CIT Says Commerce Properly Rejected Untimely Filed Submissions in Kazakh CVD Case

The Commerce Department properly rejected countervailing duty respondent Tau-Ken Temir's questionnaire responses for being untimely, as they were filed an hour and 41 minutes beyond the deadline, the Court of International Trade ruled in a July 14 opinion. Judge Leo Gordon said it's "unclear" why the plaintiffs. led by TKT, failed to file an extension request earlier in the process -- the request was filed an hour and 10 minutes before the deadline -- and the record shows the respondent didn't put forth a maximum effort to give Commerce the requested information by the deadline. Gordon also held that TKT put no information on the record to back its claim the petitioners' conflict-of-interest claim interfered with its ability to respond to the investigation's questionnaire.

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. During the investigation, counsel for TKT said there were difficulties with embedded hyperlinks, corrupted files and converting Russian language documents into a searchable PDF format. These issues were not sorted by the filing deadline, so TKT filed for the extension. The deadline automatically extended until 8 a.m. the next business day. Still, elements of the questionnaire came past deadline.

In rejecting the submission, Commerce said the filing wasn't submitted in its entirety and extension requests cannot be submitted at the last minute. TKT then brought its case to the trade court. Here, Gordon ruled it was reasonable for the agency to deny plaintiffs' extension request for lack of "good cause" and said the plaintiffs failed to develop an argument showing that they had satisfied the "good cause" standard. Even giving the plaintiffs the "benefit of the doubt," Gordon ruled the respondent didn't show Commerce abused its discretion in denying the request.

"Commerce specifically noted that Counsel was well aware of the 8:30 am deadline on September 16th as evidenced by the fact that 'it began submission of its supplemental questionnaire response at 5:31 am, and continued filing its submission through 10:10 am ….'" the judge ruled. "Commerce stated that despite Plaintiffs’ numerous 'difficulties,' 'the fact remains that [TKT and cross-owned affiliate Tau-Ken Samruk] was represented by experienced counsel, and Commerce had already granted multiple extensions as a result of these issues.' Commerce explained that TKT/TKS made 'the minimum effort to ensure that Commerce had notice of [Counsel’s] ongoing computer/technical issues,' highlighting that Counsel 'did not attempt to contact either the official in charge of the investigation or the ACCESS help desk before the close of business' on September 15th."

In September 2020, a week before TKT was due to submit its questionnaire responses, counsel for petitioner Mississippi Silicon filed a submission claiming that counsel for TKT and his firm, Squire Patton, had a conflict of interest representing the respondent. The conflict of interest arose because TKT's counsel previously represented Mississippi Silicon, one of the petitioners, in a CVD case in 2017. TKT then argued at CIT that this claim interfered in the investigation because 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, arguing that TKT was made aware of this conflict of interest allegation more than a month before it filed, precluding the possibility that it was blindsided by the filing, and said TKT's last-minute motion to extend the filing deadline didn't mention the conflict of interest claim. Gordon sided with the U.S., holding nothing in the record backs TKT's claim of an abuse of process by the petitioners.

(Tau-Ken Temir v. U.S., Slip Op. 22-82, CIT #21-00173, dated 07/14/22, Judge Leo Gordon. Attorneys: Peter Koenig of Squire Patton for plaintiffs TKT and JSC NMC Tau-Ken Samruk; Bret Vallacher for defendant U.S. government; Adam Gordon of The Bristol Group for defendant-intervenors Globe Specialty Metals and Mississippi Silicon)