[00:00:00] Speaker 03:
Our next case on the same subject matter, the same statutes, is Hylex Poly Company et al.

[00:00:10] Speaker 03:
versus the United States, 2022, 2106, and 2114.

[00:00:14] Speaker 03:
Mr. Bylon.

[00:00:19] Speaker 04:
May it please the court.

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

[00:00:22] Speaker 04:
So I have just two brief points.

[00:00:24] Speaker 04:
We are dealing with the same statute and the same regulatory regime that Mr. Gordon just talked about.

[00:00:28] Speaker 03:
And so we're only talking about delinquency interests.

[00:00:32] Speaker 03:
Yes, your honor.

[00:00:34] Speaker 04:
So two brief points.

[00:00:36] Speaker 04:
We agree that the plain language of the statute compels the conclusion that delinquency interest has to be distributed to domestic producers and should have been produced all the way back to 2001.

[00:00:45] Speaker 04:
And we also want to argue.

[00:00:48] Speaker 04:
that all of our claims are timely, going back all the way to 2001, that the statute of limitations does not bar our action.

[00:00:54] Speaker 04:
So there is a two-year statute of limitations.

[00:00:56] Speaker 04:
But under the case law from this court, you have to be on notice, right?

[00:00:59] Speaker 04:
You have to have been able to perfect your claim for that statute of limitations to start to run.

[00:01:04] Speaker 03:
Well, that's when the claim accrued.

[00:01:07] Speaker 03:
When does the claim accrue?

[00:01:09] Speaker 03:
Cause of action accrue.

[00:01:12] Speaker 03:
That's in the statute of limitations.

[00:01:14] Speaker 04:
Right.

[00:01:15] Speaker 04:
So our statute of limitations accrue, and we're on notice.

[00:01:18] Speaker 04:
It didn't start to run until, for us, 2015.

[00:01:23] Speaker 04:
So Mr. Gordon talked about a private phone call in 2014 to which we were not a party.

[00:01:29] Speaker 04:
They then filed a lawsuit in 2016.

[00:01:31] Speaker 04:
There's communications with Congress in 2015 and 2016 about finally coming clean about what they were doing.

[00:01:36] Speaker 04:
But I wanted to start at the beginning.

[00:01:38] Speaker 04:
So going back in the administrative record, I guess

[00:01:43] Speaker 04:
at a high level and I'll talk about each one.

[00:01:45] Speaker 04:
The supplemental administrative record shows that customs actually made preparations to distribute 1505 interest before issuing the proposed rule.

[00:01:55] Speaker 04:
They then issued the proposed rule and after that there's a decisional document that they changed their mind and then we have the final rule.

[00:02:02] Speaker 04:
It's our position that they didn't tell the public what they're doing in that final rule.

[00:02:05] Speaker 04:
It wasn't until 15 years later that they told Congress we haven't been distributing building goods interest.

[00:02:11] Speaker 04:
And Congress was

[00:02:14] Speaker 04:
really unhappy with customs, right?

[00:02:17] Speaker 04:
Senator Grassley in the letter called it an injustice.

[00:02:20] Speaker 04:
And Senator Thune said that for reasons that defy simple explanation, customs decide to ignore the statute.

[00:02:26] Speaker 02:
I have a concern about that.

[00:02:28] Speaker 02:
One is that's just a few members.

[00:02:31] Speaker 02:
And so what I understand you want me to take from that, that Congress intended a different interpretation, but it's a little

[00:02:41] Speaker 02:
awkward when you've just got a few members in the statute.

[00:02:44] Speaker 02:
I think the statute should say what it says, whatever that is, and so I want your response to that.

[00:02:50] Speaker 04:
on what the statute says?

[00:02:51] Speaker 02:
No, in response on what I've just said is that why should I take the comments of the three members to mean that I should interpret it the way you advocate it.

[00:02:59] Speaker 04:
So I'm not telling you that that's why you should interpret the statute.

[00:03:02] Speaker 04:
The statute stands on its own.

[00:03:03] Speaker 04:
It's clear and ampic.

[00:03:06] Speaker 02:
Why do you think the government's position about when they look at funds, all funds from assessed duties received, that that

[00:03:14] Speaker 02:
it limits it to the duties that were received at liquidation plus liquidation interest.

[00:03:22] Speaker 04:
Right, so looking at the statute, your honor, so customs would have you, so I think that D&E are doing different things.

[00:03:28] Speaker 04:
So you asked the question in the prior argument about what does funds mean, what's the difference between funds and duties.

[00:03:32] Speaker 04:
So I think that subsection D is actually the grant

[00:03:35] Speaker 04:
of the statutory right about the funds that the ADPs are entitled to.

[00:03:39] Speaker 04:
And so section E is like the ministerial section about how customs is supposed to distribute that.

[00:03:44] Speaker 04:
There's a case in 1994 called Mitsubishi that customs only has a ministerial role in distributing funds.

[00:03:50] Speaker 04:
They don't have a substantive role.

[00:03:51] Speaker 04:
They don't get to decide what gets distributed.

[00:03:53] Speaker 04:
They only have a role in administering how it's distributed.

[00:03:57] Speaker 02:
To agree, though, that if the statute should be interpreted the way they did, that's the end of the question.

[00:04:04] Speaker 02:
So that's really a big question here, right?

[00:04:08] Speaker 04:
No, because in subsection E, subsection three, so you go E3, Congress gives an explicit grant of authority to customs about how they can rule make.

[00:04:18] Speaker 04:
And the explicit grant of authority is... Wait, maybe I didn't phrase my question correctly.

[00:04:24] Speaker 02:
Assuming, hypothetically, the government's interpretation of the statute was correct.

[00:04:28] Speaker 02:
then your argument that they violated section three has no weight, right?

[00:04:33] Speaker 04:
So if, hypothetically, if the clear and unambiguous statutes, so there's no room for our interpretation.

[00:04:40] Speaker 04:
Right.

[00:04:41] Speaker 04:
Right.

[00:04:42] Speaker 02:
Hypothetically.

[00:04:42] Speaker 02:
So that's what the government's position is.

[00:04:45] Speaker 02:
So I'm asking you to respond to it.

[00:04:48] Speaker 02:
They rely on the language all funds from assessed duties received.

[00:04:53] Speaker 02:
to say that that means just the duties at the time of liquidation.

[00:05:02] Speaker 02:
So what's your response to that?

[00:05:03] Speaker 04:
They only get that way by ignoring subsection D completely.

[00:05:07] Speaker 04:
You read their brief.

[00:05:08] Speaker 04:
They only talk about subsection E, which is the point of Mitsubishi.

[00:05:11] Speaker 04:
I apologize.

[00:05:12] Speaker 02:
I'm reading the language of subsection D. Right.

[00:05:14] Speaker 02:
So shall distribute for your interpretation of subsection D. It says the commissioner shall distribute all funds.

[00:05:22] Speaker 02:
Then there's a parenthetical.

[00:05:23] Speaker 02:
The language after the parenthetical modifies the funds.

[00:05:29] Speaker 02:
It says all funds from assessed duties.

[00:05:33] Speaker 02:
And so my question to you is, why doesn't that mean, as the government says, that it means the duties at the time of liquidation?

[00:05:45] Speaker 02:
All funds from assessed duties received.

[00:05:47] Speaker 04:
I just want your position on it.

[00:05:52] Speaker 04:
So I want to be clear, Your Honor, and this is why I'm hanging up.

[00:05:55] Speaker 04:
I'm sorry, I'm trying to be responsive.

[00:05:58] Speaker 04:
Their argument about assessment meaning liquidation is based on E. Like they say that are assessed, are assessed means that liquidation.

[00:06:07] Speaker 04:
So the are assessed is different than from assessed, right?

[00:06:10] Speaker 04:
From assessed, right?

[00:06:12] Speaker 04:
Funds from assessed duties, that can include things other than the duties themselves, right?

[00:06:15] Speaker 04:
So it's from assessed duties.

[00:06:17] Speaker 04:
So the funds include things other than the assessed duties.

[00:06:20] Speaker 04:
or else it would say duties, right?

[00:06:21] Speaker 04:
And so we know that that can include interest.

[00:06:23] Speaker 04:
And that's the difference between R assessed in E and from assessed in D. But I guess to answer your question which is large, you have to give meaning to the parenthetical, including all interests earned on the funds.

[00:06:35] Speaker 04:
And subsection D is the definitional section about what they are entitled to get.

[00:06:40] Speaker 04:
And subsection E is about how you give it to them.

[00:06:43] Speaker 04:
But they want to read the how you give it to them section to read out all out of the prior subsection.

[00:06:48] Speaker 04:
But there's this cross-reference in E that says, if you have any questions consistent with the subsection D, you'd have to just make distributions according to that.

[00:06:58] Speaker 04:
So the word all in subsection D is broad.

[00:07:01] Speaker 04:
And it doesn't say only 1677G interest.

[00:07:05] Speaker 04:
They spent five pages in their brief.

[00:07:07] Speaker 04:
And she just spent her whole oral argument explaining why all doesn't mean all.

[00:07:10] Speaker 04:
But all has to mean something.

[00:07:12] Speaker 04:
And they have no answer for the fact that their reading gives no meaning to the word all.

[00:07:18] Speaker 01:
And under the key... She focused on all interest earned on.

[00:07:22] Speaker 01:
So I don't want to say that she only focused on all.

[00:07:25] Speaker 01:
Can you respond to that in particular?

[00:07:26] Speaker 04:
So interest... So I guess this is... So yeah, including all interest earned on the funds.

[00:07:33] Speaker 04:
And so that is the limitation on the interest.

[00:07:36] Speaker 04:
And is it earned on the funds that come from assessed duties?

[00:07:39] Speaker 04:
I think the answer for 1505D interest is unequivocally yes.

[00:07:45] Speaker 04:
If you have a delinquent payment of anti-dumping duties,

[00:07:48] Speaker 04:
And then there's interest earned on those duties.

[00:07:51] Speaker 04:
I don't know how you can stand here and say that that interest is not earned on the funds, right?

[00:07:58] Speaker 04:
And again, it's a broader word, funds.

[00:08:00] Speaker 04:
You're talking about all the funds in the account.

[00:08:02] Speaker 04:
So that could also include, so if you think about what would be in the account, you also have 1677G interest in there, right, by the time it's occurring, it's Lincolnsi interest.

[00:08:10] Speaker 04:
So in D, when you're talking about what actually my clients are entitled to, it's a broad grant of remedial authority.

[00:08:19] Speaker 04:
And that makes sense because of the design of the statute.

[00:08:22] Speaker 04:
It's meant to compensate domestic producers for the harm caused by continued dumping.

[00:08:28] Speaker 04:
And it makes sense that when you have a producer who's delinquent for years and years and years and years, that that interest would also go to the domestic producer because the interest protects the underlying corpus of money.

[00:08:38] Speaker 04:
against inflation and compensates them for the time value of money.

[00:08:42] Speaker 04:
So in a remedial statute like this, it doesn't make any sense to cut off interest and then send it to the Treasury at some point, because that undermines the remedial purpose.

[00:08:54] Speaker 02:
What about the argument that Congress knew how to delineate both types of interest, and it did so very clearly in 4401?

[00:09:07] Speaker 02:
I think I know what your response is going to be, is that 4401 came after the statute in question.

[00:09:11] Speaker 04:
That's right.

[00:09:12] Speaker 04:
And also they used the word all.

[00:09:15] Speaker 04:
I don't want to keep harping on the word all, but they didn't use the word only.

[00:09:18] Speaker 04:
They didn't use the word 1677G.

[00:09:20] Speaker 04:
Congress used the word all, and also used it in the right subsection, in the subsection that describes what my clients are entitled to.

[00:09:26] Speaker 04:
But before I run out of time and haven't answered any other questions you have on the text, I want to talk about the statute of limitations because if you look at the historical record here, what the agency has done is really egregious, right?

[00:09:40] Speaker 04:
So as I said in that supplemental record, when they issued the proposed rule, they were planning on distributing 1505 interest.

[00:09:49] Speaker 04:
There's a decisional document after the proposed rule where they make the decision not to distribute it.

[00:09:53] Speaker 04:
And then you have the final rule, right?

[00:09:55] Speaker 04:
And then there's this 15-year lag.

[00:09:57] Speaker 04:
And I think, Judge, you'd asked me earlier about why do you take Congress's word for it.

[00:10:01] Speaker 04:
But it's just not Congress's word for it in the historical record.

[00:10:04] Speaker 04:
So Mr. Gordon, in Mr. Gordon's record, his law firm actually tried to sue Customs for an accounting about what they're doing with delinquency interest in 2009, right?

[00:10:13] Speaker 04:
Because we just can't.

[00:10:13] Speaker 04:
We stand here today.

[00:10:15] Speaker 04:
We still don't know how much interest Customs owes us because they won't give us an accounting.

[00:10:20] Speaker 04:
And Customs didn't respond.

[00:10:21] Speaker 04:
That's the Sue Honey case in their record.

[00:10:24] Speaker 04:
Customs did not respond with, we don't owe you delinquency interest.

[00:10:26] Speaker 04:
Instead, they opposed on emotion dismiss and dumped them out on 12b6 because they didn't have concrete claims about the harm.

[00:10:33] Speaker 04:
Why?

[00:10:33] Speaker 04:
Because Customs won't tell us what they were doing.

[00:10:36] Speaker 04:
So if you look at all the pieces of the factual record, it's just clear nobody knew what they were doing with delinquency interest until 2015.

[00:10:43] Speaker 01:
Can you point me to where in the record it shows that they were planning on distributing it to the interest?

[00:10:50] Speaker 04:
So it's in our record at Appendix 3604, Public Appendix 3604.

[00:10:57] Speaker 04:
So this says

[00:11:14] Speaker 04:
OF and OIT will consider possible methods for assigning 50-05 interest to specific ADACV cases for purposes of deposit in the clearing account and eventual transfer into the special account for disbursement.

[00:11:25] Speaker 04:
And then in the very next paragraph, they talk about 16-77G interests.

[00:11:29] Speaker 04:
So we know they're talking about delinquency interest.

[00:11:32] Speaker 04:
So this is the document dated February 2001.

[00:11:35] Speaker 04:
We know that they then go on in June 2001 to issue the proposed rule.

[00:11:41] Speaker 04:
And then on

[00:11:43] Speaker 04:
Page 36, appendix 3672 on a document dated August 2001.

[00:11:50] Speaker 04:
So this is after the proposed rule.

[00:11:53] Speaker 04:
They say the decision has been made to decrypt interest for late payment of the bill will not be made available for disbursement under the Burt Amendment.

[00:12:01] Speaker 01:
What Patreon, I'm sorry?

[00:12:02] Speaker 04:
Appendix 3672.

[00:12:11] Speaker 02:
Where are you looking at that on 3672?

[00:12:14] Speaker 02:
There's a lot of redactions here.

[00:12:17] Speaker 04:
Yeah, so it's in the middle of the page.

[00:12:19] Speaker 04:
It's indented.

[00:12:20] Speaker 04:
It says no.

[00:12:20] Speaker 04:
It starts with capital N-O-T-E in all caps.

[00:12:24] Speaker 04:
Very middle of the page.

[00:12:27] Speaker 01:
The first page you point us to, 3604, it sounds like they're considering it.

[00:12:31] Speaker 04:
And then it says... Your Honor, just to point you back to 3604, considering methods for

[00:12:37] Speaker 04:
They have no statutory right under their own regulation to distribute these interests unless Congress told them to, because otherwise it would go to the Treasury.

[00:12:45] Speaker 04:
So they're considering methods for distribution, and they're not considering whether it should be distributed.

[00:12:49] Speaker 04:
I'm in my rebuttal time.

[00:12:51] Speaker 04:
I wanted to make one more point about the preamble.

[00:12:56] Speaker 04:
I mean, to reiterate, Mr. Gordon, if you read

[00:13:01] Speaker 04:
So the frustrating thing about the government's brief is they're like, this is our rule.

[00:13:03] Speaker 04:
And what do they quote you?

[00:13:05] Speaker 04:
They quote you the preamble.

[00:13:07] Speaker 04:
They quote you what's in the CFR.

[00:13:09] Speaker 04:
And if you look at the beginning of that preamble, you'll see that they then point you back to the proposed rule.

[00:13:16] Speaker 04:
They answer their question as we said in the proposed rule.

[00:13:19] Speaker 04:
The problem is if you read the proposed rule, it contemplates distribution of delinquency interest.

[00:13:29] Speaker 04:
Paragraph as mr. Gordon said didn't put anyone on notice and couldn't possibly put you on notice of what they were doing until they the Congress eventually in 2016 in the Federal Register finally said in plain English We're not distributing delinquency interest and then we sued all of our claims are timely Like to save my time for rebuttal.

[00:13:47] Speaker 03:
Thank you council.

[00:13:48] Speaker 03:
We'll give you two minutes back for rebuttal.

[00:13:50] Speaker 03:
Thank you Ms.

[00:13:52] Speaker 00:
Farrell

[00:14:04] Speaker 00:
In response to the Hillex's kind of limited argument discussing, for example, the record.

[00:14:13] Speaker 00:
The record, they say, well, there was something after the proposed rule.

[00:14:19] Speaker 00:
And they say, be noted, a decision has been made that we're not going to do that.

[00:14:24] Speaker 00:
Did Customs consider, there's no question in the administrative record early on, Customs considered 1505D interest and distributing it.

[00:14:35] Speaker 00:
Then there's a note in August.

[00:14:40] Speaker 00:
But in May, there's no discussion.

[00:14:42] Speaker 00:
If we go back to the administrative record that was being cited, the public administrative record, there's a May 29th draft that starts at appendix 3622.

[00:14:58] Speaker 00:
And it runs through.

[00:15:05] Speaker 00:
3629.

[00:15:06] Speaker 00:
There's nothing in there about 1505D interest.

[00:15:12] Speaker 00:
So the recitation on page 3672 about note decision has been made, it's not that the decision was made then, because we have an absence in May of 2001.

[00:15:26] Speaker 00:
May 29, there's no discussion anymore about trying to figure out how you might be able to give 1505, which would only be for anti-dumping 1505D because other stuff doesn't apply.

[00:15:42] Speaker 00:
I don't think that the court can look at somehow there's this nefarious thing after the proposed rule.

[00:15:49] Speaker 00:
The proposed rule comes out June 26, May.

[00:15:53] Speaker 00:
They've already dropped the possibility of a 1505D because there's nothing there.

[00:15:57] Speaker 00:
There's a notation that says, oh, FYI, by the way, in case you were wondering, there had been a decision made.

[00:16:03] Speaker 00:
But that decision was made before the proposed rule.

[00:16:07] Speaker 00:
Also, talking about, oh, we didn't know.

[00:16:09] Speaker 00:
No one knew.

[00:16:11] Speaker 00:
There's a reason that federal register notices are considered notice to you.

[00:16:18] Speaker 00:
If I have nothing to do with importing, I work in a restaurant and I bake cakes.

[00:16:26] Speaker 00:
I don't care about this register register notice.

[00:16:29] Speaker 00:
But if I'm in ADP and there's something coming out about the CDSOA, my eyes are big.

[00:16:36] Speaker 00:
And you can't say that you didn't read the whole thing.

[00:16:39] Speaker 00:
That would be silly.

[00:16:40] Speaker 00:
The section, there's the preamble.

[00:16:43] Speaker 00:
I think the most important part of this thing is the preamble, because ultimately... Isn't it that they read the preamble differently than the government does?

[00:16:51] Speaker 02:
Isn't that the real issue?

[00:16:54] Speaker 00:
Well, if they do, Your Honor, it doesn't make sense to read it differently than the government does, because the language is plain.

[00:17:01] Speaker 00:
That only 1677-G entrance is going to be distributed.

[00:17:07] Speaker 00:
I mean, the section comes up with comments.

[00:17:09] Speaker 00:
There's one question about, oh, well, if there's an overpayment, you won't reduce R. And I do think that that word, all, in the funds that are being distributed, I do think it relates back to the fact that each entry, if there was an underpayment, there was interest that has to be distributed.

[00:17:31] Speaker 02:
Because you can't really do that.

[00:17:32] Speaker 02:
When it says all interest, it means all of the underpayment interest?

[00:17:39] Speaker 00:
All of the 1677 underpayment interest, yes.

[00:17:42] Speaker 00:
And to not allow a 1677 overpayment interest that gets paid to an importer to deduct from the amount that would naturally go in.

[00:17:53] Speaker 00:
So all of those entries that were under-deposited generated 1677-G interest.

[00:18:00] Speaker 00:
There may have been one entry or a big entry that also generated interest that was to go back to the importer.

[00:18:08] Speaker 00:
And so they're saying all interest that was earned, Customs is interpreting that as your entry earned interest for you.

[00:18:17] Speaker 00:
And so we will not allow another entry to somehow come in and undermine that.

[00:18:22] Speaker 00:
I believe that that's what that all interest earned on the funds.

[00:18:25] Speaker 00:
But nevertheless, we're talking about earned on the funds.

[00:18:28] Speaker 00:
1505D interest is

[00:18:31] Speaker 00:
Money that arises because somebody didn't pay a bill.

[00:18:34] Speaker 00:
So that's not earned on funds.

[00:18:36] Speaker 00:
We know the construct of anti-dumping is that there are deposits being made.

[00:18:42] Speaker 00:
We know in banks the concept of earning on the funds that you deposited in a bank.

[00:18:47] Speaker 00:
So the trial court focused on earned.

[00:18:50] Speaker 00:
He said, we need to understand this.

[00:18:52] Speaker 00:
And that was why the trial court came out the way that it did, that 1505D interest isn't applicable.

[00:18:57] Speaker 00:
But also, if

[00:19:00] Speaker 00:
cost them so egregiously, mischievously, got this wrong.

[00:19:06] Speaker 00:
Why, when TIFTY is passed, does Congress not give them?

[00:19:12] Speaker 00:
They limit it.

[00:19:12] Speaker 00:
They say it only goes back to October 2014.

[00:19:16] Speaker 00:
It's only for sureties, and it's only for live cases.

[00:19:20] Speaker 00:
After the CDSOA was enacted, Congress keeps nipping at its heels and is reducing.

[00:19:26] Speaker 00:
Indeed, it repeals it in 2007.

[00:19:29] Speaker 00:
But in 2010, they passed another act that says, well, if it's unliquidated and nothing has happened yet on it, it's not going to apply to you anymore.

[00:19:39] Speaker 00:
They keep narrowing, and they further narrow in TIFTY.

[00:19:43] Speaker 00:
What's not in TIFTY is an importer.

[00:19:46] Speaker 00:
Is an importer some help?

[00:19:47] Speaker 01:
Why do you think we should consider TIFTY here, and do you feel like we need to consider it in order for you to win your argument?

[00:19:55] Speaker 00:
I think we should consider TIFTY.

[00:19:59] Speaker 00:
Let me start with that first.

[00:20:00] Speaker 00:
So yes, I do agree that we should consider TIFTY, because it tells us what Congress is thinking.

[00:20:06] Speaker 00:
It helps us round out the entire act, because TIFTY does apply to the CDSOA.

[00:20:13] Speaker 00:
Do I need TIFTY to get a fair reading?

[00:20:16] Speaker 00:
I don't think so.

[00:20:19] Speaker 00:
I think that the language that's used is very strange.

[00:20:23] Speaker 00:
that they're talking about the funds that go into the account that will be distributed don't have all interest as part of the instruction.

[00:20:31] Speaker 00:
So Congress has, I think, informed us, but I think also plain language of the statute has similarly

[00:20:38] Speaker 00:
informed us that a temporal assessed duty is only grabbing 1677G interest.

[00:20:44] Speaker 00:
It is not grabbing 1505D delinquency interest, which presumes people aren't doing what they're supposed to do, which is paying on time or depositing sufficient amounts.

[00:20:55] Speaker 00:
With respect to the Federal Register notice, there's a question about interest and custom sense.

[00:21:04] Speaker 00:
And if you're reading, you wouldn't just stop reading.

[00:21:07] Speaker 00:
You read about the interest because you care about interest.

[00:21:09] Speaker 00:
There's a heading that says interest.

[00:21:11] Speaker 00:
So you read through it.

[00:21:12] Speaker 00:
And you say, well, okay, because Congress did not make explicit provisions for accounts established under CDSOA to be interest-bearing.

[00:21:19] Speaker 00:
Well, interestingly enough, if you really wanted all interests, would you also want time value of money while that was sitting in the account for one year?

[00:21:26] Speaker 00:
Congress didn't do that.

[00:21:28] Speaker 00:
The breadth of the CDSOA isn't as broad as the ADPs would hope, because if it were, Congress would have also given interest on the account for that time period that is sitting there.

[00:21:39] Speaker 00:
But following that, it then says, thus,

[00:21:42] Speaker 00:
Only interest charged on anti-dumping and countervailing duty funds themselves pursuant to the Express Authority in 19 U.S.C.

[00:21:51] Speaker 00:
1677-G will be transferred to the special accounts and made available for distribution under the CDSOA.

[00:21:58] Speaker 00:
So they're telling you, special accounts is where the money's going to go as it's coming in.

[00:22:03] Speaker 00:
It's going into the special accounts.

[00:22:05] Speaker 00:
And then when the time comes at the fiscal year end, and we're going to do a distribution, we'll announce the distribution, you'll say, yay, I'm waiting for my distribution.

[00:22:14] Speaker 00:
And the only thing that will be distributed is that which is in those special accounts.

[00:22:19] Speaker 00:
And the only thing that's in those special accounts is 1677-G interest.

[00:22:23] Speaker 00:
It says it right there.

[00:22:25] Speaker 00:
And so if you disagreed with that, you also knew

[00:22:29] Speaker 00:
that 19 CFR 24.3A, CVP bills, interest assessment on bills, delinquency, et cetera, is clear to the public that if you are late, the first batch of the money is applied to interest.

[00:22:43] Speaker 00:
And no one would be shocked by that, because that is the commercial reality across the board

[00:22:49] Speaker 00:
everywhere in contracts that are dealing with somebody owing money.

[00:22:54] Speaker 00:
If you're late, the money's applied to interest first, credit card, mortgage, loans, anything else.

[00:23:00] Speaker 00:
So there's no surprise here.

[00:23:03] Speaker 00:
So if your honors have no further questions, I think that the proposed rule, the final rule, put everyone on notice.

[00:23:12] Speaker 00:
I think the plain language of the CDSOA talks about assessed duties and interest running on those assessed duties.

[00:23:19] Speaker 00:
And you'll get all the interest that ran.

[00:23:21] Speaker 00:
The underpayments will be all that interest that you get.

[00:23:25] Speaker 00:
And overpayment will not diminish.

[00:23:28] Speaker 00:
It will not reduce the amount of the underpayments.

[00:23:30] Speaker 00:
You'll get that.

[00:23:31] Speaker 00:
And that was the answer, because that was a question the ADPs had, because they wanted to know.

[00:23:35] Speaker 00:
So they were aware that 1677-G, by asking that question, they were aware that 1677-G is what was in play in this statute.

[00:23:46] Speaker 00:
Thank you, Your Honors.

[00:23:47] Speaker 00:
For those reasons, for the reasons in our briefing and for the reasons in the trial court, trial court should be affirmed.

[00:23:53] Speaker 00:
And I thank you for your time this morning.

[00:23:57] Speaker 03:
Thank you, Counsel.

[00:23:57] Speaker 00:
Thank you.

[00:24:00] Speaker 04:
Yes, briefly.

[00:24:03] Speaker 04:
I think she just explained why the reading of the statute reads all completely out of the statute.

[00:24:09] Speaker 04:
She just said that they pay themselves delinquency interest first on late payments, meaning that they don't even pay all 1677-G interest to my clients.

[00:24:16] Speaker 04:
So all means nothing in the reading of the statute, and our reading of the statute is the only one that gives any meaning to that word in the statute.

[00:24:22] Speaker 04:
I also wanted to point the Court's attention that

[00:24:25] Speaker 04:
The only reason it was given in the administrative record under the penalty of perjury for the decision here was a technological limitation.

[00:24:33] Speaker 04:
And under this course precedent in the aqua products case, you said that there is no place in the regulations where relevant commentary with reference to an ambiguity or statuary of silence is mentioned, claimed, or explored.

[00:24:47] Speaker 04:
Chevron does not apply where an agency has not actually addressed the issue it purports to be within its discretion to address.

[00:24:53] Speaker 04:
There's no room for Chevron here because the agency simply was not interpreting the statute.

[00:24:58] Speaker 04:
And a couple of other points on rebuttal.

[00:25:02] Speaker 04:
Tiftia came after in interviewing WTO case.

[00:25:04] Speaker 04:
You can't look at Tiftia to explain anything about the original CDSOA.

[00:25:10] Speaker 04:
And the record site from the May 2001 record entry, which I can give you the appendix site for, that's at appendix 3624, doesn't say anything about delinquency interest, right?

[00:25:24] Speaker 04:
It doesn't say that the, so it's just silent on it.

[00:25:27] Speaker 04:
It doesn't do anything for them.

[00:25:28] Speaker 04:
And, you know, just under the presumption of regularity, after reading the plain language of the statute and seeing that it said all interests,

[00:25:38] Speaker 04:
there was just no reason why the public would assume that Customs was going to go against that for 16 years.

[00:25:44] Speaker 04:
And it was only after that was revealed by Congress that our claims accrued, and all of our claims are timely.

[00:25:50] Speaker 04:
So we would ask that this court vacate the decision below and remand for judgment for our clients.

[00:25:58] Speaker 04:
Thank you.

[00:25:59] Speaker 03:
Thank you, counsel.

[00:26:00] Speaker 03:
The case is submitted, and that concludes today's argument.