[00:00:00] Speaker 02:
This case is number 16, 2093, SunTech Industries Company against the United States.

[00:00:08] Speaker 02:
Mr. Leonard.

[00:00:10] Speaker 00:
Thank you, Your Honor.

[00:00:11] Speaker 00:
They please the court.

[00:00:11] Speaker 00:
My name is Mark Leonard.

[00:00:12] Speaker 00:
I represent SunTech Industries, which is a relatively small exporter of steel nails from China.

[00:00:20] Speaker 00:
This court should reverse the Court of International Trade's dismissal because Federal Register publication of a notice of initiation of an administrative review

[00:00:29] Speaker 00:
is not sufficient by itself to remedy the prejudice suffered by Sontek because of the lack of actual notice that's required by the regulation.

[00:00:39] Speaker 03:
In what other situation have we or any other court said that constructive notice in the sense that the law deems someone to have received notice nevertheless has a different legal consequence from their

[00:01:00] Speaker 03:
actually having received notice.

[00:01:01] Speaker 03:
I would have thought that legally deeming necessarily equates the two, and therefore the consequences.

[00:01:10] Speaker 00:
Well, the statute governing Federal Register publication specifies that, this is 44 USC 1507, that Federal Register publication is sufficient unless, or gives notice to all who are subject to the notice, unless it's insufficient in law.

[00:01:28] Speaker 00:
There are two cases that I could find.

[00:01:31] Speaker 00:
One cited in my briefing, and that can't be BLM.

[00:01:35] Speaker 00:
It's a Ninth Circuit case.

[00:01:37] Speaker 00:
And there, it was a public lands action where the BLM was required to publish notice of the action in the Federal Register.

[00:01:44] Speaker 00:
But it's all in regulations also required that notice be sent to adjoining property.

[00:01:49] Speaker 03:
But we have a situation, as I understand it, and tell me if I'm wrong, that as to the initiation

[00:01:56] Speaker 03:
There is no separate provision of law, statute or regulation that makes Federal Register notice insufficient as to the initiation.

[00:02:10] Speaker 00:
That's incorrect.

[00:02:11] Speaker 00:
Here, the statute requires two things for an administrative review, a request and publication in the Federal Register.

[00:02:19] Speaker 00:
The request isn't defined in the statute and Commerce reasonably interpreted the request to require

[00:02:24] Speaker 00:
certificate of service of a copy of the request for review on the exporter.

[00:02:29] Speaker 04:
I thought the relevant regulation here is more about defining how to perform the request.

[00:02:37] Speaker 00:
That's correct.

[00:02:39] Speaker 00:
What is a valid request for review?

[00:02:41] Speaker 00:
And it has a couple of elements.

[00:02:43] Speaker 00:
One of them is a certificate of service of the request on the exporter, not on its agent or its representative or anyone else, but on the exporter itself.

[00:02:52] Speaker 00:
And here,

[00:02:52] Speaker 00:
The request for review that was submitted by the petitioning US industry did not include a certificate of service on SunTech.

[00:03:01] Speaker 00:
So it was facially deficient as a request.

[00:03:04] Speaker 00:
Under the statute, the initiation of the review was missing one of the two required elements, the request.

[00:03:12] Speaker 00:
And so here, as in camp, there was a second requirement of actual notice that is required before

[00:03:22] Speaker 00:
commerce may conduct the administrative review.

[00:03:24] Speaker 04:
In PAM, wasn't it true in that case that the request regulation wasn't completely complied with there?

[00:03:33] Speaker 04:
Yes.

[00:03:33] Speaker 04:
And then, nevertheless, the foreign exporter wasn't able to prevail there.

[00:03:41] Speaker 04:
There was a conclusion there wasn't substantial prejudice.

[00:03:44] Speaker 00:
Yeah, but there's a significant factual difference in that case.

[00:03:48] Speaker 00:
There, the US Council for PAM

[00:03:51] Speaker 00:
entered an appearance on the record shortly after the initiation was published in the Federal Register, and then requested extensions of time to make up for the delay between when it would have received the notice of request for review and the actual initiation.

[00:04:05] Speaker 00:
And Commerce granted those extensions of time.

[00:04:08] Speaker 00:
And so what this court held was basically no harm, no foul.

[00:04:12] Speaker 00:
You were delayed by a number of days, but you received extensions of time that exceeded that number of days.

[00:04:19] Speaker 00:
uh... the court said if the failure of a party to provide notices required by such a regulation does not prejudice the non-notified party and we think that the government the non-serving party or the public should be penalized for such a failure.

[00:04:32] Speaker 03:
But that saying as you just read it did not depend on the grant of the extra time except to the extent that the extra time

[00:04:44] Speaker 03:
was necessary.

[00:04:45] Speaker 03:
And that, I thought, is actually what the Court of International Trade here found as to your complaint, namely that you haven't shown in what way not getting the notice during the 34 days between request and initiation prejudice due.

[00:05:06] Speaker 03:
And so if the initiation was adequate, then you've got no prejudice showing at all.

[00:05:12] Speaker 00:
The Court of International Trade didn't focus on what this court had said about the notice of initiation and when the council entered its appearance.

[00:05:21] Speaker 00:
What this court said was that it pointed first to the number of days in between when it would have received the request and the publication of the notice as the time when Pam was suffering prejudice.

[00:05:33] Speaker 00:
What it said was that Pam received constructive and actual notice with publication of the Federal Register.

[00:05:42] Speaker 00:
All we have is the constructive notice.

[00:05:43] Speaker 00:
We don't have this.

[00:05:44] Speaker 03:
But that seems to me to be switching the points.

[00:05:47] Speaker 03:
Let's take as a given that the initiation was that you got notice of it.

[00:05:52] Speaker 03:
You got notice of it because the law says you got notice of it, even if you didn't get notice of it.

[00:05:58] Speaker 03:
Now you've got legally unshakable notice of the initiation.

[00:06:05] Speaker 03:
Your other argument, you said, no, no, that's not enough, because without proper notice of the underlying request, the initiation is legally improper.

[00:06:17] Speaker 03:
Not for lack of any prejudice to you, but because the regulatory violation as to the request absolutely, even without prejudice, nullifies the initiation.

[00:06:29] Speaker 03:
That's a different point.

[00:06:31] Speaker 00:
I don't say that there isn't a requirement of some sort of prejudice.

[00:06:35] Speaker 00:
But what I do say is that the notice of publication of the Federal Register is not complete as constructive notice, because the regulation, it doesn't say that the exporter has to receive actual notice of the request for review.

[00:06:51] Speaker 00:
It only says that the party requesting the review has to certify service.

[00:06:56] Speaker 00:
It's similar to camp, where the statute said that notice had to be sent.

[00:07:00] Speaker 00:
And here, the requesting party didn't

[00:07:03] Speaker 00:
didn't certify service on the exporter.

[00:07:07] Speaker 02:
The interesting thing here, as far as I can tell, is that there was, reading the regulation, reading it is requiring actual notice, that there was notice sent to Chinese counsel who had been of record in the prior proceedings involving your client, but that it never

[00:07:31] Speaker 02:
got to the client because, according to the record, that person had left the firm or whatever, and the communication never got transmitted any further.

[00:07:44] Speaker 02:
Is that correct?

[00:07:46] Speaker 02:
Is that what the record says?

[00:07:47] Speaker 00:
That is correct.

[00:07:47] Speaker 00:
And I think that's the reason why the regulation requires service on the exporter, because there is no guarantee that an attorney is going to be in the same firm or even practicing in the same area of law the next time a review is requested of that exporter.

[00:08:01] Speaker 00:
And the record does show here also that not only was that attorney not at the same firm, he was in a different country, but also that there was no ongoing representation of SunTech when the request for the third administrative review was initiated.

[00:08:22] Speaker 03:
How does it work?

[00:08:23] Speaker 03:
So SunTech was part of the investigation, right?

[00:08:26] Speaker 03:
And what are the regulations or rules about

[00:08:31] Speaker 03:
Suntech or any other exporter who's subject to the investigation, saying to Commerce, this is the name of the person and the address at which you can give us notice unless we tell you otherwise.

[00:08:45] Speaker 03:
For example, in the PTO, there's something like that.

[00:08:48] Speaker 03:
You say, and my guess is it's quite, it's true in the courts as well.

[00:08:54] Speaker 03:
So did that happen here in which the name of the Chinese attorney was given as the notification?

[00:09:00] Speaker 03:
mechanism and never changed, or what?

[00:09:02] Speaker 00:
Well, it's a little different here.

[00:09:04] Speaker 00:
You have the investigation, and then you have separate administrative reviews.

[00:09:09] Speaker 00:
And in each proceeding, when a party enters its appearance on the record, someone might enter the appearance and say, this is the representative, so all notice goes to this attorney or whoever.

[00:09:21] Speaker 00:
But that doesn't carry over from

[00:09:23] Speaker 00:
segment-to-segment or proceeding.

[00:09:25] Speaker 03:
I'm sorry, the domestic company after the investigation, when it wants to initiate a new proceeding called a review, doesn't yet have the new proceeding.

[00:09:35] Speaker 03:
How is it supposed to get the names and addresses to which it will send the notice of the request?

[00:09:41] Speaker 00:
But by public information, the same way it gets the... It doesn't carry over from proceedings.

[00:09:46] Speaker 03:
There's no mechanism by which the Commerce Department says,

[00:09:51] Speaker 03:
you exporter, particular exporter Suntek, gave us this address and name in the investigation.

[00:09:58] Speaker 03:
Other parties to the proceeding or related proceedings are entitled to rely on that unless you give commerce updated information.

[00:10:08] Speaker 00:
There's no such provision in the regulations.

[00:10:11] Speaker 00:
Wow.

[00:10:12] Speaker 00:
And what we had here was

[00:10:14] Speaker 00:
this particular attorney represented, it's a Chinese attorney and at the Department of Commerce you don't have to be a U.S.

[00:10:21] Speaker 00:
licensed attorney to represent a party.

[00:10:23] Speaker 00:
So he represented Suntech in the investigation and then in the initial stages of the first administrative review and the second administrative review, but Suntech's participation in the second administrative review ended early.

[00:10:36] Speaker 00:
So there was a number of months when Suntech wasn't represented by anybody.

[00:10:40] Speaker 00:
It was during that same time when the attorney left the firm.

[00:10:44] Speaker 03:
But it was subject.

[00:10:46] Speaker 03:
It was part of the anti-dumping duty order.

[00:10:49] Speaker 00:
It was.

[00:10:49] Speaker 00:
In fact, it was a rare verification of a separate rate applicant.

[00:10:53] Speaker 00:
It doesn't happen much.

[00:10:54] Speaker 00:
But what the regulations require is that notice of the request for review be sent to the exporter.

[00:11:04] Speaker 00:
And it also has a provision about the address.

[00:11:06] Speaker 00:
It says, so let me get the exact wording for you.

[00:11:13] Speaker 00:
19 USC, excuse me, 19 CFR 351 303 F3 second.

[00:11:20] Speaker 00:
It says, if the party that files the request is unable to locate a particular exporter or producer, then the secretary may approve the request if the party, if it is satisfied that the party made a reasonable attempt.

[00:11:32] Speaker 00:
I see my time has expired for my direct call.

[00:11:34] Speaker 02:
Yes, let's hear from the other side, and you'll have rebuttal time.

[00:11:39] Speaker 02:
Let's join her.

[00:11:49] Speaker 02:
Mr. Tosini, doesn't the regulation require direct notice?

[00:11:56] Speaker 01:
The regulation requires service only.

[00:11:59] Speaker 01:
The word notice appears nowhere in the regulation.

[00:12:01] Speaker 02:
We'll write service either way.

[00:12:03] Speaker 01:
Yes.

[00:12:03] Speaker 01:
It requires certification of service on the parties.

[00:12:09] Speaker 01:
And we agree that they didn't do that.

[00:12:12] Speaker 01:
We agree that the petitioner did not serve, correctly serve,

[00:12:18] Speaker 01:
the request under the regulation.

[00:12:20] Speaker 01:
But there's three important things to remember about the regulation.

[00:12:23] Speaker 01:
First, the regulation allows for initiation even without service, so long as an effort is made.

[00:12:30] Speaker ?:
It does?

[00:12:32] Speaker 01:
Yes, it does.

[00:12:32] Speaker 01:
As long as the petitioner makes sufficient effort in attempting to serve, under the regulation, commerce is permitted to initiate a proceeding.

[00:12:43] Speaker 02:
But that didn't happen here either, did it?

[00:12:46] Speaker 01:
There's no determination one way or another.

[00:12:48] Speaker 01:
We do not think that service was sufficient under the regulation.

[00:12:53] Speaker 02:
The service obligation is not the obligation of the United States.

[00:12:57] Speaker 02:
Isn't that right?

[00:12:58] Speaker 02:
It's the obligation of the complainant.

[00:13:01] Speaker 02:
Is it not reviewed to assure that service occurred?

[00:13:07] Speaker 01:
In this case, service was made to an address in China

[00:13:12] Speaker 01:
to the same place that service was made before.

[00:13:15] Speaker 02:
But the statute doesn't say the regulation is quite explicit as that it's served on the person, not the person's representative.

[00:13:24] Speaker 02:
That, to me, is the interesting aspect of all of this.

[00:13:28] Speaker 02:
And as you look back on precedent, it considers all that.

[00:13:32] Speaker 01:
Yes, it does.

[00:13:32] Speaker 01:
And the second point in the regulation also is that there's no explicit consequences for a failure of service under the regulation.

[00:13:42] Speaker 02:
No, but this party clearly states consequences, which seem to be undisputed.

[00:13:48] Speaker 01:
Well, the consequences, the undisputed consequences in this case would be that SunTech did not receive service of the request.

[00:14:03] Speaker 01:
And then 35 days after the request was submitted,

[00:14:07] Speaker 01:
the Department of Commerce followed its statutory obligation and published notice of the initiation.

[00:14:12] Speaker 01:
And please keep in mind that the word notice appears only once in this case, and that's in the first paragraph of the statute that governs administrative reviews.

[00:14:22] Speaker 02:
I know, but I really want to pursue this point, because whether there's a presumption that every Chinese exporter reads the Federal Register, it seems to me that that explicit

[00:14:37] Speaker 02:
regulation requiring personal service is intended to bring the elements of reality into this practice.

[00:14:49] Speaker 01:
Yes, it is.

[00:14:49] Speaker 01:
It's intended to allow respondents a head start so they can get going on providing answers to the Department of Commerce.

[00:15:00] Speaker 02:
Not just a head start, but knowledge that they're being, in this case, reviewed.

[00:15:07] Speaker 01:
Yes, but it does.

[00:15:07] Speaker 02:
Because it is their duty increased, what, 300% or so, before they knew anything was going on.

[00:15:15] Speaker 01:
Well, the respondent had an obligation to respond to the publication of their own name in the Federal Register, if you look at the appendix of page 39.

[00:15:24] Speaker 02:
The same, there's an obligation to read the Federal Register.

[00:15:26] Speaker 02:
But again, repeating myself, but there is an explicit regulation of requiring personal service

[00:15:36] Speaker 02:
something that doesn't apply in many other areas that we see, where in fact you are charged with knowledge of what's in the Federal Register.

[00:15:46] Speaker 01:
Right.

[00:15:47] Speaker 01:
There's a regulation here that provides for personal service by mail, and then there's an explicit statutory mandate that says if a request for such notice has been received and after publication of notice of such review in the Federal Register.

[00:16:08] Speaker 01:
there's still a statutory requirement and a mandate that respondents receive notice of proceedings via publication in the Federal Register.

[00:16:18] Speaker 02:
Well, you could just eliminate that regulation.

[00:16:24] Speaker 04:
I guess another way of putting it is, let's assume for the moment you're right, that when it comes to initiation of review,

[00:16:32] Speaker 04:
All that's required is that Commerce publish that notice of the initiation of the Federal Register per the statute.

[00:16:40] Speaker 04:
But then we have this regulation for the request for review, which specifically says that the complainant has to give actual notice of the request to the foreign exporter.

[00:16:57] Speaker 04:
And that didn't happen here.

[00:16:59] Speaker 04:
I guess the question is, is that regulation essentially meaningless so long as Commerce always publishes the initiation of the review a few weeks later in the Federal Register?

[00:17:12] Speaker 01:
No, not at all.

[00:17:13] Speaker 01:
Because if you look at the situation in PAM, that's the correct way to deal with a failure of service under the regulation.

[00:17:22] Speaker 01:
Because PAM did the right thing.

[00:17:24] Speaker 01:
What it did was it appeared before the Department of Commerce and said,

[00:17:27] Speaker 01:
We never received service.

[00:17:28] Speaker 01:
Service was improper.

[00:17:30] Speaker 01:
And the Department of Commerce made accommodations such that Pam would not be substantially prejudiced.

[00:17:36] Speaker 01:
Did they do that here?

[00:17:37] Speaker 01:
No, because Suntech did not respond to the notice of initiation.

[00:17:43] Speaker 02:
Because Suntech didn't read the Federal Register.

[00:17:45] Speaker 01:
Right.

[00:17:46] Speaker 01:
And in fact, Suntech's entire argument encourages respondents not to read the Federal Register.

[00:17:53] Speaker 01:
then they would be put in a better position than respondents who do the right thing and read the Federal Register.

[00:17:59] Speaker 03:
So the counterpart for this case to the PAM situation would have

[00:18:06] Speaker 03:
than if they had shown in the Court of International Trade that they were prejudiced by the missing 34 or 35 days to prepare for what they would have done on day one of the initiation, but they didn't prove that.

[00:18:24] Speaker 01:
That's correct.

[00:18:26] Speaker 01:
And any other ruling would put SunTech in a better position than PAM, where PAM actually

[00:18:35] Speaker 01:
was diligent and did the right thing and responded to a Federal Register notice that identified it.

[00:18:40] Speaker 02:
Do I remember correctly that the day or the day after in PAM, the Federal Register notice came out.

[00:18:47] Speaker 02:
The complainant or someone sent them an email and said, look at the Federal Register.

[00:18:56] Speaker 02:
Whereas here, apparently, there was silence until they had gone so far down that

[00:19:05] Speaker 02:
that there were adverse rulings.

[00:19:07] Speaker 01:
Well, yes, and in fact, that Pam was diligent enough either to have a representative reviewing the Federal Register for it or reviewing the Federal Register itself.

[00:19:20] Speaker 01:
That's a distinction that we believe would have no meaning.

[00:19:24] Speaker 02:
I thought the other side notified the exporter.

[00:19:28] Speaker 02:
In any case, they had direct notice the day after the Federal Register

[00:19:34] Speaker 02:
notice came out, but apparently nothing like that.

[00:19:38] Speaker 02:
This exporter seems to be perfectly able to defend itself once it knows that it's being reviewed.

[00:19:47] Speaker 01:
Well, in this case, SunTech is charged with knowledge that it was being reviewed via publication in the Federal Register, and if you go to page 39... That's the question.

[00:20:00] Speaker 02:
That's the question.

[00:20:01] Speaker 02:
When the regulation is violated,

[00:20:03] Speaker 02:
Are they nevertheless charged with knowledge?

[00:20:06] Speaker 01:
Yes, they are because the statute is abundantly clear, Section 1675A1, and it uses the word notice.

[00:20:15] Speaker 01:
So all interested parties under the statute have notice that a proceeding has been initiated.

[00:20:20] Speaker 03:
Can I ask you, I realize that this is not this case, but why does commerce not have a regime in place that says, if you're an exporter,

[00:20:33] Speaker 03:
covered by a anti-dumping duty order you give us so that the world knows the contact information and that shall be sufficient unless you take the initiative of changing it you are after all subject to this order and the world knows that they're going to be annual administrative reviews basically and why is there not such a regime here?

[00:20:58] Speaker 01:
I'd have to speculate on why the agency

[00:21:03] Speaker 01:
It doesn't have such a regime.

[00:21:04] Speaker 01:
But I believe if you look at, say, page 36 through 40 of the appendix, which has the FR notice, there can be hundreds of small producers, especially in a country like China.

[00:21:17] Speaker 01:
And wrangling all of those entities can be administratively extremely difficult, either for the agency or especially for domestic industries who are harmed.

[00:21:26] Speaker 03:
So when the investigation results in an anti-dumping duty order and there are

[00:21:31] Speaker 03:
40 or something or 80 exporters, producers covered by it.

[00:21:37] Speaker 03:
At that moment, have they all in some way or another participated in, if only by giving, identifying or contact information to Commerce or not?

[00:21:50] Speaker 01:
Not necessarily.

[00:21:51] Speaker 01:
And the problem with that is in an investigation,

[00:21:56] Speaker 01:
the regulation is very explicit that notice gets provided to the embassy of the exporting country.

[00:22:02] Speaker 01:
So in this case, notice of the petition would be sent to the Chinese embassy.

[00:22:07] Speaker 01:
And it would be up to China, as well as the domestic industry, to kind of figure out the scope and the number of entities that are actually producing an export.

[00:22:18] Speaker 02:
Is there a regulation required?

[00:22:20] Speaker 02:
It wasn't presented to us in this case.

[00:22:23] Speaker 02:
Right.

[00:22:23] Speaker 02:
But notice is always sent to the embassy?

[00:22:26] Speaker 01:
know that this is only in the case of investigations where before an administrative review, before any dumping order is put in place, there's an investigation conducted by the Department of Commerce and the International Trade Commission.

[00:22:41] Speaker 01:
And the regulation is at 351-202.

[00:22:43] Speaker 02:
So that has nothing to do with this case.

[00:22:46] Speaker 01:
Right.

[00:22:46] Speaker 01:
That's a completely different process than what's at issue here, which is 19 CFR

[00:22:53] Speaker 01:
351.303, which is the regulation that governs service of requests for review.

[00:23:00] Speaker 02:
Which was violated.

[00:23:02] Speaker 02:
And that's really the question.

[00:23:03] Speaker 02:
Do we just ignore it?

[00:23:04] Speaker 02:
Isn't that the question?

[00:23:10] Speaker 01:
We think that the question is, yeah, we agree that it was violated.

[00:23:14] Speaker 01:
The question is, does the statute supersede the regulation so you don't need to

[00:23:22] Speaker 01:
ignore the regulation.

[00:23:23] Speaker 04:
Another way to frame it is the question from your point of view is, was the violation of that regulation which led to a 34-day delay from the constructive notice of the initiation, did that 34-day delay amount to substantial prejudice?

[00:23:43] Speaker 01:
That's absolutely true.

[00:23:44] Speaker 01:
That is the question

[00:23:46] Speaker 01:
Assuming that the trial court had jurisdiction, if Suntek had appeared and asked for additional time and said, we weren't served, so we lost all this time between when we should have been served the request and when we received notice as a matter of law through the Federal Register.

[00:24:11] Speaker 01:
For these reasons, we respectfully request that the court

[00:24:16] Speaker 01:
remand to the court below for issuance of a dismissal for lack of jurisdiction, or in the alternative of firms.

[00:24:24] Speaker 03:
It's not quite for the reasons.

[00:24:26] Speaker 03:
Oh, for the last reason.

[00:24:30] Speaker 02:
Thank you.

[00:24:31] Speaker 02:
Thank you.

[00:24:36] Speaker 02:
Mr. Lenhart.

[00:24:38] Speaker 00:
Thank you, Your Honor.

[00:24:41] Speaker 00:
I'd like to start by noting two minor corrections in my reply brief

[00:24:48] Speaker 00:
Page 23, the second paragraph, the sixth line says industry members should be able to benefit from their own lack of diligence.

[00:24:55] Speaker 00:
That should say that they should not be able to benefit.

[00:24:58] Speaker 00:
And on the eighth line, it says exporters should be unfairly prejudiced.

[00:25:01] Speaker 00:
It should say that exporters should not be unfairly prejudiced.

[00:25:05] Speaker 00:
I just wanted to address three points that were raised by the Department of Commerce, by the United States.

[00:25:15] Speaker 00:
Mr. Tosini said that,

[00:25:18] Speaker 00:
ruling in SunTech's favor would encourage exporters not to read the Federal Register.

[00:25:24] Speaker 00:
That's absolutely wrong, because what's required here is that the petitioner certify service of the copy of the request.

[00:25:33] Speaker 00:
It doesn't matter necessarily that they read the Federal Register, it matters that the petitioner certifies service of the request.

[00:25:41] Speaker 04:
There are instances in the regulation, the regulation contemplates there's going to be times where

[00:25:47] Speaker 04:
petitioner is unable to find the foreign exporter, and then certifies to that effect.

[00:25:53] Speaker 04:
Absolutely.

[00:25:53] Speaker 04:
And so then there are going to be times where all the foreign exporter really gets is constructive notice in the Federal Register announcing the initiation of the administrative review.

[00:26:07] Speaker 04:
Yes.

[00:26:07] Speaker 04:
Is that right?

[00:26:08] Speaker 00:
It is, but that does not diminish the additional notice requirement of the regulation that's tied to the request in the statute.

[00:26:16] Speaker 04:
And this is, you know, Mr. Tosini mentioned that there are sometimes- Could we just give back to, I guess, a question I asked Mr. Tosini, which is why isn't the violation of the regulation on the failure to give service of the request for review, why isn't that limited to just a question of whether there's a substantial prejudice for that 34-day delay between the request for review

[00:26:46] Speaker 04:
and the initiation of the review, which was, in fact, published in the Federal Register.

[00:26:52] Speaker 04:
And if we follow the expressed terms of section 1675 of the Tariff Act, it would appear that that's enough to be deemed notice for all interested parties, which include foreign exporters.

[00:27:05] Speaker 00:
I disagree, because 1675 requires the request, and the request requires the certificate of service.

[00:27:15] Speaker 00:
You know, the number of days... That's right, but then there's a 34-day delay from the initiation.

[00:27:21] Speaker 00:
This is a question of, was there some remedy to the substantial prejudice?

[00:27:25] Speaker 00:
Now, in Pam, the substantial prejudice ended when Pam's counsel entered its appearance on the record.

[00:27:33] Speaker 00:
But in this case, the substantial prejudice didn't end.

[00:27:36] Speaker 00:
It continued.

[00:27:37] Speaker 03:
No, I'm not sure that's the right way to say it.

[00:27:39] Speaker 03:
The question is whether there's a remedy for the violation.

[00:27:42] Speaker 03:
And you don't need any remedy for the violation where there's no substantial prejudice.

[00:27:49] Speaker 00:
I don't disagree.

[00:27:50] Speaker 00:
And the violation here, the question is, what's the substantial prejudice that the violation generates?

[00:27:56] Speaker 00:
And Pam, this court pointed to the delay between the notice of the request and the entry of appearance, both constructive and actual notice.

[00:28:08] Speaker 00:
So actual notice.

[00:28:10] Speaker 00:
remedies the substantial prejudice.

[00:28:11] Speaker 00:
And here, there was never any actual notice to remedy that substantial prejudice.

[00:28:17] Speaker 00:
Mr. Tonissini also mentioned that there are sometimes hundreds of exporters that are subject to a request for review.

[00:28:23] Speaker 00:
And I would point that this is entirely the choice of the requesting entity of the domestic industry.

[00:28:29] Speaker 00:
They choose the number of exporters that they want the Department of Commerce to review.

[00:28:33] Speaker 00:
And for them, it's very simple.

[00:28:35] Speaker 04:
I'm sorry.

[00:28:36] Speaker 04:
Let me just go back to something.

[00:28:37] Speaker 04:
Sure.

[00:28:38] Speaker 04:
Is it your view that

[00:28:40] Speaker 04:
You don't need to win on the constructive notice argument.

[00:28:45] Speaker 04:
Even if we were to conclude that constructive notice in the Federal Register is enough notice for purposes of the initiation of the review, you still win here?

[00:28:58] Speaker 04:
No.

[00:29:00] Speaker 04:
You have to convince us that the notification in the Federal Register is insufficient.

[00:29:09] Speaker 04:
as a matter of law here.

[00:29:11] Speaker 00:
I see my time is expired.

[00:29:12] Speaker 00:
Can I answer the question?

[00:29:19] Speaker 00:
The notice in the Federal Register as constructive notice is not sufficient.

[00:29:25] Speaker 00:
It doesn't provide what the law, the statute, and the regulation together require.

[00:29:34] Speaker 00:
If the statute or if the notice in the Federal Register by itself, the constructive notice, is deemed sufficient, it does two things.

[00:29:41] Speaker 00:
I think number one, I lose.

[00:29:42] Speaker 00:
But number two, it renders that certificate of service requirement meaningless, which is a result which is disfavored in the law.

[00:29:50] Speaker 00:
With these reasons, we respectfully request that this court reverse the Court of International Trade.

[00:29:57] Speaker 02:
Thank you.

[00:29:58] Speaker 02:
Thank you.

[00:29:58] Speaker 02:
Thank you both.