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Amendment is 20-1830, TR International Trading versus United States.

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We have another Mr. Peterson.

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Welcome whenever you're ready, sir.

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Thank you, Your Honor.

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May it please the court, my name's John Peterson.

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I'm counsel for TR International Trading Company, the appellant in this case.

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Last year, in the case of Suncream versus United States, an en banc panel of this court held

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that United States Customs and Border Protection has the right to suspend liquidation of customs entries based on a suspicion that goods may be subject to the scope of an outstanding anti-dumping or countervailing duty order.

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However, what the court anticipated based on its determination was that the question of whether something was within the scope of the dumping order would be turned over to the Commerce Department for determination.

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The court in Suncreme said, customs makes a yes or no answer as to whether an order applies, but this does not invade the interpretive powers of commerce.

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And it also said this is not an interpretive act that would modify commerce's determinations or otherwise impinge on commerce's authority to issue and set the scope of dumping duties.

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May it please the court?

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This case raises the question.

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of whether there are any limitations on sun cream.

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Now, we agree, we don't contest, Customs has a power to suspend liquidation of an entry if they suspect the merchandise is within the scope of a dumping or countervailing duty order.

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In this case, however, Customs sort of acted as judge, jury, and executioner.

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They never referred the matter to the Commerce Department.

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And they never gave TR International an adequate opportunity to turn it over to the Commerce Department for determination of scope.

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Our clients had made 17 entries of citric acid anhydrous from India.

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Now Indian citric acid is not subject to any dumping or countervailing duty determination.

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Customs suspended the liquidation of these products

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back on November 1st, 2018, saying this is an anti-dumping, countervailing duty suspension.

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Can I interrupt you, Mr. Peterson?

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I mean, this is very confusing to me.

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Are you saying that only commerce could make this country of origin determination?

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So that's like going to customs was not the way to go?

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Is that the right explanation?

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That's correct, Your Honor.

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I mean, there was an anti-dumping.

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There were anti-dumping orders in place against citric acid from China and from Canada, but our product was manufactured in India.

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Now, customs seems to have been of the assumption that number one, the operations performed in India did not affect the substantial transformation of the constituent materials.

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They also seem to be of the impression, with no evidence whatsoever to back it up, that those constituent materials originated in China.

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They did not.

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This would be in the nature of a type of scope ruling known as an anti-circumvention ruling.

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And that's clearly the province of the Commerce Department.

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I guess I'm really not understanding it.

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I mean, the fact of where the citric acid originally came from is a finding that customs can make and that can be protested, right?

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Not for purposes of anti-dumping duties, Your Honor.

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This is a question of whether, if you were to assume that the raw materials were Chinese, then the question would be, does the further processing done in India

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take it outside the scope of the dumping order or bring it with inside the scope.

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That would be something within the province of commerce through an anti-circumvention scope ruling.

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And it's not Mr. Peterson.

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This is Dutch Hughes.

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Are you saying that if customs gets documentation, I know this is probably not the facts of your case, but let's just assume that if custom gets documentation,

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that shows these products may have undergone some manufacturing in India, but it's clear the underlying citric acid came from China.

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But nevertheless, the importer enters them as coming from India, not subject to the anti-dumping orders.

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That customs can't look at that and say, clearly the China anti-dumping duty order applies and you have to pay duties under that.

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That you have to take the importer's statements on face value,

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No.

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Customs can say, we think it applies, but they have to turn the matter over to the commerce department.

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So the commerce... Why?

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What legal authority or why doesn't Supreme 3 say that customs can make that determination?

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And then it's up to the importer to challenge it either as a protest or for the importer to request a scope ruling.

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Well, Your Honor, it would be possible for the importer to request the scope ruling, but under the circumstances of this case, it really wasn't possible.

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The first time that they suspended liquidation was November 1, 2018, where they said this is possibly subject to anti-dumping duties.

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Now, by that time, it's not clear that we could have gone to Commerce for scope ruling, because Commerce had already... Why not?

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Well, because Commerce had already... Well, two reasons.

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First, Your Honor,

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Commerce had already concluded the annual reviews of citric acid from China for the period covered by our entries.

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And if you look at the determination of this court in Eugene and All's Belgium versus United States, Commerce will not make a scope determination if the annual review process, if the administrative process is finished, number one.

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Number two, let's assume that we had gone

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on November 1st or on November 2nd of 2018 to commerce and said we need a scope determination.

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Commerce normally takes 45 days to initiate a scope review.

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uh... very often extending that period, but customs foreclosed us thirty six days later.

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Well, Mr. Peterson, I'm a little confused about that.

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Firstly, there's some dispute about the dates, right, and the claim whether it was in October based on emails, but even leaving that aside,

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the CIT here found, did it not, that there was an existing suspension of liquidation, and that suspension would have been continued pending the scope inquiry upon its initiation.

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And it wasn't impossible for Commerce to have had time to initiate a scope inquiry before liquidation.

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So the request wouldn't be incapable of producing any results.

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Well, Your Honor, even if we had,

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Under the facts of this case, when Customs liquidated the entries with dumping assessments on December 7 of 2018, the Commerce Road was foreclosed.

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But we don't know if Customs would have liquidated if you'd initiated a scope rolling.

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You didn't try to initiate a scope rolling with Commerce and see if Customs would suspend liquidation further.

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That's the problem.

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You're arguing that your failure to take an action is what rendered C unavailable to you and made I available.

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But that's never been the case that a failure to exhaust an administrator may sometimes make I available.

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Well, see, I disagree, Your Honor, with the analysis, because if you look at the governing regulation, Section 351-225,

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Subsection L1 says if there's an existing suspension of liquidation, then commerce scope determination might apply to that.

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There was no existing suspension of liquidation, as far as we're concerned, before November 1.

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So had we tried to go for a scope ruling before November 1, it would not have applied to our entries, which were all made in 2017.

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okay so that if you say well okay as of november one when you had a suspension for dumping and countervailing duty reasons you could have gone again number one i question whether commerce would have initiated a scope determination because under the eugene and alge belson case administrative consideration had concluded so let's say we disagree with you on that you keep repeating that but i don't think that's right so

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Why, even after November 1, should we excuse your failure to ask for a scope inquiry?

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What basis would we ask for a scope inquiry?

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Again, we have no reason to believe that the materials brought into India were from China or from any other country.

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I mean, this is the point, right?

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There's not very many factual outcomes here.

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I know you're making the argument, one, that wherever the citric acid came from, it was substantially transformed in India.

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That's one argument.

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That's something you can make in a scope of transformation.

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Or there's a factual argument that the citric acid was produced somewhere other than China.

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You can make that argument.

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But the facts can be uncovered either through a protest under A or through a scope ruling.

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You know, this suggestion that, oh, well, let's wave our hands in the air because we have no idea where the citrographic comes from, well, we can figure out where it came from.

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And it either came from China or it came from elsewhere, and it was either substantially transformed under the law or not.

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I don't see how any of those arguments can't be got at either under a protest under A or scope ruling under C. Tell me why I'm wrong.

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Okay, well, when you go for a scope ruling under C, you say to us, where did the raw materials come from?

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We don't know.

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We made inquiries.

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All we know is that the Indian producer bought the raw materials from Indian suppliers.

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The country of origin of that, we don't know.

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Customs does not know the country of origin.

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And there's no evidence on the record that suggests that it's Chinese.

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So a scope determination would not have settled anything.

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If you go to court on a protest... Is there no permissible mechanism to ask the Indian supplier of the citric acid where they source it from?

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Not necessarily, but not under a scope determination, no.

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I mean, that question was asked by customs and the Indian supplier said we sourced it from Indian vendors.

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Where those Indian vendors got it from, we don't know.

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I've taken up all your time.

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So if you want to, I think I've even ran through your rebuttal, but presumably give it back.

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I don't have any further questions for you.

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All right.

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Then I reserve my time for rebuttal.

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I would point out that if you can't rush a liquidation in the time period, customs will always have the ability, if they could develop evidence,

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Number one, that the raw materials were from China, and number two, an argument that the operations in India did not take it out of the scope of the Chinese order.

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They could have initiated a penalty investigation under Section 522 of the Tariff Act, and that would have required customs to come forward with some evidence of the Chinese origin of those materials.

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Okay.

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You have none, but we'll restore three minutes of rebuttal.

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Let's hear from Mr. Curlin.

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I appreciate it, Your Honor.

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Good afternoon.

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Sorry, Mr. Kerlin.

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I'm jumping in very quickly.

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But before you proceed to your main argument, can you just address that last point that there's no way we can figure out where this citric acid came from in a scope ruling?

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We didn't really talk about it in an A protest case.

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But is there a mechanism

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for either customs or commerce or the importer to find out where that Chinese supplier sourced its citric acid from.

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And can I just add a piece to that question?

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I'm sorry, Judge Hughes, but also add, I think part of that question is who has the burden to prove what in this circumstance?

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That's what I'd like to know.

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Who has the burden to establish the country of origin in these circumstances?

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Sure.

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I'm sure, Your Honors, and may it please the Court.

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The short answer to Judge Hughes' question is yes.

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And really, that connects to my chief argument here, because what this whole milieu suggests is it emphasizes why this is not an appropriate Section 1581i case, because TRI's arguments on appeal are continually alluding to merits that should be

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which are quintessentially the province of either a Section 1581A protest or a Section 1581C scope proceeding.

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I think in direct response to Judge Hughes' question, the more appropriate venue for that kind of inquiry would be the Section 1581 protest, because that is the mechanism that someone has to challenge the factual determination, like where does the citric acid actually come from?

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It's subject to full discovery and de novo review at the Court of International Trade.

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And that means that there's full discovery procedures applied to this question that COI keeps alluding to of where its citric acid actually originated from, including presumably the ability to ask the

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uh... the original supplier and and then however that goes uh... the parties on both sides of the protest have as in any litigation have the best evidence that they have for their position the trial court decided and if necessary there can be an appeal to this court but that question uh... is quintessentially what gets resolved at as best it can in a section fifteen eighty one eight protest i do think

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There is a method for this issue to be addressed in a Section 1581C scope proceeding as well.

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Although, I think that would be.

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This area of law is pretty confusing for me.

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I do have, here's my first question.

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Assuming for the moment that the substantial transformation kind of analysis has to be done by commerce through a scope ruling and not

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through a protest, then would an importer like TRI here, if it wanted to challenge whether the monohydrate came from India or China, have to do that through a protest, but then whether the monohydrate, when it got converted into the imported merchandise, whether that was a substantial transformation, it would have to seek

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scope ruling to commerce, so it would actually have to bifurcate its appeal?

[00:16:04] Speaker 01:
That's correct, Your Honor.

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They make essentially two different merits arguments.

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Could those be done concurrently, or would one have to wait for the other?

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The short answer to your question, Your Honor, is I think the CIT would have procedures to deal with that in a way that made efficiency and sense.

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For example, if they thought that their best argument was the Scope Substantial Transformation Argument, they could stay the protest and not deal with does it come from China if they say, well, if we win the Scope Argument, we win anyway.

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I don't know whether the court would be willing to consolidate the cases.

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But I think although it's unfortunate that they raised two kind of separate different merits issues that deal with two different mechanisms, I think there would be ways for the trial court to deal with that issue.

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Is it fairly common for this sort of thing to happen where an importer has got multiple issues with customs ruling on hitting them with duties and then have to go

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through both routes in order to get all those issues resolved?

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I don't know the answer to that.

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I think it certainly can happen and the trial court deals with that issue.

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It's certainly extremely common.

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One can see in the Bell supply decision that customs makes an initial country of origin determination.

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And then if a party disagrees with that and goes against a scope inquiry, I think maybe the extra complication here is TRI's position that we don't know where the citric acid comes from, and you can't prove it's from China.

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And that's clearly an A case, but I think that's an extra wrinkle.

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And what this court has said in Sunpre's.

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Mr. Kerlin?

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Yes, Mr. Kerlin, let me just interrupt.

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You're talking about that point again about the factual origin of this, and you say that their argument is customs can't prove it.

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I think that the chief judge asked you whose burden it is, and I'm interested in that too.

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When customs is looking at these entries and having a suspicion that the country of origin for the citric acid is China, not India,

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What kind of evidentiary requirement, if any, do they have before they put the importer on notice that they intend to classify this?

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Do they have to point to some evidence or can they just tell the importer their entries are insufficient and they're going to classify it as from China unless the importer comes forth with evidence?

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Is there anything in the regulations or procedures of customs that tell us

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Who gets to decide the evidentiary issue in the first place, and who bears the burden?

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Yes.

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So, and this was discussed in the cyber power systems case.

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We cited a page 42 of our brief.

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In a Section 1581A protest, the burden is on the protester on the evidentiary issue.

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There is nothing that prevents... No, maybe I'm not being... Sorry, Mr. Kerlin, maybe I'm not being clear.

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I don't... I get what happened after...

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the protest is filed and the like.

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But when, when customs gets these entries from the importer that classify it as coming from India and customs has suspicion that they're not properly classified and they send out some kind of notice to the importer that says, we don't think these are right.

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We're going to classify it as coming from China.

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What kind of proof do they need to make that statement before

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they can send out that order.

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I mean, is it, do they have to have some documentary evidence or is it just their suspicion or their view that the evidence supported by the importer is insufficient?

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Not after the protest has been filed and the like, but that first initial contact.

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I understand.

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I don't think there's any statutory or regulatory requirement about the type of proof that customs needs in order to make its initial determination.

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But where that issue is addressed is if someone does challenge it and files a protest, because there's, leaving aside where the evidentiary burden stands in that proceeding, because there is complete discovery and de novo review in that protest,

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It requires customs to lay its cards on the table and say, okay, here's the, you know, the basis for our suspicion or here's the evidence we had in our possession that caused us to make that determination.

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And then the import, then there's discovery.

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So there's development of further evidence.

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And then, you know, despite the evidentiary burden, the CIT gets to look at the evidence that customs had and any further evidence that gets developed and say,

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you know, okay, yeah, I think, you know, you've made your case or not.

[00:21:02] Speaker 01:
So in any event, the proper venue for that factual question to be resolved is quintessentially in the Section 1581A protest.

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On the other hand, and I don't want to complicate things too much here, but just to be clear, both customs and commerce have their own substantial transformation tests.

[00:21:27] Speaker 01:
As we've noted, this is also page 42 of our record.

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If you're really just challenging, like, custom's own substantial transformation analysis, that can be a factual question that's addressed in a protest, too.

[00:21:37] Speaker 01:
Like, if they just want to say, custom, you got it wrong here.

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Based on your test, this stuff should be considered substantially transformed.

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That could also be challenged in a protest.

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But this court has been clear throughout the Supreme litigation, and particularly Supreme 1, that if customs makes that initial determination and you disagree with it, this is page 1193 of Supreme 1, that the proper remedy for you to pursue that is through a scope and career to commerce.

[00:22:08] Speaker 01:
If you say, our stuff is substantially transformed, doesn't matter where it came from, it's a product of India, that the proper thing for you to do is file a scope

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requests with commerce.

[00:22:19] Speaker 01:
And by the way, the reason that Sunprime 3 dealt with all those issues in the context of a challenge to a scope ruling is precisely because Sunprime 1 had found that it wasn't appropriate to do that in a Section 1581i case.

[00:22:34] Speaker 01:
And that's why those issues got resolved in a Section 1581c scope ruling case.

[00:22:41] Speaker 01:
And that applies, that certainly applies here.

[00:22:44] Speaker 01:
So the key factual issue, and there were, I think, several misstatements by counsel that I want to make sure I address, is did TRI, to the extent it wanted to argue that its goods were substantially transformed in India, and thus outside the scope of the China orders, did it have an appropriate opportunity to seek a scope moving from commerce?

[00:23:05] Speaker 01:
And the trial court correctly found that the answer here was clearly yes.

[00:23:11] Speaker 01:
This is page 23 to 24.

[00:23:14] Speaker 01:
of the trial court's ruling, the court held, at least as of October 3rd, 2018, TRI was on notice that CBP considered the subject entries to be of Chinese origin and subject to the citric acid orders.

[00:23:28] Speaker 01:
And that's clearly the case, right?

[00:23:30] Speaker 01:
There's the October 3rd email in which CBP forwarded

[00:23:36] Speaker 01:
It's notice of action where it said that we believe the citric acid is of Chinese origin and subject to anti-dumbing and cannabinoid duty orders.

[00:23:44] Speaker 01:
The proposed change includes changing the entries to type 03.

[00:23:49] Speaker 01:
And then one important factual issue I wanted to correct there is that on that date, October 3rd, 2018, which is more than 45 days out from liquidation, by the way,

[00:23:59] Speaker 01:
Commerce, I'm sorry, CBP, and this is in TRI's complaints, CBP suspended liquidation of the entries as of that day while saying, we think they're Chinese in origin and subject to the ADCVD orders.

[00:24:12] Speaker 01:
TRI quibbled that, well, you didn't list ADCVD when you suspended it as of that day.

[00:24:16] Speaker 01:
But as of that day, you could have sought a scope inquiry from Commerce.

[00:24:24] Speaker 01:
it would have applied to those entries because they were suspended by CBD under the regulations.

[00:24:29] Speaker 01:
And panesthetically, I should add, that really, TRI had the opportunity to seek a scope inquiry even earlier than that.

[00:24:37] Speaker 01:
They were arguing back from their, you know, in their letter that's in the record of pages 108 to 110 of the appendix, even in responding to their CBT's initial requests, they were arguing strenuously that their goods were substantially transformed in India

[00:24:52] Speaker 01:
And logically, if they wanted to get a definitive answer, that question from commerce could have sought a scope ruling all along, but certainly by October 23rd.

[00:25:02] Speaker 01:
The record goes on.

[00:25:02] Speaker 01:
On October 24th, after receiving materials from TRI, CBP came back.

[00:25:09] Speaker 03:
Mr. Curlin, sorry to interrupt you, but time is short.

[00:25:13] Speaker 03:
Can I just go back to where I started and Judge Hughes picked up on, which is understanding the burden?

[00:25:18] Speaker 03:
Because I have an intuition that the incentive to go on the I route has something to do with who's got the burden to do what when.

[00:25:26] Speaker 03:
So even though your answer to Judge Hughes, which is you get a trial de novo before the CIT, that doesn't quite answer the question of burden.

[00:25:36] Speaker 03:
So in a situation such as this, is customs allowed to apply kind of a presumption that a particular product, because of what it knows about manufacturing around the world, that a particular product originated in China?

[00:25:56] Speaker 01:
I think the answer to that is no, Your Honor, but I want to be clear about this.

[00:26:03] Speaker 01:
This is in the cyber power systems decision of page 42 of our brief.

[00:26:08] Speaker 01:
The burden in any proceeding does lie with the protesters.

[00:26:15] Speaker 01:
So they would have the burden to show in that context that their goods were not from China.

[00:26:21] Speaker 01:
But I don't think customers- And where's the point that they're hot?

[00:26:25] Speaker 03:
That's significantly different than under proceedings under I, right?

[00:26:31] Speaker 01:
I don't think, because these aren't proper I proceedings, I don't think there's been any explanation of who bears the burden.

[00:26:41] Speaker 01:
But I take your Honor's point, and it emphasizes why this case really isn't an appropriate I case.

[00:26:48] Speaker 01:
Because I don't doubt that TRI prefers to have this issue reviewed

[00:26:54] Speaker 01:
as an APA challenge on an alleged administrative record rather than having these claims subject to the full discovery that would occur in a 1581A case.

[00:27:10] Speaker 01:
But, you know, merely because TRI has the evidentiary burden in that context doesn't mean that in that de novo review kind of full discovery context that CBP isn't going to be required to

[00:27:24] Speaker 01:
to disclose, to submit as part of discovery, whatever evidence it has that the goods are from China, and then evaluate that for what it's worth.

[00:27:38] Speaker 01:
I don't think flimsy evidence is necessarily going to stand up in a 1581A case just because of the evidentiary burden.

[00:27:44] Speaker 01:
One final point, just to address another question.

[00:27:48] Speaker 01:
In the 1581C context, that's subject to all the facts available and AFA rules that this court is familiar with.

[00:27:55] Speaker 01:
So if they're saying our stuff is substantially transformed, commerce can also ask in that context, TRI to contact its suppliers and it can judge whether TRI and its suppliers have cooperated to the best of their ability in terms of trying to get the information where the acid is from.

[00:28:13] Speaker 01:
So that... Apologies, it appears that Judge Chen has dropped from the call.

[00:28:18] Speaker 03:
One second for me.

[00:28:19] Speaker 03:
Ken has a question for Mr. Kerlin.

[00:28:22] Speaker 02:
Yeah, just a quick process question.

[00:28:24] Speaker 02:
When Customs sends out requests for information to find out the country of origin, can't it just specifically ask why is this monohydrate from China or India as opposed to China?

[00:28:44] Speaker 01:
I think that that's essentially what customs was getting at.

[00:28:49] Speaker 01:
I mean, it asked for all of the production and process information.

[00:28:54] Speaker 01:
And that's aimed towards figuring out where this stuff comes from.

[00:28:58] Speaker 01:
I don't know.

[00:28:59] Speaker 01:
They I don't think they specifically said, well, why doesn't this come from China rather than India?

[00:29:05] Speaker 01:
But they and frankly, I think, you know, they weren't in necessarily an accusatory mode.

[00:29:11] Speaker 01:
They're in an information gathering mode.

[00:29:13] Speaker 01:
So, you know, they said, tell us about this stuff and what it is and how it's produced, and then looked at that information.

[00:29:21] Speaker 01:
And TRI's answer was, you know, again, to emphasize that TRI believed that this, what customs ultimately determined to be a drying process, affected a substantial transformation.

[00:29:34] Speaker 01:
And so this product was not only from India for purposes of ADCVD, but also from India

[00:29:41] Speaker 01:
and in that sense eligible for special preference under the generalized system of preferences, GFP.

[00:29:48] Speaker 01:
And Customs ultimately took that information and looked in and said, no, we don't think it is substantially transformed.

[00:29:53] Speaker 01:
I think you're just removing water, soluble water from citric acid.

[00:30:00] Speaker 01:
And so, you know, we believe this is a product of China.

[00:30:05] Speaker 01:
We don't think it's substantially transformed.

[00:30:07] Speaker 01:
And we're going to apply ADCVD duties.

[00:30:09] Speaker 01:
And that's what it said, not only on October 3rd, but then it came back after that testing on October 24th and said the same thing.

[00:30:18] Speaker 01:
Okay, thank you.

[00:30:18] Speaker 02:
I got the answer.

[00:30:19] Speaker 02:
Thank you.

[00:30:21] Speaker 03:
Okay, thank you.

[00:30:21] Speaker 03:
Thank you, Your Honors.

[00:30:22] Speaker 03:
Kerlin, we'll hear from Mr. Peterson again on rebuttal.

[00:30:28] Speaker 00:
Okay.

[00:30:29] Speaker 00:
Thank you.

[00:30:29] Speaker 00:
I'd like to address one of the questions that Judge Shen asked about 1514A jurisdiction.

[00:30:35] Speaker 00:
What if we went into court on a protest?

[00:30:38] Speaker 00:
Well, let's suppose we did.

[00:30:39] Speaker 00:
And let's suppose, in the course of that cheating, some evidence surfaced that the monohydrate product was of Chinese origin.

[00:30:48] Speaker 00:
Okay, we're not done then.

[00:30:49] Speaker 00:
The court has to make a determination of whether that monohydrate remains within the scope of the Chinese order when it undergoes the operations in India.

[00:31:02] Speaker 00:
Now first,

[00:31:03] Speaker 00:
it has to consult the scope of the order.

[00:31:05] Speaker 00:
Some orders talk about produced in China, whether or not further processed outside.

[00:31:10] Speaker 00:
So the scope of the order itself might make a substantial transformation test irrelevant.

[00:31:17] Speaker 00:
And then if it's not, then the court has to go through the question of, is this an anti-circumvention?

[00:31:22] Speaker 00:
Now, Congress intended that to be done by the Commerce Department on an administrative record subject to a deferential standard of review

[00:31:33] Speaker 00:
in the courts.

[00:31:34] Speaker 00:
It did not intend that to happen in a 1581A case.

[00:31:40] Speaker 00:
Did anybody on your side ask Posey where'd they get the monohydrate?

[00:31:45] Speaker 00:
Yes, we did, and they didn't have it.

[00:31:47] Speaker 00:
In fact, I think Judge Hughes had made a comment asking about where a Chinese supplier got its material, but there's no evidence of any Chinese supplier in this case.

[00:31:58] Speaker 00:
Yes, we did ask Posey in an effort to provide the answer to customs.

[00:32:03] Speaker 02:
What did Posey say?

[00:32:06] Speaker 00:
Yep.

[00:32:08] Speaker 00:
What they knew is they had it from Indian suppliers, and their Indian suppliers could not give them more information.

[00:32:15] Speaker 00:
OK, now, but again, if we get into an A case, you don't want to have the scope determination being made by a judge instead of the Commerce Department on a de novo record instead of analyzing the facts Commerce is supposed to do.

[00:32:33] Speaker 00:
That was never intended.

[00:32:36] Speaker 00:
Now as to the 1514, 1581 C question, you know, the court has said, well, customs suspended liquidation, you had time to get a scope ruling.

[00:32:45] Speaker 00:
Well, I don't know, it's 36 days enough time to get a scope ruling.

[00:32:48] Speaker 00:
What if it was 15?

[00:32:49] Speaker 00:
What if it was 10 before they liquidated?

[00:32:53] Speaker 00:
But another important question here is did customs have the power to suspend liquidation at all?

[00:32:59] Speaker 00:
Because with respect to the period that these entries had been made in,

[00:33:03] Speaker 00:
Customs had ended the suspensions of liquidation back by August 1st and directed liquidation, you know, no change liquidations of entry of this merchandise.

[00:33:14] Speaker 00:
So I really questioned whether customs even had the power to suspend.

[00:33:19] Speaker 00:
Final point, in bringing the case under eye, we're not looking for scope determination.

[00:33:25] Speaker 00:
We're looking to set aside action that was done without regard to administrative procedure.

[00:33:31] Speaker 00:
If this was a commerce call, they didn't do it in accordance with their procedures.

[00:33:35] Speaker 00:
If this was a customs call, it was ultra versa.

[00:33:39] Speaker 00:
The relief we're asking for under the APA is to determine who took the action, set the action aside as illegal.

[00:33:46] Speaker 00:
What will follow is that our entries will have been deemed liquidated.

[00:33:51] Speaker 00:
my operation of law as they were entered.

[00:33:53] Speaker 00:
I think it's important to make that clear.

[00:33:55] Speaker 03:
I have just one final question, Mr. Peterson.

[00:33:57] Speaker 03:
Sorry, but I neglected to ask you earlier.

[00:34:01] Speaker 03:
I didn't find in your reply brief a response to the government's alternate argument for affirmance that you hadn't stated a claim upon which relief could be granted.

[00:34:12] Speaker 03:
Did you respond to that at all?

[00:34:14] Speaker 03:
What am I missing?

[00:34:15] Speaker 00:
Well, I don't know.

[00:34:16] Speaker 00:
The court below never reached that, as you know, Your Honor.

[00:34:20] Speaker 00:
The court dismissed for lack of subject matter jurisdiction.

[00:34:26] Speaker 00:
So to the extent that a 12b6 motion may have been interposed below, it was not ruled on by the court.

[00:34:34] Speaker 03:
Thank you.

[00:34:35] Speaker 03:
We thank both sides, and the case is submitted.

[00:34:38] Speaker 03:
That concludes our proceeding for this morning.

[00:34:43] Speaker 01:
The honorable court is adjourned until this afternoon at 2 PM.