[00:00:05] Speaker 03:
Next case is Tyson Krupp Steele, North America versus the United States, 2017-1407.

[00:00:13] Speaker 03:
Mr. LaFranti.

[00:00:30] Speaker 05:
Good morning.

[00:00:31] Speaker 05:
may please the court.

[00:00:32] Speaker 05:
For the record, I'm Robert LaFrenkie on behalf of Plaintiff Appellant Tissenkrupp Steel North America.

[00:00:38] Speaker 05:
Your Honors, Customs wrongly assessed dumping duties on Tissen's stealing courts despite the fact that the dumping order had been previously revoked pursuant to a sunset review.

[00:00:48] Speaker 05:
I'd like to address two main issues today.

[00:00:51] Speaker 05:
First, the lower court has jurisdiction over Customs denial of our protest.

[00:00:55] Speaker 05:
Second, the department's revocation instructions were unlawful as written and enforced.

[00:01:00] Speaker 05:
In addressing these issues, I will demonstrate that customs exceeded its ministerial role in this case, and it did so by substantively interpreting the revocation instructions in a restrictive manner and in a way that improperly excluded Tissen's entries from the reach of the revocation.

[00:01:16] Speaker 01:
The revocation instructions here don't tell us what the interpretation of unliquidated is, right?

[00:01:23] Speaker 01:
They do not.

[00:01:25] Speaker 01:
So your contention is that that's a construction that customs put on

[00:01:29] Speaker 01:
the commerce instructions.

[00:01:31] Speaker 05:
That's correct.

[00:01:32] Speaker 05:
We believe they clearly, substantively interpreted the meaning of the word unliquidated.

[00:01:36] Speaker 05:
The record shows they had no guidance on that.

[00:01:39] Speaker 05:
They did it on their own.

[00:01:40] Speaker 05:
They did it substantively.

[00:01:42] Speaker 05:
And as we point out in our briefs, they specifically interpreted the term unliquidated to exclude those entries based on the, they drew a distinction between an unliquidated entry on the one hand and an entry that had been liquidated, but whose liquidation was not final due to the filing of the protest.

[00:01:58] Speaker 05:
Importantly, they analyze legal precedent in doing this.

[00:02:01] Speaker 04:
Can I ask just on the jurisdictional point?

[00:02:07] Speaker 04:
Excuse me.

[00:02:08] Speaker 04:
Is your contention that 1581A jurisdiction attaches to the original October or November

[00:02:20] Speaker 04:
the original 2012 or to the I guess December 2014 10 page substantive interpretation of the commerce order followed by the a few weeks later the the ports rejections of your protest.

[00:02:43] Speaker 05:
Our contention is that we protested the liquidation which is what what we were authorized by law to protest

[00:02:49] Speaker 05:
That was a combination of all of the information that customs had before it at any time relevant to our protest.

[00:02:56] Speaker 04:
This included the original automatic assessment instructions, which were not... When you originally filed protests for the original liquidations... Correct.

[00:03:09] Speaker 04:
If you can focus just on that for a second, and I know you don't want to, and you shouldn't end there, but for the moment, focus just on that.

[00:03:17] Speaker 04:
At that point, the only decision Customs had made was, I guess, not what we would call a decision under 1514, because there was no dispute about the meaning of its instruction.

[00:03:32] Speaker 05:
I think at the moment we filed our protest, which was in some cases

[00:03:38] Speaker 05:
two weeks after the second set of instructions came out, and in another case, about a month after, we were protesting the fact that customs had not applied the second set of instructions to our entries.

[00:03:50] Speaker 05:
They had looked at that set of instructions.

[00:03:53] Speaker 04:
Wait, I thought your original protest preceded.

[00:03:56] Speaker 04:
Can you just get the time right?

[00:03:59] Speaker 05:
No, the sequence was the automatic instructions came out, let's say, in October.

[00:04:06] Speaker 05:
Right.

[00:04:06] Speaker 05:
Six months later, in April in 2013, the second set of instructions came out.

[00:04:13] Speaker 05:
The entries had liquidated in the meantime, pursuant to the first set.

[00:04:17] Speaker 05:
We saw the second set of instructions and said, well, the customs should apply these instructions to the previously liquidated entries.

[00:04:27] Speaker 05:
So we protested after the second set of instructions.

[00:04:31] Speaker 05:
And so the protest was,

[00:04:33] Speaker 05:
Customs made a decision not to apply the second set of instructions to the previously liquidated entries.

[00:04:39] Speaker 05:
Now, our view is that all of those decisions merge into our protest.

[00:04:45] Speaker 05:
That includes the decision to originally liquidate the entries, the decision whether to do it or not to do it at that time to apply the second set of instructions.

[00:04:55] Speaker 05:
Somebody had to look at the second set of instructions and say, oh, these don't apply because we previously liquidated the entries.

[00:05:00] Speaker 05:
OK, that's a decision that was made.

[00:05:02] Speaker 05:
In addition to that,

[00:05:04] Speaker 05:
As we filed the protest, there were three different reactions from the courts.

[00:05:09] Speaker 05:
The Court of Detroit granted the protest.

[00:05:11] Speaker 05:
They approved it.

[00:05:13] Speaker 04:
The Port of Philadelphia.

[00:05:15] Speaker 04:
It seems to me there's a question of jurisdiction, and then there's a question of what's the right answer to the question, were these entries unliquidated or not?

[00:05:25] Speaker 04:
And I understand, I think, that

[00:05:28] Speaker 04:
When, after the second set of instructions, the April 4th, 2013 instructions, it took a year and a half for customers to figure out an answer to the question, what is due about that?

[00:05:42] Speaker 04:
That's a real decision.

[00:05:44] Speaker 04:
That's not ministerial.

[00:05:45] Speaker 04:
That was a real decision.

[00:05:46] Speaker 00:
Correct.

[00:05:47] Speaker 04:
How does that get you back to, just on the jurisdictional question, the original challenges?

[00:05:55] Speaker 05:
The original challenge is that prior to that decision from headquarters,

[00:05:59] Speaker 05:
Someone at the port, in theory, had to look at the second set of instructions and decide they didn't apply to those entries.

[00:06:07] Speaker 05:
That was the decision, I think, that ultimately gives jurisdiction.

[00:06:11] Speaker 05:
It was a decision made.

[00:06:12] Speaker 05:
Either there was a decision not to do anything, or more likely than not, there was a decision that the second set of instructions didn't apply because the entries were liquidated.

[00:06:21] Speaker 01:
Do we have any cases where there's been a protest and a change of circumstances or a change of law?

[00:06:29] Speaker 01:
in between the time of the original protest and the final decision.

[00:06:34] Speaker 05:
You mean specifically with regard to anti-dumping cases and sunset reviews?

[00:06:38] Speaker 01:
Yeah, I mean, I don't know if you're familiar with carbon activated.

[00:06:43] Speaker 01:
Maybe not.

[00:06:44] Speaker 01:
I'm not familiar with that.

[00:06:45] Speaker 01:
It has to do with the question of whether you can protest

[00:06:53] Speaker 01:
a decision and raise the question of whether the wrong anti-dumping duty was applied, even though the anti-dumping duty was not determined until after the protest.

[00:07:08] Speaker 01:
There are other differences that might make that case distinguishable, but I guess I'm just wondering whether this has come up.

[00:07:15] Speaker 01:
It doesn't seem to me that 1581 I provides you with a remedy because you have no challenge

[00:07:23] Speaker 01:
the commerce instructions, which are just in the language of the statute.

[00:07:28] Speaker 01:
So if you're going to have a remedy, it would have to be the protest remedy.

[00:07:32] Speaker 05:
We agree.

[00:07:33] Speaker 05:
To answer your question, I'm not aware of a case like that.

[00:07:35] Speaker 05:
I am aware that I believe sometimes there have been situations where customs has changed its policy based on a subsequent letter ruling and perhaps has applied that to a previous protest.

[00:07:45] Speaker 05:
I can't provide a citation at the moment.

[00:07:48] Speaker 05:
To get to your other point, we agree that we think our main avenue of jurisdictional challenge is the protest.

[00:07:53] Speaker 05:
We filed our alternative claim under 1581A anticipating we might get a disagreement as to whether we have jurisdiction.

[00:08:01] Speaker 05:
We did so because we think the same substantive legal question could be answered under either jurisdictional prong, although we think the proper avenue is 1581A specifically for the reason you state, which is that otherwise a party might be foreclosed from having review of that decision, particularly what happened here by the lower court by

[00:08:20] Speaker 05:
finding that our protest was not denied, it was rejected, and doing so leaves us in a state of limbo.

[00:08:28] Speaker 05:
What else are we supposed to do?

[00:08:29] Speaker 05:
We think that under the statute, Customs only has the option to approve or deny the protest, not to reject it.

[00:08:37] Speaker 05:
And even if it is going to reject it, that should be considered a denial, at least for jurisdictional purposes.

[00:08:43] Speaker 05:
I believe defendants don't even dispute that.

[00:08:45] Speaker 05:
They can speak to it when they are here, but they certainly did not embrace that part of the lower court's reasoning.

[00:08:50] Speaker 05:
So for all those reasons, we think that the decision was clearly substantive and not ministerial.

[00:08:57] Speaker 05:
The protest was timely because it was based upon the fact that the entry of the... Are you getting some timely now, Ryan?

[00:09:06] Speaker 00:
That's correct.

[00:09:08] Speaker 00:
So what about the meaning of unliquidated in the statute?

[00:09:13] Speaker 05:
Yes.

[00:09:14] Speaker 05:
Well, the term unliquidated is not defined in the statute.

[00:09:17] Speaker 05:
We haven't found it defined anywhere.

[00:09:19] Speaker 05:
What we have argued is that if you take a simple reading of the text of the protest statute and the relevant CBP regulation that defines liquidation, and if you read those together, it indicates that filing a protest prevents a liquidation from becoming final.

[00:09:43] Speaker 05:
The lower court focused more so on whether the decision by the custom service is final.

[00:09:48] Speaker 05:
We agree that that is part of the analysis, but we also believe that customs rulings make clear that it's also the liquidation itself that's not final.

[00:09:59] Speaker 05:
So the act of liquidation is not final.

[00:10:01] Speaker 05:
And so if a liquidation is not final, then it should be treated the same as an unliquidated entry.

[00:10:09] Speaker 01:
Customs refers to... So basically, you're relying on these two regulations to define what means what comes by liquidated.

[00:10:18] Speaker 01:
There really isn't any guidance in the statute itself.

[00:10:22] Speaker 05:
The definition of unliquidated is not in the statute.

[00:10:24] Speaker 05:
There's no definition of it.

[00:10:26] Speaker 05:
We don't have a definition.

[00:10:28] Speaker 05:
What we are relying on is the juxtaposition and the interpretation, the plain language, of the statute read in conjunction with the regulation, as well as customs rulings, which we have cited in our brief, including HQ H030656, HQ 223320, which

[00:10:48] Speaker 05:
basically hold that a protest prevents a liquidation from being final.

[00:10:53] Speaker 05:
It's been referred to as pending before customs.

[00:10:55] Speaker 05:
And as I said, customs refers to it as open.

[00:10:58] Speaker 05:
So we want to think about it in terms of it's either liquidated or it's not.

[00:11:05] Speaker 05:
It's kind of a semantical position that's been taken by customs to say on the one hand, well, it's liquidated, but it's not final.

[00:11:11] Speaker 05:
But that's not the same as unliquidated.

[00:11:14] Speaker 05:
We think clearly the term is not defined.

[00:11:17] Speaker 05:
But we think if you're going to define the term, you should look at the broader purpose of this situation in terms of the sunset review, which is supposed to be interpreted broadly to effectuate revocation to further the goals of the statute.

[00:11:33] Speaker 05:
And as we pointed out under Article 11.3 of the WTO, if a revocation is effected, it should be effected to eliminate duties for no later than five years after

[00:11:46] Speaker 05:
the order was imposed or the most recent extension of the order.

[00:11:50] Speaker 05:
And in our case, the way the term has been interpreted, due to the retrospective nature of a sunset review, duties were actually collected for five years and five months.

[00:12:02] Speaker 05:
And this is because of that six-month time period after February 14, when the entries came in while the process was ongoing.

[00:12:11] Speaker 05:
And then when we noticed that, we filed the protest after the liquidation instructions came out.

[00:12:16] Speaker 05:
We followed the mechanism that's in place, and we provided the argument as to why the revocation should apply to those entries.

[00:12:26] Speaker 05:
And we think it effectuates the purpose of the sunset review.

[00:12:30] Speaker 05:
And so, to answer your question, there is not a specific definition.

[00:12:34] Speaker 00:
In the statute.

[00:12:36] Speaker 05:
In the statute.

[00:12:37] Speaker 05:
Or anywhere, and I think

[00:12:39] Speaker 05:
The defendant has resorted to a textbook, and so there's no definition.

[00:12:45] Speaker 05:
But we think the better approach is to look to the purpose of the Sunset Review and to look to the fact that by interpreting it narrowly as customs has, it imposes duties for longer than five years.

[00:13:01] Speaker 05:
Another point I see moving into rebuttal, I just wanted to make a final quick point, which is that one thing the lower court

[00:13:09] Speaker 05:
had not focused on is that the instructions issued by Commerce in this case were contrary to the instructions that we are aware of that had ever been issued in any prior Sunset case by inserting this paragraph talking about unliquidated entries.

[00:13:22] Speaker 05:
It's not clear why they did it in this case, but we mentioned several other instances in our brief, including Faravanating from Russia, Salmon from Norway, where the instructions did not discuss unliquidated entries.

[00:13:36] Speaker 05:
And with that,

[00:13:38] Speaker 05:
reserve the balance of my time for rebuttal.

[00:13:41] Speaker 03:
Thank you, Counselor.

[00:13:43] Speaker 03:
Mr. Miller.

[00:13:54] Speaker 02:
May it please the Court.

[00:13:55] Speaker 02:
The trial court's dismissal of these claims.

[00:13:58] Speaker 01:
Does the government contend that in deciding a protest that customs is confined to deciding it on the

[00:14:08] Speaker 01:
grounds that were available to the protestor at the time the protest was made or is it your view that customs has to take into account subsequent developments such as here the Sunset Review decision?

[00:14:25] Speaker 02:
Certainly the agency is obligated to consider the arguments that are raised in a protest and at the time that the protest in this instance both liquidation instructions

[00:14:34] Speaker 02:
have been entered or issued by the Department of Commerce.

[00:14:37] Speaker 02:
So those instructions were before customs, and the arguments raised by Tissen in this case were before commerce in that instance.

[00:14:44] Speaker 01:
I don't think you're addressing my question.

[00:14:46] Speaker 01:
My question is, here we have a situation where, at the time of the protest, the sunset review decision was not available to the protester, correct?

[00:14:57] Speaker 02:
The sunset determination became in March of 2013.

[00:15:01] Speaker 02:
And the protest was filed in April of 2013.

[00:15:06] Speaker 01:
So the sunset, I'm sorry, maybe I was confused.

[00:15:08] Speaker 01:
The sunset decision was available at the time?

[00:15:11] Speaker 02:
Yes, Your Honor, yes.

[00:15:12] Speaker 01:
At the time of the protest?

[00:15:14] Speaker 02:
Yes, Your Honor, yes.

[00:15:15] Speaker 02:
The instructions regarding the revocation proceeding were available at the time the protests were filed.

[00:15:22] Speaker 02:
But the critical issue here that I think we should be focusing on.

[00:15:24] Speaker 01:
So why isn't this a proper protest then?

[00:15:26] Speaker 01:
Because it's directed to the interpretation

[00:15:30] Speaker 01:
that Customs gave to the liquidation instructions.

[00:15:34] Speaker 02:
There was no decision made by Customs that was protestable, because if you look at Customs' execution of Commerce's instructions, they were a straightforward application of those instructions.

[00:15:46] Speaker 02:
Customs did not.

[00:15:48] Speaker 04:
Assume I disagree with you that this was, in any meaningful sense, ministerial, the year and a half process where they had to figure out what the unliquidated entries means in this context.

[00:16:01] Speaker 04:
Then is there not 1581A jurisdiction?

[00:16:04] Speaker 02:
If you believe that customs exceeded their ministerial role, then there would be 1581A jurisdiction, Your Honor.

[00:16:10] Speaker 02:
But what is critical is looking at the April 4th instructions.

[00:16:13] Speaker 01:
What makes the jurisdiction depend on how we decide the merits?

[00:16:17] Speaker 02:
Certainly the merits are closely tied to this issue of jurisdiction, which goes to the fundamental question of what is the meaning of unliquidated.

[00:16:24] Speaker 02:
And if we look at the April 4th instructions, those instructions are clear.

[00:16:27] Speaker 02:
The tension that arises in this case... No, they're not clear.

[00:16:29] Speaker 01:
They use the statutory language, and there's a dispute about what the statutory language means.

[00:16:36] Speaker 01:
Right?

[00:16:37] Speaker 02:
Well, certainly Tistan has advanced an argument that unliquidated should be interpreted as liquidated, but not final.

[00:16:43] Speaker 02:
But that runs contrary to the plain meanings of the term.

[00:16:46] Speaker 01:
That may be, but the fact is that the commerce instruction didn't tell you which interpretation to take, right?

[00:16:54] Speaker 02:
They actually did, Your Honor.

[00:16:55] Speaker 02:
How did it do that?

[00:16:57] Speaker 02:
If we look at the April 4th instructions, the instructions that came subsequent to the revocation proceeding, the first sentence of the operative paragraph, and this is that appendix 323, allow everyone to

[00:17:13] Speaker 02:
Paragraph three of those revocation instructions state, recognize that in fact prior instructions had been issued.

[00:17:20] Speaker 02:
So the first sentence is liquidation instructions covering certain entries of core from Germany during the period of August 1st, 2011 through July 31st, 2012 are issued.

[00:17:29] Speaker 02:
As noted above, this order has been revoked accordingly all unliquidated entries of core.

[00:17:34] Speaker 02:
So by including the term unliquidated,

[00:17:36] Speaker 02:
Commerce is recognizing that there is this possibility that prior entries had been liquidated.

[00:17:41] Speaker 02:
So the instructions themselves.

[00:17:42] Speaker 01:
Where does it tell you what unliquidated means?

[00:17:47] Speaker 02:
There's no express definition of unliquidated within the instructions.

[00:17:50] Speaker 02:
I agree with you, Your Honor.

[00:17:51] Speaker 02:
But the idea that the Commerce has included this sentence anticipating that liquidations have already previously occurred for this review period, and then immediately thereafter having a sentence that addresses

[00:18:03] Speaker 02:
how the instructions should be effectuated, meaning applying them to unliquidated entries.

[00:18:08] Speaker 01:
Commerce is clear in terms of how these... Okay, so apart from that argument, is there any definition in the Sunset Review decision that tells us what unliquidated means?

[00:18:19] Speaker 01:
No, Your Honor, there's no... Commerce did not define liquidation within their Sunset Revocation... If we conclude that Commerce didn't define unliquidated, then do you agree that protest jurisdiction exists?

[00:18:32] Speaker 02:
No, Your Honor, because the term liquidated is not an ambiguous term.

[00:18:36] Speaker 01:
No, that's the merits.

[00:18:38] Speaker 01:
There's an argument about it.

[00:18:40] Speaker 01:
You may be right about the meaning of unliquidated, but that what we have is a situation, under my hypothetical, where commerce hasn't told them what unliquidated means.

[00:18:52] Speaker 01:
They're making a decision as to what unliquidated means.

[00:18:55] Speaker 01:
So that's a proper protest, isn't it?

[00:18:58] Speaker 02:
Certainly, Your Honor.

[00:18:59] Speaker 02:
So the dichotomy that you're discussing here is whether customs engage in a substantive active decision.

[00:19:04] Speaker 02:
And the LDA and corporata case, as previously mentioned, discusses this dichotomy.

[00:19:09] Speaker 02:
Commerce is the agency that Congress has delegated to ascertain the anti-dumping duty rate.

[00:19:14] Speaker 02:
Customs merely enforces those rates.

[00:19:16] Speaker 02:
It's there not to make any active or substantive determination.

[00:19:19] Speaker 02:
It's merely there to execute the instructions from commerce.

[00:19:22] Speaker 01:
And if customers only did make a determination of what unliquidated meant here,

[00:19:28] Speaker 01:
Right?

[00:19:29] Speaker 01:
It interpreted pursuant to the plain meaning of the terms.

[00:19:32] Speaker 01:
OK.

[00:19:32] Speaker 01:
OK.

[00:19:33] Speaker 01:
So let's talk about what unliquidated means in the statute.

[00:19:36] Speaker 01:
Why would Congress, in enacting this statute about sunset reviews, have wanted to deny the benefits of the sunset review

[00:19:49] Speaker 01:
to a situation in which there had been a liquidation and a protest of liquidation.

[00:19:57] Speaker 01:
Why would Congress want to foreclose the challenge to the liquidation when that's a fairly common feature of the statutory scheme?

[00:20:07] Speaker 01:
Wouldn't you expect them to say something more explicit if they wanted to bar protests under these circumstances?

[00:20:14] Speaker 02:
Quite to the contrary, Your Honor.

[00:20:16] Speaker 02:
I believe liquidation is used so frequently within the trade and customs law that it's well understood what it means.

[00:20:21] Speaker 02:
Had Congress intended for the revocation decision to encompass these types of entries, it would have drafted 1675D3 with the language saying that the determination should apply to all entries, regardless of liquidation status.

[00:20:36] Speaker 01:
But my question is, why would Congress, as a matter of policy, and just trying to interpret the statute in the light

[00:20:44] Speaker 01:
you know, the prevailing structure.

[00:20:46] Speaker 01:
Why would it want to say, well, even if something's been liquidated and subject to protest, we want to deny the benefits of the sunset review?

[00:20:58] Speaker 01:
Why would Congress want to do that?

[00:21:01] Speaker 02:
As the trial court noted, sunset determinations are prospective in nature.

[00:21:05] Speaker 01:
I mean, the whole framework.

[00:21:06] Speaker 01:
They're not prospective in nature in the sense that they apply to entries

[00:21:10] Speaker 01:
that occur after the date of the initiation of the sunset review, right?

[00:21:16] Speaker 02:
That's true, Your Honor.

[00:21:17] Speaker 02:
However, competing concerns to what you've just identified is both agencies' obligations to enforce the anti-dumping laws with respect to the period of review that no interested party requested a period of review.

[00:21:30] Speaker 04:
So the operative... But the grounds are really quite separate, aren't they, in the sunset review from what would be done in the administrative review?

[00:21:39] Speaker 02:
We'll know, Your Honor, looking at the exact same issues, whether material injury is being subjected on the domestic industry and whether merchandise is being dumped in the United States, being sold at below fair market value.

[00:21:49] Speaker 02:
So the order that was in effect during the review period had those two affirmative determinations underlying them.

[00:21:56] Speaker 02:
The tension, I think, that the Court is wrestling with is the agencies must enforce the anti-dumping duty laws for this period of review when the order was in effect.

[00:22:05] Speaker 02:
And the effective date for when the revocation proceeding became effective fell within that review period.

[00:22:10] Speaker 02:
Well, the agencies are still obligated to administer the order during that review period, which is why the first set of instructions came out and instructed customs to liquidate all entries.

[00:22:19] Speaker 04:
But why wouldn't it make sense for this term, unliquidated, to refer to entries in which the agency has not declared a final calculation and also

[00:22:35] Speaker 04:
to ones in which the agency has declared the final calculation of data, but the challenge time has not left.

[00:22:44] Speaker 04:
So it would be on the model of what goes on in at least one aspect of general law dating, I guess, from Schooner-Peggi, where if there's a change of law when the matter is still open to challenge,

[00:23:02] Speaker 04:
then the change of law applies, as long as it was intended to apply to that date.

[00:23:08] Speaker 02:
Interpreting unliquidated in that manner would be counter to the plain meaning of the term, first and foremost.

[00:23:15] Speaker 01:
But why is it so plain meaning?

[00:23:17] Speaker 01:
Because if you look at the regulations, I mean, there are two regulations here that seem to be helpful to the appellant here.

[00:23:25] Speaker 01:
One is 159.1, which says liquidation means the final computation

[00:23:32] Speaker 01:
ascertainment of duties on entries.

[00:23:35] Speaker 01:
And 173.4, which says liquidation includes reliquidation.

[00:23:42] Speaker 01:
So it seems to me in terms of the definitions that appear in the regulation that the plain meaning argument doesn't work very well.

[00:23:54] Speaker 02:
If we take Tissenkrupp's argument to its logical conclusion, and in fact the liquidations were reverted as a result of the protest,

[00:24:02] Speaker 02:
and customs looked at the issue anew at the protest stage.

[00:24:06] Speaker 02:
There are no set of instructions that exist that would direct customs to liquidate these entries pursuant to the revocation determination.

[00:24:14] Speaker 02:
The April 4th instructions anticipate that liquidations had previously occurred as a result of these prior instructions.

[00:24:20] Speaker 02:
And the revocation determination only applies to unliquidated entries.

[00:24:24] Speaker 02:
So when US Customs and Border Protection was executing the April 4th instructions,

[00:24:29] Speaker 02:
It was merely applying those instructions to pursue it to the plain meaning of its terms.

[00:24:34] Speaker 02:
And going back to the question of whether customs exceeded its ministerial role, while the agency did issue a ruling letter in this instance and explained its determination, it didn't exceed its ministerial capacity because all the ruling letter was explaining was that the agency was applying these April 4th instructions pursuant to the black letter of its terms.

[00:24:53] Speaker 02:
Had the agency adopted to some corrupt arguments and actually interpreted them

[00:24:57] Speaker 02:
the way suggested, that unliquidated actually means the broader universe of claims that actually have been liquidated are non-final, then the agency would actually be doing an active interpretation of that term.

[00:25:08] Speaker 02:
It would be interpreting the term unliquidated beyond its plain meaning.

[00:25:12] Speaker 02:
And in that instance, the agency would be engaging in an active and substantive determination that would be protestable.

[00:25:20] Speaker 04:
Let me try to ask in a better way the same question I think I tried to ask before.

[00:25:27] Speaker 04:
take as a given for purposes of this question that this does not have a plain meaning.

[00:25:34] Speaker 04:
And now we're trying to figure out what the best meaning is of unliquidated.

[00:25:40] Speaker 04:
Your basic view is if the agency has acted to say here are the computation duties then it's been liquidated even if

[00:25:50] Speaker 04:
there is a live or still timely challenge to be brought, or one that has been brought.

[00:25:58] Speaker 04:
The alternative is that final doesn't mean, doesn't arise until the time for challenges has run or challenges have ended with a final judgment.

[00:26:15] Speaker 04:
Why is the latter not a better way to interpret this and in particular better

[00:26:22] Speaker 04:
so as to avoid a situation in which entries made after the date at which the government has determined anti-dumping duties are no longer needed are being taxed with duties.

[00:26:36] Speaker 04:
That seems a odd consequence unless it's forced by the language.

[00:26:42] Speaker 02:
The term liquidated is a term that's used very, very frequently within customs and trade law.

[00:26:47] Speaker 02:
And as Judge Dyke has previously noted,

[00:26:50] Speaker 02:
If we were to interpret that term beyond its plain meaning, it would alter the application of trade laws in a myriad of contexts.

[00:26:57] Speaker 04:
I was just expecting a five-page or ten-page section in your brief explaining that, and I didn't see anything that said, here's why chaos or something would result from this other interpretation.

[00:27:09] Speaker 02:
I'll provide two contexts or two examples.

[00:27:11] Speaker 02:
The Acme case is one example where liquidation had occurred and then a subsequent administrative determination was issued

[00:27:18] Speaker 02:
that altered that and where the trial court said, we're not gonna apply that determination because your entries have liquidated and the instructions are only applied on liquidated entries.

[00:27:26] Speaker 02:
This example here, the example of a revocation proceeding is another example, but there are myriad examples where the agencies work in tandem, where customs execute substantive determinations within the trade context that commerce has made.

[00:27:41] Speaker 02:
And when commerce issues these instructions to customs, oftentimes those instructions turn

[00:27:47] Speaker 02:
on the status of an entry, of whether it's been liquidated or unliquidated.

[00:27:50] Speaker 02:
And these two examples are just two, where if we interpret it beyond its plain meeting and interpret it to include this broader universe of claims, then suddenly all these instructions that the agencies have been issuing to one another, that's when it becomes ambiguous.

[00:28:04] Speaker 01:
I mean, if customs were given a set of instructions that had... So why is it that Congress certainly was aware of the protest mechanism which it created?

[00:28:16] Speaker 01:
when it enacted the statute and made reference to unliquidation.

[00:28:20] Speaker 01:
Why is it that Congress would want to foreclose a challenge to the legality of the liquidation through the protest method for sunset reviews?

[00:28:32] Speaker 01:
Why would it want to make that distinction?

[00:28:35] Speaker 02:
Because protests are intended to be directed towards substantive determinations of customs, and revocation decisions are not substantive decisions of customs.

[00:28:43] Speaker 02:
They're the decisions

[00:28:45] Speaker 02:
of the ITC in commerce.

[00:28:46] Speaker 02:
And so therefore, the protest remedies were never intended to keep that question open.

[00:28:50] Speaker 01:
Accept the premise that the protest remedy is directed to determining the legality of the liquidation.

[00:28:58] Speaker 01:
And normally, if you file a timely protest, you can get a decision from customs as to the legality of the liquidation.

[00:29:05] Speaker 01:
And if you don't like the customs final decision, you can go to court and pursue that.

[00:29:11] Speaker 01:
Why, given that structure?

[00:29:14] Speaker 01:
Would Congress want to say, no, we're not going to allow that with respect to Sunset Refuse?

[00:29:20] Speaker 02:
Because Customs isn't the agency that has been directed to make that decision.

[00:29:23] Speaker 02:
If Congress wanted to encompass the scenario that you've described, then 1675D3 would have been written to say that the revocation determination applies to all entries, regardless of liquidation status.

[00:29:35] Speaker 02:
They didn't include that language.

[00:29:36] Speaker 02:
Instead, they had this very significant qualifier, unliquidated entries.

[00:29:40] Speaker 02:
So Congress, when it was drafting the language of 1675D3, anticipated that there would be circumstances where entries would become liquidated, by which then the determination would not apply to that set of entries.

[00:29:55] Speaker 03:
If there's no further questions, I see my time has expired.

[00:30:13] Speaker 05:
Thank you, Your Honors.

[00:30:14] Speaker 05:
I'd just like to make a couple of points in rebuttal.

[00:30:17] Speaker 05:
First, there was a point made that if we allowed the interpretation that we're advancing, there would be chaos.

[00:30:24] Speaker 05:
It would turn the system upside down.

[00:30:26] Speaker 05:
That's just simply not true.

[00:30:28] Speaker 05:
What we are talking about is a limited remedy here where a person first has to file a protest and then has to advance the protest based upon some event or some change or miscalculation that they think is appropriate.

[00:30:41] Speaker 05:
We don't view that as chaos.

[00:30:42] Speaker 05:
We view that as

[00:30:43] Speaker 05:
using the mechanism that was put in place for exactly that purpose.

[00:30:47] Speaker 04:
Does your argument depend on the relation between your filing of these protests in April and May 2013 and the October and November liquidation events?

[00:31:05] Speaker 05:
I'm not sure I understand what you mean by the relations.

[00:31:08] Speaker 04:
How long did you have to challenge the November 16th?

[00:31:13] Speaker 04:
Yeah, the nation and the December 21st.

[00:31:15] Speaker 05:
The deadline was coming up.

[00:31:17] Speaker 04:
We had six months from your argument to be any different if you had Gone past I'm gonna say August the 2013 is you had six months at six months, right?

[00:31:29] Speaker 04:
So if you had gone past six months

[00:31:31] Speaker 05:
If we had gone past six months, I don't see that we would have had a ground to protest.

[00:31:35] Speaker 04:
Because at that point, the original liquidations would be final.

[00:31:38] Speaker 05:
It would be final.

[00:31:39] Speaker 05:
The period would have run, and we wouldn't have identified a reason to protest.

[00:31:44] Speaker 05:
So at that point, we had to file within that six-month time period.

[00:31:47] Speaker 04:
So it's the combination of the time for protest to the original liquidations not having run, plus the legal assertion that an intervening change of law is a ground for a protest of an already occurred agency computation of duties.

[00:32:08] Speaker 05:
Correct.

[00:32:08] Speaker 05:
Either an intervening change in law, a change in practice, or discovery of a mistake, as long as it was in that time period.

[00:32:13] Speaker 05:
And so it is limited in that sense.

[00:32:16] Speaker 05:
And I see my time is up.

[00:32:19] Speaker 03:
Do you have a final thought?

[00:32:21] Speaker 05:
I had a final thought, which is that we think Congress did not intend this result.

[00:32:27] Speaker 05:
We think Congress is aware that there's protests, and there is no reasonable reason why they would try to draw an artificial distinction between an entry that is unliquidated as opposed to one that has been liquidated in a prefatory manner but is still subject to protest

[00:32:42] Speaker 05:
If you look at the protest statute, it's pretty broad in terms of the grounds that can be asserted.

[00:32:46] Speaker 05:
It can be a mistake, an inadvertence, clerical error, and all of the decisions.

[00:32:52] Speaker 05:
Illegality.

[00:32:52] Speaker 05:
Including illegality, the illegality of all findings and orders connected with that liquidation.

[00:32:57] Speaker 05:
So we think it clearly should be included within this context, particularly in the case of a sunset review, which were meant to affirmatively cut off duties no more than five years afterwards.

[00:33:07] Speaker 03:
Thank you, counsel.

[00:33:09] Speaker 03:
We'll take the case on his order.

[00:33:11] Speaker 03:
All right.