[00:00:00] Speaker 01:
This event is 18-1116 Suncreen versus United States.

[00:00:47] Speaker 01:
We're ready whenever you are, and you've got to tell me how to pronounce your name, please.

[00:00:51] Speaker 00:
Good morning, Your Honor.

[00:00:53] Speaker 00:
If you may please record.

[00:00:54] Speaker 00:
My name is Diana Acquia with Aaron Fox on behalf of Appellant Summit.

[00:00:57] Speaker 05:
Can you speak up a little bit, please?

[00:00:59] Speaker 05:
Yes.

[00:01:02] Speaker 05:
Can I ask a question at the beginning?

[00:01:03] Speaker 05:
The briefs are marked confidential, and yet I don't see any highlighting.

[00:01:08] Speaker 05:
How do I know what it is on which page is confidential?

[00:01:13] Speaker 05:
Point to me with one page and show me something that's confidential so I know how to find it.

[00:01:20] Speaker 00:
Yes, so for example at page 171 of the appendix.

[00:01:25] Speaker 05:
Page which?

[00:01:26] Speaker 00:
171.

[00:01:27] Speaker 05:
Of the appendix, okay.

[00:01:29] Speaker 05:
Yes.

[00:01:30] Speaker 05:
Is there anything in the brief?

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There are a few references in the brief regarding the measurements on the thin films of amorphous silicon.

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and a few of the findings made in a report of the Supreme Cell by the Evans Analytical Group that are bracketed in our... And on page 171 of the appendix, I don't have mine ready.

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How is it marked?

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Colored or...?

[00:01:57] Speaker 00:
Your Honor, yes, it's marked.

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For example, this is the actual page and... Is it marked in yellow?

[00:02:01] Speaker 00:
Yes, it's marked in yellow.

[00:02:02] Speaker 01:
Marked in yellow.

[00:02:03] Speaker 01:
You said there's stuff things in the brief itself, the content of the brief that are marked confidential, because I'm not seeing that.

[00:02:10] Speaker 04:
I'm seeing on pages 46 and 47, there's bracketed material in the brief, for example.

[00:02:20] Speaker 04:
Of the blue brief?

[00:02:21] Speaker 04:
Right.

[00:02:22] Speaker 04:
Of the blue brief.

[00:02:24] Speaker 04:
46 and 47.

[00:02:26] Speaker 00:
Yes, Your Honor, that's correct.

[00:02:28] Speaker 00:
And those are probably the only references in the brief that are bracketed, because it's very limited, the material that's confidential.

[00:02:36] Speaker 01:
We're going to start your clock running again.

[00:02:37] Speaker 01:
Thank you.

[00:02:39] Speaker 00:
Thank you.

[00:02:43] Speaker 00:
SUMPREME challenges a scope ruling by Commerce finding that SUMPREME cells, which contain amorphous silicon thin films on a crystalline silicon substrate, are within the scope of the anti-dumping countervailing duty orders

[00:02:56] Speaker 00:
on crystalline silicon PB cells from China.

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So if it pleases the court to turn to page 171 of the appendix, it provides a diagram of the sun-brain cell that identifies the various layers of the semiconductor materials.

[00:03:19] Speaker 00:
It is the same diagram.

[00:03:21] Speaker 00:
It's also in our brief on page 13.

[00:03:23] Speaker 00:
13, yes.

[00:03:27] Speaker 00:
So as your honors could see, there are four layers of amorphous silicon thin films in the sun cream schematic.

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There is one layer that is p-doped that has positive charges, one layer that is n-doped that has negative charges, and there are two intrinsic layers, the so-called I layers.

[00:03:49] Speaker 00:
And there is also the crystalline silicon substrate, which is also doped with n-doped.

[00:03:54] Speaker 04:
Isn't the question whether a

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PIN junction is within the scope of the order and isn't the answer that the order says PIN junction formed by any means, regardless of the method of manufacturing or addition of materials to collect electricity.

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And the presence of the intermediate amorphous layer doesn't prevent the

[00:04:26] Speaker 04:
transmission or collection of electricity.

[00:04:29] Speaker 04:
So why wasn't the order properly inclusive of the PIN material?

[00:04:35] Speaker 00:
Well, Your Honor, the starting point should be the language of the order itself.

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And the language of the order itself mentions crystalline silicon cells containing a PN junction.

[00:04:46] Speaker 00:
It doesn't say any junction.

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And PN junction formed by any means

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Form by any means is a modifier to the term pn.

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So pn formed by any means cannot mean a different type of junction.

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There are two types of junctions in general.

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There's a pn junction and a pin junction.

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They are chemically different.

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One has an additional layer, the intrinsic layer, and they are defined differently.

[00:05:18] Speaker 00:
Commerce does, we don't believe that commerce needed to interpret this term.

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PN Junction is not an ambiguous term.

[00:05:25] Speaker 00:
Commerce made the legal decision to interpret PN Junction, but there was no need because there are definitions on the record, including in the K-1 sources, such as the glossary to one of the amendments to the petitions, one of the supplements to the petitions, which define PN Junction and PIN Junction separately.

[00:05:46] Speaker 05:
So when commerce went ahead and... Your basic argument is that PN junction in the order is describing a structure, not a function.

[00:05:56] Speaker 00:
Correct, Your Honor.

[00:05:58] Speaker 05:
Why is that necessarily so?

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Because this is how they are described in dictionary definitions.

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There are dictionary definitions provided by petitioners.

[00:06:08] Speaker 05:
There are dictionary definitions provided by... What the Commission is saying is that a PN junction functions like a

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P-I-N junction functions like a P-N junction.

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Well, that is not what was discussed at any point.

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That is not what the order said.

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That is not what the ITC says.

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That is not what the petition said.

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It would have been very easy for it.

[00:06:32] Speaker 05:
Is it formed by any means?

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Yes.

[00:06:36] Speaker 00:
Well, formed by any means doesn't change the fact that it must still be a P-N junction.

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It doesn't form by any means

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doesn't change the nature of the junction, doesn't make it into a different type of junction altogether, as a PN junction is.

[00:06:53] Speaker 04:
Commerce found that the evidence on the record does not support the allegation that the PN layers must be adjacent or within a crystalline silicon wafer to form a PN junction.

[00:07:06] Speaker 04:
Don't we owe deference to that finding by Commerce?

[00:07:10] Speaker 00:
Your honor we that finding by commerce is based on a prior scope ruling in on a product called Trix the Trix cell in the Trix ruling this particular sentence that a p-n junction this finding that a p-n junction is an umbrella term is provided without any citation is provided without any support in in scientific literature in a dictionary or anything so that in itself

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renders this one determination to be unsupported by the evidence.

[00:07:46] Speaker 00:
But again, as this court had said in Duferco, K1 sources cannot substitute for words in the anti-dumping order itself.

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And the anti-dumping order itself talks about a PN junction, not a PIN junction.

[00:08:02] Speaker 05:
But TRIEX becomes a K1 source, right?

[00:08:06] Speaker 00:
Yes, TRIEX is a K1 source.

[00:08:07] Speaker 05:
Because it's a prior scope ruling?

[00:08:09] Speaker 00:
Yes.

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But again, a K1 source cannot substitute for language in the order.

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And a K1 source is not binding on commerce where it relies on interpretive criteria that were not there.

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But a K1 source can clarify language in an order.

[00:08:26] Speaker 00:
It can.

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But in this case, in the TRIAC situation, commerce did not consider the definitions that we are arguing on some preem's records.

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On some PREEMS record, we have provided definitions from the Department of Energy.

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We have cited two definitions from the glossary of the petition that suggest PN junction and PIN are different structures and are created differently with different materials.

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These are all sources that Commerce did not consider in TRIEX.

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So when we are arguing that the determination in TRIEX cannot have this

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fundamental presidential value for Supreme, it is because the record is different.

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The argument here is based on additional information that had not been considered in TRIX.

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And the other problem with commerce's interpretation of the term PN Junction is that it essentially renders the term meaningless.

[00:09:24] Speaker 00:
So if commerce interprets PN Junction to mean any junction, essentially it becomes superfluous.

[00:09:31] Speaker 00:
This court in King's supply

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has indicated that scope language must be interpreted in such a way that it is informative and non-superfluous.

[00:09:41] Speaker 00:
Well, if we say any junction, that doesn't help us at all identify the subject merchandise that is under disorder.

[00:09:53] Speaker 00:
If I may turn to commerce's determination regarding the role of the wafer in some preem cell.

[00:10:00] Speaker 00:
In its scope rule, and commerce found that some spring cell is a crystalline cell because it contains a wafer and a crystalline wafer, and the crystalline wafer has a primary role.

[00:10:15] Speaker 00:
And that was described by commerce as it is the primary solar absorber.

[00:10:21] Speaker 00:
There are several problems with this argument.

[00:10:23] Speaker 00:
The first is that the solar absorber criterion doesn't apply, doesn't appear in the scope itself.

[00:10:30] Speaker 00:
It doesn't appear in the petition, in the ITC reports, or in Commerce's investigations.

[00:10:36] Speaker 00:
And moreover, the solar absorber criteria was brought up in the TRIEX case.

[00:10:43] Speaker 00:
And in that case, Commerce said, well, this is not a criterion that we should rely on to define CSPB cells, because it was not part of any of the K1 sources.

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So Commerce's reliance on solar absorber

[00:10:59] Speaker 00:
in such a strong fashion for Sumpreme is in contrast with Commerce's disavowal of this criterion altogether in the TREAC cell.

[00:11:10] Speaker 00:
The second problem with the solar absorber determination is that Commerce said, well, Sumpreme is a crystalline cell because the wafer is the primary solar absorber.

[00:11:25] Speaker 00:
Now Commerce couldn't have said or determined it's the primary absorber

[00:11:30] Speaker 00:
without analyzing what are the other components of the cell.

[00:11:34] Speaker 00:
Commerce didn't look, didn't consider at all what is the role of the amorphous silicon thin films.

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And in fact, the information on the record shows that amorphous silicon thin films also absorb electricity, also absorb sunlight, and they're actually very efficient at doing so.

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So essentially, Commerce had no basis to make this qualitative determination between the wafer substrate

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and the amorphous cells, the amorphous thin films, without conducting any analysis of the amorphous silicon thin films.

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So that, in our view, renders its determination unsupported by the evidence.

[00:12:13] Speaker 00:
Another very important point that commerce emphasized in finding these cells to be crystalline is that they have an active wafer.

[00:12:24] Speaker 00:
That's how commerce described it, an active or doped wafer.

[00:12:29] Speaker 00:
It is correct that the wafer in the sun cream cell is doped, but all wafers that are used in semiconductors industry, all crystalline wafers that are used as the starting point for a solar cell are naturally doped from their production process.

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And this is borne out by the description in the petition.

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So Solar World in the petition described the production process for the wafer.

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And it said essentially that the crystalline is, in the first stage, the crystalline is grown with the addition of a dopant, and they explain boron is one of the dopants that are being added, to provide a positive orientation to the crystal, which is then formed into ingots and cut into wafers.

[00:13:18] Speaker 00:
But the important part that I wanted to get to is that solar world itself clarified that

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simply a silicon wafer that has a positive orientation, that is doped, is no more capable of converting sunlight into electricity than a sliver of river rock.

[00:13:39] Speaker 00:
This sliver of river rock, to paraphrase Solar World, is the same wafer that is being used by sun brain.

[00:13:46] Speaker 00:
So commerce cannot, at the same time, credit the petition to say, credit the petition in the sense that

[00:13:55] Speaker 00:
a doped wafer is nothing more than a sliver of river rock, and then find in some creams case... Can I just ask a question about the accumulation of the facts here?

[00:14:06] Speaker 05:
I realize that there is a scope investigation here that Commerce felt it could do under K1, even though in triacs, dealing with exactly the same order, they said we can't do it in our K1, we have to go to K2 sources.

[00:14:19] Speaker 05:
And then what they do is flip triacs, turn it into a K1 source, and burden you with it.

[00:14:24] Speaker 05:
I get that.

[00:14:24] Speaker 05:
But I read the opinions below in the case that led to the appeal that was here earlier on the jurisdictional issue.

[00:14:33] Speaker 05:
And in the opinion below, in that case, there was a lot of description about testing that was done by customers in cooperation with your client, I believe, San Diego, a few other places.

[00:14:47] Speaker 05:
Were any of those, and those test results are all redacted,

[00:14:51] Speaker 05:
in the opinions that I've been able to read.

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So I don't know what happened.

[00:14:54] Speaker 05:
I don't know what customs people found.

[00:14:57] Speaker 05:
Is any of that information carried over into the scope hearing?

[00:15:03] Speaker 00:
Yes, Your Honor.

[00:15:04] Speaker 00:
In Sanpreme scope ruling request, so the first document on the record to initiate the case, we have provided a copy of that report, of a laboratory report by customs.

[00:15:15] Speaker 05:
Is that in our record?

[00:15:16] Speaker 05:
Because I would just be curious to know what

[00:15:19] Speaker 05:
When the initial testing was done, what were the findings?

[00:15:23] Speaker 00:
Yes.

[00:15:24] Speaker 00:
And when the initial testing was done, customs took samples of sampling wafers that were processed at different levels of processing.

[00:15:35] Speaker 00:
And essentially, they found there is an amorphous silicon thin film component, but they could not identify it because it is too small.

[00:15:44] Speaker 00:
They did not have the right technology, the right equipment to do so.

[00:15:49] Speaker 00:
And this is why, in our scope ruling, we have provided a laboratory report from a group that specializes in analysis of semiconductor materials.

[00:15:59] Speaker 00:
And it's provided in our scope ruling request.

[00:16:04] Speaker 00:
And that analysis identifies all of the layers of the cell and which of the layers are doped and which of the layers, the fact that the amorphous silicon layers are highly doped,

[00:16:17] Speaker 00:
and the crystalline silicon wafer is doped, but it's slightly doped.

[00:16:23] Speaker 00:
It's not the active layer of the junction.

[00:16:30] Speaker 01:
You've run through your rebuttal time, but we'll restore some time.

[00:16:33] Speaker 01:
Thank you.

[00:16:51] Speaker 01:
Good morning.

[00:16:52] Speaker 01:
You're Mr. Miller, and you've got 10 of your 15 minutes.

[00:16:55] Speaker 02:
Thank you, Your Honor.

[00:16:57] Speaker 02:
May it please the Court.

[00:16:58] Speaker 02:
Commerce's determination that Supreme Cells are covered by the scope of the orders should be sustained because Commerce followed the regulatory framework for issuing scope rulings, and its findings are supported by substantial evidence.

[00:17:12] Speaker 02:
Separately, the trial court's setting aside of Commerce's instructions regarding the implementation of this determination

[00:17:20] Speaker 02:
should be reversed because Commerce's instructions, again, mirror the regulatory framework and merely instruct CBP to suspend liquidation of the entries from the commencement of the scope ruling on a going court basis for those entries that had not been previously suspended.

[00:17:41] Speaker 02:
And for those entries that had been previously suspended, the instructions, again, follow the framework of the regulation.

[00:17:48] Speaker 02:
and request that the suspensions continue.

[00:17:51] Speaker 02:
I'll begin with the scope determination.

[00:17:53] Speaker 05:
That's assuming the original suspension was legitimate.

[00:17:58] Speaker 05:
That's your cross appeal.

[00:18:01] Speaker 02:
Well, no, Your Honor.

[00:18:02] Speaker 02:
That is our cross appeal, yes.

[00:18:03] Speaker 05:
The last piece of what you were saying is your cross appeal.

[00:18:06] Speaker 02:
Yes, Your Honor.

[00:18:06] Speaker 05:
Maybe you ought to separate it and deal with the direct appeal first.

[00:18:09] Speaker 02:
Certainly.

[00:18:11] Speaker 02:
With respect to the affirmative scope determination,

[00:18:14] Speaker 02:
Looking first at commerce's determination that some premiums fields meet the criteria of crystalline silicon photovoltaic cells, commerce determination is supported by the regulatory framework because pursuant to 19 CFR 351.

[00:18:29] Speaker 05:
Why don't you deal with the PIN pin connection?

[00:18:34] Speaker 02:
Certainly, Your Honor.

[00:18:34] Speaker 05:
Respond to the argument that your adversary has made.

[00:18:39] Speaker 02:
First, what's crucial to the scope language, and the scope language is the first

[00:18:44] Speaker 02:
criteria that this court looks at in terms of interpreting the language of an order is that it is a P and N junction formed by any means.

[00:18:54] Speaker 02:
With respect to the Sun-Prem ruling, Commerce considered the plain language... Let me ask you a question.

[00:18:58] Speaker 05:
Is that a structure or is that a function?

[00:19:00] Speaker 05:
When they say a P-N junction, is a P-N junction a thing that can be identified in science?

[00:19:07] Speaker 02:
It is, Your Honor, yes.

[00:19:08] Speaker 02:
But Commerce also considered the function of it.

[00:19:11] Speaker 02:
And this is reflected in the tracts...

[00:19:13] Speaker 02:
That's why I asked by any means.

[00:19:16] Speaker 02:
Certainly, Your Honor, yes.

[00:19:17] Speaker 02:
When commerce interpreted the phrase by any means, it considered the functionary role of a junction.

[00:19:23] Speaker 01:
And this is reflected at pages... But I guess what's troubling me, and your friend referred to it, is in the triax, commerce says it encompasses different types of junctions, including a PIN injunction.

[00:19:36] Speaker 01:
Isn't that reading PIN out of the words?

[00:19:42] Speaker 01:
If it's any junction, including PIN, is that the same as a PN injunction?

[00:19:48] Speaker 01:
I mean, the language says PN injunction.

[00:19:49] Speaker 02:
Effectively, yes, Your Honor.

[00:19:52] Speaker 01:
So a PN junction is any junction.

[00:19:55] Speaker 01:
No, Your Honor.

[00:19:55] Speaker 01:
It is any junction if it's created in a certain way.

[00:19:59] Speaker 01:
Certainly, Your Honor.

[00:20:00] Speaker 01:
Doesn't that, again, as your friend points out, be those words out as a limitation?

[00:20:08] Speaker 02:
know your honor, and here's why.

[00:20:09] Speaker 05:
There's two essential criteria to an... What was the exact binding in TRIEX as to the PN junction?

[00:20:15] Speaker 02:
So if we look at the TRIEX scope ruling at pages 17 to 18, there's two criteria that Commerce considered for purposes of whether a junction falls within the scope of this order.

[00:20:26] Speaker 02:
One, it must be essential to the creation of the electrical field, and Commerce looked at both

[00:20:31] Speaker 02:
A traditional P-N junction as well as a P-I.

[00:20:34] Speaker 05:
The chief judge just referred to a language where they were talking about a P-N junction and a P-I-N junction in the same sentence.

[00:20:43] Speaker 02:
Yes, Your Honor.

[00:20:45] Speaker 02:
Commerce interpreted P-N junction formed by any means as an umbrella term to encompass a P-I-N junction.

[00:20:52] Speaker 02:
And if we look.

[00:20:53] Speaker 02:
In this proceeding.

[00:20:55] Speaker 02:
Yes, Your Honor.

[00:20:55] Speaker 02:
What about in triax?

[00:20:58] Speaker 02:
Well, both in triax and in sun cream.

[00:21:00] Speaker 01:
What was the language?

[00:21:02] Speaker 01:
It's not 884, but different types of junctions, including a PINN junction.

[00:21:07] Speaker 05:
Different kinds of junction, including?

[00:21:10] Speaker 02:
Yes, Your Honor.

[00:21:11] Speaker 05:
And that suggests it's a different kind of junction?

[00:21:14] Speaker 02:
It's a subset of a PN junction.

[00:21:16] Speaker 02:
When commerce was interpreting the entirety of the phrase P and N junction formed by any means, it looked at two central criteria.

[00:21:23] Speaker 02:
One, that the junction was essential to the creation of the electrical field, and here,

[00:21:28] Speaker 02:
When you look at both the P and N junction versus the P-I-N junction, both junctions are essential to the creation of that electrical field.

[00:21:35] Speaker 02:
And commerce concluded, again, this is at triax at 18, that the P-I-N junction simply extends the electrical field over a wider range of the cell.

[00:21:44] Speaker 02:
So in terms of interpreting the scope language, P slash N junction formed by any means, commerce interpreted it to include, as an umbrella term, heterogeneous junctions.

[00:21:57] Speaker 02:
And that is supported by the record and also supported by other K1 sources.

[00:22:00] Speaker 02:
So if we look at the TRIACS ruling at 31, Commerce also considered the ITC investigation.

[00:22:07] Speaker 02:
It considered the petition.

[00:22:08] Speaker 02:
In particular, I'm looking at TRIACS at 32, citing the petitions at 7.

[00:22:13] Speaker 02:
Based upon the petitions, Commerce determined that a PNN junction formed by any means can interpret it to capture heterogeneous injunctions, homogenous pattern PNN junctions, heterojunctions,

[00:22:26] Speaker 02:
So that's from the petition.

[00:22:27] Speaker 02:
They looked at that K1 source in terms of interpreting what a p slash n junction means.

[00:22:32] Speaker 02:
And based upon that K1 source, as well as the ITC investigation, as well as the plain language of the scope itself, the fact that it says formed by any means, Congress has interpreted the entirety of the phrase, p slash n junction formed by any means, to be this broader umbrella term.

[00:22:52] Speaker 04:
And that's supported by the ring-turn framework.

[00:22:53] Speaker 04:
Now, p is positive, right?

[00:22:54] Speaker 02:
Yes, Your Honor.

[00:22:55] Speaker 04:
And N is negative.

[00:22:56] Speaker 02:
Yes, Your Honor.

[00:22:57] Speaker 04:
And what's the I?

[00:22:58] Speaker 04:
Intermediate?

[00:23:00] Speaker 02:
I is intrinsic.

[00:23:01] Speaker 02:
Intrinsic.

[00:23:02] Speaker 02:
Certainly, Your Honor.

[00:23:03] Speaker 02:
And if we go back to the appendix, page 171, which reflects the diagram that my colleague was referring to earlier, you can see that the crystalline silicon substrate, which is that middle layer, has N slash SI, meaning it has a negative charge to it.

[00:23:18] Speaker 02:
And this is the doping that my colleague was referring to.

[00:23:20] Speaker 02:
So the fact that there's a negative charge

[00:23:22] Speaker 02:
to the crystalline substrate shows that it's an active component of the cell.

[00:23:26] Speaker 02:
And this was critical for commerce to conclude that the sun cream merchandise was within scope.

[00:23:32] Speaker 02:
There are two criteria that commerce interpreted for these cells to be included within scope for purposes of being a crystalline photovoltaic cell.

[00:23:44] Speaker 02:
And one, it has to contain crystalline silicon, which we see by the diagram that it does.

[00:23:48] Speaker 02:
But second, the cell must rely upon that substrate

[00:23:52] Speaker 02:
to generate electricity.

[00:23:54] Speaker 02:
And the record reflects that, in fact, the silicon substrate in sun cream cell relies upon that substrate in order to generate electricity.

[00:24:05] Speaker 02:
You can look at the sun cream's blue brief at 31 and 9, where sun cream admits that it's a semiconductor, this substrate, that absorbs light.

[00:24:15] Speaker 02:
And also, if we look at the appendix at 778, the appendix at 4576,

[00:24:21] Speaker 02:
and the appendix at 828, all those three pages reflect statements by Suncream that says that the crystalline substrate enhances the functioning of the amorphous silicon.

[00:24:31] Speaker 02:
So based upon that record evidence, commerce reasonably concluded that the silicon substrate was active.

[00:24:38] Speaker 02:
And because it was active, it contributed to the generation of electricity.

[00:24:43] Speaker 02:
And therefore, Suncream cells fall within the scope of the order.

[00:24:47] Speaker 01:
I'm going to ask you to turn to the cross-appeals.

[00:24:50] Speaker 01:
Yes, certainly, Your Honor.

[00:24:51] Speaker 01:
And frankly, I'm finding it very challenging to even understand what the issue is and also what the government's position is.

[00:24:58] Speaker 02:
Certainly, Your Honor.

[00:24:59] Speaker 02:
So there were two groups of entries that existed at the time that commerce drafted its instructions.

[00:25:05] Speaker 02:
Some entries were suspended and some entries were not suspended.

[00:25:09] Speaker 02:
In order to instruct customs as to how to implement this affirmative determination,

[00:25:13] Speaker 02:
Commerce drafted its instructions to mirror the regulatory framework.

[00:25:17] Speaker 02:
And specifically, I'm looking at 19 CFR 351.225 L1, 2, and 3.

[00:25:25] Speaker 02:
And if we look at that regulatory framework, what that tells us is, if we look at L1, it says, when Commerce conducts a scope inquiry and a product in question is already subject to suspension, Commerce is directed to continue the suspension pending a preliminary or final scope ruling.

[00:25:41] Speaker 02:
Then if we turn to some paragraphs.

[00:25:43] Speaker 05:
There's no question here about what happened.

[00:25:45] Speaker 05:
And there was a lot of product that was actually in suspended liquidation.

[00:25:52] Speaker 05:
The importer had paid the duties.

[00:25:54] Speaker 05:
This was after the decision and a lot of back and forth on customs trying to figure out exactly whether these things were in or out.

[00:26:04] Speaker 05:
And so we know what we're talking about.

[00:26:06] Speaker 05:
The question here is whether or not under Xerox and in

[00:26:11] Speaker 05:
previous appeal that was here in which the court here held that there was no jurisdiction under A because there hadn't been a ministerial act by customs.

[00:26:22] Speaker 05:
There had been an interpretive act.

[00:26:25] Speaker 05:
The question is whether or not the previous suspension of liquidation that you would like to be able to hark back to is legit.

[00:26:34] Speaker 02:
Well, I would respectfully disagree, Your Honor.

[00:26:35] Speaker 02:
We can actually review the propriety of commerce as instructions here without actually even looking at customs actions.

[00:26:41] Speaker 02:
And here we know that commerce instructions are in accordance with law because the language mirrors the framework of the regulations.

[00:26:47] Speaker 05:
I wanted to ask you this question.

[00:26:48] Speaker 05:
If indeed customs acted in an ultra various fashion in suspending a liquidation, would that be legitimate?

[00:27:00] Speaker 02:
Well, with respect to customs actions, it may not be, but that's irrelevant.

[00:27:04] Speaker 05:
We know what Judge Kelly said in her opinion, right?

[00:27:07] Speaker 05:
And we know the basis for it.

[00:27:09] Speaker 05:
And what's your response to this?

[00:27:10] Speaker 05:
We know that it has already been held that this particular order was ambiguous and needed to be clarified.

[00:27:19] Speaker 02:
The trial court did render that determination.

[00:27:20] Speaker 05:
We know that.

[00:27:21] Speaker 05:
And we said that in our opinion was up here earlier.

[00:27:24] Speaker 02:
That the order was ambiguous.

[00:27:26] Speaker 05:
The way parties agreed the order was ambiguous.

[00:27:29] Speaker 02:
Well, I don't believe that this court actually rendered an affirmative determination as to the ambiguity.

[00:27:32] Speaker 02:
I think it was simply expressing what the recourse to Supreme would be if, in fact, it found ambiguity to the order.

[00:27:40] Speaker 02:
But I would draw your attention just to two critical citations.

[00:27:42] Speaker 02:
I know I'm eating into my colleagues' time.

[00:27:44] Speaker 05:
Where the parties and CIT recognize that a dispute exists over the scope and application of the orders.

[00:27:51] Speaker 02:
Certainly, there was a dispute between Sun Premium and the United States as to the ambiguity of the order.

[00:27:55] Speaker 05:
Sun Premium and the ambiguity of the order.

[00:27:56] Speaker 05:
And they cite Judge Kelly's opinion at 1285 where she said that it was ambiguous.

[00:28:01] Speaker 02:
Certainly, yes, the trial court did render a determination that it was ambiguous.

[00:28:05] Speaker 01:
So is it your view, is it the government's position that we make a determination upfront as to whether or not something's unambiguous or ambiguous and that customs can only act if it's unambiguous?

[00:28:16] Speaker 01:
Are you buying that whole thing?

[00:28:17] Speaker 02:
The court doesn't even need to engage in that analysis for purposes of this case.

[00:28:21] Speaker 01:
And the reason why it doesn't is AMS... Well, do you think it's wrong or do you think it's right?

[00:28:25] Speaker 01:
Do you think it would be wrong if we said that that's the test?

[00:28:29] Speaker 01:
that if an order, if it's unambiguous, then customs can go ahead and act.

[00:28:36] Speaker 01:
But if it's ambiguous, it cannot.

[00:28:39] Speaker 02:
No, Your Honor, that should not be the test that this court should apply.

[00:28:43] Speaker 02:
US Customs and Border Protection serves a very, very critical role.

[00:28:45] Speaker 02:
And this is what was at issue in our prior appeal in terms of their law enforcement capabilities at the border.

[00:28:50] Speaker 02:
When goods have come across the border of the United States.

[00:28:53] Speaker 01:
The border?

[00:28:53] Speaker 01:
I thought you said the border.

[00:28:54] Speaker 01:
The border, I'm sorry.

[00:28:55] Speaker 02:
When goods come across the border of the United States,

[00:28:58] Speaker 02:
Customs must protect the public fits, must protect the revenue.

[00:29:02] Speaker 02:
So when goods such as Sun Primes come in and Customs suspects that they're subject to an order, Customs did some preliminary testing, but ultimately it determined that as a preliminary determination, it should be subject to the scope of the order and requested Sun Prime to enter its merchandise as subject to the orders which resulted in the suspensions.

[00:29:22] Speaker 02:
Commerce agreed with U.S.

[00:29:23] Speaker 02:
Customs and Water Protection, and it rendered its affirmative scope ruling here in this instance, but we shouldn't look at Commerce's actions for purposes of assessing the propriety of Commerce's instructions.

[00:29:34] Speaker 05:
Here, Commerce's instructions merely... But our case law draws a distinction between Commerce... between Customs acting in a ministerial faction and acting in an interpretive faction.

[00:29:43] Speaker 05:
That's Xerox.

[00:29:45] Speaker 02:
Well... Is that correct?

[00:29:47] Speaker 02:
The case law does draw that distinction.

[00:29:49] Speaker 02:
Yes, Your Honor.

[00:29:50] Speaker 05:
Xerox draws that distinction, right?

[00:29:52] Speaker 02:
Yes, your honor.

[00:29:53] Speaker 05:
And if Customs is acting in a purely ministerial fashion, then when the importer protests the decision to suspend the liquidation, that decision is appealable under A. Yes?

[00:30:09] Speaker 02:
Yes and no.

[00:30:09] Speaker 02:
I think it's a bit confusing because you used the word.

[00:30:12] Speaker 05:
This is very technical stuff.

[00:30:13] Speaker 02:
Yes, I know.

[00:30:13] Speaker 05:
So I have a situation where the product comes in and Customs says,

[00:30:18] Speaker 05:
we think we have an existing suspension of liquidation order that was given to us when the original proceeding was done and custom says we think you're within the order and we're going to therefore require you to pay the duty and the importer pays the duty but the importer thinks that they are clearly outside the scope of the order.

[00:30:41] Speaker 02:
This court held in the prior Sunprime decision that the recourse for the importer, such as Sunprime, is to seek a scope ruling from commerce, not to challenge commerce.

[00:30:50] Speaker 02:
No, no.

[00:30:50] Speaker 05:
Xerox says that when you're winning doubt, you don't need to seek a scope hearing if it's clear.

[00:30:55] Speaker 02:
Well, Xerox is distinguishable from the circumstance of this case because there, there was a factual misapplication of the order by customs.

[00:31:04] Speaker 02:
We don't have that circumstance here.

[00:31:05] Speaker 02:
Here we have a straightforward vanilla

[00:31:08] Speaker 05:
You agree that we have case law that draws a distinction between customs acting ministerially and customs acting in an interpretive fashion?

[00:31:16] Speaker 02:
There is this distinction between A, case law, and C, case law.

[00:31:19] Speaker 05:
And what are the consequences of that difference?

[00:31:23] Speaker 02:
I think the prior decisions of this court still stand.

[00:31:26] Speaker 05:
What are the consequences?

[00:31:27] Speaker 05:
What are the consequences when customs acts ministerially?

[00:31:31] Speaker 02:
The recourse for the importer is to seek a scope ruling from the Department of Commerce.

[00:31:34] Speaker 05:
No, no, no, they act ministerially.

[00:31:37] Speaker 05:
Well, when they're acting, Xerox says you can then complain and go directly to the CIT under A on 1581A.

[00:31:46] Speaker 02:
Yes, your honor.

[00:31:46] Speaker 02:
If there's been a factual misapplication, but in that context, customs wouldn't be acting ministerially.

[00:31:51] Speaker 02:
They would be actually engaging in a decision that could be challenged under the administrative protest remedies.

[00:31:55] Speaker 02:
And I think that's where I disconnected.

[00:31:56] Speaker 05:
When it's factual, the question in Xerox, the question is whether or not there was any reinforcement in the tire.

[00:32:04] Speaker 02:
That was a factual inquiry.

[00:32:05] Speaker 05:
That was the... Well, that's a factual inquiry as to whether or not the goods here fall within the order.

[00:32:11] Speaker 05:
There was a factual inquiry here, right?

[00:32:15] Speaker 02:
Customs did engage in a preliminary analysis, yes.

[00:32:18] Speaker 05:
And they sent the stuff to San Diego because they had the factual inquiry.

[00:32:21] Speaker 02:
I'll just end with this.

[00:32:22] Speaker 05:
I think the critical distinction here between this customs case law and the Congress case law... You really don't want to engage the consequences of what happens when customs is not acting ministerially.

[00:32:32] Speaker 02:
Yes, Your Honor.

[00:32:33] Speaker 02:
And there, the recourse is to have to protest those actions and bring an action before the trial court under 1581A.

[00:32:40] Speaker 02:
But that's not the circumstance here, right?

[00:32:41] Speaker 02:
We have a vanilla, straightforward issue as to whether Suncream's merchandise fall within the scope of an order.

[00:32:47] Speaker 02:
That's a classic scope ruling.

[00:32:48] Speaker 02:
And Congress has delegated that authority to commerce in order to make that determination.

[00:32:53] Speaker 02:
And that's what this court's original decision in Suncream.

[00:32:56] Speaker 05:
But the question is, what do the words

[00:32:59] Speaker 05:
subject to, already subject to a suspension of liquidation, me.

[00:33:04] Speaker 05:
What do they mean in the context of an instance in which Customs was not acting ministerially?

[00:33:11] Speaker 02:
Well, in this instance, we don't need to look at Customs actions and assess whether they're acting ministerially or not.

[00:33:17] Speaker 05:
We know they were not acting ministerially because we have a holding in the previous Sunprime case here that there was no 1581A jurisdiction.

[00:33:26] Speaker 02:
Certainly, and the recourse for Sunprime was...

[00:33:29] Speaker 05:
If there's no 1581A jurisdiction, right, that means that Customs was not acting ministerially.

[00:33:36] Speaker 05:
It has to mean that.

[00:33:39] Speaker 05:
It goes to whether Customs is actually rendering a scope determination, which is... I still want to stay with the language of our case law that binds us ministerial as opposed to non-ministerial.

[00:33:51] Speaker 05:
Is that an issue in this case?

[00:33:52] Speaker 02:
It's not an issue in this case, Your Honor, no.

[00:33:55] Speaker 05:
The basis for your cross appeal is that the district...

[00:33:59] Speaker 05:
Judge Kelly held that these goods were not already subject to suspension of liquidation because the act taken by customs was ultra various, was unlawful.

[00:34:12] Speaker 05:
And the language of this regulation presumes that the original suspension of liquidation was legitimate.

[00:34:21] Speaker 02:
in this court set aside Judge Kelly's decision saying that the recourse for Sunprime was to seek a scope ruling.

[00:34:27] Speaker 05:
I realize we set us up, but the same issue is here.

[00:34:30] Speaker 05:
You made the same argument in that other case.

[00:34:34] Speaker 05:
We didn't reach the merits in the other case.

[00:34:37] Speaker 02:
Certainly, Your Honor.

[00:34:37] Speaker 05:
The merits are here now.

[00:34:40] Speaker 05:
Her decision, which she repeated, excuse me, sir, in this case,

[00:34:47] Speaker 05:
on the ruling that we have in front of us on the scoreboard, she repeated the same analysis.

[00:34:52] Speaker 05:
So you can't run away from it.

[00:34:54] Speaker 02:
No, Your Honor, and I'm not trying to.

[00:34:56] Speaker 05:
You are indeed because you won't come to grips with what we have held that here, Customs made an interpretive ruling.

[00:35:06] Speaker 02:
Well, even if Customs actions were ultra-various, let's assume that for the sake of argument, that Commerce's instructions with respect to this case

[00:35:15] Speaker 02:
still does not need to be set aside because commerce contemplated both scenarios, whether an entry is suspended or whether an entry is not suspended.

[00:35:23] Speaker 05:
Can commerce piggyback onto the back of an illegitimate customs decision?

[00:35:29] Speaker 02:
Oh, commerce didn't do that in this instance.

[00:35:32] Speaker 05:
Yes, they did.

[00:35:32] Speaker 05:
If Judge Kelly was right that customs interpretation here was beyond its legal power, then its suspensions are of no effect.

[00:35:46] Speaker 02:
Commerce does not look at the actions of a separate government agency when it crafts its instructions.

[00:35:51] Speaker 05:
In fact, it's... But the problem is the law does.

[00:35:56] Speaker 02:
The regulation certainly has these two categories of entries.

[00:35:59] Speaker 02:
Those that have been previously suspended and those that have not been previously suspended.

[00:36:03] Speaker 05:
Would you agree with me that when the regulation says and the product in question is already subject to a suspension of liquidation, that that suspension of liquidation was lawful?

[00:36:12] Speaker 02:
Yes.

[00:36:14] Speaker 02:
I mean, that's certainly what that's indicating.

[00:36:16] Speaker 05:
Would you agree with me that if the suspension of liquidation was unlawful, then L1 would not apply?

[00:36:26] Speaker 02:
We don't need to get engaged in this analysis of whether... You may ask me a hypothetical, sir.

[00:36:29] Speaker 02:
Certainly, Your Honor.

[00:36:32] Speaker 05:
If the suspension of liquidation was unlawful, the previous ones, then I assume that L1 would be an application.

[00:36:42] Speaker 05:
in terms of trying to sweep those in.

[00:36:45] Speaker 02:
From commerce's perspective, they would still apply L1 because they wouldn't know.

[00:36:49] Speaker 02:
Commerce would have no way of knowing of whether a separate action by U.S.

[00:36:52] Speaker 02:
Customs and Border Protection was legal or illegal or ultra-violence or otherwise.

[00:36:56] Speaker 05:
So I'm not trying to suggest that commerce was contumaciously acting illegally when it simply looked and said, well, was there already an order of suspension and liquidation?

[00:37:07] Speaker 05:
In this case, yes, there was, therefore.

[00:37:09] Speaker 05:
Okay?

[00:37:11] Speaker 05:
What we're dealing with now is a lawsuit that's brought after commerce enters that order and saying even though commerce may not have known it, they were relying on an unlawful customs determination and they aren't allowed to do that because doing it in effect gets you into EMS territory because it allows commerce to create a retroactive order.

[00:37:36] Speaker 02:
We should look at how the regulations should be applied irrespective of some preem's facts because they need to be applied consistently from one importer to the next.

[00:37:43] Speaker 05:
Whether or not customs is behaving lawfully or not is totally irrelevant.

[00:37:46] Speaker 02:
Yes, Your Honor.

[00:37:48] Speaker 05:
Really?

[00:37:49] Speaker 01:
In terms of how commerce... Can we go back a little?

[00:37:51] Speaker 01:
Sure.

[00:37:52] Speaker 01:
Your view, the government's position is customs have the authority to do this.

[00:37:56] Speaker 02:
Custom, yes.

[00:37:57] Speaker 02:
Our position is that customs have the authority to do this.

[00:37:59] Speaker 01:
And even though...

[00:38:01] Speaker 01:
Do you concede that the order was ambiguous, the scope of the order was ambiguous, but Customs nonetheless has the authority to do what it did?

[00:38:11] Speaker 02:
Yes, Your Honor, Customs has the authority to do what it did.

[00:38:13] Speaker 01:
Is there anything in Supreme One or Xerox that concerns you against bumping up against the decisions in those cases in terms of your view that Customs was actually not within its lawful authority?

[00:38:26] Speaker 02:
No, in fact, I'll point the court's attention to it.

[00:38:29] Speaker 05:
Before you finish, Customs have the authority to interpret or clarify a scope order.

[00:38:36] Speaker 02:
It does not have the authority to render a scope determination.

[00:38:39] Speaker 05:
Does it have, under the case law, does it have the authority to interpret or clarify a scope order?

[00:38:46] Speaker 02:
Yes or no?

[00:38:48] Speaker 02:
That has very specific meaning, Your Honor, because that's what a scope ruling is.

[00:38:51] Speaker 02:
And Customs is not the agency delegated to render that kind of decision.

[00:38:56] Speaker 02:
protect the border, and as goods are coming in, it has to protect the public fits.

[00:38:59] Speaker 05:
But when it comes to interpreting or clarifying a commerce order, only commerce can do that.

[00:39:06] Speaker 05:
The case law says that.

[00:39:08] Speaker 02:
Yes, Your Honor.

[00:39:09] Speaker 02:
And I would just point.

[00:39:10] Speaker 05:
That's a yes answer.

[00:39:11] Speaker 02:
Yes, Your Honor.

[00:39:13] Speaker 02:
Commerce is the agency delegated to interpret its scope of orders.

[00:39:17] Speaker 05:
So you want to either interpret or clarify.

[00:39:19] Speaker 05:
And in an instance where the government concedes that the order is ambiguous,

[00:39:27] Speaker 05:
when it's been held in this case, law of the case, that this order is ambiguous, then shouldn't we think that what Customs was doing was clarifying or interpreting the order in order to apply it to the goods?

[00:39:45] Speaker 02:
Customs, yes, necessarily has to look at the scope of the order when it's engaging in its law enforcement obligations when goods are coming across the border into the United States.

[00:39:52] Speaker 02:
But I would point the court to Supreme 1.

[00:39:54] Speaker 05:
It looks to me like what the law is saying is if customs had any doubt, if there's any uncertainty, then what happens is you move to it, you don't suspend liquidation, you move, you go into the proceeding whereby you get the scope order.

[00:40:09] Speaker 02:
Well, this court held in some, well, in dicta in Supreme 1, this court stated, the statute does not prohibit and the pertinent regulations clearly contemplate that customs can suspend liquidation pre-scope inquiry.

[00:40:20] Speaker 05:
So that reflects an understanding.

[00:40:21] Speaker 05:
They can do it when they're ministerially, when they're in Xerox, when they're ministerially applying a scope order.

[00:40:29] Speaker 02:
Customs certainly has an obligation when goods are coming across the United States to do a preliminary assessment as to whether goods should be subject to an anti-dumping or counter-banning.

[00:40:36] Speaker 05:
Right, and if it's clear that they're in, or if they're clear that they're out, they do that.

[00:40:41] Speaker 05:
If there's any doubt about it, then what Sunprime 1 says, well, you should go get a scope rule.

[00:40:47] Speaker 02:
Yes, Supreme One held that, yes.

[00:40:49] Speaker 05:
But a corollary to that is you shouldn't, and if you read the legislative history of the regulation you're relying on, there's all kinds of language about not being unfair to an importer where there's some doubt as to whether something falls within or without.

[00:41:04] Speaker 05:
Do you know that language in the legislative history of the regulation?

[00:41:09] Speaker 02:
I'm aware of that regulatory history, yes, sir.

[00:41:11] Speaker 05:
So if there's some doubt at the border,

[00:41:14] Speaker 05:
Customs isn't certain whether it's in or out, needs to do some testing or whatnot, then you don't want customs, you want to go get a scope ruling from commerce.

[00:41:23] Speaker 02:
Yes, that's what Sanprimuan held.

[00:41:24] Speaker 02:
The recourse is the order.

[00:41:25] Speaker 05:
Meanwhile, you're not supposed to be suspending liquidation.

[00:41:29] Speaker 02:
Well, customs does have the authority to suspend liquidation in that context.

[00:41:33] Speaker 02:
It's obligated to protect the public.

[00:41:35] Speaker 05:
That's the issue in the case.

[00:41:38] Speaker 02:
And certainly, customs have that authority here.

[00:41:40] Speaker 05:
Where an outstanding ad-i-duty kind of having

[00:41:43] Speaker 05:
where an order is in need of interpretation in order to know if it applies to a particular product.

[00:41:52] Speaker 05:
The case law suggests to me that Commerce Customs should not suspend liquidation.

[00:41:58] Speaker 05:
If they do, Commerce can't later collect that.

[00:42:04] Speaker 02:
We would respectfully disagree, Your Honor, in that Customs does have the authority to suspend liquidation at the time of importation pre-scope inquiry.

[00:42:12] Speaker 01:
what they're doing is necessarily applying even arguably an ambiguous.

[00:42:17] Speaker 02:
Yes, Your Honor.

[00:42:19] Speaker 02:
Yes, Your Honor.

[00:42:20] Speaker 02:
I know I've eaten into my colleague's time.

[00:42:22] Speaker 01:
I know.

[00:42:22] Speaker 01:
Well, we'll give him his three minutes if he needs it.

[00:42:25] Speaker 01:
Thank you, Your Honor.

[00:42:34] Speaker 03:
Thank you, Your Honors.

[00:42:35] Speaker 03:
May it please the Court?

[00:42:36] Speaker 03:
Perhaps I'll start on the last point as far as customs ability

[00:42:40] Speaker 03:
I'm here for Solo World, and I'm the attorney who helped draft the scope, and I'll talk about that later.

[00:42:46] Speaker 03:
But I'm also here for the underlying policy.

[00:42:49] Speaker 03:
And it's very important that CBP has the ability to require deposits.

[00:42:56] Speaker 03:
They have to have the discretion to protect the revenue.

[00:43:00] Speaker 05:
And it's our position in this case that what commerce- All they have to do if they're in doubt is call up Commerce and say, give us a scope ruling, and the whole procedure does it quick.

[00:43:10] Speaker 03:
First of all, it's not quick, but secondly, you've set up a dynamic.

[00:43:14] Speaker 03:
It's supposed to be prompt.

[00:43:16] Speaker 03:
Yes, but Your Honor, you've set up a dynamic where the importer has no incentive to seek a scope rule.

[00:43:23] Speaker 03:
Instead, they will import product for years, as was done in this situation.

[00:43:27] Speaker 05:
And for years, Customs is passing the stuff in, saying, no, it's not within the scope of the order.

[00:43:32] Speaker 03:
Right.

[00:43:32] Speaker 03:
And so as soon as Customs identifies that there is an issue,

[00:43:36] Speaker 03:
And does the ministerial act that it did here, it should have the ability to begin collection of the public.

[00:43:42] Speaker 01:
Who gets to ask for scope rulings?

[00:43:44] Speaker 01:
Does customs ask for scope rulings?

[00:43:46] Speaker 03:
Anybody.

[00:43:47] Speaker 03:
The reality is the vast.

[00:43:48] Speaker 05:
What does the regulations say?

[00:43:50] Speaker 03:
Any interested person?

[00:43:52] Speaker 03:
I believe any interested party.

[00:43:54] Speaker 03:
I can double check it.

[00:43:55] Speaker 05:
Does that include customs?

[00:43:58] Speaker 03:
I believe there can be an initiation by commerce.

[00:44:04] Speaker 03:
I'll have to check.

[00:44:06] Speaker 03:
Your honor, I apologize.

[00:44:08] Speaker 05:
Well, there's been a lot of conversation and what six opinions now that have issued that have all dealt with this.

[00:44:14] Speaker 05:
And it's perfectly clear that nothing prohibits customs from picking up the telephone and calling commerce and say, fire up your scope inquiry machine.

[00:44:24] Speaker 03:
That's true.

[00:44:26] Speaker 03:
But importers request the vast majority of these.

[00:44:29] Speaker 03:
And there needs to be the ability to protect the revenue

[00:44:34] Speaker 03:
from the first point where customs realizes that there could be an issue at stake.

[00:44:37] Speaker 05:
But in promulgating the regulation, the promulgators realize it would be unfair to someone where there was some doubt about scope, whether something applied, to actually require them to pay the duty up front.

[00:44:50] Speaker 05:
Your Honor, I don't think it's unfair for... But that's what the legislative history of the regulation says.

[00:44:56] Speaker 03:
I think the way that scope rulings... Your Honor, I don't think that it's unfair to require the importer

[00:45:04] Speaker 03:
to seek a scope ruling and to protect the revenue at the earliest point where an issue is possibly raised.

[00:45:13] Speaker 03:
With regard to scope, I just wanted to underscore that Commerce found, based on the K1 factors and the lower court found, that Suncream's products fall squarely within the scope.

[00:45:23] Speaker 03:
They are crystal and silicon photovoltaic products.

[00:45:26] Speaker 03:
They do contain a PN junction formed by any means, and that includes a junction that goes across the intrinsic layers.

[00:45:33] Speaker 03:
And they are not a thin-film product.

[00:45:35] Speaker 03:
Under the narrow exclusion that we petitioners drafted, these are a crystal and silicon product with a thin-film layer.

[00:45:43] Speaker 03:
They're not a thin-film product.

[00:45:46] Speaker 03:
And we agree with the government that Sunprime conceded on several of those points throughout the process.

[00:45:52] Speaker 03:
So thank you.

[00:46:00] Speaker 00:
Your Honor, just to answer quickly Your Honor's question regarding who may request a scope ruling.

[00:46:07] Speaker 00:
So in the regulation at 351-225-KC1, by application, any interested party may request a scope ruling.

[00:46:19] Speaker 00:
And Commerce can self-initiate a scope ruling as well.

[00:46:23] Speaker 00:
Customs and Interested Party, then?

[00:46:30] Speaker 00:
That's a good question, Your Honor.

[00:46:32] Speaker 00:
I don't know why would they be precluded if commerce can self-initiate.

[00:46:36] Speaker 05:
Well, if they have this obligation that the government says they do, to stand there at the border and make the decision, and they can't decide whether it's in or out, you'd think that they can't perform their duty without knowing the answer, so they're an interested person?

[00:46:53] Speaker 00:
Yes.

[00:46:53] Speaker 00:
And in this case, in particular, and the opinion in San Primoine reflects this,

[00:47:01] Speaker 00:
The government acknowledged that the cells in Sumpreme's product contain amorphous silicon thin films.

[00:47:08] Speaker 00:
So on their face, the cells were certified as a thin film product by a third party accreditation agency.

[00:47:15] Speaker 00:
They contained thin film cells as the government conceded, and yet they went ahead and suspended and required cash deposits.

[00:47:26] Speaker 00:
So the government's interpretation here of the regulation

[00:47:31] Speaker 00:
is that an importer would have no recourse for an ultravarious suspension of liquidation by customs until there is the initiation of the scope inquiry.

[00:47:42] Speaker 01:
I'm not sure I'm clear on what you're saying.

[00:47:44] Speaker 01:
They have no recourse, except if they prevail at the end of the day with commerce, then they do have recourse.

[00:47:51] Speaker 01:
It's only if they have no recourse if at the end of the day commerce says, no, you're wrong.

[00:47:58] Speaker 00:
Yes.

[00:47:59] Speaker 00:
In a case where the scope is ambiguous as it is here, where an importer has a lot of factual elements for a bona fide belief that its product is outside the scope, then customs should let the scope ruling proceed.

[00:48:19] Speaker 00:
and not make a preliminary determination as to the scope.

[00:48:22] Speaker 01:
Well, you say let the scope ruling proceed.

[00:48:23] Speaker 01:
Somebody has to request the scope ruling.

[00:48:26] Speaker 01:
Let's leave for a side whether Customs does that as a routine matter or whether it has resources.

[00:48:31] Speaker 01:
The only way to force you or to create an incentive for you all to speak to scope ruling is to do what Customs did here, right?

[00:48:40] Speaker 00:
Well, and in fact, Supreme did file a scope ruling.

[00:48:44] Speaker 00:
First, it answered two Customs questions.

[00:48:48] Speaker 00:
So when Customs

[00:48:49] Speaker 00:
suspended the entries, it also issued several questions to Supreme, and Supreme had to engage with customs.

[00:48:55] Speaker 00:
So that is a process that normally takes time.

[00:48:58] Speaker 05:
The problem you've got is a regulation has been written here on the cross appeal that says that when a scope hearing is actually initiated, which it was here, and it's concluded, and it's determined at the conclusion that the goods fall within the scope, then what commerce

[00:49:16] Speaker 05:
can do under the regulation is to say, if the goods have already been suspended in liquidation, government keeps the money.

[00:49:24] Speaker 05:
Government keeps the money.

[00:49:26] Speaker 05:
And they did that to you.

[00:49:27] Speaker 05:
And you're trying to say, no, the government can't keep that money.

[00:49:31] Speaker 05:
If you lose on your direct appeal, then going forward from the date that the scope inquiry was initiated, you're hooked.

[00:49:40] Speaker 05:
You know that.

[00:49:41] Speaker 00:
Correct, yes.

[00:49:42] Speaker 05:
What you're trying to say is, assuming that you lose on the main appeal,

[00:49:46] Speaker 05:
You want the money back from the duties you paid from entry up until the date that the scope hearing was initiated.

[00:49:55] Speaker 00:
Yes.

[00:49:56] Speaker 05:
And your basis is, I believe you think that under the case law, the suspension of liquidation here was ultra various because customs are required to interpret or to clarify a regulation as opposed to apply it.

[00:50:13] Speaker 00:
Yes, in this case, Customs stepped into Commerce's shoes and issued a determination that was not within the ambit of Customs.

[00:50:22] Speaker 05:
How do you draw the line between, you know the case law, right?

[00:50:28] Speaker 05:
I can talk shorthand.

[00:50:29] Speaker 05:
How do you draw the line between Xerox and, say, this case?

[00:50:34] Speaker 05:
What's the difference between a ministerial application judgment by a customs officer and all of this stuff falls within the order or falls out?

[00:50:45] Speaker 05:
What's the difference between that and one where a customs officer has to scratch his head a little bit and look at the goods, maybe ask somebody, and then decide they're in?

[00:50:56] Speaker 00:
Well, in this case,

[00:50:59] Speaker 00:
The scope was ambiguous.

[00:51:00] Speaker 00:
And in this case, essentially, commerce's scope determined.

[00:51:03] Speaker 05:
When you say the scope was ambiguous, did someone hold that?

[00:51:08] Speaker 05:
Has that been decided?

[00:51:09] Speaker 05:
Is that a data point that's locked down, or is it debatable?

[00:51:17] Speaker 00:
On the face of the order, it covers crystalline cells, and it excludes.

[00:51:23] Speaker 00:
This is an order that also has a specific exclusion for amorphous cells.

[00:51:27] Speaker 00:
Whereas the cell that came in from Sumpreme, it's a cell that has both components.

[00:51:32] Speaker 00:
It is a hybrid cell.

[00:51:33] Speaker 00:
So on its face, it should have been clear to customs that if this is not a crystalline cell, well, there is a good reason for the exclusion here.

[00:51:42] Speaker 00:
The documentation shows a very good reason for the exclusion.

[00:51:46] Speaker 00:
So it is not the situation in Xerox, which was more, let's say, a plain vanilla situation, as my colleague would suggest.

[00:51:55] Speaker 00:
But just going back one very last point very quickly regarding hybrid cells and regarding the thin film exclusion.

[00:52:04] Speaker 00:
This case, whether the sumbrane cell is covered by the order would have maybe been a closer case if it weren't that SolarWorld was asked directly during the ITC conference whether hybrid cells that contain an amorphous silicon component and a crystalline component should be covered by the order.

[00:52:25] Speaker 00:
And Solar World essentially responded that they are aware of this hybrid technology.

[00:52:33] Speaker 00:
It is proprietary and it's limited.

[00:52:35] Speaker 00:
And in particular, they said, we have no problem competing against Sanyo Panasonic.

[00:52:41] Speaker 00:
The example at the time was the Sanyo Panasonic HIT cell, which is a hybrid cell.

[00:52:48] Speaker 00:
Now, in the context of a material injury investigation, a statement

[00:52:53] Speaker 00:
We have no problem competing against this product.

[00:52:55] Speaker 00:
The hybrid cell can mean only one thing.

[00:52:58] Speaker 00:
It means that importation of this product is not the cause of material injury.

[00:53:03] Speaker 00:
And this court in FedMed resources found that when a petitioner is asked to clarify the scope of its order, it has to provide a very precise and direct answer

[00:53:17] Speaker 00:
And that such an answer will be highly germane were the actual quote in a subsequent scope determination.

[00:53:29] Speaker 00:
Thank you.

[00:53:29] Speaker 00:
Thank you, Your Honor.

[00:53:35] Speaker 02:
Your Honor, I know I've run out of my time.

[00:53:37] Speaker 01:
Would you like to?

[00:53:37] Speaker 01:
Yeah, no, no, no.

[00:53:38] Speaker 01:
We'll give you a couple minutes if you need it.

[00:53:40] Speaker 01:
And obviously, you understand this is exclusively with respect to the cross-appeal question.

[00:53:44] Speaker 01:
Certainly, Your Honor.

[00:53:44] Speaker 01:
And to what your friend said in response

[00:53:46] Speaker 02:
I just wanted to note that interested party is a statutory term.

[00:53:51] Speaker 02:
It's defined in 19 USC 1677 9, and it has a list of the entities that can be an interested party.

[00:54:00] Speaker 01:
Well, don't hold us in suspense.

[00:54:01] Speaker 01:
Does it include customs or not?

[00:54:04] Speaker 02:
So in short, commerce can self-initiate, but customs is not an interested party.

[00:54:08] Speaker 02:
That's not to say that customs doesn't have the

[00:54:10] Speaker 02:
pragmatic abilities, certainly to raise the attention to commerce, then commerce in its own volition could decide to self-initiate.

[00:54:17] Speaker 02:
Subsequent to this case, a separate statute did come into effect that gives customs greater flexibility of referring matters.

[00:54:25] Speaker 02:
But at the time when these merchandise came in, that statute did not exist.

[00:54:30] Speaker 02:
But what I think is important here is to look at the regulatory framework outside the context of Supreme, because customs and commerce is going to have to administer these regulations.

[00:54:38] Speaker 04:
Is this cross-appeal?

[00:54:39] Speaker 02:
This is the cross appeal.

[00:54:40] Speaker 02:
Yes, your honor.

[00:54:41] Speaker 02:
So it would be inappropriate for commerce to assess the propriety of a separate agency such as U.S.

[00:54:46] Speaker 02:
Customs and Border Protection and their prior actions when it's drafting its instructions, which is why in this case their instructions merely mirrored the language of the regulatory scope and to the extent that customs ended up getting it wrong, which we now know it didn't, but if it had,

[00:55:03] Speaker 02:
The way that commerce drafted its instructions would have accounted for that, because the entry would have followed in one or two categories, either a suspended entry or a non-suspended entry, and the instructions provide for both.

[00:55:15] Speaker 01:
Thank you.