A Federal Circuit panel expressed frustration Friday during a hearing on whether a Kazakh metallurgical company, Tau-Ken Temir LLP (TKT), should face a steep 160% countervailing duty for missing U.S. Department of Commerce deadlines. The case hinges on whether Commerce was justified in imposing the penalty after TKT failed to submit documents on time during an anti-subsidy investigation.
Debate Over Missed Deadlines and Adverse Inferences
The panel, comprising U.S. Circuit Judges Todd M. Hughes, Timothy B. Dyk, and Sharon Prost, grilled attorneys for TKT, the government, and domestic petitioners Mississippi Silicon LLC and Globe Specialty Metals Inc. The judges sought clarity on whether Commerce acted within its discretion to apply adverse inferences due to TKT’s delays.
Judge Hughes questioned TKT’s attorney, Peter Koenig of Squire Patton Boggs LLP, about why the company failed to meet its third extended deadline, noting that TKT requested an additional extension only after realizing the submission would be late. “Why isn’t that a basis for adverse inferences?” Hughes asked, emphasizing the importance of deadlines in ensuring fair trade determinations.
TKT’s Defense: Cooperation Despite Delays
Koenig argued that the delays stemmed from last-minute document issues, including corrupted data files. He maintained that TKT made a genuine effort to cooperate and should not be penalized with such a punitive rate.
