Kazakh Exporter, Ministry Contest Commerce's Standard for Reviewing Late Submissions

Exporter Tau-Ken Temir (TKT) and Kazakhstan's Ministry of Trade and Integration argued in a Feb. 12 reply brief that the Commerce Department doesn't have "essentially total discretion to decide deadlines and acceptance of filings." Responding to claims from the U.S. at the U.S. Court of Appeals for the Federal Circuit, TKT and the Kazakh ministry said the government didn't claim that any prejudice would have resulted from granting TKT's one-day extension request, which would have absolved the company from missing a filing deadline in a countervailing duty proceeding by 90 minutes (Tau-Ken Temir v. U.S., Fed. Cir. # 22-2204).

The government said Commerce couldn't grant the one-day extension because it was bound by the agency's regulation, which says that if the agency doesn't decide on the extension request by 5 p.m. of the deadline day, the response is automatically due at 8:30 a.m. the next day (see 2308290027). In response, TKT and the Kazakh ministry said that Commerce's decisions here "are not entitled to deference."

The government's claim that Commerce "is not subject to any standards or principles as to deadline fails," the reply brief added. Case law on the question of filing deadlines considers "finality, the burden on Commerce and the statutory requirement to accurately calculate CVD/AD margins," the brief said, adding that when the factors are taken into consideration, the agency should have accepted TKT's questionnaire response.

The U.S. doesn't dispute this but instead says the specific facts of the prior court cases "don't apply here." The government failed to explain why the differing facts "might make a difference as to the principles/standards that the courts articulate," the brief said. The U.S. also failed to advance alternative standards, TKT said. If this is true and there are "no principles/standards that need to be applied," the practice of distinguishing cases "fails and is meaningless because principles/standards form the basis of whether different cases are distinguishable," the brief said.

TKT and the Kazakh ministry brought suit after Commerce rejected a submission from the exporter in the countervailing duty investigation on silicon metal from Kazakhstan, which led to a 160% CVD rate for the company. TKT made three extension requests during the CVD investigation. The first two were granted in part, while the third was rejected. The company cited its newness to the process, the COVID-19 pandemic and the large amount of information requested as reasons for the first two requests. The U.S. said that these reasons gave no explanation as to why the full timeline of the extension requests was needed, arguing at the Federal Circuit that Commerce has clear discretion to handle its own administrative procedures.

In response, TKT said that courts have found Commerce abuses its discretion when it "rejects documents when the actual burden placed on Commerce is low of acceptance and the timeliness of an investigation is not threatened by acceptance." The government's position that it can reject documents even in those cases when accepting them doesn't impose a burden "is not reasonable," the brief said.