america corporation versus united states mr roll please proceed yes thank you and good morning your honour's first i want to thank the court for making these arrangements in these difficult times so that we can proceed  turning to the our argument and our position in this case the thrust of the decision below is that our client and by the way there are some of course difficult chinese names to pronounce i probably will vote for them but i'll call my client one song america or w a c understanding is correct me if i'm wrong that in the power train preceding the importer they're both requested a scope ruling and argued in the scope ruling that its products were not subject merchandise why could you not have done the same sure yes they do have a new trend is that what with the importer was called that imported themselves of a scope proceeding but that's not why the judge below said they didn't have jurisdiction they said we didn't have jurisdiction or judge cas and another jurisdiction because you didn't request administratively review to why why seven to two thousand and eleven when these entries are made sure so w a c just some quick history here yes as you pointed out they did import bearings through bearings and the army which are black and white in the scope of the order a zero percent dumping rate or margin so starting around the year two million two thousand and one their rate was zero for t r b they had no reason to believe again i don't know what prompted small amount of the merchandise and you see what customs is going to do and then on that that basis you have a wide open avenue to the cia t shirt but i think you know part of part of this your honor as we're looking at this now with the benefit of hindsight if we put ourselves in the mindset of a twelve not a really not but what i what i just described is common practice isn't it isn't there that you got it you have a question sure the question would be that i would ask i mean i know you're the one to ask the questions one thing but rhetorically i would ask why would an importer have a doubt about their product being in scope for example because because and i'll answer the question because he's a sinner least have  back at the time and again this is a company that certainly knows t r b's and i don't disagree with their factual characterization of how these products and that we'll have december that is to have some elements of being a bearing but they also have four or five other functionalities to them that have nothing to do with being a bearing and it seems to me yes they could have done all of that there's no question they could have done all of that the question that was what were they required to do all of that no other words was it unreasonable for them to say i believe these are not the arbiter certainly once congress makes a notice and says to the world hey these are now in scope i would not disagree that from that point forward isn't there isn't there an affirmative duty on importers to make informed decision s it is but the fact that they got it wrong doesn't suggest to me doesn't suggest that their decision that they made was on reasonable they got it wrong we can't deny that because we have the scope decision from both commerce and later from the power train court we know that they got it wrong the question is was it unreasonable what they did and the law seems pretty clear to me that as long as there was not a not because there was nobody like a snow ski being treated as a water ski this is a pocket for five other ninety two then you could among other things at least argue against the penalty portion of this of of the demand on the ground that we have from you know dealing with customs in the bounty case which is what you're asking about we should enough to say that the remedy that we have with the different agents is a cure to the remedy with commerce the issue here is thomas decision and how it was i'm wrong that the that the our law about the relation between c and i does not build in a reasonable in this assessment of the availability of see if it was available then i is not well i would point to i believe the suntech decision where there was a question about the chinese are supporters who claim they never got a notice of an administrative review so they could have participated in the review but they did not and  would be about ten months from september two thousand and twelve which puts us at about july of two thousand and thirteen ok so unless it's a bunch a bunch of these were not liquidated until sounds like  good morning and may it please the court i think the most important observation from the last ten minutes is that the standard that the court applies when determining whether  available under its residual provisions is whether there was a remedy under one of the earlier subsections and whether that remedy was not manifestly inadequate  now w a c is not argued the remedy under fifteen anyone see was manifestly inadequate companies only arguing that and just can i just asked just to be clear that the remedy that c i t pointed to was not a scope ruling but participation in one of the annual administrative review to determine to determine that w q was like its affiliated corporations independent of the chinese government absolutely that that's the important thing to keep in mind what if you go back to the complaint that the case is somewhat more now into a question as to whether the import was reasonable but if you go back to the complaint what w that it never actually looked at w q itself as an export and that's a fact that nobody contests in this case and that's really important because the remedy was always there to look at w q as an export or for the company either to to make test shipments and for congress to determine whether st of all whether that company was free of government control and nd to determine if it were free of government control to determine the rate of dumping exporting in say two thousand and seven and if the company had then asked for a review the company would have had and would have had an adequate remedy congress would have determined whether w q was part of the china wide entity and that result would have applied to all of the important issue in this case can you address that kind of doctrinal question that i asked mr role in our case about the relation mind of the plaintiff at the time of the relevant activity which of course would open a whole new morass and and nd to the extent there is any reasonable miss it would go to the nd prong of the analysis which would be whether the  remedy under the alternative subsection would have been manifestly inadequate and you know if you look at one of the footnotes and judge had opinion he noted and nobody contests th c never argued that its remedy under sea would have been manifestly inadequate it could have gotten exactly the determination that it asked for an administrative review that w q is not controlled by the chinese government counsel can i mort do you have believe that we have to decide whether or not this c l u memo is a final agency action no the court doesn't need to decide that in this case but turning to that issue there's there's there's no reversible error here in course determination that there was no final agency action if you go to our break and we talk about the the relevant cases that are out there you know that  for example the corps of engineers the hocks case there's no action that alter the legal relationship between w a c and the united states because w q had been part of the china w of looking at the seals you memo it appears to me and tell me if i'm wrong but it appears to me that what it does it just provides a historical summary of the administration reviews and  results of them and the participants in those in those reviews it didn't add any new facts or subject matter didn't make any findings don't put it that way is that correct that's absolutely true it's just recounting and can i just follow up on that and what what is the logical consequence of that characterization for the question of final agency action for it china wide and it is going back to the last time that one of the why some group companies was reviewed but i had i guess i'd understood w a c s argument to be that when commerce answered a question by recounting the i think undisputed history at that point c b p was found to determine that w the importer has a right to a trial the no vote it's not going to have a right to prove that the export was free of chinese government control but it will have the opportunity to prove that the commerce department was wrong in that  q actually was reviewed if it were to do that it would be a very different case but no and that's the sort of evidence that is available at the commerce department for parties who want it and it's al certainly to affiliated companies of the plaintiff in this case counsel would it make any difference to your case if i did w w a c s challenge to commerce is clarification prior ambiguous administrative rowlings rather than just challenging and title meant right i don't think it would it would make a difference here because you need to look at the true nature of the determination to assess jurisdiction and there was but one aspect mike to be and i want to know whether you think this is little and that is whether the february st two thousand and twelve scope ruling in the power train decision would could be whole question of the application of the regulation might go and of course if if the you know the importer were to demonstrate that it acted reasonably at the time because it for some particular reason then then it would have a complete defense on the other hand product in this case congress is prepared previously determined that they feel under the unambiguous language of the anti doping duty order those are counter thank you with regard to just one c jurisdiction before i comment on the final agency action discussion that was just taking place i'm still stuck how we get past the fact that in two thousand and seven for example the beginning of the audit period these are the merchandise at issue was not scope merchandise or subject merchandise rather it would have been impossible to request administrative review for two thousand and seven or two thousand and eight or two thousand and nine yes the judge ranges question could they have asked for one could they could they have done it with hindsight should they have done it we can say with hindsight yes they should have the questions were they legally obligated to is there anything wrong legally with the way they declared their i just cannot be turning to excuse me turning to the question of final agency action and i'm a memo that we're challenging the may two thousand and sixteen memo the exhibit if you have search if the court were to search course it's our job to educate the court but i'm saying what i'm about to take can be confirmed every federal register notice that congress ever put out and the administrative reviews involving our client involve the rate for w g c one shot group corp why was it necessary in two thousand and thirteen to put this note in a sense to make a determination if you read the language of the note so this information the last sentence this information was determined based on the questionnaire response commerce very much defined in this may memo who w g c is what they considered to be the reason we believe we have jurisdiction and we may be wrong at the end of this on the merits it's possible we don't believe we are but the court has to examine the substance of what congress did here was it really just reporting the news where they said hey in these old reviews we determine rate of x for this company and why for the other company or was commerce commerce interpretating to say w g c means right join appendix page sixty which is part of the main memo they talk about in the last full kind of big paragraph last sentence says none of these documents clearly identified w q as being a manufacture or export or again clearly how clear was it that something for the court to decide again maybe the court one reviews the record in this case which is all we're asking for that was clear i seem out of time trying to make one last quick point and wrap it up