you'll hear from you first the department of commerce to correct errors that were made by customs and border protection second reversible errors the trial court's conclusion that one thousand us c sixteen and seventy one a the countervailing duty investigation statute the jurisdiction argument seems to me that commerce made a determination here that it didn't have the statutory authority to grant the offset c i t the the court of international trade has the statutory authority to review determination of commerce so where is the jurisdictional bar to having the court of international trade review commerces decision that it didn't have the statutory authority i'm not getting i'm not clear on where that why threshold jurisdictional issue here well your honor did in our brief we said which is coal night jim which was a case by this decision by this court where exactly the converse is what occur the department of commerce allegedly made some errors and then when customs liquidated the entries subject to the duties the going to protest it before customs and then customs rejected the protest your for lack of jurisdiction or twelve the want the court dismissed those claims for lack of jurisdiction it sounded as claims against the department of commerce its decision even though i was seventy entries were all were all liquidated and so there presumptively liquidated the correct read it what does that have to do with what the trade court was reviewing it was reviewing a decision of congress which seems to be precisely what deadlines there was liquidation and then a protest was made in time and this court sustained the dismissal of the counts that sound i don't care what the court did see says what it says in the seems to say is i think  clearly suggesting that any time congress makes a decision that that decision is reviewable in the court of international trade because the congress has said so in subsection see now where is that  your honor the subject matter of the claim against the department of commerce is really a clear example you said you say it's a really about customs but the actual decision contested in front of the trade court was a commerce decision saying that the commerce number was wrong now that may be not true but i don't see how there's any issue appears thick well your honor we respectfully disagree just giving it a pejorative label like artful please well in this case we believe that our motion to dismiss was properly in the rule twelve b one however i believe the court's view is that we could have  twelve p five which let me ask it this way if the issue is properly framed as a challenge to commerce its refusal to sign off the a mile rather than the customs erroneous liquidation itself in other words the issue is commerce's refusal to sod off doesn't fall squarely within fifteen maybe want to see yes it does but there's no both and that's the problem in cases where the government is being sued there's the distinction between a twelve and six motion twelve b one all i'm suggesting is if you framed the issue as it's properly for a review of commerce  refusal to do the side off because it says it doesn't have statutory power to do so clearly this core c i t have the power to adjudicate whether that was wrong or right then you get to the merits and that's correct and from that time are you to do it from that point on regardless of what the rule we filed our motion to dismiss under the analysis for means saying there congress simply never intended in this case the where the government can't tell so why what's the government feel compelled to call it the alleged overpayment it looked to me like of all the things disputed here there was no dispute at all about whether port huron charge too much money so why are we calling it the alleged overpayment if it's blatantly clear that there was an overpayment what's the what's added by saying the alleged well in the beginning of the proceeding you're on to the congress you never analyzed the record evidence as to whether there was an overpayment partially because you're standing here today and you know there was an overpayment everybody in this room has read the brief no there was an overpayment if it's that clear why does the government insist on calling it a if the federal circuit goes along with your argument wouldn't the result be that in every instance in the future it would be prudent always to protest a deemed liquidation because then rate that's determined during the administrative review yes that's absolutely course now you've got one hundred twenty or one hundred eighty days instead of the old ninety days so is it a bad thing to to have a system that has a built in inside of for every importer to protest  liquidated that's correct and now with the court's decisions in international trading as well the date when it intrigue becomes deemed as colonel clearly fixed and keyed off of the issuance of a federal register notice so the date when liquidation does become a deed is also known from the outset earlier cases where they were nonpublic or here there's no question the north perceived notice of the beam like with a yes north perceived no they had ninety days within which to protest well your honor we we believe that at that point the protest could only have been as to whether the entries were correctly deemed of the dean with the statute what norsk hydro could have done was  a great increase in the number of protests that people would have to take as a precaution under your view of the law well your honor yes because that's congressional intent in this case there's no congressional intent that the department of commerce correct customs errors just as there's absolutely no intent as this court will is or some indication of congressional intent to the contrary money after all if one government you know the that the party hears the united states can't by itself show congressional intent fifty's lines of redress are mutually exclusive well your honor we we respectfully disagree we cited to the to the legislative history of the one nine hundred seventy nine act congress gave this responsibility for calculating the rate of duty to the department of commerce it made very clear that it was breaking off and giving a very separate and unique function to congress and then this court addressed what exactly is what are the responsibilities of the two agencies and the corps made very clear that customs could not fix commerces errors in response to a protest even a well even even a well planned protest before customs and the converse should be true because they thought because that was congress's intent that commerce be given a very specific set of rules to correcting other governmental errors is not one just like just like if the plaintiff were to have overpaid on its federal income taxes you could not receive an offset from commerce there's  a problem dory you see keep coming back to say it's clear that congress intended no redress in a situation like this because they didn't say anything indicated that they you should win but if they didn't say anything one way or the other it's not so clear that what their intent was will your honor this is this the fact pattern in this case is something that's so rare that  congress probably would never have analyzed this particular pattern because it's such a rare subset of cases it's only a subset of countervailing duties that involve nonrecurring subsidies it's only a subset of cases that involve the same exporter and importer over two separate administrator reviews look if this is a one off case the question arises why is the government by the new appeal the result here isn't terribly unfair the part of the got over charge would get or did maybe this is a one off case in the government's wasting our time to appeal no your honor in the core itself never concluded that this was a one off case and one off case the court made a very broad conclusion that the department of commerce was compelled to fix customs errors and in doing so the court misconstrued the countervailing duty law and we have an obligation to appeal what we view to be erroneous constructions of statute let me just bring you back to one point just for my own clarification the other side that occurs after the period runs for protesting the deal liquidation then the then an importer me only protest whether the liquidation was correctly it doesn't seem a ask should they have known that they could and must file a protest at the time that the statute was still running if anything they would have known at some later here doesn't seem very fair to hold against will your honor this court and help turn the principia i believe the cases concluded that once a court construe the statutory provision that is the construction of the provision it goes back to the date of the statutes and acted so and parties are presumed to have had actual notice of that construction and the statute issue in this case was enacted in one thousand nine hundred would it be fair to say that the reason you don't the government does not consider this a one off case if the chevron point of the sanctity of the period of review the commerce the decision commerce made in other words that it has power only during a period of review because you think if i if it went back to could introduce all sorts of incentives and open up a can of worms if periods of review could be opened up way of well of the past that's correct that's absolutely correct your honor and another quarter point to make for non recurring subsidies is that it's in the investigation i believe it was one thousand nine hundred one where congress determined the actual amount of the subsidy that was conferred the nominee current subsidy and then calculate the allocation period and calculated how much subsidy must be recovered during each period or view so in essence what the plaintiffs are asking congress to do is go back and reopen the investigation so we're back to where we start and that is every importer better file a timely protest to a deemed liquidation if it wants to save it when the actual liquidation the actual assessment is made by or imposition rather i don't want to mix up in  honor you do because you've made a cash deposit and when it already did when it interesting liquidated all that means is it's liquidated at the cash deposit rates customs already has your money and all that means is they're not giving it back so but no i get it back if later on commerce decides that the counterfeit that deemed rate is too high in a subsequent period of review yes but liquidation is suspended until the department of commerce has complete it ministry to review and until court proceedings where there is an injunction issued or all are completed so in the case here where there was no challenge to the one nine hundred ninety seven period of review well there could have been nothing and happened earliest they could have acted and i guess what you really could say is that they were a year later they should have acted in two thousand and one immediately upon learning about the liquidation no your honor they could have protested they could have protested those entries back in  entries liquidated in early in march of two was march of two thousand and then the notices of liquidation were posted in late two thousand early two thousand and one and yes at that point that's when they should have protested and been on top of what was occurring with what it would have been on a hunch that calmer who's going to come out of there for you know that because congress had already come out on their favor and it made cash deposits a and try to collect any extra that was paid and i see i've gone over my time for the loan charging thank you thank you mr pristine now we have opening so the answer is that it wouldn't be imprudent for them it would be approved i do try to be a good idea and here's why because the importers are only going to challenge a team with nations when they are adverse to the importers of the deep liquidation amount that is the amount  is that the liquidation in some respects undermines the machinery of the n t dumping off the edge dumping on the statues all say that entrance you're supposed to be liquidated in accordance with the final pleas for decision of the action well all of that work this done by the agenc a breakdown in the way that the deal would they should statured operates turn it around well you've told us why it's not such a bad world if it comes out your way suppose it comes out the other way in the sanctity of the review period of the of such and period is  the importer so the importer you know looks at the assessment that gets its bill and says well i can either protest this if the entry doesn't get liquid on time because the interest deemed or i can sit tight and just accept the amount that  suppose that we disagree with the position you've taken and we decide that the period of review isn't sacred that it can commerce can go back and do sod off and do whatever wishes you see any bad or ill effects from proceedings in that case you granted there's an amortization period in the county really do context and administrative review cases involving dollars so you would agree then that requiring commerce to offset a liquidation or with mingled the functions of  that there's plenty that customs or the court of international trade to do the court of international trade or customs we resolve and we've given you double time if you have any further points to make very quickly we'll allow you to make this office finish this response or  we've given both counsel for the other side a great deal of extra time so you can be advised that you won't be strictly limited to your fifteen minutes either thank you your honor that's not an in this case and that is as the department of commerce stated it it issues a decision memorandum the department stated that it did not have the authority to make the adjustment that was requested by h c i in fact that is that is correct that is not in accordance with law of the department of commerce not only has the authority but it has a statutory obligation to make the adjustment that we have with the end of share requests to the agency let me address one of the department of justice  targets rather key issues here that they've raised before the court today under six hundred seventy one day there is an equivalence a clear equivalence between on the one hand the net countervailing subsidy and on the other hand the amount of countervailing duties imposed it's very clear from the statutory structure on the one hand the department of co is talking about particular offsets that are used by the department of commerce under sixteen seventy seven six to calculate the net counter available subsidy congress's argument is that the adjustment that the had asked for is not one of those enumerated offsets and therefore could not be may that's correct that is correct not one of the enumerated through absolutely right but your honor we are not making that we're not suggesting the department of commerce make any nine five it was established back in the original investigation back in one nine hundred ninety i believe was ninety two perhaps and that stays constant over time that is the net countervail the subsidy or two of them nonrecurring subsidies and they were amortized over time we have no complaint with the amount of the net counter available subsidy the department of commerce calculate where our complaint is is with the amount of countervailing duties imposed as we argued to the agency and as we argued to the court of international trade the amount of countervailing duties imposed means the amount of countervailing duties actually assessed against the import your honor your argument depends seems to tell me i'm wrong that we conflate or interim me call or exchange those two terms it it certainly depends on reading the imposed to mean assess which is exactly what the and this is for purposes of increasing us price in a in an anti dumping calculation but they are they upheld the department of commerce his decision to interpret imposed to mean assess where you're from this is again assessed and even in this case if i could turn the court's attention back to the issues in decision memorandum the department of commerce states while commerce manere calculate an assessment greater than the actual benefits received by any c i in this case but a part calculated the duties commensurate it's the department not any psionic that interprets imposed under sixteen seventy one under the kind of really duty statute to mean assess and it's therefore on that side of the calculation where we believe congress is required to make an adjustment in the two thousand wanted ministry of review to recognize the fact that there was an extra payment made in one thousand nine hundred because if the commerce department doesn't then at the end of this entire fourteen year process at the end of him after all of the administrati reviews have taken place the subsidy amortizes out two thousand and four you will have on the one hand the net counter available subsidy hypothetically a million dollars and on the other hand you will have the amount of countervailing duties imposed because they do not recognize that they deny them and therefore everyone always has to appeal because customs never gives it to them to do let just a practical it is it is our position based on the cases we've read both at the time with that n a c i might have had the ability to file a protest which is back actually early two thousand all the way till today we do not see any clear precedent from any court to suggest that  d o j and this is a page forty two of our if the entries were deemed liquidated as customs decided here then the protests had to be denied because the deemed liquidation was final and because the no change in liquidation resulted in the same rate of duty as the deemed liquidated rate that is no change from the deemed liquidated rate it is my understanding particularly in the polio decision case the litigation is going on currently that's going to be before the court third at thirteen twenty one word says while adding this is the court's begin while ad hoc agrees with the port of international trade that none of the second preview entries had been deemed liquidated under nineteen u s c fifteen when it's entries were done and liquidated what could it have done and actually judge polk addresses this issue as well in a footnote in the case in his decision he says he talks a little bit about fujitsu general case decisions of customs under fifteen fourteen day are substantive determinations of all of the application of current law and precedent to a set of facts such as a clarified classification applicable rate of duty so you issue customs does different one for this important and it's yes the only important was involved in the reviews and i believe that you've been a part of commerce as the courts like we were has already issued to remain determination in this  case which i believe is part of the administrative record before court and we believe that the department's remaining determination is exactly right this respect what the department of commerce did again didn't do anything with the net count available subsidy stays the same over all those fourteen years but simply for the two thousand and one period whereas previously the countervailing do you rate was one point six eight percent the amount of duty attributable to this particular period was smaller than the amount of overpayment made to customs back in one thousand nine hundred seventy so what was your own out for two thousand and one the department of commerce should remain decisions zero percent for any c i for two thousand and one think that that's exactly right then for two thousand to two thousand and three two thousand and four in the future to the extent that there is still that overpayment it would get credited against two thousand to two thousand we certainly understand what the court of international trade was saying in trying to craft if you will kind of parallel jurisdiction or fifteen eighty one fifteen eighty one c however the the notion that the court of international trade had any jurisdiction under fifteen eighty one depends on the notion that there was there were in fact any of these administrative remedies to pursue with the customs service such as protest and also such can't be the case that a demon liquidation under fifteen or four d is in inadvertence it is simply it is what congress intended to happen if customs fail to liquidate actively  instructions at seven percent that were for whatever reason not affected in alternately liquidated ten per diem liquidated ten percent which is the cash deposit in that case will suppose a cash deposit rates were of performing the deemed liquidation fuel it minister in bidding liquidation putting the liquidation notice is out of it of the customs computer system if the number happens to be different from the number if it was the cash deposit r you if commerce is required to take account of entries outside the review period what if any limiting principle is there to how far they can be required to go this was just a few years ago but there's no net can are available subsidy that's a statutory obligation and if an importer for producers such as an axiom i presume it's the department of commerce with data to suggest that there are in fact was an overpayment at some point in history that we submit is something the department of commerce is under an obligation to take into account in determining how much internal how to set that assessment rate for a particular administrative review would it make what if you can go back for long periods doesn't that reduce the incentive for importer to pay attention to what these deemed liquidations are that figure shocked we deal with this yet evolve we continue to import you always got a situation i suppose where if you can go back to many years some importers would importing them a sort of get the short end  so it seems to me that you're what you're suggesting builds them so that incentives as well i don't believe so your honor let me explain why first of all i believe that at least in the case of most i you know in this particular instance our our company would have much preferred entries in one nine hundred eighty seven be liquidated at the appropriate two percent rate which was the rate at the time rather than at the three to seven percent rate but they were actually liquidated at our point would in fact have that money right now rather than going to litigation before the department of commerce in trying to get that money back in future of you so there's a time value of money that i think will incentivize importers to stay on top of the issue the other factor your honor is that it is possible that and it is possible with the overpayments let's assume that the overpayments occur toward the end of an amortization period it's possible that there might not be enough minister interviews left against which to credit the overpayment such that even by the end of the of the amortization period the department might say you know i we've reduced you're kind of really going to reduce euro but we can't give you back the rest of your money in which case what would you say would have happened to as you put it congress's mandate that the counter available in the countervailing duties have to equal you couldn't do it in that case by your own i think in that station in the extreme case which is not the one we ha here because in fact by the time we get to the end of our amortization period we will not have run through the the full amount that was over polack that well isn't the short answer you should equalize them if possible i think that's probably  i just want to address a couple of points made by counsel first counsel for us made me see him when he was asked about parade of horribles if periods of review were not treated as a discrete event yes there will be because you are sitting could ever really be final on this case the amortization period was fourteen years of customs had a rule use we would be back in nineteen ninety two we'd be dealing with those issues here in two thousand and six so there is a very there is the prospect of administrative proceedings simply never be filed and that is not congress and ted we cited calculating the amount of accountable the subsidy during investigation that's when congress the terms where there is subsidy was counted bill whether a benefit was conferred by the foreign government and how much that was and that's something we can't lose sight of the fact that the counter bill subsidies the amount of the benefit that was conferred by the foreign government in the end the foreign government confer a specific amount that was and that benefit was received during the period of review that was challenged during the two thousand and one period of review norsk hydro received a benefit from the canadian government equal to the allocation that was made during the investigation and because of that under the countervailing duty law that amount needed to be countered bill that was congress mandate and one more point to make is that counter to the point of countervailing duties here is not only to change the behavior of exporters producers but it's to change the behavior of foreign governments unlike the dumping law and in a case like this where although it may occasionally be unfair under the plaintiff's view if there was an underpayment solve the problem of because congress would be over collecting during the during the later period for these reasons we respect the rule of law what do you think over collecting the net outcome would be collecting exactly the right amount if they collected too little in the earlier years and that therefore they had to collect correspondingly more in later years over the total span congress will collect in precisely the correct amount that the statute dictates what's wrong with that as a result well no your honor because the amount allocated to that particular period of review is going to be wrong and that in it for a non recurring subsidy what you're doing is calculating the benefit that was incurred during that specific period of review and you're collecting too much because norsk hydro during two thousand and one did not receive the lesser amount that they're seeking from the canadian government they received higher the amount that was by having a higher rate in later years to make up for erroneous under collection an earlier here you are because because what you're doing is well first you're not you're not following the statute designed for administrative reviews that's the state the statute that the plaintiff cited has been the statute for investigations there is a comprehensive system for calculating the total counter bill subsidy and allocating that subsidy over subsequent periods that's conducted during an investigation and then during administrative reviews commerce determines the volume of imports and calculates a rate of subsidy to be applied to  the amount of power will subsidy and then during subsequent periods of proview commerce apollo sixteen section sixteen seventy five to calculate the subsidy the rate of subsidy do during that specific period of review and those are very separate  discrete proceedings when you say it so would make it what congress expected and intended is the operation of the total system i would have thought the congress expected the total on either to the detriment of the government or to the detriment of the import or your honor there's a constant tension between accuracy and finale and in this case as the court noted under five twenty  commerce custom customs was given authority to provide a remedy for the errors that were alleged in this case or for the for the error of the customs errors in this case under five twenty c nor skid row could the protests proceed here is the only available remedy here and if we agree the cases votes nothing else to talk about but assume for a moment that maybe congress didn't want to have the protest procedure the only way to correct a foul however it occurred then in that scenario your answer seems to be in the annual review period we have to we are blind we can only look at things within that twelve month period and the sky will fall consider any fact outside the twelve month period i don't understand what is so horrible if you have to consider a clear fact an undisputed fact that seems relevant even though it falls outside the twelve month period to review what is the horror of that well your honor there are other ways of addressing that so it's like the weather protests should be viewed as congress's only way to repair a mistake i agree with you that if that conclusion is reached all the rest falls apart and i'm asking you to help me out on the possibility that maybe i won't be persuaded that the protest procedure is the one and only tools of remedy well ok and then you're insisting to be well even if congress wanted to allow a remedy we can't do it because we have converts don't have any authority to look one day outside the twelve month review period and that's why not that's correct what commerce possibly could do would be to reopen up an already closed proceeding but that's that would be done under a totally different set of standards  earnest to in this case ministry of agencies are free to reopen closed determinations in general so it women it if i'm the importer who's a victim of an error and i paid more than commerce his calculation of what i should pay then what's the problem with saying in a later year we'll make an adjustment to get back to what the right dollar amount is what your honor we this is no different than say the tax law cases that we cited i'm talking about tactful talking me about what commerce can do and should do to make this system work sensibly so people don't pay too little but they also don't pay too much well your honor it's incumbent upon the importers we believe to monitor their own entries and that's just the same argument all over again the protest is the only have it if you're right you win but what if you're not right provides a very detailed roadmap for the agency to follow and calculating countervailing what were you afraid of congress has a little more power than in a couple have what's wrong with that and then there are to fill in the gaps under chevron so long as congress to terminations is reasonable then it must be sustained by the core even if the court were to view an alternative methodology as being favorable so long as there's a reasonable basis for the agency determination chevron it must be the agency construes the statutes providing very detailed means for calculating a number of things occasionally there are gaps that the agency fills however in this case commerce viewed the statues a whole included