Commerce Codifies Its Certification Practice

In recent months, new and modified Department of Commerce regulations impacting antidumping (AD) and countervailing duty (CVD) proceedings have taken effect. These changes, which are intended “to strengthen and improve the administration and enforcement of the AD/CVD laws,” will have a significant impact on participants in AD/CVD proceedings.

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What’s Changed?

  • New regulation (19 C.F.R. § 351.228), effective October 20, 2021, codifies Commerce’s existing practice to require importers and other interested parties to comply with certification requirements in the context of AD/CVD proceedings and the consequences for a party’s noncompliance. Certification is the process through which an importer or other interested party attests to whether or not the merchandise they are importing into the United States is subject to an AD/CVD order. Certifications such as these generally present themselves in circumvention inquiries, but may also come up in other contexts.

What to Know

  • The new regulation provides Commerce with the authority to determine in the context of an AD/CVD proceeding that an importer or other interested party must:
    • Maintain a certification for entries of merchandise into the United States;
    • Provide a certification by electronic means at the time of entry or entry summary; or
    • Otherwise demonstrate compliance with a certification requirement as determined by Commerce, in consultation with CBP.
  • Under the new regulation, Commerce and/or CBP may ask for certification when the certificate is otherwise required.
  • The new regulation also sets out the consequences of non-compliance. There are generally two situations in which a party would be in non-compliance with a request for certification under the new regulation: (1) the importer or other interested party does not provide the required certification; or (2) the importer or other interested party provides a certification that contains “materially false, fictitious or fraudulent statements or representations, or contained material omissions.”
  • If a party is in non-compliance, Commerce may instruct CBP to suspend liquidation of entries and require a cash deposit of estimated duties at the applicable rate.

How We Can Help

The Arent Fox team has a broad array of both AD/CVD and customs knowledge that can help companies navigate Commerce’s and CBP’s potential certification requests, and, relatedly, the certification process as part of Commerce’s anti-circumvention inquiries.

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