[00:00:00] Speaker 02:
Your Honors, this case is up from the CIT on summary judgment against plaintiffs.

[00:00:06] Speaker 02:
And we have contended in our briefs that the court, the lower court, made critical errors of fact.

[00:00:11] Speaker 03:
In the preliminary results of AR9 and AR10, Commerce stated, I'm quoting him, upon issuing the final results of this review, I'm paraphrasing, Commerce shall determine and custom shall assess

[00:00:29] Speaker 03:
anti-dumping duties on all appropriate entries covered by this review.

[00:00:33] Speaker 03:
In your administrative case briefs, did you challenge this determination in either administrative review?

[00:00:40] Speaker 02:
Well, we would submit that that instruction is generic and ambiguous, because the entries that are subject to the review are the entries Commerce requires us to report.

[00:00:50] Speaker 02:
And they've always required us to report by invoice date.

[00:00:53] Speaker 02:
And from 2008 on to current reviews, CONCTAI has been continuously investigated, has always reported invoice date as the date of sale.

[00:01:02] Speaker 02:
And that way, there would be no duplication or overlap in the sales that are reviewed.

[00:01:07] Speaker 02:
And there are principles behind that practice, if the court can indulge.

[00:01:13] Speaker 02:
The point is, you're supposed to match the cost to the timing of the setting of the price.

[00:01:20] Speaker 03:
In the blue brief at 17 to 20, you identify various factual inferences that you allege the CIT made in favor of the government.

[00:01:30] Speaker 03:
But you cite the CIT's background facts found at J-8-2.

[00:01:36] Speaker 03:
Where did the CIT rely on those facts, such as its statement that Kang-Tai reported entry date in its analysis of the jurisdictional law?

[00:01:46] Speaker 02:
Could I direct the court?

[00:01:47] Speaker 02:
I have the confidential appendix up here, since it's just us.

[00:01:50] Speaker 02:
The joint appendix of page 8, which is the slip opinion at page 8.

[00:01:58] Speaker 04:
I just want to caution you not to divulge any confidential information.

[00:02:02] Speaker 02:
I don't believe there's any confidential information.

[00:02:04] Speaker 02:
I just have this for my reference.

[00:02:06] Speaker 02:
So it might be just overall on kind of the same page.

[00:02:09] Speaker 02:
If you look at the court's opinion on page 8, the court says at the bottom of the top paragraph, due to the silence in the statute, the reasonableness of the department's interpretation, court defers to commerce's reasonable consideration of either sales

[00:02:23] Speaker 02:
entries in a given POR well I don't dispute that but even the government doesn't dispute that forever in the history of the case the law of this case for this company this exporter respondent has been invoice date for date of sale can I ask you so in in administrative reviews one through eight

[00:02:44] Speaker 02:
Worth we were a new shipper.

[00:02:46] Speaker 02:
We came in around review five Okay, and now we're in review 12.

[00:02:50] Speaker 01:
Okay.

[00:02:50] Speaker 01:
Well you're relying on pre nine history to say there was a consistent practice with respect to the potential sales versus entry date issues either for the calculation of the annual rate or for the assessment and

[00:03:09] Speaker 02:
Well, to describe the universe of sales, we were required to report.

[00:03:13] Speaker 02:
But it's not merely a practice.

[00:03:15] Speaker 02:
We followed the letter of the commerce questionnaire.

[00:03:17] Speaker 01:
Let me just try to ask a question that see if I can communicate what I've had in my mind.

[00:03:26] Speaker 01:
Does this record show that before the years in question, there was ever a sale in year one followed by in year X?

[00:03:38] Speaker 01:
Followed by an entry in year x plus one where what I mean by year of course is June 1st to May 31st, right?

[00:03:46] Speaker 01:
Was there ever such a disparity as there came to be that's at issue?

[00:03:52] Speaker 02:
I understand your question.

[00:03:53] Speaker 02:
Never in the history of this case has that happened.

[00:03:55] Speaker 01:
But more importantly... Well, that makes the history of the past practice really not that informative.

[00:04:00] Speaker 01:
if this didn't happen before.

[00:04:02] Speaker 02:
But the logic of the questionnaire and the way the questionnaires are answered supports the principle that you don't review sales twice in different reviews.

[00:04:14] Speaker 01:
I get the point that there is something bizarre about a mismatch between the items that you're counting in doing the calculation and the scope of the assessment

[00:04:29] Speaker 01:
of what items are being subject to the assessment.

[00:04:32] Speaker 01:
That's a surprise, at least to me, a surprising thing.

[00:04:35] Speaker 01:
So that when commerce says, and the CIT say, we commerce can use sales or entries, that doesn't begin to suggest that for calculation you can use one and for assessment you can use the other.

[00:04:50] Speaker 02:
Those are two separate issues.

[00:04:53] Speaker 02:
I would say not only has this never happened in this case, the government hasn't presented any case ever in 30 years of experience where this has happened.

[00:05:01] Speaker 02:
So the reason I'm saying that is because it would be very difficult and onerous for an exporter who does not have knowledge of the entry dates to anticipate this issue.

[00:05:10] Speaker 02:
And there would be no way for them to brief the issue at the case brief.

[00:05:15] Speaker 02:
And therefore, when the government says we failed to exhaust remedies, that's not a reasonable remedy to require us to brief 6, 8, 12 months prior to the actual assessment.

[00:05:26] Speaker 03:
When you referred to the questionnaire in the beginning of your answer to Judge Toronto,

[00:05:32] Speaker 03:
You talking about the section C questionnaire?

[00:05:35] Speaker 03:
Yes.

[00:05:35] Speaker 02:
But Your Honor, I still haven't finished answering your original question, which was at the bottom of page eight.

[00:05:42] Speaker 03:
Wait.

[00:05:43] Speaker 03:
Stop.

[00:05:45] Speaker 03:
I want to ask you a question.

[00:05:48] Speaker 03:
That questionnaire directed Kingtie to, and I'm quoting, report each US sale of merchandise entered for consumption during the period, the POR, except

[00:06:02] Speaker 03:
One, for EP sales, if you do not know the entry dates, report each transaction involving merchandise shipped during the PLR.

[00:06:12] Speaker 03:
And two, for CEP sales, made after importation, report each transaction that has a date of sale within the period of review of PLR.

[00:06:23] Speaker 03:
Given that the exception for EP sales only applies if you do not know the entry dates,

[00:06:30] Speaker 03:
Why is your interpretation of this questionnaire reasonable?

[00:06:34] Speaker 02:
That's a great question, Your Honor.

[00:06:35] Speaker 02:
Thank you.

[00:06:35] Speaker 02:
Kang Tai did not know the entry dates.

[00:06:38] Speaker 02:
And there's no evidence that they knew the entry dates and no allegation that they ever knew the entry dates.

[00:06:42] Speaker 02:
And that's the problem with page 8 of the lower court's opinion.

[00:06:46] Speaker 04:
Isn't a new problem really here that you fail to file a preliminary injunction when you file your first lawsuit and consequently those entries are liquidated?

[00:06:55] Speaker 04:
No.

[00:06:57] Speaker 02:
First of all, we contested that.

[00:06:59] Speaker 02:
But whether we got injunctions or not, customs would have still liquidated at 285% because those sales were not double recorded into the tenth review.

[00:07:10] Speaker 02:
They weren't double reported into Tenth Review because the Commerce Department's non-market standard questionnaire for 30 years has never required that in the majority of cases.

[00:07:21] Speaker 02:
There is a recent case, Solar, where they are now adding an extra appendix to request entry date.

[00:07:26] Speaker 02:
But it's generally never been their questionnaire in 30 years.

[00:07:31] Speaker 02:
The exporters who are not importers of record do not know the entry dates.

[00:07:34] Speaker 02:
And therefore, they report the date of shipment, which we explain in our briefs, has been interpreted by commerce to be the invoice date when that invoice sets the material terms of sale.

[00:07:44] Speaker 01:
Can I step back to what I think is the threshold and maybe even the question in front of us, was the CIT right in finding that these challenges that you're now making, which I guess were accounts one through three,

[00:07:59] Speaker 01:
had to be filed under 1581 C within 30 days and therefore you're out of time full stop.

[00:08:08] Speaker 01:
If there's an ambiguity as I tend to think there is in the two different slightly slightly different formulations in AR 9 and AR 10

[00:08:17] Speaker 01:
about appropriate entries.

[00:08:19] Speaker 01:
One uses the word covered and the other doesn't use the word covered.

[00:08:22] Speaker 01:
But it always says it's appropriate entries.

[00:08:24] Speaker 01:
And that does not make clear that the entries have to be during the June 1st to May 31st period that is covered.

[00:08:33] Speaker 01:
It leaves that open.

[00:08:34] Speaker 01:
If that's an apparent ambiguity, why was CIT not right in saying that's something you actually had to challenge by a 1581C challenge?

[00:08:45] Speaker 02:
Well, first of all, we think on summary judgment, when the court gets fundamental facts wrong, it should be remanded.

[00:08:51] Speaker 02:
But the court was not correct because we could not have anticipated that would be an issue until the importer got a bill 12 months later.

[00:08:58] Speaker 01:
So let me finish.

[00:08:59] Speaker 01:
Once judges start talking, you're supposed to stop.

[00:09:04] Speaker 01:
Why do you think that this was not a facially apparent ambiguity, but essentially a hidden one?

[00:09:12] Speaker 01:
One that surprised you once you got the instructions?

[00:09:16] Speaker 02:
Yes.

[00:09:17] Speaker 02:
It surprised us only when we got the bill from the importer saying, why am I liquidated at 285?

[00:09:22] Speaker 01:
And the instructions were secret?

[00:09:24] Speaker 02:
That's right.

[00:09:25] Speaker 02:
And they only issue like six months after the brief is due.

[00:09:28] Speaker 02:
So we were briefing issues of merit, such as the surrogate values for the case.

[00:09:33] Speaker 02:
Those were the real issues in the case, the cost of production.

[00:09:36] Speaker 02:
And so we briefed all issues presented in the Commerce's preliminary issues and decision memo.

[00:09:42] Speaker 02:
We can't know exactly how they will enforce an order until much later.

[00:09:46] Speaker 02:
And I would point the court to consolidated bearings

[00:09:48] Speaker 02:
where the importer, like in our case NSC, didn't even participate in the case and still the court took jurisdiction under 1581 I and said this is about the administration and enforcement.

[00:09:59] Speaker 02:
It's about the liquidation message.

[00:10:01] Speaker 04:
When you followed your 1581 I case

[00:10:04] Speaker 04:
Did you file for a protective preliminary injunction at that time?

[00:10:08] Speaker 02:
No, because the entries were already liquidated, all of the entries, 18 entries.

[00:10:12] Speaker 02:
So what's very important about the holding, the final merits holding and consolidated bearings, they said, you know, at the end of the day, this is a reseller situation where the bearings were floating all over the place and never made it into the administrative review process.

[00:10:26] Speaker 02:
So we're stuck with the default all others rate.

[00:10:28] Speaker 04:
Let me go back.

[00:10:30] Speaker 04:
So if all the entries are liquidated, then jurisdiction could not come under 1581 I. Under C, I has a two year statute of limitations.

[00:10:39] Speaker 04:
So they can come under I. You're into your six minutes time.

[00:10:43] Speaker 04:
Do you want to say that?

[00:10:45] Speaker 04:
OK, we have a question.

[00:10:47] Speaker 03:
I have a couple of questions.

[00:10:48] Speaker 03:
One is, you fell back in your answer to Judge Toronto on saying, well, the CIT got the facts wrong.

[00:10:58] Speaker 03:
That takes me back to my initial question to you about if the court misstated the facts but didn't rely on them in its jurisdictional holding, what difference does it make?

[00:11:10] Speaker 03:
Isn't that harmless error?

[00:11:11] Speaker 02:
We would suggest not, because the court said at the bottom of 8, the department requested both sales and entries during AR 10.

[00:11:18] Speaker 02:
That's flat wrong.

[00:11:20] Speaker 02:
And the court inferred that we had the entry dates and didn't report them.

[00:11:24] Speaker 02:
That's also flat wrong.

[00:11:25] Speaker 02:
And the court got that information from tab three of our appendix, which was meant to be helpful to the court after the administrative proceeding.

[00:11:32] Speaker 02:
And apart from the record of the administrative proceeding, that we added the entry dates in with a green notation, notation for appeal.

[00:11:41] Speaker 02:
And the judge looked at that and said, hey, you had the entry dates.

[00:11:43] Speaker 02:
Why didn't you report them?

[00:11:44] Speaker 02:
We never knew the entry dates until the bills came a year later.

[00:11:47] Speaker 03:
One other question, and this is just a pet peeve of mine.

[00:11:51] Speaker 03:
In the blue brief at 20, you say this

[00:11:53] Speaker 03:
You say the CIT quote, the CIT quote, curiously admitted that Kang-Tai is challenging the liquidation instruction, leaving aside whether the court was curious or not.

[00:12:10] Speaker 03:
Do trial courts admit facts?

[00:12:15] Speaker 03:
They're not litigants.

[00:12:16] Speaker 02:
It was an improper choice of wording.

[00:12:19] Speaker 02:
I think it was an improper choice of wording.

[00:12:23] Speaker 04:
Okay.

[00:12:24] Speaker 02:
Will I get some of my rebuttal time back?

[00:12:27] Speaker 04:
You'll get back a little bit, okay?

[00:12:34] Speaker 04:
You do have at least two minutes and I'll give you back two more.

[00:12:39] Speaker 04:
Total of four.

[00:12:47] Speaker 00:
May it please the court, the results of

[00:12:50] Speaker 00:
Commerce's 10th anti-dumping duty administrative review for the chlorinated isocyanurates from the People's Republic of China.

[00:12:57] Speaker 03:
Louder, please.

[00:12:59] Speaker 00:
For chlorinated isocyanurates from the People's Republic of China states that it will be applied to entries covered by the review.

[00:13:05] Speaker 00:
Accordingly, the liquidation of Kangtai's entries covered by the 10th review in accordance with those results of the review was consistent with the final results.

[00:13:15] Speaker 03:
The CIT said, quote, Kangtai's response

[00:13:19] Speaker 03:
Attach an exhibit identifying sales and the corresponding entry dates for those sales.

[00:13:25] Speaker 03:
King-Tide Section C questionnaire, however, identified several dates, none of which appeared to be the date of entry.

[00:13:33] Speaker 03:
Why wasn't this statement by the CIT an error?

[00:13:37] Speaker 03:
And does it matter?

[00:13:43] Speaker 00:
Your Honor, I think it's, I'm not sure if that's the statement where the court is talking about their brief, an attachment to their brief.

[00:13:54] Speaker 00:
But the second part of that statement, when they talk about what they.

[00:13:59] Speaker 03:
It's a JA2.

[00:14:01] Speaker 03:
And then I referenced you to the record on the Section C questionnaire.

[00:14:14] Speaker 03:
So you see where the CIT says, Kangtai's response attached an exhibit identifying sales and the corresponding entry dates for those sales.

[00:14:23] Speaker 03:
I think that's flat out wrong.

[00:14:25] Speaker 00:
I mean, whether the court believes that Kangtai reported some entries in AR10 versus no entries doesn't change the decision that Kangtai can address.

[00:14:37] Speaker 03:
So my question was, isn't that an error, and does it matter?

[00:14:42] Speaker 03:
Because I don't think it matters.

[00:14:43] Speaker 03:
That's the questions I asked your opposing counsel.

[00:14:45] Speaker 00:
No, Your Honor.

[00:14:47] Speaker 00:
I don't think the court's decision relies on that statement.

[00:14:52] Speaker 00:
It doesn't change the fact whether Kang-Tai can address the use of sales and entries in a Section C case, or the challenge, the element of the final review that indicates that it will be applied to entries.

[00:15:09] Speaker 03:
Kang-Tai at the blue brief in 19 says,

[00:15:12] Speaker 03:
Commerce never considered Kangtai's narrative and US sales database deficient, where Kangtai did not report date of entry.

[00:15:24] Speaker 03:
Kangtai then continues, commerce simply does not collect entry dates in case of EP exporters, and then it says, with a few instances cited by the CIT being extremely rare examples.

[00:15:39] Speaker 03:
Is that true?

[00:15:42] Speaker 00:
Well, I think what we've seen in this case is the questionnaire that they received and some questionnaires that are discussed in that other line of cases that the CIT relies on, Khorstall, Wananabi, and Hemerlech.

[00:15:55] Speaker 00:
And in some of those cases, the questionnaire appears to be essentially the same.

[00:16:01] Speaker 00:
And it asks for entries unless they're unavailable.

[00:16:04] Speaker 00:
And otherwise, it indicates it will accept sales.

[00:16:07] Speaker 00:
or shipments, which other information tells us sales are inadequate, can be provided for shipments.

[00:16:17] Speaker 01:
And they say this is in that unless category.

[00:16:21] Speaker 00:
I'm sorry?

[00:16:22] Speaker 01:
They say that this case is in the unless category.

[00:16:25] Speaker 00:
Yes, yes.

[00:16:26] Speaker 01:
That's what they type it on.

[00:16:27] Speaker 01:
So is there prior case law showing a practice where

[00:16:33] Speaker 01:
when commerce accepts the sale date.

[00:16:38] Speaker 01:
within the period of the relevant period, the year, June 1st to May 31st, and uses that in its calculation that it nevertheless, when those goods enter later after the closing May 31st, are now subject to a later annual review obligation.

[00:17:03] Speaker 01:
Has Commerce ever done that before?

[00:17:04] Speaker 00:
Well, Your Honor, it doesn't appear to have been litigated.

[00:17:07] Speaker 00:
And it wouldn't be litigated if that worked the benefit of the party whose sales entered later, and then they were content with the rate.

[00:17:21] Speaker 01:
What language in?

[00:17:23] Speaker 01:
You began your argument by seemingly quoting something from AR-10.

[00:17:30] Speaker 01:
Can you repeat that?

[00:17:34] Speaker 00:
You know, I wasn't quoting.

[00:17:36] Speaker 01:
I think I was characterizing, but if... Right, which is, I think, what your brief did, which it seemed to me to be really not... That is, there was real work being done in that characterization.

[00:17:45] Speaker 01:
This quote is on all appropriate entries of subject merchandise in accordance with the final results of this review.

[00:17:55] Speaker 01:
That's AR-10.

[00:17:56] Speaker 01:
The language in AR-9 is a little bit different.

[00:17:58] Speaker 01:
It uses the word covered.

[00:18:00] Speaker 01:
which sure suggests that there is a perfect coincidence of the items used in the calculation in the annual review and what is going to be covered by the actual customs assessment.

[00:18:16] Speaker 01:
And this case involves the seemingly unprecedented, because you're not giving me any precedent for it, of a situation where

[00:18:25] Speaker 01:
An item was used in calculation of year X and then nevertheless subject to assessment under the year X plus one order because it wasn't repeated.

[00:18:40] Speaker 01:
Okay, and the court's question is how would they guess from reading the language of AR-10 that there was something to challenge under 1581C within 30 days from that language and then it turns out first in the instruction which is confidential so they didn't see it and then eventually they get news from

[00:19:03] Speaker 01:
from what the importer that turns out that they should have reported this again in year 10.

[00:19:13] Speaker 01:
having already reported it in year nine and because they didn't report it in year ten they're stuck with a two hundred and eighty five percent tariff because they didn't report it when otherwise they would have I forget is it is the actual rate for them is that confidential or not the thirty five percent it would have been thirty five percent yeah that's the the average or the

[00:19:36] Speaker 00:
That it's an average rate.

[00:19:38] Speaker 00:
It's not a specific the specific rates for the importers How should they have known they should have included this in their 1581 C appeal which is what the CIT said well if you're going to report sales rather than entries and the rate is always going to be applied to entries and

[00:19:59] Speaker 00:
which it is, and I understand the court's concern.

[00:20:02] Speaker 00:
Appropriate entries.

[00:20:03] Speaker 01:
We don't know, right?

[00:20:04] Speaker 01:
That language doesn't say all entries during, can we just call it year nine so I don't have to keep referring to June 1st to May 31st?

[00:20:12] Speaker 00:
Sure, sure.

[00:20:13] Speaker 00:
Okay, to year nine.

[00:20:15] Speaker 01:
The AR-9 period.

[00:20:18] Speaker 01:
This language does not say what appropriate entries are.

[00:20:21] Speaker 01:
It could easily mean, and I would have guessed without knowing anything more, and maybe I'm not enough of an insider, that that means all the entries on the items that were reported for purposes of doing the calculation in year nine.

[00:20:35] Speaker 00:
Well, Your Honor, I mean, we think it's clear because each of the Federal Register notices talks about the period of review

[00:20:45] Speaker 00:
And then that period of review is what's covered under the Federal Register notice, that when they're talking about entries, they're talking about entries within that period of review.

[00:20:56] Speaker 01:
Except you do the calculations on sales within that period.

[00:21:01] Speaker 01:
of items that have not been entered during that period.

[00:21:04] Speaker 00:
We do calculations on sales when that's the information that they provide us because they say they don't have entries.

[00:21:09] Speaker 01:
And yet you've used that sale in the calculation and when it's entered the next year, you are now demanding that they include that entry in the next year as well?

[00:21:22] Speaker 01:
That's what's going on here, right?

[00:21:25] Speaker 00:
What we're saying is that the concern... Maybe there's nothing strange about that.

[00:21:36] Speaker 00:
The reviews apply to entries because that's what customs gets.

[00:21:40] Speaker 00:
Customs gets the entries.

[00:21:43] Speaker 01:
Under commerce instructions.

[00:21:44] Speaker 01:
You could easily have given commerce the instructions that when you get the entries for the following items whose sales have been part of AR9, use the AR9 rate.

[00:22:00] Speaker 00:
In any event, what we're saying is at first, we think the Federal Register notice is clear that it's going to apply to entries.

[00:22:07] Speaker 00:
And that put them on notice as early as the preliminary results.

[00:22:11] Speaker 00:
If it was ambiguous, it put them on notice that there was an ambiguity.

[00:22:15] Speaker 01:
Isn't there something in the law, maybe not in this area, but in other areas, some distinction between facial and there's some other word.

[00:22:24] Speaker 01:
It's a word like what?

[00:22:26] Speaker 01:
Latent.

[00:22:27] Speaker 01:
Latent ambiguity.

[00:22:27] Speaker 01:
That's it.

[00:22:29] Speaker 01:
Why is this not a latent ambiguity?

[00:22:32] Speaker 01:
Latent ambiguities tend not to start clocks.

[00:22:37] Speaker 00:
Well, I'm not sure that that would apply here, but if it were to, Your Honor.

[00:22:41] Speaker 03:
Keep the language of the questionnaire in mind when you answer.

[00:22:46] Speaker 01:
That was a friendly question.

[00:22:53] Speaker 00:
I'm sorry, and that distracted me.

[00:22:57] Speaker 01:
I think the suggestion is that the language of the questionnaire, which they of course had, tells them how to interpret this appropriate entry language in the final result, which would make it either not ambiguous or make the ambiguity latent by virtue of some apparent contrast.

[00:23:19] Speaker 00:
I think that's a very good point, Your Honor.

[00:23:22] Speaker 03:
That's our prior case points.

[00:23:26] Speaker 00:
If there's something else the court would like me to address, or I can just go through some of the points that they've raised in their reply brief.

[00:23:41] Speaker 00:
One thing I'd like to indicate is that, as the court considers this, it's important to note what they were asking for initially in their complaint.

[00:23:51] Speaker 00:
In their complaint, they are asking

[00:23:54] Speaker 00:
not to get the rate under AR10, the rate that they're challenging the liquidation instructions for, but they're asking to get the rate in AR9.

[00:24:05] Speaker 00:
And they're asking also for a declaratory statement that commerce is not allowed to essentially apply the final results to entries in that period.

[00:24:23] Speaker 00:
if it's been calculated based on sales.

[00:24:25] Speaker 00:
So I know that Council for Kangtai talked earlier about consolidated bearings and why they fall within consolidated bearings.

[00:24:37] Speaker 00:
And I think that takes them out of that argument.

[00:24:42] Speaker 00:
In that case, Commerce argued that

[00:24:49] Speaker 00:
They made the argument that they could not

[00:25:03] Speaker 00:
that they could not maintain the action under section C because they could have brought the same action under section I because they could have brought the same action under section C if they participated in the review.

[00:25:20] Speaker 00:
But they chose not to, and the court in that case, although it granted jurisdiction under I, indicated that commerce's argument might have prevailed if they were challenging the final results.

[00:25:32] Speaker 00:
Now here, what they're doing is they're trying to get the final results of AR9 applied to them.

[00:25:39] Speaker 00:
They're not trying to get into the scope of the final results the way that the plaintiff and consolidated variant was trying to do.

[00:25:48] Speaker 04:
Okay, I think we have your argument.

[00:25:51] Speaker 00:
Okay, thank you.

[00:25:58] Speaker 02:
Your honor, thank you for the additional time.

[00:26:01] Speaker 02:
We'll see if it's needed.

[00:26:03] Speaker 02:
I do want to return to the council for the government's point about the other cases.

[00:26:08] Speaker 02:
I think the other cases establish that when commerce requests entry date, it's an extraordinary event.

[00:26:13] Speaker 02:
They do it in a supplemental questionnaire.

[00:26:15] Speaker 02:
That clearly indicates that it's not required in standard questionnaire.

[00:26:19] Speaker 02:
Commerce says in the standard questionnaire, if you don't know the entry date, you're not required to provide it.

[00:26:24] Speaker 02:
you provide your date of sale based on when the sales terms are the material sales terms are set in definitive because that's when the price is discriminated and when you know when the price is discriminated you can match it to period costs and that's why we've always been required to report the invoice date.

[00:26:40] Speaker 04:
Don't administrator reviews establish the dumping rate for goods that were entered during the period of review?

[00:26:51] Speaker 02:
And they, yes, and they set a deposit rate going forward.

[00:26:54] Speaker 04:
Right.

[00:26:54] Speaker 04:
And then next year they have another review, and that establishes a dumping rate for products entered into in that period of time.

[00:27:05] Speaker 04:
Under that review, period of review, or period of investigation.

[00:27:10] Speaker 02:
Yeah, I mean, there's two issues.

[00:27:11] Speaker 02:
There's one issue is what is the department examining in the period?

[00:27:14] Speaker 02:
And another issue is how do they administer them?

[00:27:17] Speaker 04:
The dumping rates apply when Customs looks at an entry.

[00:27:21] Speaker 04:
Then they're applying the active dumping rate for that entry, correct?

[00:27:25] Speaker 02:
Generally, but they didn't do that here.

[00:27:29] Speaker 02:
I mean, this is why I was talking about consolidated bearings.

[00:27:31] Speaker 02:
Well, they did.

[00:27:32] Speaker 04:
I mean, you're just saying that.

[00:27:33] Speaker 04:
I reported sales, and my sales were investigated under this peer review, AR9.

[00:27:41] Speaker 04:
But when I entered them, I entered them during the year that coincides with AR10.

[00:27:48] Speaker 04:
And therefore, I should have gotten the AR9 rate and not the AR10 rate.

[00:27:52] Speaker 04:
And it just so happens that the AR10 rate is

[00:27:57] Speaker 04:
You know, 238, is it?

[00:27:59] Speaker 04:
285.

[00:28:01] Speaker 04:
285 ad valorem dumping rate.

[00:28:04] Speaker 04:
And the year nine is how much?

[00:28:08] Speaker 04:
Zero.

[00:28:09] Speaker 04:
Zero.

[00:28:10] Speaker 02:
An AR-10.

[00:28:10] Speaker 04:
So you're arguing that I shouldn't have been, my entries that I entered into the year or a time that coincides with AR-10 should not apply here.

[00:28:22] Speaker 04:
You should give me the zero rate instead of the all other rate of the AR-10.

[00:28:26] Speaker 02:
Well, first of all, Kongtai didn't make the entries.

[00:28:28] Speaker 02:
They're not Kongtai's entries.

[00:28:30] Speaker 02:
Kongtai has always said that it didn't know the entry date.

[00:28:33] Speaker 02:
It was never required to provide that.

[00:28:34] Speaker 04:
It doesn't matter whose entries they are.

[00:28:36] Speaker 04:
I mean, it's the date that they were entered.

[00:28:39] Speaker 04:
Customs looks at this and gets the customs transaction documentation.

[00:28:44] Speaker 04:
And if it gets it in year 12, I mean, five years down, they're going to apply the dumping rate that's applicable at that time

[00:28:52] Speaker 04:
the date of entry and not the date of investigation.

[00:28:56] Speaker 02:
That's the latent ambiguity that we would argue we were not required to brief at the preliminary result.

[00:29:00] Speaker 02:
This has never happened in 30 years.

[00:29:02] Speaker 02:
This is an extraordinary result.

[00:29:04] Speaker 02:
And unlike consolidated bearings, the sales were actually reviewed and calculated.

[00:29:09] Speaker 02:
In consolidated bearings they said, you know what, ultimately these sales were never reviewed.

[00:29:14] Speaker 02:
So we're stuck with the all others rate.

[00:29:16] Speaker 02:
But here the all others rate is a penal rate against the government of China.

[00:29:19] Speaker 02:
That's another argument.

[00:29:20] Speaker 02:
I know, but these sales were reviewed and calculated.

[00:29:24] Speaker 02:
And so we're saying either is zero.

[00:29:26] Speaker 04:
There's no doubt about that.

[00:29:28] Speaker 04:
The question here is that should you receive the applicable dumping rate for AR9 as opposed to AR10, when it seems to me the record indicates that your goods entered during the period of time of AR10.

[00:29:49] Speaker 02:
We would argue that due to latent ambiguities in the generic instructions in the Federal Register, the particular enforcement and administration of the AR-10 results was unreasonable.

[00:30:02] Speaker 04:
Did you use latent ambiguity in your brief?

[00:30:04] Speaker 04:
Are you arguing latent ambiguity in your brief?

[00:30:06] Speaker 02:
We did argue that that issue was not clearly presented in the preliminary issues and decision on the board's late MP.

[00:30:13] Speaker 02:
Well, I'm picking up on the discussion from the board.

[00:30:17] Speaker 04:
Well, OK.

[00:30:17] Speaker 04:
We're feeding you your argument.

[00:30:20] Speaker 04:
OK, I think we've heard enough.

[00:30:22] Speaker 04:
Thank you for your argument.

[00:30:23] Speaker 04:
We thank all the parties for the argument.

[00:30:25] Speaker 04:
Thank you.

[00:30:25] Speaker 04:
This court now remains in recess.