exporter of steel nails from china this court should reverse the court of international trade to dismiss all because federal register publication of a notice of initiation of administrative review is not sufficient by itself remedy he fragile or suffered by suntech because of the lack of actual notice of required by the regulation in what other situation have we or any other court said that constructive notice in the sense that a lot of someone to have received notice nevertheless has a different legal consequence from there they are actually ha received notice i would have thought that legally deeming necessarily equate to and therefore the consequence well the statute governing federal for publication specifies that regulations also required that notice be sent to a joining property right before we have a situation as i understand it and tell me if i'm wrong that adds to the initiation there is no separate  provision of the law statute a regulation that makes federal register a notice in sufficient answer to the initiation that's incorrect here the statute requires two things for an administrative review a request and publication in the federal register the request isn't defined in the statute and congress reasonably interpreted the request to require certificate of service a copy of the request for review on the export or i thought i thought the regulation relevant regulation here is more about defining how to perform the request that's correct what is it what is a valid request for review and it has a couple of elements one of them is a certificate of unfair so it was visually deficient as a request under the statute it was missing the initiation of the review was missing one of the two required elements of the request and so here as in camp there was a second requirement of notice of actual notice that is required before congress may conduct the administrative review in hand even though isn't it true in that case that the request  but there was there is a significant factual difference in that case there are the us counsel for him 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 he would have received a notice of request notice of requests for review and the actual initiation incomers granted those extensions of time and so what the what this court held was basically no harm no foul you were delayed by a number of days but you received extensions of time that exceeded that number of days the court said if the failure of a party to provide notice as required by such a regulation does not prejudice the non o if i party then we think neither the government  shown me in what way not getting the notice during the thirty five four days between requests and initiation prejudiced you and some of the initiation was adequate then you got no prejudice showing it off the which national for it didn't focus on what this court had said about the notice of initiation and when the council and her disappearance what this court said was that reported the first of the number of days in between the when it would have received  request in the publication of the noticed as the time when pam was suffering prejudice what it said was that pam received constructive and actual notice with publication federal register here all we have t now you've got regally unshakable notice of the initiation your other argument you said no that's not enough because without a proper or without proper notice of the underlying request the initiation is legally improper not for a lack of of any prejudiced you but because the regulatory violation as to the request absolutely even without prejudiced the initiation that's a different point i don't say that there isn't some violence of some shallow prejudice but i do say is that the notice of publication of a register is not complete as constructive notice because the you know the regulation it doesn't say that the exporter has to receive actual notice of the request for review it only says that the the party requesting the review has to certify service it's similar to camp where law the next time a review is requested of that exporter and the record does sure also that not only was that attorney not at the same firm it was in a different country but can give us notice unless we tell you otherwise for example and in the p t o there's something like that you say and i'm my guess is that it's quite common it's it's true in the courts as well so did that happen here in which the name of the chinese attorney was given as the notification mechanism and never change oh well well it's a little different here you have the investigation and then you have set separate administrative reviews and in each proceeding one of the party enters domestic company after the investigation when it wants it wants to initiate a new proceeding called a review doesn't yet have the new proceeding how is it supposed to get the names and addresses to which it will send and the notice of the this address and name in the investigation other parties to the proceeding or related proceedings are entitled to rely on that unless you give commerce updated information there's no such provision in the the investigation and then in the initial stages of the first administrative review and the second administrative review but sometimes participation second administrative review ended early so there was a number of months when some tech wasn't represented by anybody and it was during that same time when the attorney left the firm but it was a subject it was part of the academic duty or it was in fact it was it was a rare verification of a separate applicant doesn't happen much but you on the parties and we agree that they didn't do that we agree that the petitioner did not serve correctly serve the request under the regulation but there's three important things to remember about the regulation first the regulation allows for initiation even without service so long as an effort is made no difference yes it does it says it so as long as as long as the petitioner make sufficient effort in attempting to in this case service was made to an address in china to the same place that service was made before there is no there is no torture doesn't say that the regulation is quite explicit and that it served on the person not the person explicit consequences for a failure service under the regulation of this party cruelly say its consequences which seem to be undisputed well the consequences the undisputed consequences in this case would be that suntec did not receive service of the request and then thirty five days after the request was submitted part of commerce followed a statutory obligation publish notice of the initiation and please keep in mind of the word no disappears only once in this case and that's in the first paragraph of the statute that governs administrative reviews i federal register if you look at the if anything is their obligation to read the federal register but again repeating myself but there is an explicit regulation of required personal service something that doesn't apply in many other areas of the b c where in fact you are charged with knowledge of what's in the federal register right there's there's a regulation here that provides for personal service by mail and then there's an explicit statutory mandate that's as of if a request for such notice has been received and after public publication of notice of such review in the federal register so for the statute but then we have this regulation for the request for review which this effect lee says that the complainant has to give actual notice of the request to the foreign exporters and that didn't happen here i guess the question is is that regulation essentially meaningless so long as congress always publishes the initiation  review a few weeks later in the federal register no not at all because if you look at the situation in hand that's the correct way to deal with failure of service under the regulation because the right thing what it did was it appeared before the department of commerce and said we never received service service was improper and the department of commerce made accommodations such that pam would not be substantially prejudiced that they do that here  no because suntech did not respond to the right and in fact some text entire argument encourages respondents not to read the federal register and then they would be put in a better position then respondents who do the right thing and read the federal register so that the counterpart case to the pam situation would have been if they had shown in the court of international trade that they were prejudiced by the missing for thirty four thirty five days to prepare for what they would have done i'm day one of the initiation that meeting proved that that's correct and any any other ruling would put in a better position that pan wareham actually was diligent and did the right thing and responded to a federal register notice that and i don't want to remember correctly that the day was the day after in pam the federal had gone so far down that they were in for his rulings well yes that and in fact that pan was still good enough either to have a representative reviewing the federal register for it in this case suntech it's charged with knowledge that is being reviewed via publication the federal register if you go to page thirty nine past the question that's the question wh regulation is violated they nevertheless charged with knowledge yes they are because the statute is abundantly clear section six hundred seventy five a one and it uses the word notice so all interested parties under the statute have notice that a proceeding has been initiated 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 export are covered by a if i don't think 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 in the world knows that there are going to be annual administrative reviews basically and why is there not such a regime here i'd have to speculate on why the agency doesn't have such a regime but i believe if you look at say page thirty six through forty of the of the appendix which is the f r notice there there could be hundreds of small producers especially in a country like china and wrangling all of those entities can be administratively extremely difficult either for the agency or especially for domestic industries with some warning when the investigation results in it and they dump into the order and there are forty or something or eighty exporters producers covered by it at that moment have they all in some way or another participated in the family by giving identifying or contact information to commerce or not not necessarily in the problem with that is in the initiate investigation the regulation is very explicit that notice gets provided to the embassy of the exporting country so in this case notice of the petition would be sent to the chinese embassy and it would be china's it would be up to china as well as the domestic industry to kind of figure out the scope and the number of administrative review before before any dumping order is put in place and there's an investigation conducted by the department of commerce in the international trade commission and the regulation is at three fifty one  question is does this is the statute supersede the regulation so you don't need to ignore the regulation and another way to frame it is that the question from your point of view is was the violation that regulation which led to a thirty four day delay from the constructive notice of the initiation to that thirty ford layer not the substantial prejudice that that's absolutely true that is the question assuming that the trial court had jurisdiction if suntech 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 were served when we received notice as a matter of law for the federal register encourage exporters not to read the federal register that's absolutely wrong because what's required here is that the petitioner certified service of the copy of the request doesn't matter necessarily that they read the federal register it matters that the petitioner certify service of the request there are instances in the regulations the regulation contemplates there's going to be time somewhere unable to find  why isn't that limited to just a question of whether there's a substantial prejudice for that thirty four day delay between the request for review and the initiation of the review which was fact published in the federal register and if we follow the expressed terms of section six hundred seventy five of the tariff it would appear that that's enough to be deemed notice for all interested parties which include for next prejudice didn't and it continued you know i'm not sure that's the right way to say if the question is whether there's a remedy for the violation and you don't need any remedy for the violation where there is no substantial  don't disagree and the violation of the violation here the question is what's the substantial prejudice of the violation generates and then this court pointed to that the delay between the request notice of the request and  sometimes hundreds of exports that are subject to requests for review out with this is this is entirely the choice of the requesting entity of the domestic industry they choose the number of exporters that they want the department of commerce to review and for them it's very simple i'm sorry could not go back to something sure is it your view that you don't need to when they're on the constructive notice argument that even if we were to conclude the notice the notice in the federal register as constructive notice is not sufficient it doesn't it doesn't provide what the law the statute and the regulations together require and