Commerce Failed to Call Out CVD Investigation Interference, Respondent Says in CIT Brief

The Commerce Department should have disregarded petitioners' claims in a countervailing duty investigation on silicon metal from Kazakhstan, said sole respondent to the investigation Tau-Ken Temir in a July 21 brief in the Court of International Trade. The petitioners' conflict of interest claim "lacked merit, not even colorable merit," to the extent that Commerce should have found the petitioners were interfering in the investigation, TKT said. The exporter seeks to have the court throw out Commerce's rejection of its questionnaire responses (Tau-Ken Temir LLP et al. v. United States, CIT #21-00173).

TKT served as the only 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 response, counsel for the petitioners filed a submission claiming that counsel for TKT and his firm, Squire Patton Boggs, had a conflict of interest representing the respondent. TKT now argues that this claim interfered in the investigation as it detracted resources from answering the questionnaire.

This claim, which was made in "bad faith," as TKT suggested, warranted action from Commerce, and because the agency did not act, its inaction should be found in violation of the law. "Companies are hard pressed time-wise to answer Commerce questionnaires as it is," the motion said. "Days, hours or even minutes can make a critical difference as to extremely tight deadlines. Commerce has seen that in many cases, and indeed cases cited herein. Given the importance of meeting deadlines, TKT and its counsel tried to leave a safety margin, and as big a one as possible. Petitioner’s interference took away from building in that safety margin for unanticipated events in answering a Commerce questionnaire."

Elsewhere in its brief, TKT argued that Commerce improperly denied its questionnaire responses, violating its own regulations. The respondent also said that Commerce admitted it had adequate time to consider the responses without burden and that its rejection decision was based on "rhetorical characterization." Commerce said that TKT counsel "gambled unwisely" in its filing of an extension request to file its questionnaire responses. "There is no evidence, much less substantial evidence, for Commerce’s claim, which also is not in accordance with law," the brief said.