to include such a
list. Many commenters argued that there would be varying opinions as to
what ``significant responsibility'' means, while others said it would
be burdensome to identify all such persons in cases of large companies
that sometimes rely on hundreds of staff members for the preparation of
questionnaire responses. In this regard, one commenter argued that in
CVD investigations, the proposed certification would be quite onerous
because of the multiple levels of government and many responding
departments and agencies. One commenter noted that this requirement
would add a burden without appearing to add anything of substance to
the certification process because under the current certification an
official must already attest to the accuracy of the submission. Another
commenter argued that the list would rapidly become outdated as
personnel left the company. One commenter inquired if the requirement
would include company officials who prepared financial statements.
Response: Based on the concerns raised by these commenters, the
Department has decided not to adopt the requirement to list in the
certification other individuals with significant responsibility for
preparing the submission. The Department agrees that referring to
numerous other individuals in the certification may create ambiguity
with respect to the primary responsibility of the person(s) officially
responsible for the presentation of the factual information to certify
the accuracy and completeness of the entire submission. See Comment 9
supra. Additionally, this would require us to define what constitutes
``significant responsibility'' and what constitutes ``part * * * of a
submission,'' e.g., one piece of information, two pieces of data, etc.
Also, this requirement could easily become overly burdensome. In order
for this proposal to have value, each person responsible for a
significant portion of a submission would have to sign the
certification and identify the particular portion of the submission for
which he or she was responsible. When a submission contains a great
deal of information, assigning each portion of a submission to persons
and collecting the corresponding signatures could prove complicated and
time consuming. For these reasons, the Department has deleted this
proposed requirement.
[[Page 7496]]
11. Application of Certification to Affiliated Party Submissions
One commenter argued that the proposed changes do not address
whether certification requirements apply to submissions containing
information from affiliated parties.
Response: The amended regulation does not change the current
requirement with regard to submissions containing information from
affiliated parties. That is, information presented to the Department,
including information a party acquires from an affiliate, must include
a factual certification.\3\ If one person is unable to certify to the
accuracy and completeness of a submission, this regulation allows for
multiple parties to sign the certification. However, as discussed
above, the Department expects such circumstances to be the exception
rather than the rule. See Comment 9 supra.
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\3\ See Comment 16 infra (discussing the narrow exception to the
certification requirement when certain information is moved from one
segment of a proceeding to another).
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12. Whether the Certification Is Deemed To Be ``Continuing in Effect''
The Department proposed requiring the signer to certify that he or
she is aware that the certification is deemed to be continuing in
effect, such that the signer must notify the Department in writing, if
at any point during the segment of the proceeding, he or she possessed
knowledge or had reason to know of any material misrepresentation or
omission of fact in the submission or in any previously certified
information upon which the submission relied. One commenter argued that
this proposal strengthened the certification requirements. Another
commenter supported the proposal generally because it would help the
Department obtain the most complete and accurate record feasible.
However, this commenter was concerned that a party might use this
continuing obligation to submit corrections beyond the normal deadlines
enumerated by the Department. In addition, this commenter stated that,
consistent with 19 CFR 351.301(c), the Department should allow other
interested parties an opportunity to comment when a party notifies the
Department of material misrepresentations or omissions of facts.
Other commenters raised concerns that the proposal was vague in so
far as: It was unclear how quickly the certifying official must notify
the Department of the misrepresentation or omission of fact; it was
unclear how the Department would determine that parties had failed to
meet their ongoing obligation, including whether the Department would
conduct such a determination at verification; it was unclear what
burden of proof the Department would apply in order to determine
whether a party had complied with this continuing obligation; it was
unclear whether this continuing obligation continued even when the
company was no longer participating in the AD/CVD proceeding or when
the employee was no longer working at the company. In addition, one
commenter expressed concern that the Department's inquiries on whether
the errors constituted ``material misrepresentation or omission of
fact'' could be burdensome and incommensurate with the errors or
omissions because, in the vast majority of instances, the errors or
omissions are inadvertent. Another commenter argued that this
obligation could impose an individual duty on employees to report
errors or omissions in violation of contractual, ethical or legal
obligations.
Response: The Department has decided that adding the proposed
language does not strengthen the certification requirement because the
obligation to report material misrepresentations or omissions of fact
already exists. First, this requirement is implicit in the
certification requirement found in Section 782(b) of the Act.
Additionally, this requirement is implicit in the verification
requirements found in Section 782(i) of the Act. 19 U.S.C. 1677m(i);
see also 19 CFR 351.307(b). Generally speaking, in order for the
Department to use information in an AD/CVD proceeding, it needs to be
verifiable, and information that contains a material misrepresentation
or omission would not be verifiable. Therefore, the proposed language
is not adopted in this interim final rule.
13. Applicability to Governments
One commenter requested clarification of whether this proposed
regulation applies to foreign governments. This commenter argued that
there is an inconsistency between the text of the regulation, which
refers to a requirement that certifications need to be filed by the
``person(s) officially responsible for presentation of factual
information,'' and the text of the certification itself, which covers a
``company certification'' to be filed by someone ``employed by (COMPANY
NAME),'' and does not cover submissions by foreign governments. Another
commenter argued that changes to the current certification requirements
with regard to governments were unnecessary because government
officials are presumed to provide accurate information.
Response: The Act does not provide an exception from the
certification requirement for information presented by governments.
Thus, for example, in CVD proceedings where a government is an
interested party and presents information to the Department, the
certification requirement applies. The text of the company/government
certification has been amended to include the term ``GOVERNMENT'' which
clarifies that it is applicable to both companies and governments. That
is, the title of the company/government certification now reads
``COMPANY/GOVERNMENT CERTIFICATION''; the first sentence of this
certification now includes ``employed by COMPANY NAME or GOVERNMENT'';
and the first sentence of the counsel/representative certification now
includes ``counsel or representative to COMPANY OR GOVERNMENT OR
PARTY.''
Comments on Proposed Changes to the Representative Certification
14. Requirement for Representatives To Submit Signed Original
Certifications to the Department
The Department proposed that legal or other representatives must
file original certifications with the Department and must maintain a
copy of the certification in their records during the pendency of the
AD/CVD proceeding. One commenter argued that there are circumstances in
which submitting an original certification would be impractical. For
example, when the filing attorney is not in Washington on the filing
date, that attorney may need to fax or send a PDF copy of the
submission to Washington for filing.
Response: Based on these comments as well as those described supra
at Comment 8, the Department has decided that requiring an original to
be filed may be overly burdensome. Common technology (e.g., fax
machines and email) allows the certifying representative to review
documents, even on filing day, without being physically located in
Washington. Under such circumstances, it may be impossible to file an
original certification with the Department. Consistent with the
requirements for company/government certifications, the Department is
requiring representatives to maintain original certifications for a
five-year period commencing with the filing of the document to which
the certification applies.
[[Page 7497]]
15. Requirement To List on the Certification Legal Counsel or
Representative that Supervised the Advising, Preparing, or Review of
the Submission or Other Individuals With Significant Responsibility for
Advising, Preparing, or Reviewing the Submission
The Department proposed that the representative certification
include a provision for when the representative ``supervised the
advising, preparing or reviewing part or all of the submission.'' There
were no specific comments received on this portion of our proposed
amendment.
Additionally, the Department proposed including in the
representative certification a list of other individuals with
significant responsibility for advising, preparing or reviewing part or
all of the submission. Many commenters opposed this proposal. One
commenter noted that this requirement would interfere with the
attorney-work product privilege and argued that the Department and
other parties are not entitled to know how a law firm assigns its
attorneys and staff to a case, nor which attorneys are providing advice
to a client on specific aspects of the submission. This commenter
concluded that this proposal would not add to the accuracy and
completeness of factual submissions because under the applicable laws
and rules of professional responsibility, the supervising attorney is
legally responsible for the work of subordinate attorneys and legal
staff. Similar to the comments pertaining to the proposal to include a
list of other individuals with significant responsibility in company/
government certifications, multiple commenters argued that without a
definition of ``significant responsibility,'' the proposal was too
vague. See Comment 10 supra. Another commenter argued that this
requirement went far beyond the reasonable goals of traceability and
accountability because it would impose a significant burden on top of
the already tight deadlines. Moreover, it did not provide additional
insurance of accuracy and truthfulness.
Response: The Department has decided not to require representatives
to list multiple parties on the certification. As discussed above, in
order for a representative certification to be effective, there must be
an individual (or very limited number of individuals) \4\ responsible
for the accuracy and completeness of the entire submission based on
that person(s)'s knowledge of the entire submission. See Comment 9 and
Comment 10 supra.
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\4\ While it is optimal to have only one representative sign the
certification, the Department recognizes that sometimes this could
be impossible because there may be more than one representative
officially responsible for a submission. For instance, multiple law
firms could submit a document together. The Department expects that
this situation would be the exception rather than the rule. Under
such circumstances, the Department expects the representatives to
work together to ensure the accuracy and completeness of the entire
submission, rather than only certifying to a portion of the
submission.
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16. Whether Representative Certification Is ``Continuing in Effect''
The Department proposed requiring the representative to certify
that he or she is aware that the certification is deemed to be
continuing in effect, such that the signer must notify the Department
in writing, if at any point during the segment of the proceeding, he or
she possessed knowledge or had reason to know of any material
misrepresentation or omission of fact in the submission or in any
previously certified information upon which the submission relied. The
majority of commenters opposed this proposal. Some commenters were
concerned that this continuing obligation could conflict with the
attorney's rules of professional conduct, which may include a
responsibility to maintain attorney-client confidences (e.g., DC Rules
of Professional Conduct 1.6). These commenters noted that the correct
response under this rule, if a client is unwilling to rectify a
falsehood, is for counsel to withdraw representation, not for the
counsel to disclose the falsehood to the Department. This same
commenter noted that in many jurisdictions there are rules of
professional conduct that prohibit attorneys from knowingly making
false statements or assisting their clients in fraudulent conduct
(e.g., DC Rules of Prof'l Conduct 3.3, 4.1, and 8.4). Another commenter
noted that often information is moved from one segment of proceeding to
another. As such, this commenter concluded that, if the certification
was going to include a continuing obligation, it should not be limited
in duration to one segment of a proceeding. Other commenters noted that
increases in the certification requirements for counsel would increase
the cost of parties participating in trade remedy proceedings and
severely limit the ability of lawyers to represent parties in such
proceedings. This commenter also argued that the Department didn't have
statutory authority to regulate the professional conduct of attorneys
or other representatives.
Response: The Department has decided not to add the proposed
language to the representative certification. As discussed above,
adding this language does not strengthen the certification requirement
because the obligation to report material misrepresentations or
omissions of fact already exists. See Comment 12 supra. The Department
notes that this obligation is to be read in conjunction with a
representative's professional responsibilities. See, e.g., D.C. Code of
Prof'l Conduct, R. 4.1 (prohibiting an attorney from making false
statements to a third person in the course of representing a client);
D.C. Code of Prof'l Conduct, R. 3.3 (prohibiting an attorney from
offering evidence that the attorney knows is false). The requirement to
disclose material misrepresentations or omissions should be interpreted
in a manner consistent with a representative's professional
responsibilities.
With regard to information moved from the record of one segment of
a proceeding to another, the continuing obligation exists in so far as
a representative is moving his or her own client's information or
otherwise knows that the information contains material
misrepresentations or omissions. For example, if counsel for a foreign
producer is moving his or her client's questionnaire response from a
prior segment to the record of an ongoing segment, counsel must include
a certification with this questionnaire response. If, however, counsel
is placing another party's information on the record, no certification
is required. Notwithstanding this exception, if counsel otherwise has a
basis to know that the information he or she is moving to the ongoing
segment contains material misrepresentations or omissions, the
continuing obligation to disclose exists. That is, counsel must never
knowingly move information containing material misrepresentations or
omissions onto the record of another segment of the proceeding without
disclosing these misrepresentations or omissions to the Department.
Moreover, if information from a prior review is submitted because it
applies to the current segment's entries, it must have a new company/
government certification stating it is accurate as to the current
segment.
17. Requirement To Make ``An Inquiry Reasonable under the
Circumstances''
The Department proposed requiring representatives to make an
inquiry reasonable under the circumstances before certifying that the
submission is accurate and complete. A few commenters generally
supported this proposal. For example, one commenter argued that the
current certification
[[Page 7498]]
requirement permitted certification even when the person certifying
knew little about the submission.
Many commenters opposed this proposal. One commenter argued that
the proposal was improper because the scope of the reasonable inquiry
requirement was vague, particularly in light of the fact that the
Department also requires a detailed company/government certification.
In this regard, some commenters noted that the Department's discussion
in the Notice of Proposed Rulemaking conflicts with the proposed text
of the certification in so far as the former references ``due
diligence'' while the latter references ``a reasonable inquiry under
the circumstances.'' Further, a commenter argued that it was unclear
whether the Department contemplates attorneys ``auditing'' their
clients' submissions, comparing submissions made to different agencies,
or merely asking questions concerning the sources relied upon to
respond to questionnaires. This commenter also noted that there is no
precedent or common understanding regarding what constitutes ``due
diligence'' in the context of trade cases. This commenter argued that
instead of the obligation imposed by this proposal, the Department
should impose an obligation that the attorney ``did not consciously
disregard other facts and information indicating that a particular
submission included false statements or omitted material information.''
With this language, the Department could clarify that it only intends
attorneys to review the information provided rather than searching out
potentially conflicting information from other sources. Another
commenter noted that the representative certification contemplates a
representative that is fully engaged in all aspects of the proceeding,
including the submission of factual information. However,
representatives may be hired to simply copy and file documents with the
Department or to consult on discrete issues. This commenter concluded
that under these circumstances it is improper for the Department to
require representatives to file certifications.
Another commenter argued that imposing an affirmative duty on
attorneys to inquire into the facts provided by clients in conjunction
with the obligation to notify the Department of misstatements--
particularly in light of the threat of criminal sanctions--could
compromise the attorney's professional judgment by placing his or her
interests over that of the client. Another commenter noted it was
unrealistic for legal representatives to perform such a detailed
inquiry given the tight deadlines for filing responses to the
Department's request for information, the client's location in a
foreign country, and the fact that the source data is often in a
foreign language. Another commenter argued that requiring attorneys to
conduct such an inquiry would increase costs which, in turn, would
decrease legal representation, ultimately resulting in more decisions
relying on adverse facts available.
One commenter noted the proposed rule threatens criminal sanctions,
but Federal Rule of Civil Procedure 11 (``Rule 11'') does not.
Furthermore, this commenter noted that, under Rule 11, the attorney may
withdraw the offending pleading or motion without further consequences;
but no such safeguard is included in the proposal. Additionally,
multiple commenters noted in promulgating this rule and the
corresponding rule of the Court of International Trade, guidance was
explicitly provided regarding the inquiry that was expected. These
commenters argued that the Department must provide similar guidance.
Another commenter noted that the Act does not impose the obligation
contemplated by this proposal and, as such, the Department has no
authority to impose an affirmative obligation on counsel to review the
information the client wishes to submit. This commenter stated that,
nevertheless, if the Department retains the ``reasonable inquiry''
requirement, it should mirror this requirement after the IRS
regulation, 31 CFR 10.34(c) which permits a practitioner to rely
generally in good faith on the information furnished by a client
without verifying that information. For similar reasons, another
commenter advocated this same standard. Lastly, one commenter stated
this requirement would give the Department too much discretion.
Response: The Department has decided not to include this
requirement in the representative certification. The proposed language
mirrors the language in Rule 11 of the U.S. Court of International
Trade. This is not the correct standard to place on representatives in
AD/CVD proceedings before the Department. Rather, the correct standard
is that which exists in the Act. Specifically, counsel must certify
that ``the information contained in this submission is accurate and
complete to the best of my knowledge.'' Section 782(b) of the Act. In
the event of any alleged violation of the counsel certification
requirement, the Department expects that the offices investigating the
alleged violations (e.g., the Department's Office of the Inspector
General or the Department of Justice) will address the meaning of the
terms rather than IA.
The Department disagrees with the argument that a representative
need not file a certification when that representative simply copies
and files documents. In order to appear as a representative of an
interested party in and AD/CVD proceeding, that representative must
take on the duties incumbent on a representative. One of those duties
includes a duty to certify all information that the representative
presents to the Department on behalf of his or her client. If a party
is hired to simply copy and file documents for an interested party then
that party should not appear as a representative in an AD/CVD
proceeding.
Issuance of Interim Final Rule
After analyzing and carefully considering all of the comments that
the Department received in response to the Notice of Proposed
Rulemaking and after further review of the provisions of the proposed
rule, the Department is hereby publishing an interim final regulation
pertaining to the certifications that must accompany factual
submissions in AD/CVD proceedings. This regulation strengthens the
certification requirement by requiring parties to identify the
submission to which the certification applies; to identify to which
segment of an AD/CVD proceeding the certification applies; to identify
who is making the certification; to indicate the date on which the
certification was made; and to make clear that parties and their
representatives are subject to serious consequences for false
certifications.\5\
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\5\ The Department is developing a procedure for electronic
filing in AD/CVD proceedings. The Department will consider what
changes, if any, this interim final rule will require to meet
electronic filing procedures. See, e.g., Antidumping and
Countervailing Duty Proceedings: Electronic Filing Procedures;
Administrative Protective Order Procedures, 75 FR 44163 (July 28,
2010).
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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 factual basis for this certification was published with
the proposed rule in 2004. However, due to the length of time since the
publication of the proposed rule, the Department now updates the
factual basis. The amendment would have little or no
[[Page 7499]]
economic impact on the companies/governments 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 the 12 months ending
September 2010, IA conducted 246 antidumping and countervailing duty
investigations and reviews (excluding sunset reviews and suspension
agreements), including initiation of 17 antidumping and countervailing
duty investigations. 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, including
those that would be considered to be small businesses, affected by the
proposed rulemaking. In addition, no comments were received regarding
the economic impact of this rule. As a result, the conclusion in the
original certification remains unchanged and a final regulatory
flexibility analysis is not required and has not been prepared.
Paperwork Reduction Act
It has been determined that this proposed rulemaking is not subject
to the Paperwork Reduction Act. In this regard, the Department notes
that earlier versions of this rulemaking stated that the Paperwork
Reduction Act was applicable. However, since that time, the Office of
the Assistant General Counsel for Legislation and Regulation has
determined that this rulemaking is not subject to the Paperwork
Reduction Act because certifications accompany information submitted
during the course of AD/CVD proceedings. See 5 CFR 1320.4(a)(2)
(explaining that the Paperwork Reduction Act does not apply to
administrative action against specific individuals or entities).
Executive Order 12866
It has been determined that the proposed rulemaking is not
significant for purposes of Executive Order 12866.
Executive Order 13132
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.
Dated: January 31, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
For the reasons stated above, 19 CFR part 351 is amended as
follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
0
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.
0
2. Section 351.303(g) is revised 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/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:------------------------------------------------------------------
\*\ For 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.''
(2) For the legal counsel or other representative:**
REPRESENTATIVE CERTIFICATION
I, (PRINTED NAME) , with (LAW FIRM or OTHER FIRM) , counsel or
representative to (COMPANY OR GOVERNMENT OR PARTY), 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 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). In my capacity as an
adviser, counsel, preparer or reviewer of this submission, I certify
that the information contained in this submission is accurate and
complete to the best of my knowledge. I am aware that U.S. law
(including, but not limited
[[Page 7500]]
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:------------------------------------------------------------------
** For multiple representative certifications, all
representatives and their firms should be listed in the first sentence
of the certification and all representatives 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 Doc. 2011-2761 Filed 2-9-11; 8:45 am]
BILLING CODE 3510-DS-P