Conflict of Interest Claim Did Not Cause Untimely Filings in AD Case, Commerce Argues

A conflict of interest allegation did not cause an antidumping duty investigation respondent to untimely file its questionnaire responses, the Commerce Department argued in a Sept. 27 reply brief at the Court of International Trade. Responding to Tau-Ken Temir's brief explaining that this allegation was the reason for the delay in filing the responses, Commerce said that it did not abuse its discretion when it found that the petitioner did not interfere with TKT's ability to file the questionnaire responses (Tau-Ken Temir LLP et al. v. United States, CIT #21-00173).

The case stems from the countervailing duty investigation on silicon metal from Kazakhstan, where TKT served as the sole mandatory respondent since it is the only silicon metal exporter to the U.S. from Kazakhstan. In September 2020, a week before TKT was due to submit its questionnaire responses, counsel for the petitioners, Mississippi Silicon, filed a submission claiming that counsel for TKT and his firm, Squire Patton Boggs, had a conflict of interest representing the respondent. The conflict of interest arose since TKT's counsel previously represented Mississippi Silicon in a CVD case in 2017.

TKT then argued at CIT that this claim interfered in the investigation since it detracted resources from answering the questionnaire. This "bad faith" move from the petitioner warranted action from Commerce, and since the agency did not act, this inaction should be found in violation of the law, TKT said (see 2107270070).

Commerce took issue with this characterization on a few fronts in its reply brief. For starters, TKT was made aware of this conflict of interest allegation more than a month before it was filed, precluding the possibility that it was blindsided by the filing, the agency said. Second, TKT's last-minute motion to extend the filing deadline -- which came just over an hour before said deadline -- did not even mention the conflict of interest claim. The motion to extend instead cited workload, unfamiliarity with Commerce's procedures, COVID-19 and international clients instead, Commerce said.

"If the conflict-of-interest claim posed a disruption to TKT’s ability to meet the same deadline TKT was requesting to extend for other reasons, one would reasonably expect at least some mention of this additional burden," the brief said.

Also, TKT's brief admits that its counsel did not divert significant resources from the preparation of its questionnaire responses to respond to the conflict of interest claim. Only later does the respondent claim that time was diverted while it internally assessed the conflict claim. "However, TKT provides no citations to the record for this proposition, and attorney statements are not evidence," Commerce said.

In all, Commerce argued that it permissibly denied TKT's questionnaire responses as untimely and subsequently applied adverse facts available in concert with the law. The agency did not violate its own procedures by not accepting the responses and thus properly found that the respondent did not cooperate with the AD proceedings due to the late filings, Commerce said.