ambiguous because the entries that are subject to review are the entries commerce requires us to report and they've always required us to report by invoice state and from two thousand and eight on to current reviews counti  at the bottom of the top paragraph to the silence in the statute the reasonableness of department's interpretation court or st of commerce is reasonable consideration of either sales or entries in a given p l r well i don't dispute that but even the government doesn't dispute that for ever in the history of the case the law of this case for this company that sex order responding has been in voice state for date of sale convenience q so in ministry reviews one through eight were we were a new shipper we came in around review five ok now we're in review twelve ok you're relying on pre nine history to say there was a consistent practice with respect to the practice we follow the letter of the commerce questionnaire let me get let me let me just try to ask a question that see if i can communicate what i've had in my mind does this record show that before the years in question there was ever a sale in year one for the by the year x followed by an entry in year x post one where what i mean by year of course is really not that informative well this didn't happen before but but the logic of the questionnaire and the way the questionnaires are answered supports the principle that you don't review sales twice and  entries that doesn't have begin to begin to suggest that for calculation you can use one and for assessment you can use the other well those are the missiles are two separate issues i would say not only is this never happened in this case the government hasn't presented any case ever in thirty years of experience where this is happening so the reason i'm saying that is because it's it would be very difficult an onerous for an export or who does not have knowledge of the entry dates to intice update this issue and there would be no way for them to brief the issue at the case brief and they're there for you know when the government says we failed to exhaust the remedies that's that's not a reasonable remedy to require us to brief six thousand eight hundred and twelve months prior to the actual assessment which when you refer that's st of all we can test for that but whether we got injunctions or not customs would have still liquidated at two hundred and eighty five percent because those were of those sales were not double reported into the time for the and they weren't double record into  review because the commerce departments and non market standard questionnaire for thirty years has never required that in the majority of cases there is a recent case solar where they are now adding an extra pending extra quest entry day but it's generally never happened then there questionnaire in thirty years exports who are not importers of record do not know the entry dates and therefore they report the date of shipment which we explained in our previous has been interpreted by commerce to be the envoy state when that envoy sets the material terms of sale can i can i step back to what i think the threshold and maybe even the question in front of us was the cia right in finding that these challenges that you're now making which i guess were counts one through three had to be filed under one thousand five hundred and eighty one dollars c within thirty days and therefore you're out of time full stop if there's an ambiguity as i tend to think there is in the two different slightly sudden different formulations in a our nine and a r ten about appropriate entries when using the covered and the other doesn't use the word covered but all it says is appropriate entries and that does not make clear that the a hidden one it's one that surprised you once you got the instructions yes that we don't surprise us only when we got the bill from the importer saying why am i liquidated at two hundred and eighty five dollars and the instructions were secret that's right and they only issue like six months after the brief is due so we were briefing issues of merit such as a surrogate values case those were the real issues in the case the cost of production and so we briefed all issues presented in the congress as a preliminary issues and decision memo we can't know exactly how they will enforce an order until much later and i would point the court to consolidate or bearings where an importer like in our case tennessee didn't even participate in the case and still the court took jurisdiction under fift entries eighteen entries so what's very important about the holding to the final merits holding and consolidated bearings they said you know at the end of the day this is a really reseller situation where the bearings were floating all over the place and never made it into the administrative flat wrong and the court got that information from tab three of our index which was meant to be helpful to the court after the administrative proceeding and after apart from the record of the ministry of proceeding that we added the entry dates in with and bring notation states that it will be applied to entries covered by the review accordingly the liquidation of king ties entries covered by the th review in accordance with those results of the review was consistent with the final results  came thais response attach an exhibit identifying seals and the corresponding entry dates for those sales came to section c questionnaire are identified several dates none of which were to be the date of entry  matter 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 or but the nd part of that statement when they talk about  i don't think the courts the court's decision relies on that statement and it doesn't change the fact whether questionnaire appears to be essentially the same and asked for entries unless they're unavailable and otherwise it indicates they will accept sales or shipments which the other information tells us sales  so is their prior case law showing a practice where when commerce accept the sale date within the period of the  of the party who sails interview later and then they were content with their rate language and you began your argument by seemingly quoting something from that is there was real work being done in that characterization this quote is on all appropriate entries of subject merchandise in accordance with the final results of this review that's a r ten the language an a r nine is a little bit different to uses the word covered 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 and this case involves the seemingly unprecedented because you're not giving me any precedent for it of a situation where and i don't 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 ok and the and the court turns out st in the instruction which is confidential so they didn't see it and then eventually they get news from from what the importer that turns out that they should have reported this again in year ten 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 that the actual rate for them is that confidential or not the thirty five percent that would have been thirty five percent that's the average that it's an average rate it's not a specific the specific rates for employers how keep referring to june st on may st sure ok david they are not the eight or nine period this language does not say what appropriate entries are 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 well your honor and i mean we don't we think it's clear each each of the federal register notices talks about the period of review and then that period of review is what's covered under the federal register notice that when they are talking about entries are talking about entries within that period of time so if you do the calculations on sales within that period of items that have not been entered during that period we do calculations on sales when that's the information that they provide us because they say they don't have entries and yet you've use 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 but that's what's going on here right  what we're saying is that the concern would be there's nothing strange about it anyway that with the treatment i mean the reviews apply to entries because that's what customs gets customs gets the entries under commerce instructions you could easily have given conversely instruct customs the instruction that when you get the entries for the following items who sales have been part of a our nine you see a our nine raked isn't there something in the law maybe not in this area but in other areas some distinction between facial and or some other word it's a word like he didn't like what late late may ambiguity that's  i'm sorry and that distracted me so 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 which would make any either written which would make it either not ambiguous or make the m b ambiguity link and by virtue of some apparent contrast i think that's a very good point  is there so 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 one thing i'd like to indicate is that as the court considers this it's important to know what they were asking for initially in their complaint in their complaint they're asking not to get the rate under a r ten the rate that they're challenging the liquidation instructions for what they're asking to get the rate in our nine they're asking also for declaratory statement that the that congress is not allowed to essentially apply talked earlier about consolidated bearings and why they fall within consolidated bearings and i think that takes them out of that argument in that case commerce argued that  could made the argument that they could not  that they could not maintain the action under section c because they could apply the same case they could not maintain action under section i because they could have brought the same action under section see if they had participated in the you but they chose not to and the court in that case although it did granted jurisdiction under i indicated that commerce his argument might prevail if they had if they were challenging the final results now here you your honor thank you for the additional time us see you did you want to return to the council for the government's point about the other cases i think the other cases establish that when congress requests entry date it's an extraordinary event they do it in a supplemental questionnaire that clearly indicates that it's not required and standard questionnaire commerce says in the standard questionnaire if you don't know the entry date you're not required to provide it you provide your date of sale based on the sales terms or are the the dumping rate for all the goods that were interred during that period review and they said yes and they sent a deposit rate going forward right in the next year they have another review and has always said that it didn't know the entry day it was never their department it doesn't matter whose intrusion they are i mean it's it's the date that they were entered well customs and looks at this and get to see the customs transaction documentation and if it gets it in but here the all of this right is a penal rate against the government of china that's another argument i know but but we the sales were reviewed and calculated and so we're saying you know you're either this is your doubt about that the the the the question feeding we're feeding you your argument ok i think we've heard enough thank you for your argument we thank all the part