[00:00:43] Speaker 03:
Okay.

[00:00:43] Speaker 03:
The next target case is number 17, 1338, Sunprime Incorporated against the United States.

[00:00:51] Speaker 03:
Mr. Miller.

[00:00:52] Speaker 00:
May it please the court.

[00:00:54] Speaker 00:
This case is about the protection of the public revenue.

[00:00:58] Speaker 00:
When imports arrive at the border of the United States, U.S.

[00:01:02] Speaker 00:
Customs and Border Protection reviews the merchandise and it must enforce the international trade laws of the United States.

[00:01:09] Speaker 00:
As they go about this process, they must do ensure

[00:01:12] Speaker 00:
that the public revenue is protected to the maximum extent practicable.

[00:01:16] Speaker 00:
That's their statutory obligation.

[00:01:17] Speaker 04:
That's a grandiose statement.

[00:01:19] Speaker 04:
But we have to look at statutes, right?

[00:01:22] Speaker 04:
Statutes reflect the protection of the revenue.

[00:01:28] Speaker 04:
And that's what we should be focusing on, right?

[00:01:31] Speaker 00:
Yes, Your Honor.

[00:01:32] Speaker 00:
And in this instance, the two measures that US Customs and Border Protection took to protect the revenue was to suspend the liquidation of the entries at issue

[00:01:41] Speaker 00:
and to require the posting of estimated duties for the potential anti-dumping and countervailing duty liability that could accrue at the end of the administrative proceedings.

[00:01:50] Speaker 00:
So in this instance, US Customs and Border Protection executed its statutory obligations by suspending the liquidation and requiring the deposit of estimated duties.

[00:02:01] Speaker 00:
And the trial court's decision in this instance should be reversed for three reasons.

[00:02:05] Speaker 00:
First, Sunprime, the importer, failed to exhaust its administrative remedies.

[00:02:10] Speaker 00:
When questions arise as to whether imported merchandise should be subject to a scope of an anti-dumping or a countervailing duty order, Congress has provided interested parties with a remedy.

[00:02:21] Speaker 00:
And that is to request a scope ruling from the US Department of Commerce.

[00:02:25] Speaker 00:
If the interested party disagrees with the outcome of that scope ruling, they have rights before the trial court under subparagraph C of the trial court's jurisdiction.

[00:02:33] Speaker 05:
Was the Court of International Trade correct in concluding that it had jurisdiction in this case?

[00:02:39] Speaker 00:
No, Your Honor, it was not correct.

[00:02:41] Speaker 00:
It should have dismissed this case for lack of subject matter jurisdiction because Sunprime... Will address 1581 I. Certainly, Your Honor.

[00:02:49] Speaker 00:
1581 I is only available for purposes of jurisdiction when there is no other subparagraph of the trial court's jurisdictional statute available.

[00:02:58] Speaker 00:
And in this instance, Sunprime had two alternative remedies that it could have pursued.

[00:03:03] Speaker 00:
One, it should have requested a scope ruling from the Department of Commerce at the outset of the dispute.

[00:03:08] Speaker 00:
And to the extent it had a disagreement with the outcome of that proceeding, it could have proceeded to the trial court under subparagraph C of the jurisdictional statute.

[00:03:16] Speaker 00:
Alternatively, it could have pursued the route before US Customs and Border Protection and made an inquiry as to whether there has been a factual misapplication of the order.

[00:03:26] Speaker 00:
In that instance, it was required to allow customs to complete its review.

[00:03:31] Speaker 00:
And upon the liquidation of the entries, it could have protested liquidations, which would have then given rise.

[00:03:35] Speaker 00:
to the trial court's jurisdiction under 1581A.

[00:03:39] Speaker 00:
Because Suncreme has two alternative avenues for judicial review in this instance, either 1581A or C, the trial court erred in exercising jurisdiction under 1581I.

[00:03:50] Speaker 00:
And that is the first reason why we think the trial court's decision should be overturned.

[00:03:55] Speaker 00:
The second reason the trial court's decision should be overturned was the contested determination that was under review in this case was not final agency action.

[00:04:04] Speaker 00:
Again, as when goods approach the border of the United States, customs must make an initial determination as to whether a countervailing duty order or an anti-dumping duty order should apply.

[00:04:15] Speaker 00:
As part of this initial determination, it suspended the entries and it requested deposit of estimated duties.

[00:04:22] Speaker 00:
However, that was not the end of customs analysis.

[00:04:25] Speaker 00:
In fact, the record reflects that from the moment it required Supreme to enter its merchandise as subject to these duties,

[00:04:32] Speaker 00:
it continued the conversation with Sunprime all the way up until the time that the trial court enjoined the government from taking any action on these entries.

[00:04:41] Speaker 00:
The record, and I can give you several examples where, in fact, Customs was actually testing the merchandise to ascertain the factual characteristics of the merchandise.

[00:04:50] Speaker 00:
And those lab reports are found at appendix 211, 242, 700, and 824.

[00:04:57] Speaker 00:
These reflect that U.S.

[00:04:58] Speaker 00:
Customs and Border Protection had not completed its administrative process in any of these entries, and therefore the court should not entertain judicial review under the residual jurisdiction.

[00:05:07] Speaker 05:
Customs engaged in a fact-finding investigation, correct?

[00:05:11] Speaker 05:
In trying to determine whether the imported goods fell under one of the exclusion provisions.

[00:05:18] Speaker 00:
It certainly engaged in a factual inquiry, yes, Your Honor.

[00:05:20] Speaker 00:
That's its statutory obligation.

[00:05:22] Speaker 00:
When goods reach the border, it must

[00:05:24] Speaker 00:
review the merchandise, and make an initial determination.

[00:05:27] Speaker 05:
So what's an importer to do in that instance?

[00:05:28] Speaker 05:
Just turn around and walk away from it?

[00:05:30] Speaker 05:
Don't they have to respond to that and to respond to customs and the information they're seeking?

[00:05:36] Speaker 00:
Certainly, and they can.

[00:05:37] Speaker 00:
They have two avenues of remedies, as we've previously discussed.

[00:05:41] Speaker 00:
Should there be a disagreement between customs and the importer as to whether their goods should be subject to the scope of an order,

[00:05:47] Speaker 00:
The statutory remedy is to go request a scope ruling from commerce.

[00:05:51] Speaker 05:
What if that inquiry that customs mounted was itself improper or ultra-virus?

[00:05:59] Speaker 00:
There are certainly instances where that may occur, but the facts of this case do not reflect an instance where customs... But in that situation, in those instances, then 1581 I would apply, don't you think?

[00:06:12] Speaker 00:
No, Your Honor, because in those instances where

[00:06:14] Speaker 00:
Customs has exceeded its authority and executed a factual misapplication of an anti-dumping duty order.

[00:06:21] Speaker 05:
It seems like it engaged in its own scope-ruling investigation.

[00:06:27] Speaker 00:
Quite to the contrary, Your Honor.

[00:06:28] Speaker 00:
In fact, in order for it to engage in that type of analysis, as some premis had asked the agency to do, it would need to ascertain the meaning of thin-film photovoltaic products.

[00:06:39] Speaker 00:
That's the product that's identified by the exclusion.

[00:06:42] Speaker 00:
So in order to entertain the arguments that were put forward by Supreme, that in fact its goods fell within exclusion, the importer was asking the agency to actually engage in that type of inquiry, to engage in this interpretive analysis as to what exactly falls within the exclusion.

[00:06:58] Speaker 05:
Well, that's because the importer had been required up to that time to post cash deposits.

[00:07:03] Speaker 05:
I mean, it's got money flowing out of its pocket.

[00:07:07] Speaker 00:
Certainly.

[00:07:07] Speaker 00:
Yes, Your Honor.

[00:07:08] Speaker 05:
It's got to respond to customs, right?

[00:07:10] Speaker 00:
It does, yes, Your Honor.

[00:07:12] Speaker 00:
But the remedy that that court then has.

[00:07:13] Speaker 05:
So in a situation like that, if customs has exceeded its authority, if it's acting now like commerce and conducting a scope review, then doesn't that invoke 1581i?

[00:07:24] Speaker 00:
No, Your Honor.

[00:07:27] Speaker 00:
First, customs didn't exceed its authority in this instance.

[00:07:30] Speaker 00:
It engaged purely in a factual application of the order.

[00:07:34] Speaker 00:
But secondarily, it hadn't exceeded its authority.

[00:07:36] Speaker 04:
If we agree with you on jurisdiction,

[00:07:40] Speaker 04:
Do we have to deal with whether customs was acting within the scope of its authority?

[00:07:45] Speaker 00:
No, Your Honor.

[00:07:46] Speaker 00:
In fact, if you do agree with us on jurisdiction, then the case would be dismissed without ever reaching the merits, which is what the trial court did in this instance.

[00:07:56] Speaker 00:
In fact, the two main bases by which we seek the overturning of the trial court's decision in this case is that i-jurisdiction was never appropriate.

[00:08:06] Speaker 00:
Because the importer had available remedies either under the scope

[00:08:10] Speaker 00:
proceedings and coming to the trial court under subparagraph C of the jurisdictional statute or waiting until customs had finalized its administrative proceedings and protesting the liquidation of the entries and then coming to the trial court under 1581A.

[00:08:24] Speaker 00:
And then secondarily, as we've previously discussed, the claims were simply premature, which is another reason why 1581I should not stand.

[00:08:36] Speaker 00:
The trial court also erred in allocating the burden

[00:08:40] Speaker 00:
when questions arise as to scope, onto the government.

[00:08:44] Speaker 00:
If importers are allowed to import merchandise into the United States without, and there's a dispute between the United States and the importer as to whether the goods should be subject to the scope of the order, and customs is not required to take these protective measures, suspending liquidation and requiring cash deposits, then the interested parties, the importers, have every incentive never to request a scope ruling from the Department of Commerce.

[00:09:06] Speaker 00:
because they can then bring their merchandise into the United States during that entire period without any sense of protection to the public fisc that would normally occur in that instance, which is another reason why the trial court erred in this instance.

[00:09:22] Speaker 00:
There's no further questions.

[00:09:23] Speaker 00:
I'll reserve my time for the rebut.

[00:09:26] Speaker 03:
You had asked to save two minutes for Ms.

[00:09:28] Speaker 03:
Thorson.

[00:09:29] Speaker 03:
Is that correct?

[00:09:30] Speaker 03:
Are you taking up a different issue or the same issue?

[00:09:34] Speaker 01:
Well, Mr. Miller has not left me too much to go over, but I did want to make one point on behalf of the domestic industry, and may it please the court, I'm Maureen Thorson of Wiley-Ryne on behalf of Solar World.

[00:09:46] Speaker 01:
We agree with the government that in this case, the CIT should not have taken jurisdiction.

[00:09:53] Speaker 01:
In Sandvik, this court held that when a dispute arises between an importer and customs over the meaning and reach of scope language,

[00:10:01] Speaker 01:
The importer's first remedy is with the Department of Commerce, and it is that agency that should be the referee in the first instance of the dispute.

[00:10:08] Speaker 05:
But from the point of view of the domestic industry here, we want to underscore... I wouldn't in a situation like this, if that's the case, why doesn't customs tell the importer, look, we believe that you don't meet this exclusion.

[00:10:22] Speaker 05:
We believe you're included within the order.

[00:10:25] Speaker 05:
You ought to go get a scope review.

[00:10:27] Speaker 05:
But instead, what they do is they

[00:10:30] Speaker 05:
initiate and mount what appears to me to be their own scope rolling investigation.

[00:10:36] Speaker 01:
Well, in fact, in this case, the customs did tell the importer, you need to go get a scope rolling on this.

[00:10:43] Speaker 01:
We'll continue to look at this if you want us to, and you keep giving us information and telling us that we should look at it.

[00:10:50] Speaker 05:
How can you tell the customs no?

[00:10:54] Speaker 01:
I mean, they have guns.

[00:10:55] Speaker 01:
Well, the point is that

[00:10:56] Speaker 01:
You're not telling Customs, no, you're being required to pursue the administrative remedy that both Congress and Commerce have put forth for you, and that will shut Customs up if they're wrong.

[00:11:09] Speaker 04:
Wasn't there a separate scope review?

[00:11:13] Speaker 01:
There was, but they filed this lawsuit.

[00:11:15] Speaker 01:
Supreme filed this lawsuit before that scope ruling procedure before the Department of Commerce had concluded.

[00:11:21] Speaker 04:
In other words, they pursued two remedies.

[00:11:22] Speaker 04:
They pursued two remedies.

[00:11:23] Speaker 04:
One correct and one incorrect in your view.

[00:11:26] Speaker 01:
Yes, one that was incorrect.

[00:11:28] Speaker 01:
Under Sandvik, they were required to get that scope ruling and then pursue judicial review through the means of that scope ruling if they were dissatisfied.

[00:11:35] Speaker 01:
And as the Sandvik court said, that both protects the Department of Commerce's statutory role and the courts from engaging in what could be an unnecessary extension of their resources, as the importer may well find their remedy entirely in the administrative procedures.

[00:11:51] Speaker 01:
But beyond that,

[00:11:53] Speaker 01:
Judge Kelly below indicated that it was her view that the domestic industry could take up the importer's role here and ask for scope rulings whenever there was a dispute over a product.

[00:12:04] Speaker 01:
But the domestic industry is in a very poor position to do that.

[00:12:09] Speaker 01:
We as domestic industry members do not have access to import paperwork.

[00:12:13] Speaker 01:
We do not know what customs conversations are with importers over the various products that might be coming through the border

[00:12:19] Speaker 01:
We don't know what's going on.

[00:12:21] Speaker 01:
It is only when an importer brings a scope ruling to the Department of Commerce that the domestic industry realistically has.

[00:12:28] Speaker 05:
Well, petitioners often bring scope rulings without involvement of the respondents or importers.

[00:12:34] Speaker 01:
Your Honor, I have not been terribly privy to scope rulings that haven't, even though I've been practicing for the domestic industry for many years, I have rarely seen a scope ruling that was brought by a domestic industry member.

[00:12:48] Speaker 01:
In general, scope rulings are requested by importers precisely because a disagreement has arisen.

[00:12:53] Speaker 05:
We're reviewing several cases now where the domestic industry brought the scope rule.

[00:12:57] Speaker 01:
Yes, I don't doubt it.

[00:13:00] Speaker 01:
But at the same time, because we don't have any access to that import paperwork, we cannot, as the domestic industry, be put in the place of an importer who actually has a disagreement with customers.

[00:13:10] Speaker 05:
But we have information about imports.

[00:13:12] Speaker 05:
We have information about imports that are coming in.

[00:13:16] Speaker 05:
you have a good idea of whether there's an attempt to circumvent the order?

[00:13:21] Speaker 01:
One of the issues for us is that we rarely have the identity of the importer.

[00:13:26] Speaker 01:
We often have fairly good information on the foreign producers that may be exporting goods to the United States, but very little information on who the importer might be.

[00:13:36] Speaker 01:
And without that information, practically speaking, it would be very difficult to bring a scope ruling procedure before commerce, because it wouldn't be clear who was the relevant parties.

[00:13:46] Speaker 01:
that would be involved there.

[00:13:48] Speaker 01:
So our point is merely that Judge Kelly's opinion stands to negatively affect the way these orders are enforced by allowing importers to simply delay or forgo rulings.

[00:14:04] Speaker 01:
If there's no further questions, I'll... Okay.

[00:14:07] Speaker 01:
Thank you.

[00:14:07] Speaker 03:
Thank you, Ms.

[00:14:08] Speaker 03:
Larson.

[00:14:14] Speaker 02:
Ms.

[00:14:14] Speaker 02:
Larson.

[00:14:15] Speaker 02:
Thank you, Your Honor.

[00:14:15] Speaker 02:
I may please support Nancy Noonan on behalf of Sunpring.

[00:14:20] Speaker 02:
Let's start with the language of the order.

[00:14:22] Speaker 02:
Everyone agrees there is specific language to exclude thin film products.

[00:14:28] Speaker 02:
When we go to the petition that was originally filed, there was a specific language including this exclusion.

[00:14:35] Speaker 02:
So that has been baked into this process from the get-go.

[00:14:38] Speaker 02:
In that petition,

[00:14:40] Speaker 02:
The domestic industry specifically said thin film products covered by industry certification under the standard of IEC 61646 are excluded.

[00:14:53] Speaker 02:
This is the industry certificate that Suncreme includes with all of its entries to say, hey, we have a thin film product.

[00:15:02] Speaker 02:
It's under the industry certification.

[00:15:04] Speaker 05:
We believe it's excluded.

[00:15:10] Speaker 05:
I understand where you're headed with this scenario.

[00:15:13] Speaker 05:
I think that you had a reasonable belief that you were excluded from the scope of the order.

[00:15:18] Speaker 05:
So when custom sent you the letter and said, look, we think you're included, and here's the information we need, why didn't you seek a scope ruling at that point?

[00:15:28] Speaker 02:
It is actually very common to have a dialogue with customs at when those kind of questions come up.

[00:15:34] Speaker 02:
And they often can be resolved with customs.

[00:15:36] Speaker 05:
Why didn't you seek a scope ruling at that time?

[00:15:38] Speaker 05:
Because you know that customs cannot issue a scope ruling.

[00:15:43] Speaker 02:
Correct, Your Honor.

[00:15:44] Speaker 02:
But our position was we had sufficient evidence, actually overwhelming evidence, that our product met the thin film's exclusion.

[00:15:52] Speaker 02:
So we had a dialogue with customs.

[00:15:54] Speaker 02:
Hey, come to our facility.

[00:15:57] Speaker 05:
At the end of the day,

[00:15:58] Speaker 05:
let's say Customs decides in your favor, somebody else can come along and seek a scope ruling and Commerce can overrule Customs.

[00:16:07] Speaker 02:
That's absolutely correct, Your Honor.

[00:16:08] Speaker 05:
If you really want protection, you really believe in your position that you're excluded, why didn't you seek a scope ruling from the outset?

[00:16:15] Speaker 02:
Because we believed that Customs would agree with us and even if there was a scope ruling, our product would be found to be outside the scope and therefore why should a small company, a startup company,

[00:16:27] Speaker 02:
put in hundreds of thousands of dollars into a scope rolling when we felt very justified in the position that the product was out.

[00:16:34] Speaker 04:
Who saw the scope rolling?

[00:16:36] Speaker 04:
Someone did.

[00:16:37] Speaker 02:
So yes, because of the dialogue with customs, we certainly did become concerned that, gee, maybe there is a different interpretation to this language that we didn't see it, but clearly customs does.

[00:16:50] Speaker 02:
So yes, we absolutely did go in.

[00:16:52] Speaker 04:
So therefore, this case at this point... So maybe that's your remedy.

[00:16:57] Speaker 04:
That's the remedy that you eventually exhausted rather than this one.

[00:17:03] Speaker 02:
Well, but under the scope regulations, your honor, when commerce agrees that, hey, this is a tricky issue, it's an ambiguous scope, we're going to initiate the scoping query, that is when deposits potentially attach.

[00:17:18] Speaker 02:
That is when suspension of liquidation potentially attaches.

[00:17:22] Speaker 02:
Even then, so it can be

[00:17:24] Speaker 02:
back to the date of initiation of the scope inquiry.

[00:17:27] Speaker 02:
What we're looking at is everything that customs did that we believe exceeded their authority prior to the date of initiation of that scope inquiry.

[00:17:35] Speaker 02:
We completely acknowledge that at this point with the scope ruling against us, Commerce had the authority to require suspension of liquidation and deposits as of the date of initiation.

[00:17:48] Speaker 02:
of that scope inquiry, which was December 30th.

[00:17:51] Speaker 05:
Most of the basis of your complaint, the hardship that the employer went through, was of its own making.

[00:18:02] Speaker 05:
Instead of engaging in this very long, expensive conversation with customs, just by filing your own scope request,

[00:18:15] Speaker 05:
You could have preserved the period in time at which suspension liquidation starts.

[00:18:21] Speaker 05:
You could have resolved the question about deposits, cash deposits, and we wouldn't be here today.

[00:18:28] Speaker 02:
Well, first of all, Your Honor, this particular scope really took over eight months.

[00:18:35] Speaker 02:
thousands of pages of documents.

[00:18:36] Speaker 05:
You would have gotten all your money back, plus interest.

[00:18:39] Speaker 02:
Well, unfortunately, we haven't gotten any money back, Your Honor, because the product was found to be within the scope.

[00:18:44] Speaker 02:
So again, what we're looking at now is did customs exceed its authority and looking at ambiguous scope language, taking on commerce's role and interpreting that scope language.

[00:18:57] Speaker 05:
That's just it.

[00:18:58] Speaker 05:
You asked customs to engage in this and you participated

[00:19:02] Speaker 05:
in this whole procedure that you now claim was an illegal procedure?

[00:19:06] Speaker 02:
No, Your Honor.

[00:19:06] Speaker 02:
Customs forced it.

[00:19:08] Speaker 02:
They filed a notice of action saying, if you want these products to be released, you have to pay these deposits.

[00:19:17] Speaker 02:
You have to change your entry to 03 instead of 01.

[00:19:21] Speaker 02:
And again, this is a normal dialogue.

[00:19:23] Speaker 02:
And this is the way the process should work.

[00:19:25] Speaker 02:
There should be a dialogue with Customs.

[00:19:26] Speaker 02:
please allow us to provide some more information to you to show you why we are within this exclusion.

[00:19:32] Speaker 02:
This is just the way the process occurs and it is usually the most cost effective for the government and for the parties because usually you can provide the information that custom agrees with you.

[00:19:45] Speaker 02:
And in this case they did not, therefore we did go in for the scope ruling.

[00:19:49] Speaker 02:
But again, customs can't have unfettered discretion to just say,

[00:19:54] Speaker 02:
Yeah, we agree.

[00:19:56] Speaker 02:
Customs concedes that this is a thin film product with a more facilicon, but they still found some way to interpret the exclusion language to say, but we think the product is still in.

[00:20:07] Speaker 02:
That is beyond the scope of their authority.

[00:20:09] Speaker 02:
That is commerce's duty, and Suncream did go to commerce to get that scope rolling.

[00:20:14] Speaker 02:
So we did use the right administrative remedy for that, but what we're trying to do now is there has to be some

[00:20:22] Speaker 02:
some boundaries on customs authority at the border when you're dealing with an ambiguous scope, such as what the Court of Initial Trade found that we had here.

[00:20:33] Speaker 02:
So as the court found in this case, CBP lacked the authority to require Suncream to enter its merchandise as subject to the orders because CBP's determination depended upon an interpretation of the scope language.

[00:20:47] Speaker 02:
Therefore, CBP's collection of cash deposits and suspension of liquidation before

[00:20:51] Speaker 02:
commerce interpreted the orders to include some premiums merchandise was contrary to law.

[00:20:57] Speaker 02:
Just to touch on whether there was actually final agency action here to trigger I jurisdiction, it's our position that when customs decided that the product had to be changed from an 01 entry to 03, meaning subject to the anti-dumping and countervailing duty orders, that then

[00:21:18] Speaker 02:
That then changed Customs' role entirely to a ministerial role.

[00:21:22] Speaker 02:
Customs has no authority at that point, no discretion, no decision-making authority as to how it will eventually liquidate those entries.

[00:21:30] Speaker 02:
It has to follow the rules that commerce issues.

[00:21:34] Speaker 02:
So in that case, we believe we did have a final agency action.

[00:21:38] Speaker 02:
The final agency action was, if you want these products to come into the US,

[00:21:42] Speaker 02:
You must enter at 03.

[00:21:44] Speaker 02:
You must deposit millions of dollars of duties.

[00:21:47] Speaker 02:
And therefore, that was final agency.

[00:21:49] Speaker 05:
Was the scope review pending at that time?

[00:21:52] Speaker 02:
No, Your Honor.

[00:21:53] Speaker 02:
It wasn't filed until mid-November.

[00:21:55] Speaker 02:
And so this was all happening between mid-April when the back and forth was going with customs.

[00:22:02] Speaker 02:
And I would like to also add, I jurisdiction is available when the other remedies are manifestly inadequate.

[00:22:09] Speaker 02:
In this case, we did have a company that relied very heavily on this particular product, which it certainly in good faith believed was outside the scope.

[00:22:18] Speaker 02:
Again, I point to our industry certification that it was a thin film product that met the exclusion standards and therefore

[00:22:28] Speaker 02:
the company really had all of its eggs in the basket of this product.

[00:22:32] Speaker 02:
So as it was being required to pay the deposits, which of course it was paying because it needed to bring the goods in in order to satisfy its customers, the company became in financial distress, which was one of the reasons why the Court of Financial Trade did issue a temporary restraining order and ultimately a preliminary injunction to stop the collection of cash deposits.

[00:22:53] Speaker 02:
Liquidation was still suspended, and that was something we agreed with.

[00:22:56] Speaker 02:
Sure, let's continue suspension of liquidation, but please don't make the company pay these burdensome cash deposits, because we think Customs has acted outside the scope of its authority.

[00:23:12] Speaker 02:
Well, if the court doesn't have any further questions, I think that covers everything I wanted to cover.

[00:23:17] Speaker 03:
No questions.

[00:23:19] Speaker 03:
OK.

[00:23:20] Speaker 03:
Thank you, Ms.

[00:23:20] Speaker 03:
Nguyen.

[00:23:20] Speaker 03:
Thank you.

[00:23:24] Speaker 03:
Mr. Miller?

[00:23:25] Speaker 00:
Thank you, Your Honor.

[00:23:29] Speaker 00:
The arguments raised by my colleague reflect precisely the basis why the trial court erred at entertaining jurisdiction here.

[00:23:36] Speaker 00:
The arguments regarding the industry certification go to ultimately a scope decision, a scope ruling, to the extent that Supreme disagreed with customs initial determination to protect the public revenue by suspending liquidation of the entries.

[00:23:51] Speaker 00:
and requiring the deposit of estimated duties, it should have immediately, at that moment, gone to commerce and requested a scope ruling.

[00:23:58] Speaker 00:
And in response to Judge Rainer's comment about mitigating harm, you're precisely correct.

[00:24:04] Speaker 00:
At that exact moment, in April of 2015, when Suncream became aware that there was this legitimate dispute between the United States and themselves as to whether their merchandise is covered, at that moment, they should have gone and requested a scope ruling.

[00:24:18] Speaker 00:
And in fact, U.S.

[00:24:19] Speaker 00:
Customs and Border Protection did orally advise Supreme to take such action.

[00:24:25] Speaker 00:
Now, importers in these circumstances have two routes, two remedies available to them.

[00:24:29] Speaker 00:
They can seek that scope ruling right at the outset, get an ultimate resolution of their issue, and then proceed to the trial court under a subparagraph C. Or if they choose to engage with customs and continue in this conversation, they're free to do so.

[00:24:43] Speaker 00:
And ultimately, at the end of that process, customs will liquidate their entry,

[00:24:47] Speaker 00:
And at that moment, they can protest the liquidation and again come to the trial court under subparagraph A. And because there are these two alternative approaches to the trial court, it was an error for the trial court to exercise jurisdiction under 1585.

[00:25:00] Speaker 03:
You're not saying it's prohibited for the importer to try and work things out?

[00:25:05] Speaker 03:
Not at all, Your Honor.

[00:25:06] Speaker 00:
Not at all.

[00:25:07] Speaker 03:
It's up to their election.

[00:25:08] Speaker 03:
Before starting this elaborate and expensive process.

[00:25:11] Speaker 00:
It is up to their election.

[00:25:12] Speaker 00:
You're exactly correct, Your Honor.

[00:25:13] Speaker 00:
They can pursue either... Exactly what they did, but they prematurely sued customs in the trial court.

[00:25:20] Speaker 00:
If they wanted to pursue their remedies before customs, they should have waited until that dialogue had been completed and customs liquidated the entry.

[00:25:28] Speaker 00:
The Kempsall case issued by this court reflects this exact framework that until the administrative process before customs is complete, which is consummated with the liquidation of the entry,

[00:25:39] Speaker 00:
the claims simply are not ripe for the trial court to review.

[00:25:45] Speaker 00:
Let's not forget, Commerce, the actual agency that Congress has imparted this authority to issue scope rulings, found the merchandise to be within scope.

[00:25:55] Speaker 00:
On judicial review, the trial court affirmed Commerce's determination.

[00:25:58] Speaker 00:
That's in a separate case that's pending before the trial court.

[00:26:04] Speaker 00:
If the trial court's holding in this case is left to stand,

[00:26:07] Speaker 00:
then that entire period of time from the moment that this legitimate dispute arose in April of 2015 to the time the trial court enjoined U.S.

[00:26:15] Speaker 00:
Customs and Border Protection, the public fisc will be completely unprotected and all of the duties that were rightfully owed to the United States during that period of time based upon the ultimate affirmative scope ruling will be left uncollected.

[00:26:28] Speaker 00:
And that's simply contrary to the statutory framework envisioned by Congress where customs is required under statute to protect

[00:26:36] Speaker 00:
the revenue to the maximum extent practicable.

[00:26:40] Speaker 00:
If there's no other questions, I see my time is up.

[00:26:42] Speaker 03:
Okay.

[00:26:42] Speaker 03:
Thank you.

[00:26:46] Speaker 03:
Ms.

[00:26:46] Speaker 03:
Sorshen, you have one minute.

[00:26:51] Speaker 01:
Okay, good.

[00:26:52] Speaker 01:
Thank you, Your Honors.

[00:26:54] Speaker 01:
I just wanted to note Suncream here, both in its briefs and in its oral argument, concedes the scope language here is ambiguous.

[00:27:01] Speaker 01:
It is not perfectly clear.

[00:27:03] Speaker 01:
That puts us squarely in

[00:27:05] Speaker 01:
Sandvik territory.

[00:27:07] Speaker 01:
Having admitted that the scope is ambiguous, a scope ruling is exactly what Sunprime should have sought immediately upon being advised.

[00:27:16] Speaker 01:
First, when they were advised by customs to do so, certainly, but recognizing that there was an actual ambiguity and a dispute between themselves and customs as to the meaning and reach of this language, they should have gone immediately for a scope ruling.

[00:27:27] Speaker 01:
That's their administrative remedy as this court held in Sandvik.

[00:27:32] Speaker 01:
And again,

[00:27:33] Speaker 01:
We as a domestic industry believe that the Sandvik court was correct and that it has not just created a system that works under the statute and recognizes the authority and separate spheres of the courts, the agencies, and conserves their resources, but it leads to the overall efficient administration of the trade laws in a way that recognizes the ultimate aim of those trade laws, which is to ensure that duties are in fact collected on goods that have been found to injure domestic industries.

[00:28:03] Speaker 01:
Thank you.

[00:28:05] Speaker 03:
Thank you all.

[00:28:06] Speaker 03:
The case is taken under submission.