[00:00:00] Speaker 04:
Okay, our next case is number 22-1161, acquisition 362 LLC versus United States, Mrs. Mark.

[00:00:17] Speaker 03:
May it please the court, I have no pixels and no adapters.

[00:00:20] Speaker 03:
We're going to launch into the world of court of international trade jurisdiction.

[00:00:24] Speaker 03:
My client and I very much appreciate the opportunity to present this matter to you because there were, with all due respect, two fundamental jurisdictional errors that the Court of International Trade committed that require reversal and remand by this Court under the de novo review standard.

[00:00:39] Speaker 04:
Okay.

[00:00:40] Speaker 04:
Let me start out by saying I found both sides' briefs very confusing in terms of what happened here.

[00:00:47] Speaker 04:
Was there a suspension of liquidation?

[00:00:49] Speaker 04:
If so, where was it ordered?

[00:00:53] Speaker 03:
There was not.

[00:00:53] Speaker 04:
There was not.

[00:00:55] Speaker 03:
there was not.

[00:00:56] Speaker 02:
And I think that... I'm sorry, on that very specific point, I guess I'm looking at the August 10, 2015 federal register which announced the kind of early duty order.

[00:01:10] Speaker 02:
This is...

[00:01:11] Speaker 02:
AD Federal Register 47902, and at the very back of it, 47907, that says suspension of liquidation.

[00:01:19] Speaker 02:
The department will direct CBP, that's Customs, to reinstitute suspension of liquidation effective on the date of publication.

[00:01:27] Speaker 02:
And then on August 14th, four days later, there's a message from Commerce to Customs ordering suspension.

[00:01:36] Speaker 03:
That was the original establishment of the CVD rate, Your Honor.

[00:01:42] Speaker 03:
This is the administrative review of that CVD rate.

[00:01:45] Speaker 03:
It was established in 2015.

[00:01:47] Speaker 02:
But in 2016, when customs liquidated, you could have

[00:01:52] Speaker 02:
protested that as a violation of the suspension, which was in place.

[00:01:56] Speaker 02:
Could you not?

[00:01:57] Speaker 03:
The suspension was not in place at that point in time.

[00:01:59] Speaker 03:
The administrative review that is at issue here, Your Honor, is that... Can you just fill in a detail for me?

[00:02:05] Speaker 05:
So the suspension that that reference is for the original investigation.

[00:02:10] Speaker 05:
Correct.

[00:02:10] Speaker 05:
At some point that investigation was final.

[00:02:13] Speaker 05:
Correct.

[00:02:13] Speaker 05:
And the duty rate was established.

[00:02:16] Speaker 03:
Exactly.

[00:02:17] Speaker 05:
And then there was

[00:02:18] Speaker 05:
There was, I assume, an order to custom somewhere to lift the suspension and liquidate it.

[00:02:25] Speaker 03:
Correct.

[00:02:26] Speaker 02:
Where was that?

[00:02:28] Speaker 03:
I'm sorry, I don't have that.

[00:02:30] Speaker 02:
What I was reading from was not the initiation, but was from the final CBD order that suspends liquidation.

[00:02:38] Speaker 02:
I thought in the usual course, but it doesn't matter whether it's in the usual course.

[00:02:43] Speaker 02:
so that there's not supposed to be any liquidation until the 1675 Administrative Review Proceedings get underway.

[00:02:52] Speaker 03:
And I think where the clarification can be found is in the Federal Register Notice that's dated Monday, October 16, 2017.

[00:02:59] Speaker 02:
Right, I have that.

[00:03:00] Speaker 03:
82 FR 48051.

[00:03:04] Speaker 02:
Yeah.

[00:03:05] Speaker 03:
If we review the entirety of that, there is not one mention of continuing suspension of liquidation.

[00:03:10] Speaker 02:
Does there have to be if there's one already in place?

[00:03:13] Speaker 02:
Does the initiation of a 1675 administrative review automatically terminate an existing suspension?

[00:03:20] Speaker 03:
I don't believe there was an existing suspension at the time, and I think that the government... Except apparently the one that I read to you.

[00:03:27] Speaker 03:
At this point in time, in order to initiate a review... Is there a missing

[00:03:35] Speaker 05:
order here somewhere that we haven't seen that after this initial investigation in the suspension noted in that there was an order to customs after that all became final saying liquidate under this rate for the first investigation.

[00:03:54] Speaker 03:
That's my understanding.

[00:03:55] Speaker 05:
And then somebody later in time asked for a review.

[00:03:59] Speaker 05:
Correct.

[00:04:00] Speaker 05:
Which is what we're talking about.

[00:04:01] Speaker 05:
My question is and

[00:04:03] Speaker 05:
The reason it explained this to me very clearly is when somebody asks for review, is there not an automatic suspension for all people affected?

[00:04:13] Speaker 05:
potentially affected by that review?

[00:04:14] Speaker 03:
That would have to be ordered.

[00:04:16] Speaker 03:
And there is nothing... And it wasn't ordered.

[00:04:18] Speaker 04:
It was not ordered.

[00:04:19] Speaker 04:
Okay, but if we look at a document, I'm not sure, I don't think it's in the appendix, but it's dated June 17, 2019.

[00:04:26] Speaker 04:
It's a public document.

[00:04:29] Speaker 04:
And it says, notice of the lifting of suspension of liquidation of entries.

[00:04:35] Speaker 04:
which seems to be an order of lifting a suspension of liquidation at the conclusion of the period of review and the issuance of the period of review order.

[00:04:52] Speaker 04:
I guess what I'm puzzled about is if there's an order of lifting the suspension, doesn't there have to have been an order of creating the suspension?

[00:05:01] Speaker 03:
Certainly, there has to be an – if there's an order lifting a suspension, there has to be an order creating a suspension.

[00:05:06] Speaker 04:
Are you familiar with the order I'm talking about?

[00:05:09] Speaker 03:
On June 17, 2019 is the issuance of the amended final results.

[00:05:14] Speaker 03:
Right.

[00:05:15] Speaker 04:
Right.

[00:05:15] Speaker 04:
So are you – this is not part of that order establishing the final results.

[00:05:22] Speaker 04:
It seems to be a separate – the document's message number 918.3.1.

[00:05:28] Speaker 04:
Are you familiar with that?

[00:05:31] Speaker 03:
I don't have that message in front of me, Your Honor.

[00:05:33] Speaker 04:
OK, but it does talk about lifting the suspension, which raises this question.

[00:05:37] Speaker 04:
Well, if it's lifting a suspension, it says notice of lifting and suspension of liquidation entries, blah, blah, blah.

[00:05:46] Speaker 04:
If the suspension's lifted, it suggests that there was a suspension.

[00:05:50] Speaker 04:
I think we're all just really puzzled as to what goes on here.

[00:05:53] Speaker 04:
And part of the problem, I think, is that these suspension of liquidations

[00:06:00] Speaker 04:
would be a lot better if Commerce ordered that as part of the initiation of the investigation, then we'd know what was going on.

[00:06:09] Speaker 04:
But that apparently is not what happens generally.

[00:06:12] Speaker 04:
Is that your understanding?

[00:06:14] Speaker 03:
First of all, I couldn't agree with you more that it would be very, very helpful if when we initiate investigation, we confirm the status of suspension.

[00:06:21] Speaker 03:
If we look at the initiation of investigation here, there's nothing that says that there's suspension.

[00:06:26] Speaker 03:
And in their brief there, Your Honor, the government has, while they tried to say we could have argued that there was a premature liquidation, they disagree that there was a premature liquidation, and also don't cite to any authority that says that suspension was liquidated during this period in which our entries wouldn't be paid.

[00:06:44] Speaker 03:
Liquidation was suspended.

[00:06:46] Speaker 02:
That liquidation was suspended.

[00:06:47] Speaker 02:
The trouble is that the June 17, 2019, I'm sorry,

[00:06:54] Speaker 02:
what is it, the August, August 2016 Federal Register 2015 expressly says liquidation is suspended and the only way you, and then there was a follow-on message four days later, there had then been some discussion about how there is, must have been or something, another order from Commerce withdrawing that suspension, which I've never

[00:07:24] Speaker 02:
heard any mention of.

[00:07:25] Speaker 02:
The trouble is that your argument pretty centrally depends on this idea that there was nothing you could do at the time of the actual liquidation.

[00:07:36] Speaker 02:
And if, in fact, there was a suspension in place, that's not right.

[00:07:40] Speaker 02:
You could have protested the liquidation as a violation of the suspension, and now

[00:07:45] Speaker 02:
The idea is that there's this phantom withdrawal of the published suspension that you have to rely on for your argument.

[00:07:56] Speaker 03:
I don't think that's the case.

[00:07:57] Speaker 03:
I think what we rely on is the Federal Register notice that's published.

[00:08:01] Speaker 03:
And that's the notice that goes out to everybody as they're importing these tires that the duty rate may change.

[00:08:07] Speaker 03:
And that's the October 16, 2017 notice.

[00:08:10] Speaker 03:
Nothing in there indicates that there's a suspension of liquidation.

[00:08:12] Speaker 03:
There's no notice given that the prior suspension from years ago is still in place.

[00:08:18] Speaker 03:
They're reviewing the rate.

[00:08:22] Speaker 05:
And you're not arguing.

[00:08:23] Speaker 05:
I mean, I don't understand why none of this stuff is on the record, but I assume that those were all liquidated.

[00:08:31] Speaker 05:
all the entries under the original order were liquidated.

[00:08:34] Speaker 03:
All of our entries were liquidated, yes.

[00:08:36] Speaker 05:
I mean, somebody should have given us that order, because there has to be an order from Commerce to Customs for liquidation to happen.

[00:08:42] Speaker 03:
Certainly.

[00:08:43] Speaker 05:
You're not arguing that that first order is still, the suspension for that first order is still in place.

[00:08:49] Speaker 03:
We are not arguing that.

[00:08:51] Speaker 05:
So, but I'm still confused when this investigation

[00:08:57] Speaker 05:
The administrative review, not the investigation, sorry.

[00:08:59] Speaker 05:
I know the terms are important.

[00:09:00] Speaker 05:
The administrative review was initiated.

[00:09:02] Speaker 05:
It involved a whole bunch of companies.

[00:09:05] Speaker 03:
It did.

[00:09:05] Speaker 05:
There's a really long list.

[00:09:06] Speaker 03:
It did.

[00:09:07] Speaker 05:
Do we know what happened to, and your client withdrew from the review, right?

[00:09:12] Speaker 03:
Correct.

[00:09:13] Speaker 05:
Do we know were the entries of all the people that didn't review somehow suspended or not liquidated?

[00:09:20] Speaker 05:
And the reason that your company's entries were liquidated because you withdrew from the review?

[00:09:28] Speaker 03:
I don't know the answer to that, Your Honor.

[00:09:30] Speaker 03:
I mean, what we're looking at here is the manufacturer whose tires we imported is listed in the October 16, 2017 notice.

[00:09:43] Speaker 03:
They're there.

[00:09:44] Speaker 03:
There is no doubt about that.

[00:09:46] Speaker 03:
So they are subject to this review.

[00:09:48] Speaker 03:
And as the review went on, the review continued with them in place.

[00:09:52] Speaker 03:
So they're part of that review.

[00:09:54] Speaker 05:
And there is no... But they're suggesting in the record that somebody related to you withdrew.

[00:09:58] Speaker 05:
I mean, I'm not making that up out of thin air.

[00:10:02] Speaker 03:
No, you are not.

[00:10:03] Speaker 05:
Right.

[00:10:04] Speaker 05:
And so maybe there was a mistake as to who withdrew.

[00:10:06] Speaker 05:
And again, this wasn't explained whether the withdrawal is what led to the liquidation.

[00:10:14] Speaker 05:
But it does seem to be an inference that it could have led to the liquidation.

[00:10:18] Speaker 03:
Yeah, there is no evidence in the record that the withdrawal had any impact whatsoever on the liquidation.

[00:10:23] Speaker 05:
But we don't know if everybody else that was covered by the order didn't get liquidated.

[00:10:28] Speaker 05:
It seems like other companies' entries didn't get liquidated.

[00:10:33] Speaker 03:
And certainly, the timing of these liquidations took forever.

[00:10:37] Speaker 03:
I mean, that is an unmistakable fact.

[00:10:41] Speaker 03:
And the fact that we experienced that ourselves.

[00:10:43] Speaker 03:
that one of our entries was liquidated so late that now we were able to get the refund.

[00:10:50] Speaker 03:
I see that I'm into my rebuttal time, but I want to make sure that I'm answering your question.

[00:10:53] Speaker 05:
All of this is just factual matter to get us to understanding what even is going on here, but ultimately don't you still have the problem that

[00:11:04] Speaker 05:
there was a liquidation, and that's a final decision of customs.

[00:11:09] Speaker 05:
And unless you protest it, you can't challenge it.

[00:11:12] Speaker 03:
And that goes exactly to your honor's point earlier, that we didn't have anything to protest.

[00:11:18] Speaker 05:
You had that final decision.

[00:11:20] Speaker 05:
It's not, you can say, I mean, whether you had an argument about why the liquidation was wrong, it's a question of finality.

[00:11:29] Speaker 05:
It's not whether you, there's an exception

[00:11:32] Speaker 05:
To finality, is there?

[00:11:33] Speaker 04:
The final decision was more than 180 days after liquidation, right?

[00:11:38] Speaker 03:
The final decision was 220 days after liquidation.

[00:11:41] Speaker 04:
Yeah, so I'm not seeing how you could have protested the liquidation unless there was a suspension of liquidation.

[00:11:50] Speaker 04:
If you say there wasn't and the government hasn't shown us that there was, that would have brought us within carbon activated.

[00:11:57] Speaker 04:
But I guess a related question might be, well,

[00:11:59] Speaker 04:
Okay, when they initiated this administrative review, you could have requested a suspension of liquidation.

[00:12:05] Speaker 04:
And how about the argument that perhaps that was your remedy was to request the suspension and then to object if it was liquidated in violation of the suspension?

[00:12:18] Speaker 03:
It comes back to this issue of on what basis do we request suspension.

[00:12:24] Speaker 03:
We don't know if the rate's going to change.

[00:12:25] Speaker 03:
We don't know to what the rate's going to change.

[00:12:27] Speaker 04:
That would seem to happen fairly frequently, that the suspension, excuse me, just because of the existence of the proceeding.

[00:12:36] Speaker 04:
Could you have requested suspensional liquidation when the proceeding, the administrative review proceeding was initiated?

[00:12:45] Speaker 03:
Could we have requested that of Customs?

[00:12:47] Speaker 03:
Certainly.

[00:12:48] Speaker 03:
You can request that.

[00:12:48] Speaker 02:
Customs or of Commerce, who would you make that request?

[00:12:53] Speaker 03:
That's a very good question.

[00:12:54] Speaker 03:
I suppose the request could be posed to both, but there's no evidence in the record.

[00:12:59] Speaker 03:
I mean, they kicked us out on a Rule 12 basis.

[00:13:01] Speaker 03:
There's no evidence in the record to demonstrate.

[00:13:03] Speaker 05:
When somebody asks for an investigation, it's with the intent that the rate may change.

[00:13:10] Speaker 03:
Correct.

[00:13:11] Speaker 05:
They have information that they think the rate is going to change, and they're asking that of commerce, right?

[00:13:17] Speaker 05:
So why aren't they asking commerce to order customs to suspend all liquidations during the period of administrative review?

[00:13:27] Speaker 05:
I thought that routinely happened, frankly, and the government can answer that, but I thought when there was an administrative review that commerce initiated, liquidations were suspended.

[00:13:39] Speaker 05:
So it kind of surprised me to see that they weren't here.

[00:13:44] Speaker 05:
But that doesn't absolve you

[00:13:46] Speaker 05:
from not protesting a liquidation, which I'm a little confused because you seem to reference something different as a final decision.

[00:13:54] Speaker 05:
But my understanding is when an entry is liquidated after the time for protest has elapsed, that becomes the final decision of customs.

[00:14:03] Speaker 05:
Is that not the law?

[00:14:05] Speaker 03:
After 180 days after liquidation, certainly that becomes a final decision.

[00:14:10] Speaker 03:
But our argument is that we didn't have anything to protest within 180 days after that final decision.

[00:14:16] Speaker 03:
Our ability to protest comes later.

[00:14:18] Speaker 05:
Your protest would have been that the ongoing administrative review could still change the rates.

[00:14:23] Speaker 05:
At that point in time... And again, whether you had an argument or not isn't a finality question.

[00:14:30] Speaker 05:
You have to protest a liquidation.

[00:14:32] Speaker 03:
We don't have an obligation to file a legally futile protest.

[00:14:36] Speaker 03:
And if we are going to go to anyone and say, we don't have a new rate.

[00:14:39] Speaker 05:
But how do we know it was legally futile?

[00:14:41] Speaker 03:
Because we didn't have a new rate, and we didn't have a suspension order, and we didn't have the ability to come forward and say, what's the basis here?

[00:14:49] Speaker 05:
I still don't understand.

[00:14:52] Speaker 05:
This doesn't seem like it was futile.

[00:14:54] Speaker 05:
You could have told customs that this review is ongoing and may change the rates.

[00:15:02] Speaker 03:
it may change the rights.

[00:15:04] Speaker 03:
There's no obligation on anybody to grant that order nor was that order in place here.

[00:15:08] Speaker 05:
No, but that's what you can ask customs and customs can either grant or deny the protest and you can file a case in the CIT under a jurisdiction and then you could get it resolved.

[00:15:20] Speaker 05:
It seems like you're asking us to expand the futility exception to I in a way that we've never done before.

[00:15:26] Speaker 03:
No, I don't think we are.

[00:15:27] Speaker 03:
I think I is created as that catch-all provision in order to allow a remedy where there isn't one that's available.

[00:15:34] Speaker 05:
And what we're saying- Why isn't what I just described a remedy that would have been available?

[00:15:38] Speaker 05:
Because there was- Is there cases where you could have filed a protest, even if you may not have had a good argument, but you didn't, and the liquidation decision became final, but we nonetheless allowed I jurisdiction?

[00:15:54] Speaker 03:
I think I can give you a case on the flip side of that, where we talk about when you file a protest, and this is the EH Bailey case that we talk about, that we cannot file a protest as a matter of established case law that just says the rate was wrong.

[00:16:09] Speaker 03:
We're prohibited from doing that.

[00:16:11] Speaker 03:
This court has established that that doesn't work.

[00:16:13] Speaker 03:
We don't know what the new rate is.

[00:16:14] Speaker 03:
That doesn't work for this court's jurisdiction.

[00:16:17] Speaker 05:
It would give the CITA jurisdiction.

[00:16:20] Speaker 05:
You might lose, but it would give the CITA jurisdiction.

[00:16:24] Speaker 03:
because customs would deny the protest, and then you could challenge the denial of the protest under A. I don't think so, Your Honor, because if we file a legally futile protest, which the Bailey case is trying to give us an indication that this would be, the fact that we have filed that doesn't give us a jurisdiction.

[00:16:40] Speaker 05:
Are you suggesting that there are cases that say the CIT has refused a jurisdiction because you filed a legally futile protest and should have done it under I?

[00:16:50] Speaker 05:
I'm not aware of any of those cases.

[00:16:52] Speaker 03:
No, I think what we're saying is that in order to get a jurisdiction, there has to have been an admissible protest.

[00:17:01] Speaker 03:
A legally ineffective protest is not a thing.

[00:17:03] Speaker 05:
What case do you cite for that?

[00:17:04] Speaker 05:
I thought all you had to do to get a jurisdiction was file a protest against a liquidation decision on whatever ground you want to file it, have it denied, and then you go to the Court of International Trade.

[00:17:15] Speaker 05:
Whether you filed a meritorious one will go to the merits, but it's just the procedural act

[00:17:21] Speaker 05:
challenging the liquidation decision.

[00:17:23] Speaker 05:
Otherwise, it becomes final and not challengeable under I, generally.

[00:17:29] Speaker 03:
And what we're saying here, Your Honor, is that there was a different mechanism.

[00:17:33] Speaker 03:
The court and the government are so myopically focused on liquidation that they're not understanding with those other two provisions.

[00:17:39] Speaker 03:
Case, any case.

[00:17:40] Speaker 03:
I think it comes from the statutes.

[00:17:41] Speaker 05:
Or is this going to be a case of first impression?

[00:17:42] Speaker 03:
It comes from the statutes.

[00:17:44] Speaker 05:
Can you answer the question, are there any cases that support this argument that we have allowed this kind of futility exception to I?

[00:17:50] Speaker 05:
To A, jurisdiction and going under I, or is this going to be a case of first impression?

[00:17:55] Speaker 03:
All of the cases that we found, Your Honor, were cited in our reply brief.

[00:17:58] Speaker 05:
So I think... But none of them are this situation, right?

[00:18:01] Speaker 05:
This is a case of first impression.

[00:18:03] Speaker 05:
We're creating a new futility exception to A, jurisdiction, if we go with your argument.

[00:18:09] Speaker 03:
I don't think so.

[00:18:09] Speaker 03:
I think that this is... What case?

[00:18:11] Speaker 03:
The statutes, Your Honor.

[00:18:13] Speaker 05:
No.

[00:18:13] Speaker 05:
What case?

[00:18:14] Speaker 03:
All of the cases have been cited.

[00:18:15] Speaker 03:
Okay.

[00:18:16] Speaker 05:
You don't have a specific case.

[00:18:17] Speaker 03:
I don't have a specific case.

[00:18:19] Speaker 03:
Thank you.

[00:18:20] Speaker 04:
Okay, we'll give you three minutes for rebuttal.

[00:18:25] Speaker 04:
Ms.

[00:18:25] Speaker 04:
Joseph?

[00:18:34] Speaker 05:
Can you explain why we don't have all the orders in this case going back to the first investigation?

[00:18:40] Speaker 05:
Because there is a gap here.

[00:18:43] Speaker 05:
I mean, common sense,

[00:18:46] Speaker 05:
If you have the initial investigation, that investigation, in order for there to be an administrative review, at some point that investigation and the rate was final and those injuries were liquidated.

[00:18:56] Speaker 05:
And I assume that all happened here, but we don't have any evidence of that in the record.

[00:19:01] Speaker 01:
Your Honor, I think that's not on the record.

[00:19:03] Speaker 01:
It's because it's a jurisdictional case.

[00:19:04] Speaker 05:
I understand, but it's very frustrating.

[00:19:07] Speaker 01:
I can explain, certainly, how it's supposed to happen and what happened.

[00:19:11] Speaker 01:
Right.

[00:19:11] Speaker 05:
They're in the Federal Register.

[00:19:13] Speaker 05:
Even if they weren't in the record, you could have cited us the Federal Register notices.

[00:19:16] Speaker 05:
So did that happen here?

[00:19:18] Speaker 05:
That document that we're talking about that has the suspension at the end.

[00:19:22] Speaker 05:
Is there something after that that lifted that suspension and ordered the liquidation of the entries that were covered by the initial investigation?

[00:19:32] Speaker 01:
I'm not sure if it's on the record, but I think the trial court's decision here sums up the background.

[00:19:37] Speaker 05:
Wouldn't it have been published in the Federal Register?

[00:19:40] Speaker 01:
Well, okay, so normally when there's an anti- You know we're talking about counter railing duty order.

[00:19:45] Speaker 01:
When a counter railing duty order is in place, here tires from China.

[00:19:50] Speaker 01:
At entry, thereafter, parties are required to put estimated duties.

[00:19:54] Speaker 01:
When commerce initiates an administrative review on an annual basis, they're automatically suspended.

[00:20:01] Speaker 01:
Those entries are really suspended.

[00:20:02] Speaker 04:
Wait, wait, wait.

[00:20:03] Speaker 04:
So you're saying there was a suspension of liquidation here?

[00:20:06] Speaker 01:
Yes, there was a suspension.

[00:20:08] Speaker 01:
How do we know?

[00:20:09] Speaker 04:
Because as soon as commerce... What word are suspended liquidation?

[00:20:12] Speaker 01:
When commerce initiates the administrative review.

[00:20:14] Speaker 04:
It doesn't say it.

[00:20:15] Speaker 04:
How do we know that suspends liquidation?

[00:20:17] Speaker 01:
That's done by statute.

[00:20:19] Speaker 01:
It's automatic.

[00:20:20] Speaker 01:
No, it's statute.

[00:20:22] Speaker 01:
And I can also point to the CIT's decision, which was cited in other briefings, and power.

[00:20:28] Speaker 01:
That's 121X up third.

[00:20:30] Speaker 01:
The CIT there explains it pretty clearly, the scheme that's involved when we have suspension of liquidation.

[00:20:37] Speaker 04:
I don't see anything in the statute.

[00:20:39] Speaker 04:
administrative review order that suspends liquidation.

[00:20:43] Speaker 04:
I do not see anything in the statute in this administrative review context that suspends liquidation automatically.

[00:20:50] Speaker 04:
Please point to me which statute you think does that.

[00:21:11] Speaker 01:
Section 1675 provides that on an annual basis, commerce conducts an administrative review.

[00:21:17] Speaker 01:
1675 what?

[00:21:18] Speaker 01:
1675.

[00:21:18] Speaker 01:
This is part of the commerce.

[00:21:20] Speaker 01:
Yeah, I know.

[00:21:20] Speaker 02:
Do you have a subsection?

[00:21:21] Speaker 01:
It's a very long section.

[00:21:22] Speaker 01:
Yeah.

[00:21:24] Speaker 01:
A1.

[00:21:25] Speaker 02:
Thank you.

[00:21:27] Speaker 01:
And this is in the Anne Power case by the CIT.

[00:21:32] Speaker 01:
It says it has long been recognized that the necessary implication of reading.

[00:21:36] Speaker 04:
No, no, no, no.

[00:21:36] Speaker 04:
The statute.

[00:21:40] Speaker 04:
What does it say?

[00:21:42] Speaker 01:
It says that

[00:21:48] Speaker 01:
The anti-dumping duty, and this is just a quote from the CIT's decision.

[00:21:52] Speaker 05:
You don't have the language of the statute.

[00:21:53] Speaker 01:
I don't have the language of the statute itself.

[00:21:55] Speaker 01:
Again, because this is going to the merits.

[00:21:57] Speaker 04:
I don't think the language of that particular provision says anything about suspension.

[00:22:01] Speaker 04:
There's a provision in 1671B, D2, which talks about suspension of liquidation, but that is dealing with the initial investigation, not with the

[00:22:12] Speaker 04:
administrative review provisions.

[00:22:14] Speaker 04:
I could not find anything in the statute that automatically suspends liquidation on the commencement of an administrative review.

[00:22:21] Speaker 04:
You seem to think there is.

[00:22:23] Speaker 04:
Tell me where it is.

[00:22:24] Speaker 01:
It's the reading of the two statutes together that suspension of liquidation of entry must remain in effect throughout an administrative review by commerce.

[00:22:33] Speaker 01:
That's just part of the retrospective system of anti-dumping.

[00:22:35] Speaker 04:
You mean the assumption that there was a suspension?

[00:22:38] Speaker 01:
There's definitely a suspension.

[00:22:39] Speaker 04:
As soon as commerce initiates... I do not understand commerce's approach to these things.

[00:22:43] Speaker 04:
We've had problems with this in the past.

[00:22:45] Speaker 04:
You know, administrative agencies are supposed to issue orders so that people know what the situation is.

[00:22:50] Speaker 04:
I cannot understand why commerce, if it thinks it's suspending liquidation, doesn't say so.

[00:22:56] Speaker 01:
It does.

[00:22:56] Speaker 01:
I mean, in initiation, that's how it works.

[00:22:58] Speaker 04:
This is not a new... No, the order did not say so.

[00:23:01] Speaker 05:
No, this is not a new concept in the sense that the system... Yeah, but how did customs know if you didn't tell them

[00:23:07] Speaker 05:
that all the entries under this period of review were suspended.

[00:23:12] Speaker 01:
Commerce does.

[00:23:13] Speaker 01:
I don't know if that's in the record, but in normal context, when there's an initiation of a review, commerce sends instructions.

[00:23:19] Speaker 05:
We have the order for the initiation.

[00:23:22] Speaker 05:
Is there a separate instruction that commerce sent to customs in this case?

[00:23:27] Speaker 05:
We certainly don't have it.

[00:23:29] Speaker 01:
And yes, there should have been.

[00:23:30] Speaker 01:
But again, at the end of the day... There should have been?

[00:23:32] Speaker 01:
Was there?

[00:23:33] Speaker 01:
There is.

[00:23:33] Speaker 01:
There should have been.

[00:23:35] Speaker 01:
Have you seen it?

[00:23:35] Speaker 01:
Again, that's getting to the merits.

[00:23:36] Speaker 01:
Have you seen it?

[00:23:37] Speaker 04:
Have you seen such an order?

[00:23:39] Speaker 01:
No, because we didn't get, you know, customs didn't get to the merits here because there was no jurisdiction.

[00:23:43] Speaker 05:
Well, your view is it doesn't matter because... It doesn't matter.

[00:23:45] Speaker 05:
The liquidation decision was final.

[00:23:47] Speaker 01:
Exactly.

[00:23:48] Speaker 05:
It doesn't actually... But it sure would help us understand what went on here

[00:23:51] Speaker 05:
if we knew whether commerce actually told customs to suspend these entries.

[00:23:59] Speaker 05:
If customs wasn't told to suspend these entries and they got liquidated and there was no grounds for protest, what should they have said?

[00:24:10] Speaker 01:
The plaintiff is only entitled to that amended final result if the entry was suspended.

[00:24:16] Speaker 01:
If the entry was not suspended, they're not entitled to that amended review, because, again, plaintiff's argument is very inconsistent.

[00:24:23] Speaker 01:
On the one hand... Why is that, Paul?

[00:24:25] Speaker 04:
I don't understand that.

[00:24:26] Speaker 04:
On the one hand... If they're not entitled to the rate if liquidation was not suspended, what case says that?

[00:24:31] Speaker 01:
Because that's how the amended final result.

[00:24:33] Speaker 04:
What case says that?

[00:24:34] Speaker 01:
It's not a case, it's how the statutes work.

[00:24:36] Speaker 01:
It's the whole retrospective system of anti-dumping accountability duties here.

[00:24:41] Speaker 01:
Plaintiff can only get the benefit of that amended final results that it wanted had the entries been suspended.

[00:24:48] Speaker 01:
If the entries were not suspended, then he wouldn't be entitled to that right.

[00:24:53] Speaker 01:
That's just, you know, that's what it's confusing here, because the appellant's argument here very much is inconsistent.

[00:24:59] Speaker 01:
On the one hand,

[00:25:00] Speaker 01:
Appellants argue that the entry is subject to commerce or not.

[00:25:04] Speaker 01:
They are subject to the review.

[00:25:05] Speaker 05:
Let me understand.

[00:25:06] Speaker 05:
I think I understand what you're saying, which is if there's a review period, generally these things are suspended because if they're not and it's liquidated, it's final.

[00:25:17] Speaker 05:
And whatever happens after the finality can't retroactively change it because the liquidation decision has become final.

[00:25:24] Speaker 01:
That's correct.

[00:25:25] Speaker 05:
So what I can't understand here from this record, and I understand it went off on a motion to dismiss,

[00:25:30] Speaker 05:
don't have much of a record, but is why their entry was liquidated when it seems like nobody else's was.

[00:25:39] Speaker 05:
And that would be consistent with your view that this was suspended, that the entries under this review period were suspended.

[00:25:47] Speaker 05:
But then if they were, and their company was one of those listed, why were theirs liquidated?

[00:25:54] Speaker 01:
Again, they're arguing that they weren't subject to the review.

[00:25:58] Speaker 05:
No, I don't know that either, because they said your company.

[00:26:02] Speaker 05:
I don't know either.

[00:26:03] Speaker 05:
I mean, there's certainly one company that withdrew that seems somehow related to them.

[00:26:07] Speaker 05:
But then they said there's other companies that didn't withdraw that are related to them.

[00:26:11] Speaker 05:
That's also unclear from all of this.

[00:26:14] Speaker 04:
That's unclear.

[00:26:14] Speaker 04:
The rate is going to apply to them whether they withdrew from the proceeding or not.

[00:26:19] Speaker 04:
There might be no individual examination.

[00:26:22] Speaker 04:
for purposes of establishing a rate particular to them, but the all others rates want to apply to them whether they're part of the proceeding or not, right?

[00:26:29] Speaker 01:
No, not for that administrative review, no.

[00:26:31] Speaker 01:
The all others, the rate that they, you know, it's up to them to declare the rate that they think they're entitled to at entry.

[00:26:38] Speaker 01:
So they did that here.

[00:26:39] Speaker 05:
But if their entry had continued to be suspended, even if they didn't participate in the review and the all others rate was revised downward, then it would apply to them.

[00:26:50] Speaker 01:
If their entry was suspended and they were entitled to that amended final results, yes.

[00:26:55] Speaker 01:
If the amended final results did review these entries, it's not clear that Commerce did review these entries.

[00:27:02] Speaker 01:
And if Commerce did review these entries, then yes, they would be entitled to that rate.

[00:27:09] Speaker 01:
And again, this finality argument goes both ways.

[00:27:13] Speaker 01:
If the rate had gone up, customs couldn't go back and get those duties had higher.

[00:27:19] Speaker 01:
It was final.

[00:27:20] Speaker 01:
That's it.

[00:27:20] Speaker 01:
It's a final against all parties.

[00:27:22] Speaker 01:
So it cuts both ways.

[00:27:23] Speaker 01:
Plaintiff thinks, oh, we didn't know it would be lower.

[00:27:26] Speaker 01:
The government didn't know it would be lower either or higher.

[00:27:29] Speaker 01:
It could have been higher.

[00:27:29] Speaker 01:
Post-commerce is amended final results.

[00:27:32] Speaker 01:
The rate could have increased, yet because of the finality, because of

[00:27:36] Speaker 01:
1514A that says it's final.

[00:27:37] Speaker 04:
I'm sorry, I'm not understanding this argument.

[00:27:39] Speaker 04:
I'm going to come back to the question of whether liquidation here was suspended or not.

[00:27:44] Speaker 04:
And you seem not to know the answer to the question of whether there was an order that did that.

[00:27:49] Speaker 01:
For Plaintiff to win its argument?

[00:27:52] Speaker 01:
As a matter of fact, I'm not sure.

[00:27:54] Speaker 04:
Can you find out?

[00:27:56] Speaker 01:
Sure, but that's getting to the merits.

[00:27:58] Speaker 01:
No, it's not.

[00:27:59] Speaker 04:
We think it's a jurisdictional issue.

[00:28:04] Speaker 04:
whether there was an order suspending liquidation.

[00:28:08] Speaker 01:
Yes, I think we would have to go back and see what exactly happened on the merits.

[00:28:13] Speaker 01:
But again, here, customs didn't even do that here.

[00:28:16] Speaker 05:
I understand your argument is it doesn't matter whether it was suspended or not.

[00:28:20] Speaker 05:
The liquidation becomes final, if not protested, and you can't go through an aye jurisdiction.

[00:28:27] Speaker 05:
So whether there's suspension or not under your position is irrelevant.

[00:28:31] Speaker 05:
But if we see it differently,

[00:28:34] Speaker 05:
and somehow want to create an exception to that finality and allow them to go through i when there was nothing for them to protest because there was no suspension and they had no disagreement then it would matter right whether there was a suspension well well for them to win they would have had to be suspended so they wouldn't be entitled to that amended final results wait wait i okay i think you're going down another route but let's just go with sure well i was asking if

[00:29:02] Speaker 05:
there was no suspension order, and they're liquidated, and they had no basis to file a protest.

[00:29:10] Speaker 05:
Their argument is that creates an exception to mandatory A jurisdiction, and they can go through a futility exception in I. And that wouldn't work if their entry was actually suspended, because there was something to protest, so I agree.

[00:29:32] Speaker 04:
I mean, can.

[00:29:37] Speaker 04:
Yeah.

[00:29:38] Speaker 04:
The panel would like you to find out the answer to the question of whether there was an order of suspending liquidation, whether it was public or not.

[00:29:47] Speaker 01:
whether there was an order of suspending of these specific entries at issue here.

[00:29:53] Speaker 05:
Of all the companies covered by the review.

[00:29:58] Speaker 05:
Because I think what you have said is the practice when there's a review is for all entries covered by the review period to be suspended, right?

[00:30:08] Speaker 05:
Correct.

[00:30:08] Speaker 05:
We need to know what your basis for that is because it doesn't appear to be in the statute.

[00:30:14] Speaker 05:
It doesn't appear to be in the specific

[00:30:16] Speaker 05:
order in instituting the review here in this case.

[00:30:21] Speaker 05:
And I don't know if there's any regulatory authority to that effect, but I don't think there is.

[00:30:26] Speaker 05:
And you didn't cite anything to us in the statutes today.

[00:30:29] Speaker 05:
I think you cited an inference.

[00:30:30] Speaker 05:
But you seem to suggest there has to be some operative document for Customs to know to suspend, right?

[00:30:37] Speaker 01:
Yes.

[00:30:38] Speaker 01:
Customs, again, it's the initiation.

[00:30:40] Speaker 01:
And then Customs sends instructions to Commerce saying,

[00:30:44] Speaker 01:
You mean Commerce sends instructions to Customs?

[00:30:46] Speaker 01:
I'm sorry, Commerce sends instructions to Customs saying, these entries under review continue to exist.

[00:30:52] Speaker 01:
But that's what we want to see.

[00:30:54] Speaker 01:
Those instructions, those specific instructions.

[00:30:58] Speaker 02:
And just, just at least for my sake.

[00:31:02] Speaker 02:
So going, this is I think a separate point.

[00:31:05] Speaker 02:
You're now talking about how you're assuming and you will now check whether there was upon the initiation of the 1675 review an instruction to suspend liquidations.

[00:31:20] Speaker 02:
I was earlier focusing on the

[00:31:25] Speaker 02:
end of the 2015 final CBD order that said liquidation is to be suspended, followed four days later by an instruction to customs to that effect.

[00:31:40] Speaker 02:
Why was

[00:31:42] Speaker 02:
Is it your view that that somehow lapsed of its own force before the initiation of the 1675, or was that in place so that one wouldn't need an additional suspension order with the initiation of the administrative review?

[00:32:00] Speaker 01:
So the countervailing duty order, that's the one you're referencing.

[00:32:02] Speaker 02:
The countervailing duty order says suspend liquidation.

[00:32:06] Speaker 02:
Did that just continue?

[00:32:08] Speaker 01:
Yes, that just continues.

[00:32:09] Speaker 01:
That suspension, by the countervailing duty order, that suspension continues until there's an administrative review by Commerce.

[00:32:20] Speaker 01:
Now, when an administrative review, Commerce doesn't, it's not like there's an administrative review of all companies.

[00:32:25] Speaker 01:
You have to request it.

[00:32:26] Speaker 01:
Somebody has to request it.

[00:32:27] Speaker 01:
If nobody requests an administrative review of a specific company, then those entries are,

[00:32:35] Speaker 01:
no longer suspended and liquidated in accordance usually as entered.

[00:32:39] Speaker 01:
But the suspension from the anti-dumping order does continue administratively until a time that there's an administrative review or that time frame for the administrative review happens and moves forward.

[00:32:53] Speaker 02:
So if I understand what you just said and I may not understand it correctly, there might not have been a need

[00:33:01] Speaker 02:
for a instruction from Commerce to Customs upon initiation of the Administrative Review in order to effectuate suspension, since suspension was already in effect.

[00:33:14] Speaker 01:
So I'll clarify.

[00:33:16] Speaker 01:
Once there's an initiation

[00:33:18] Speaker 01:
Commerce will send instructions to customs saying we're reviewing these entries for everyone else.

[00:33:23] Speaker 02:
I'm actually not much interested in what commerce will do.

[00:33:27] Speaker 02:
I'm interested in whether the outstanding, I think you said it was a still outstanding, still in effect suspension order that was part of the 2015, the August 2015 CVD final decision was still in effect.

[00:33:46] Speaker 01:
Yes, until the time for an administrative review.

[00:33:50] Speaker 05:
I don't understand this at all.

[00:33:51] Speaker 05:
And I don't know that you're understanding the question.

[00:33:56] Speaker 05:
We're talking about the original CBD order, and at the end it has suspension.

[00:34:03] Speaker 05:
But that covers a certain set of time or a certain set of entries?

[00:34:09] Speaker 01:
No, the CVD order is... That's just an order setting a rate.

[00:34:12] Speaker 01:
Right.

[00:34:13] Speaker 01:
That as you have these entries come in, you're subject to an order, and this is the estimated duty that you have to give.

[00:34:19] Speaker 01:
That's right.

[00:34:20] Speaker 02:
And it doesn't have an end date on it.

[00:34:21] Speaker 02:
So the... It doesn't.

[00:34:22] Speaker 02:
Right.

[00:34:23] Speaker 02:
The August 14, 2015 order, number, paragraph four.

[00:34:26] Speaker 02:
for imports of these goods, you know, the passenger vehicle, certain passenger vehicle and light truck tires from the People's Republic of China, CDP shall suspend liquidation of entries of subject merchandise entered or withdrawn from warehouse for consumption on or after August 6, 2015, full stop, no end date.

[00:34:48] Speaker 01:
Yes.

[00:34:48] Speaker 01:
It's no end date.

[00:34:49] Speaker 01:
It's the administrative.

[00:34:50] Speaker 01:
And then there's an annual review.

[00:34:51] Speaker 04:
But you say that doesn't continue after the administrative review starts.

[00:34:55] Speaker 01:
That's correct.

[00:34:56] Speaker 01:
So each year at the time of the anti-dumping order, what happens is commerce will send out a federal registered notice.

[00:35:04] Speaker 05:
Can I just back up?

[00:35:05] Speaker 05:
Is this the first administrative review we're talking about here?

[00:35:09] Speaker 01:
It might be.

[00:35:11] Speaker 01:
I'm not 100% sure.

[00:35:12] Speaker 05:
You all should lay this stuff out in detail in the background sections, because you presume we know how this operates, and we do at a high level.

[00:35:20] Speaker 05:
So particularly with this kind of early duty order, so you've got the order, and it sets a rate.

[00:35:27] Speaker 05:
It doesn't cover a specific period of time or a specific set of entries.

[00:35:32] Speaker 05:
It's prospective.

[00:35:33] Speaker 05:
So anything entered after that is covered by that rate.

[00:35:37] Speaker 05:
But then I think what I'm hearing you say now is, but all those duties are still suspended, all those entries are still suspended until what?

[00:35:47] Speaker 05:
Commerce issues in order to customs to liquidate?

[00:35:51] Speaker 01:
All those entries are suspended until the first, a year later when the first time for the first immediate review request happens.

[00:36:01] Speaker 01:
So each year, say this order was published October of 2020,

[00:36:06] Speaker 05:
So anything between that initial order and the year period is suspended until there's a review and then Commerce does a review and it issues instructions to Commerce, liquidate at whatever rate the review finds.

[00:36:23] Speaker 05:
It could be the initial rate, it could be lower, it could be higher.

[00:36:26] Speaker 05:
Correct.

[00:36:27] Speaker 05:
Are we in that first year review period here?

[00:36:29] Speaker 01:
I don't know if it's the first year.

[00:36:30] Speaker 01:
Every year it happens.

[00:36:31] Speaker 01:
So it's the first year, second year, each year on the same month of the order.

[00:36:36] Speaker 05:
Let's assume it doesn't really matter.

[00:36:39] Speaker 01:
Yes, we're in the review period here.

[00:36:41] Speaker 05:
Right, but so even if there is a first year review period, commerce issues and instruction says liquidate at whatever rate, then the next year

[00:36:53] Speaker 05:
your view is automatically suspended under that initial order until commerce completes its review and issues new instructions.

[00:37:01] Speaker 00:
Yes, the order is, yes, the administrative review only covers the entries.

[00:37:06] Speaker 04:
That's not explained at all.

[00:37:09] Speaker 04:
Wait, I cannot understand how the Commerce Department thinks it's appropriate to conduct business in this way.

[00:37:15] Speaker 04:
You're supposed to tell the regulated entities what you're doing and what they're supposed to do and this is opaque and that's not the way it's supposed to be.

[00:37:24] Speaker 04:
Whether that's an error that helps the plaintiff hear or not, it is still very troubling that there's no clarity.

[00:37:33] Speaker 04:
And the regulated parties at this court are having trouble understanding what's going on.

[00:37:39] Speaker 04:
It shouldn't be that way.

[00:37:42] Speaker 05:
I mean, I think you're relying on the fact that the trade bar is very sophisticated, and many of them probably have the same understanding you do, which is for every administrative review period, it's suspended by operation of the initial order until there's a final decision, and then instructions are liquidated.

[00:38:02] Speaker 05:
And I mean, I think that that's a

[00:38:05] Speaker 05:
common understanding, but it doesn't explicitly say that in the initial order.

[00:38:10] Speaker 05:
It certainly doesn't explain that in the review, initiation of review.

[00:38:15] Speaker 05:
I mean, you certainly could be more clear, but I actually think I finally understand what you're saying now, which is the suspension does come from the initial order and then there's no liquidation and

[00:38:28] Speaker 05:
until that becomes final and here something happened and the suspension wasn't, it was liquidated when the suspension should have been in effect.

[00:38:39] Speaker 05:
And therefore, they should have protested as an improper liquidation.

[00:38:42] Speaker 01:
Yes.

[00:38:43] Speaker 01:
I mean, this should have been for them to benefit from that amended final results.

[00:38:48] Speaker 01:
If that amended final results covered these entries, which is what they're arguing it does.

[00:38:53] Speaker 05:
So if that's the case, you're not going to find a separate order from Commerce to Customs for this specific review period saying all these entries are liquidated, probably.

[00:39:05] Speaker 05:
Because what you're relying on is the suspension in the initial order.

[00:39:09] Speaker 05:
None of that was explained in the briefing.

[00:39:11] Speaker 05:
You all just take that as the way things operate.

[00:39:14] Speaker 05:
And like I said, maybe the more sophisticated members of the trade bar, I'm not saying you're not, please, I'm not trying to be, and so I think you are.

[00:39:22] Speaker 05:
But it's not explained at all that that's the way these CBD things operate.

[00:39:29] Speaker 04:
And in carbon activated, there was a specific order, suspending liquidation.

[00:39:34] Speaker 04:
yes which we cited in the you know so it's not it's not always the case that there's just a quote an assumption there's a specific word carbon activate was there a specific order here that's what we want to know

[00:39:50] Speaker 01:
I guess the point here is if plaintiff is to have that amended final results applied, then its argument has to be that this entry was suspended.

[00:40:00] Speaker 04:
I don't think that necessarily follows at all.

[00:40:03] Speaker 05:
Your argument was the order is the initial order for investigation.

[00:40:09] Speaker 05:
And what we just went through, that for every review period, they are suspended under that order until there is a final review decision.

[00:40:17] Speaker 05:
And then there's new results.

[00:40:19] Speaker 01:
If commerce is reviewing those specific entries, commerce only reviews specific entries, each administrative review.

[00:40:30] Speaker 01:
They don't review all the entries that come through the United States.

[00:40:34] Speaker 01:
Only for specific exporters that are covered.

[00:40:38] Speaker 01:
That's who is requested.

[00:40:39] Speaker 05:
So if they're not listed or covered at all, they just get liquidated under the previous duty rate.

[00:40:47] Speaker 01:
That's right, under the estimated.

[00:40:49] Speaker 01:
But the assessment, final assessment... No, no, no.

[00:40:51] Speaker 04:
The final order here, set a rate which was applicable to this party, right?

[00:40:56] Speaker 01:
I'm sorry, say that again.

[00:40:57] Speaker 04:
The administrative review set a rate of about 30 percent, which was applicable to this party, right?

[00:41:04] Speaker 01:
I'm not sure if it was applicable.

[00:41:05] Speaker 01:
I mean, they entered it as that rate because the exporter was on me.

[00:41:09] Speaker 04:
I'm not sure.

[00:41:11] Speaker 04:
I'm sorry, I misspoke.

[00:41:12] Speaker 04:
The administrative review order set a 15 percent rate, which was applicable to this party.

[00:41:17] Speaker 01:
I'm not sure if it was applicable to this party.

[00:41:20] Speaker 01:
That's again on the merits.

[00:41:22] Speaker 02:
I'm sorry, the plaintiffs allege that it was.

[00:41:23] Speaker 02:
Yes, plaintiffs are alleging that that rate was... Just for what it's worth, the way that I have been thinking about it is that it is helpful to you in this case if there was in fact a suspension in place at the time of the liquidation, because that means that the other side actually had

[00:41:46] Speaker 02:
a real live protest to file within 180 days as opposed to what I think has been discussed if there was an absence of suspension.

[00:42:00] Speaker 02:
Could they really have filed a protest on the possibility that an administrative review that was still in process

[00:42:11] Speaker 02:
would produce a different rate for them to get.

[00:42:16] Speaker 02:
One could avoid that question here if there was actually a suspension in place because undeniably they had something to protest then.

[00:42:27] Speaker 01:
Again, they definitely had, when these were liquidated, their argument at protest would have been, hey, you have to wait, customs, because commerce is still conducting its review, and our entries are subject to that review.

[00:42:40] Speaker 02:
So you have to wait till that review is... Did you understand why that's different from what I just said?

[00:42:46] Speaker 01:
Yes.

[00:42:47] Speaker 02:
But that's... I wanted you to say, because there was a suspension in place,

[00:42:53] Speaker 01:
As a matter of, at the time the liquidations happened on the merits, as a matter of fact, I'm not sure if these, and the reason I say I'm not sure whether these entries were suspended at that time or should have remained suspended.

[00:43:07] Speaker 02:
Well, that's the question.

[00:43:08] Speaker 02:
That's the question that I think.

[00:43:09] Speaker 01:
And Customs, again, Customs didn't look at that question either.

[00:43:12] Speaker 02:
That's the question that I think is important to answer because among other things, it affects the jurisdictional analysis of A&I, not dispositively,

[00:43:21] Speaker 02:
But it sure would be easier to say you had a perfectly plain, indisputable, A, jurisdictional claim that depended on a fact that existed then and there and not the possibility of fact that had not yet arisen.

[00:43:36] Speaker 05:
But it's your point that these entries were suspended if they were covered by the order, but we're not sure that they were covered

[00:43:47] Speaker 05:
the specific entries were covered by the administrative review order or not.

[00:43:52] Speaker 05:
And if they weren't covered by the order, then customs would just liquidate them because there wouldn't be any kind of suspension in place.

[00:44:00] Speaker 01:
Correct, because commerce would have sent instructions saying, you can liquidate these entries.

[00:44:05] Speaker 01:
Because they were not subject to that review.

[00:44:06] Speaker 05:
So the protest should have been, our entries are covered by this review period and are suspended.

[00:44:13] Speaker 01:
Yes.

[00:44:14] Speaker 01:
That's what the protest would have been.

[00:44:16] Speaker 01:
The reason I can't give an answer whether these were suspended or not is because we don't know whether they're covered or not.

[00:44:21] Speaker 01:
They're not covered enough.

[00:44:22] Speaker 05:
Because there is the question of somebody withdrawing from the review.

[00:44:26] Speaker 05:
Correct.

[00:44:26] Speaker 05:
And if they withdraw from the review, their entries are no longer covered.

[00:44:30] Speaker 05:
And they would be liquidated under the originally inter-duty rate.

[00:44:34] Speaker 01:
Correct.

[00:44:35] Speaker 01:
So that's what's happening here.

[00:44:38] Speaker 05:
But how do we figure out that factual question?

[00:44:41] Speaker 05:
Because that seems to make a difference.

[00:44:43] Speaker 01:
I would submit it doesn't make a difference.

[00:44:45] Speaker 05:
Because for purposes of jurisdiction... Oh, your point is, if they weren't covered, then they... They were correct.

[00:44:50] Speaker 05:
They were liquidated correctly.

[00:44:52] Speaker 05:
If they're covered, they should have protested because they were suspended.

[00:44:55] Speaker 01:
That these are premature liquidations.

[00:44:56] Speaker 01:
Yes.

[00:44:57] Speaker 01:
That's why for jurisdictional purposes it does not matter whether customs properly or improperly liquidated these entries.

[00:45:05] Speaker 05:
It solely comes down to... But it sure helps if we know that there is an actual suspension in effect either via the first initial investigation final order or by some other instruction from Commerce to Customs for this review period.

[00:45:22] Speaker 01:
Sure.

[00:45:22] Speaker 01:
But again, factually, we don't know that, right?

[00:45:25] Speaker 01:
And when we submit for purpose of jurisdiction, all this is irrelevant.

[00:45:29] Speaker 04:
We don't think it's irrelevant.

[00:45:31] Speaker 04:
We think it's possibly extremely relevant.

[00:45:34] Speaker 01:
We can respectfully disagree with that, just because the statute is clear.

[00:45:37] Speaker 04:
Well, you may disagree with it, but please find out the answer to the question.

[00:45:41] Speaker 04:
We'll issue an order.

[00:45:44] Speaker 04:
Anything further?

[00:45:44] Speaker 04:
OK.

[00:45:44] Speaker 04:
Thank you, Your Honor.

[00:45:46] Speaker 00:
Thanks, Mark.

[00:45:49] Speaker 04:
We've got three minutes.

[00:45:53] Speaker 05:
Can you just tell me why isn't your friend's view of how this stuff operates the traditional way?

[00:45:58] Speaker 05:
Because frankly, that's the way I understood it.

[00:46:00] Speaker 05:
When there is an administrative review, all the entries subject to the administrative review are suspended until there's a final decision, and then commerce issues in order to customs to reliquidate at whatever rates found.

[00:46:16] Speaker 05:
Isn't that the way this has operated forever?

[00:46:18] Speaker 05:
And so this question of whether there was a suspension or not

[00:46:23] Speaker 05:
It came a little bit out of the blue to me.

[00:46:27] Speaker 03:
Usually what we see is the issue of suspension addressed in the notice.

[00:46:31] Speaker 03:
Which notice?

[00:46:33] Speaker 03:
In the administrative review notice.

[00:46:35] Speaker 03:
We see it in juice farms.

[00:46:36] Speaker 03:
We see it in carbon activated there.

[00:46:38] Speaker 03:
They said, here's the suspension.

[00:46:40] Speaker 03:
We don't see that here.

[00:46:42] Speaker 03:
We didn't have notice.

[00:46:43] Speaker 05:
What about the argument that the original order has a suspension of

[00:46:51] Speaker 05:
all entries and that until you conduct a review at each, you know, successive annual period, there's not a final decision on what the dutyable rates are.

[00:47:00] Speaker 05:
And that final decision at the end of the administrative period is what sets the rates and then

[00:47:09] Speaker 05:
the ones covered by that, and the ones that aren't covered by that are just liquidated under that original order.

[00:47:15] Speaker 03:
Sure.

[00:47:15] Speaker 03:
We have to have noticed that there's a suspension of liquidation.

[00:47:17] Speaker 03:
And here, if there was going to be a continuation of the prior suspension into the administrative review period, one would have expected to see notice of that.

[00:47:25] Speaker 03:
We didn't see notice of that.

[00:47:26] Speaker 03:
Customs didn't see notice of that.

[00:47:28] Speaker 05:
Can you tell me though, isn't it the common practice that they're suspended during a review period?

[00:47:33] Speaker 05:
Are you aware of instances where

[00:47:36] Speaker 05:
Entries covered by review are liquidated automatically, even though there's a review going on.

[00:47:44] Speaker 03:
I'm not aware either way, Your Honor, to be very candid.

[00:47:48] Speaker 02:
Was this the first administrative review?

[00:47:51] Speaker 03:
I believe it was, but I can't be certain of that.

[00:47:53] Speaker 03:
I don't want to give a wrong answer.

[00:47:54] Speaker 05:
Well, if this is the first one, that would seem to make the language in the initial order very relevant.

[00:48:00] Speaker 05:
Because the initial order doesn't order liquidation into anything.

[00:48:03] Speaker 05:
It just sets a rate.

[00:48:06] Speaker 05:
It says, enter them under this.

[00:48:08] Speaker 05:
And then until you get an order from Commerce to Customs ordering liquidation, there's nothing that happens.

[00:48:17] Speaker 03:
Sure.

[00:48:18] Speaker 03:
I understand where the court is coming from on this.

[00:48:21] Speaker 03:
But at the same time, from my client's perspective, they are not members of the trade bar.

[00:48:25] Speaker 03:
They are tire importers.

[00:48:27] Speaker 03:
And they look at this and they see, is there a suspension order attached with this notice?

[00:48:31] Speaker 03:
Customs doesn't think there's a suspension order because they liquidated our entries.

[00:48:35] Speaker 05:
I don't know that that's true though.

[00:48:38] Speaker 05:
I think maybe they liquidated your entries because they thought they weren't covered by the review period because some entity related to your client withdrew.

[00:48:49] Speaker 05:
Do you understand the distinction?

[00:48:50] Speaker 05:
Because if they're not covered by the review period, which only covers certain entries, it doesn't cover everything entered.

[00:48:58] Speaker 05:
So if their entries weren't covered by that review period, then they were properly liquidated because

[00:49:05] Speaker 05:
They weren't covered.

[00:49:06] Speaker 05:
And if you thought that they weren't proper, and if you thought that they should have been covered, you should have protested that.

[00:49:11] Speaker 03:
I don't think there's any argument that they weren't covered because the rate is accessible to the manufacturer, the Chinese manufacturer.

[00:49:17] Speaker 03:
The Chinese manufacturer that's at issue here is listed in the initial notice.

[00:49:22] Speaker 05:
Well, who's the manufacturer that withdrew?

[00:49:24] Speaker 05:
That's what the problem for me is.

[00:49:28] Speaker 05:
I'm wondering if customs made a mistake and thought these entries were coming from the manufacturer that withdrew.

[00:49:35] Speaker 03:
Sure, and I can't speak to what Customs believed or what they did.

[00:49:38] Speaker 03:
All I can tell you is what they did.

[00:49:39] Speaker 05:
Isn't that why you protest the decision?

[00:49:41] Speaker 05:
And say, you know, these liquid, these order, the entries were improperly liquidated because our entries are under review for this order.

[00:49:51] Speaker 03:
The only anecdote I can give you, Your Honor, is that we have that one protest, the one protest that's out there that we filed once we knew the new rate.

[00:50:00] Speaker 03:
We filed that protest and said, for this manufacturer, the rate is now 15 percent.

[00:50:05] Speaker 03:
And they gave us that refund.

[00:50:07] Speaker 04:
So that would suggest they thought you were covered by the administrative review.

[00:50:10] Speaker 03:
Correct.

[00:50:12] Speaker 05:
Which means you should have protested the decision to liquidate.

[00:50:15] Speaker 03:
If there was a suspension in place.

[00:50:18] Speaker 03:
And they didn't, I mean, there's no notice of suspension in place.

[00:50:21] Speaker 05:
I'm just, I'm not aware of any operation of commerce.

[00:50:25] Speaker 05:
And yes, it's very unclear from what we have here, but this is the way it operates.

[00:50:31] Speaker 05:
When there's a review period, the entries covered by the review are not liquidated until the review is complete.

[00:50:39] Speaker 03:
And that's inconsistent with the position that the government has taken here.

[00:50:41] Speaker 03:
On page 15 of their brief, they indicate we don't concede that customs liquidations were premature.

[00:50:48] Speaker 05:
Well, that's because we don't know whether these entries are covered by the review or not.

[00:50:55] Speaker 03:
Sure.

[00:50:55] Speaker 03:
But it would seem the one piece of information we have would indicate that they are, because the manufacturer is there and we got our refund.

[00:51:03] Speaker 05:
If the entries aren't covered by the review, then they were properly liquidated, right?

[00:51:10] Speaker 03:
If the entries are not covered by the review, it depends on whether there's a suspension in place.

[00:51:15] Speaker 05:
If the entries aren't covered by the review, they're not covered by the review at all.

[00:51:20] Speaker 05:
There wouldn't be a suspension for entries that aren't covered by the review.

[00:51:23] Speaker 05:
Understood, yes.

[00:51:23] Speaker 05:
So if the entries aren't covered by the review, you're not in that list, and I understand you have arguments.

[00:51:30] Speaker 03:
We are in that list.

[00:51:31] Speaker 05:
Okay, but assume you're not.

[00:51:33] Speaker 05:
If you're not in that list and customs liquidates, it's proper, right?

[00:51:37] Speaker 03:
I don't disagree with you on that.

[00:51:40] Speaker 05:
So if customs thought you weren't in that list,

[00:51:44] Speaker 05:
and liquidated, that would be a correct decision if customs was right.

[00:51:49] Speaker 05:
But if customs made an error and you were in that list, then isn't it incumbent on you to draw, bring that to customs attention and said, look, we're on this list.

[00:51:59] Speaker 05:
You liquidated us and we're covered by this review.

[00:52:02] Speaker 03:
If there was a suspension in place.

[00:52:04] Speaker 03:
If there's no suspension in place.

[00:52:05] Speaker 05:
What makes a difference whether there's a suspension or not?

[00:52:07] Speaker 03:
Because what precludes commerce from liquidating if there's no instruction that they stop liquidating?

[00:52:14] Speaker 03:
Regardless of whether it may change in the future, it may not change.

[00:52:17] Speaker 03:
It may go up, you know, to their point.

[00:52:21] Speaker 04:
Okay.

[00:52:22] Speaker 04:
All right.

[00:52:22] Speaker 04:
Thank you.

[00:52:23] Speaker 04:
Thank you, counsel, the cases of that.

[00:52:25] Speaker 04:
We'll issue an order with respect to further briefing.