collateral attack on a separate commerce department anti circumvention proceeding what bessie otto has done both before the commerce department in that administrative review as well as before the court of international trade the decision that was made there in this heath administrative review and i don't understand why it is that you should be able to really litigate that issue in the in the light of our decision to magnolia you  determination can stand or fall on its own merits based on an evaluation where application of this court saw decisions in for example to further go or we've been to so our view is that this is not a collateral attack on some other determination when  administrative review has to make a determination of sco we believe that the determination here is inconsistent with this court sod determinations in in previous appeals and that regardless of what occurred that our merchandise was first of all within the scope at the end i don't think do the order and second was subject to the assessment of anti dumping duties so the commerce department as a result of this determination issued liquidation instructions antidumping duty order for any reason other than how it went so i understand that corona but i don't think that's correct your honor we say that our product does not cover because of this court's determinations that have arrearage anti dumping do the work and that's that's manifest on the face of the challenge for you results the commerce department incorporated the change language now that language originally stemmed from the circumvention proceeding but the commerce department imported that language into these final results that were challenge in the court of international treaties you can't do that now the commerce department response to that maybe well here we can that's an issue of statutory interpretation but the court never got that for the court so it could really attacking the n c circumvention proceeding but it overlooked the fact that this is a separate commerce department determination congress issued a specific finding that our products were included described the scope in a way that we objected to and that we challenged during the administrative proceedings and that's what we appealed for we didn't have the opportunity to present our we went into further arguments he's a have the opportunity international trade said and we our position is that that's as may be we may have been able to participate in that prior proceeding but this is a separate independent voters who may have been able to but you didn't questions we see this this is fairly common in anti dumping countervailing cases where the commerce department will make a decision in the initial investigation and as you know initial investigation will cover both previous entries as well as appl investigation you don't participate in that investigation therefore you can't reason or to review and so once commerce has made an error in a prior determination even know that error has independent effect in subsequent determinations in the form of administrative reviews you can't raise it in a subsequent proceedings that's really the logic of what they're what they're saying i'd like to they did in the earlier her seeming and present had come up the way it commerce department proceedings you lose an issue in one review you raise it in the subsequent one one of the reasons is if you don't raise the issue in a review your entries if you don't ask for review in the first place your entries are going to get  to be vindicated down the road if you participate in a first proceeding challenge it in court in a court says yeah you're right congress committed an error if you haven't addressed those issues and it ministre to review and thereafter the issue there i believe that's correct your honor well let me ask you this what happens if i started importing candles the day before the end of one annual review period so i never had the chance to participate order they changed their viewpoint as to what was covered in more a question of retroactivity it's well we believe retroactively plus prospective application are both precluded  was also addressed in the unit circumvention proceeding was not i believe it was your honor yes not so it's not new in this proceeding retroactively issue is not new in this proceeding right but we see it as a subset of the argument we are challenging that expansion as it applies to our products it does have a retroactive effect in the sense that these imports have already been completed but i but if i wanted to report today yes yes i merely pointing out that the commerce department spears issue would effectively preclude anybody in the future from challenging this determination and all of th circumvention proceeding let's say that i believe that those appeals have merit and i want to preserve my rights so i started recording today but i think that those appeals are going to be successful and that my merchandise will be found to be outside the scope of the order under the government's reading i don't have a remedy because there is no way to avoid liquidation of the duty of the entries at the end of the  review period or upright if no review is requested the entries get liquidated automatically so if this court in target decides that the answer circumvention expansion was incorrect for whatever reason and says no i missed part and you didn't have the authority to do that other importers who are in the position of jesse otto or or could be in a position as the auto by asking for an administrative review  they're not going to be able to get their duties back because the entries will have liquidated person to operation of statute so the only way to preserve your right to get a remedy at all whether from the commerce department or from this court or the c i t is to request an administrative review so that's what's wrong with it hammers issued a determination that may be overturned and the only remedy you have an event that is overturned is to have suspension of liquidation imposed during administrative review and thereafter have liquidation and joined by the court of international trade ok let's hear from the other  side it please the court the trial court correctly dismissed what about the arguments just make what he's saying is i understand it is ok let's assume that i can't challenge the  any circumvention determination i'll be stuck with that in that you know i didn't participate so whatever happens happens but if the appellant's in the in any circumvention proceeding in this court and i'm not suggesting one way or the other as to whether that's likely what he's saying if they win and get the order set aside i mean some sort of protection i should get the benefit of the setting aside of the any circumvention or i shouldn't have my product assessed at a higher duty rate than other people in a similar position what's the answer to that but one the way to protect themselves whether to say which case they could variety of reasons one is it doesn't encourage any participation in the proceedings if you're allowed to benefit from someone else's challenge by doing nothing it's really doesn't encourage anyone to participate in the proceeding but this is really i think a fairly common situation where you have a two things one is that that was there was the same issue in the anti circumvention proceeding because in the anti circumvention for seam there is the same interactivity issue but the truth that we had an explicit opinion of commerce that it didn't cover these good you say that you know there is an explicit determination one way and mr scott ruins the answer that question is yes but the anti sort of mencia determination was different than those parts good rulings and really for me to explain why that's different i have to explain the record of because you are saying that they nonetheless have to from then on conduct themselves as if they will be bound by some speculative conclusion on different facts no not quite sure understand the of this particular type of waxes petroleum way out of the truck and then following those who orders congress thomason instituted this advice circumvention proceedings they want to hurt that's the basic question is in the truck you're on and congress found that they that they essentially have gone over these issues before we're not going to go over plowed ground and of course that really except that we say they can't use the administrative review to be litigate the validity of the any circumvention or ok let's assume we decide that that seems to me that doesn't resolve the question of whether they get a benefit from the reversal hypothetical reversal in the an whatever reason elected not to participate but i'm not sure that i follow why would somebody who says i it's too expensive i'm not all participate i just want to sit by i'm not trying to collaterally attack the worker i'm not trying to have a d already have this determination then to separate and i sort of mention a terminations now the question is could someone raise an interesting question in the first instance in the administrative review that's entirely different question and it's not presented by th position of the government and i don't have anything further to add unless the court has any questions on me what about the question of remedy if they don't if they don't participate in the united circumvention proceeding but we reverse that they have a remedy to get the same way as everybody else if you have been thinking about that answer if you reverse it if the court reversed the the customs would liquidate commerce with orderly liquidation you can challenge liquidation you can file a protest and then make your way back up through the court that way as well but it all becomes a matter of timing here they had a process that they could have followed plymouth junction as numerous other companies did they filed for the administrative review in august two thousand and six the final circumvention determination came down in october two thousand and six they are prior rulings with which they did comply yes your honor i when the initiation notice was published in the february march seventh two thousand and five in the federal register a clear notice was given that if there was an affirmative pulmonary determination then according to nine hundred c f r three fifty one point two two there would be retroactive application that to the date of the notice of initiation of the circumventi inquiry that they're not dessie out it was not challenging that regulatory provision it hasn't briefed that regulatory provision so our position is that they had fair notice all along and could have participated in the at the time they made their entries of mick's wax candles it was after the initiation notice after notice had been published so they knew that the law i'm a change will also identified why the administrative review provides the basis and a proper basis for challenging the expansion of the scope and here's why into circumvention determination does not result in any liquidation instructions merely says we're changing the skull prospectively retroactively where the commerce department makes liquidation determinations it's through the annual administrative review suspension of liquidation pending the outcome of the review review and at that point the commerce department in its challenge determination said we will instruct customs to liquidate everybody's injuries dessie autos and everybody else's at one hundred eighty percent regardless of the petroleum wax comped so the only way we could stay alive as was and avoid liquidation was to subsequently file a challenge in the court of international trade candle who had less than fifty percent control of them while my question to you is you say that even though you had participated in that review and lost one point you could then come around and you learn to get it once and that's the end of it that's exactly our position your honor that the way the statute is constructed gives us not successive bites of the apple it gives successive apples so that we have the option of  participating in the end to circumvention determination but we're the application of an expanded scope actually occurs is as a result of the administrative review that's where the liquidation instructions get issue as a result of this we had not participate in review and filed the case in court of international trade our interest would long since be looked at it just like everybody else's who imported during that period they didn't challenge the determination in court and so they have been liquidated so the liquidation instructions in that it ministry to review with the whole reason we're here is congress is saying that a minister and review is off limits you can't raise those issues in the administrative review this yacht of did and commerce is saying you can't do it so congress is trying to eat this cake and have it too because what they would say is the liquidations took place as a result of those liquidation instructions we reprinted those instructions issued by customs in the appendix our own case or or if the target case is successful on appeal the only way that that can have applicability to our products to our entries this would file the administrative review issue an injunction in that case but i question and at the time that the answer circumvention proceeding was going on i was questioned whether the court could state liquidation now the government agreed to that but that's not the traditional injunction in aid of the court's jurisdiction because the court would be able to hear that case regardless of whether liquidations take place so i was a little would not be mooted out based on the liquidation of entries this is again it's probably an academic point but at the time that we filed the administrat analogy would be when there is a negative international trade commission determination and the domestic industry sues they can get injunction against the regime because courts have said well you know your case stays in effect even if entries liquidate that's just as