[00:00:00] Speaker 02:
Our next case for argument is 24-2159, Ardroma versus Commerce.

[00:00:08] Speaker 02:
Mr. Long, please proceed.

[00:00:11] Speaker 01:
May it please the court.

[00:00:12] Speaker 01:
Commerce's notice of intent to participate is a straightforward, lawful exercise of discretion, setting the procedural requirements to participate in the Sunset Review.

[00:00:21] Speaker 01:
Everyone here agrees that the burden is minimal.

[00:00:23] Speaker 01:
This does not create a substantive condition or limitation on who could participate.

[00:00:27] Speaker 01:
It's also clearly established that Commerce has discretion to set these sorts of procedural rules, both as an inherent matter and also pursuant to 19 U.S.C.

[00:00:35] Speaker 01:
3513A2.

[00:00:38] Speaker 01:
This satisfies the requirement in Wilbur Bright and this Court's en banc decision in Lesko, Congress has accorded some discretion to Commerce.

[00:00:46] Speaker 01:
The question then becomes whether Commerce engaged in reasoned decision-making within the bounds of its delegated authority.

[00:00:53] Speaker 01:
It's Congress's reasoning in creating the Notice of Intent requirement set forth in the Federal Register Notice of the Interim Final Rule, which we quote at page 17 of our reply.

[00:01:02] Speaker 01:
It's at 63 Federal Register 13,517.

[00:01:07] Speaker 01:
Commerce stated that the purpose is to alleviate the burden on parties of having to prepare substantive responses in cases where there is no domestic party interest in a sunset review or in the continuation of an order.

[00:01:18] Speaker 01:
That's consistent with the overall intent of the sunset review process spelled out at 19 USC 1675 C. That process is designed to eliminate needless review for the statement of administrative action that we've quoted at pages 5 to 6 of our administrative brief.

[00:01:34] Speaker 01:
I look forward to your questions.

[00:01:36] Speaker 00:
The CIT opinion here, can we agree with his interpretation as to what no response means in the statute and still say that commerce had authority to impose this notice of intent deadline, or do we have to say that that statutory analysis is incorrect?

[00:01:57] Speaker 01:
Your Honor, I think you need to find that the statutory analysis is incorrect with specific respect to the notice of intent to participate.

[00:02:05] Speaker 01:
The no response analysis applies to the lack of a substantive response under 1675 C3.

[00:02:14] Speaker 01:
And so, as I understand, the Court of International Trades analysis

[00:02:18] Speaker 01:
The point was that domestic interested parties must be given the opportunity to submit that substantive response.

[00:02:25] Speaker 01:
Our point is that the imposition of the Notice of Intent to Participate requirement as a predicate to submission of that substantive response is a lawful procedural mechanism that Congress has created to streamline sunset reviews.

[00:02:39] Speaker 01:
I think that's responsive to your question.

[00:02:42] Speaker 00:
Thank you.

[00:02:45] Speaker 03:
Counsel, as you're reading of the statute, is that no response to the notice of initiation is the only way commerce can bypass its review process and revoke an order in this type of case?

[00:03:01] Speaker 01:
So that's right.

[00:03:02] Speaker 01:
So no response to the notice of initiation is the only way that commerce, well, there are other ways, but for purposes of what's going on here.

[00:03:11] Speaker 01:
It is the lack of a substantive response that justifies revocation of the order.

[00:03:18] Speaker 01:
The reason there is no substantive response on the record of these two proceedings is that our quorum was not permitted to submit one because it had not within the 15 days submitted a notice of intent to participate.

[00:03:31] Speaker 01:
So the regulation is clear that if a domestic party has not submitted the notice of intent to participate, any attempted substantive response by that party will be rejected.

[00:03:41] Speaker 01:
And that's in 19 CFR 3551218D1.

[00:03:45] Speaker 01:
It says that if the domestic interests party, no notice of intent to participate, no substance response.

[00:03:54] Speaker 01:
And then because no substance response, order will be revoked because there's a lack of interest from domestic industry in continuation of the order.

[00:04:03] Speaker 02:
There's one place that I noticed that your brief differed a little bit from the intervener brief, and that is whether the notice of intent can be viewed as substantively responding to 1675's requirements under Parts C to A. I shouldn't say it's different from you didn't take a position, whereas they did.

[00:04:24] Speaker 02:
And I'm wondering if the government does have a position about that.

[00:04:30] Speaker 01:
Our view, Your Honor, I don't know that we have a position.

[00:04:33] Speaker 01:
We decline to take the position.

[00:04:34] Speaker 01:
You're absolutely correct, obviously.

[00:04:37] Speaker 01:
I would point the court for its consideration to the regulation 351218 D3, which lists the material that must be included in a substantive response.

[00:04:51] Speaker 01:
And that regulation, what must be included, pretty closely tracks the statutory requirements that you see in 1675 D, A through C. And so clearly, the substance of response as required in the regulations, as laid out in the regulations,

[00:05:10] Speaker 01:
requires submission of the information, including interested party willingness to participate, things like that, that has to be in the substance response.

[00:05:19] Speaker 01:
And so that seems like the place where that information must be provided.

[00:05:23] Speaker 01:
And I'll note also, Your Honor, with respect to that argument, the notice of intending to participate

[00:05:32] Speaker 01:
is different from a willingness to provide information, I think, if you look at the distinction between the statute and the Notice of Intent to Participate requirement.

[00:05:41] Speaker 01:
And so it's at least conceptually possible, although probably practically unlikely, that a domestic interested party would be interested in participating but not willing to provide information in response to commerce's requests.

[00:05:53] Speaker 01:
Whether that really, as I said, has a much real world impact, I do think there's a difference in the language there and what's being sought from the Notice of Intent to participate versus what must be included in the substantive response.

[00:06:06] Speaker 02:
So I assume that your main argument is that this Notice of Intent regulation is a fill up the details sort of less go authorization or the Loper-Brite authorization.

[00:06:22] Speaker 01:
yes that's right and it is a reasonable exercise of that discretionary authority procedural authority if we look at three five one two one eight

[00:06:35] Speaker 01:
One, double I, it lists what's required here.

[00:06:38] Speaker 01:
And as we've pointed out in our briefs, it's minimal.

[00:06:41] Speaker 01:
It's the name of the domestic interested party.

[00:06:44] Speaker 01:
It's their counsel.

[00:06:44] Speaker 01:
It's the basis for interested party status, which is sort of a basic requirement of demonstrating that you are interested.

[00:06:51] Speaker 01:
It requires so little that it cannot be viewed as a substantive limitation.

[00:06:55] Speaker 01:
So in some ways, I think even if we were to look at, for example, the dissent in Lesko, I think there's at least some recognition there.

[00:07:02] Speaker 01:
that procedural requirements can be within an agency's authority.

[00:07:11] Speaker 01:
And this is that sort of procedural requirement, akin to setting a deadline for submission of responses, things like that.

[00:07:18] Speaker 00:
The 30-day deadline for the statutory filing is also not in the statute, I believe.

[00:07:24] Speaker 01:
That's right.

[00:07:25] Speaker 00:
Is that the very same authority being exercised in setting that, what I take to be an unchallenged deadline here?

[00:07:33] Speaker 01:
So, yes.

[00:07:36] Speaker 01:
Our point is that there is an inherent procedural authority under Vermont Yankee in cases like that, and that there's also an implementing authority in the Uruguay Round Agreements Act.

[00:07:46] Speaker 01:
That same path, I think, gets you to a 30-day deadline, just like it gets you to this notice of intent to participate, given, again, and I'll continue stressing this, the very limited nature of this procedure of filing.

[00:07:59] Speaker 02:
Well, the 30-day deadline doesn't feel dramatically different to me from the less-go writing requirement.

[00:08:09] Speaker 02:
Commerce was given procedural

[00:08:12] Speaker 02:
authority, right, expressly by Congress.

[00:08:15] Speaker 02:
But I'm just wondering if this interim notice provision is just a different animal altogether.

[00:08:22] Speaker 02:
Like, the statute expressly requires the substantive response, which is what you all require at the 30-day point.

[00:08:33] Speaker 02:
And I'm just not sure where the 15-day rule comes from.

[00:08:40] Speaker 02:
So if you're going to tell me it's within Congress's same statutory authority, is that right?

[00:08:52] Speaker 02:
I guess I'm trying to get you to say that the 15-day rule is part of the substantive response.

[00:09:02] Speaker 01:
Well, to me, it differs from LESCO in the sense of that is setting forth how you possess a substantive right to overtime.

[00:09:11] Speaker 01:
This is more a matter of an agency setting up an administrative procedure that is different from affecting how you get the substantive right.

[00:09:18] Speaker 02:
So I think it comes short of that.

[00:09:21] Speaker 02:
So in LESCO, the writing requirement was a component

[00:09:27] Speaker 02:
Well, the very thing that Congress authorized via statute you to do, and here that would be the very thing that has been authorized by statute is the requirement of a substantive response, right?

[00:09:40] Speaker 01:
Yes.

[00:09:42] Speaker 01:
The statute says you have to solicit the substance of response, but I think it's fair to infer that that means that commerce has to accept it.

[00:09:47] Speaker 01:
So yes.

[00:09:48] Speaker 02:
I agree with that.

[00:09:50] Speaker 02:
That's why the 30 days for that feels on brand with Lesko to use the kids' slang, because it's kind of like the writing requirement.

[00:10:00] Speaker 02:
Whereas the 15 day sticking with my slang is a little more sus.

[00:10:11] Speaker 01:
I suppose I see a distinction, Your Honor, you may not agree.

[00:10:13] Speaker 01:
I view it as not sus because it is a procedural mechanism as opposed to sort of a predicate for a component of the substance of right, like you have the substance of right to overtime if you've obtained a writing that you can show.

[00:10:28] Speaker 01:
and makes you eligible.

[00:10:31] Speaker 01:
Whereas this is something that is a way of sort of, you know, corralling people along to exercise your substantive right, which is to advocate for continuation of an anti-dumping duty order.

[00:10:42] Speaker 01:
So I guess that's the distinction I'm seeing.

[00:10:44] Speaker 01:
I understand where you're coming from.

[00:10:46] Speaker 01:
I will say that if we're going to go that route, I would point the court again to Commerce's explanation of why it has this 15-day requirement, which is in the Federal Register when it promulgated the interim final rule.

[00:11:00] Speaker 01:
And the purpose is that all parties, including respondents, so foreign parties, have to submit the substantive response within 30 days.

[00:11:09] Speaker 01:
And so this 15-day requirement helps

[00:11:12] Speaker 01:
Respondent parties and everyone else understand whether there's enough interest that there's actually going to be a sunset review And so that's the reason decision-making that we point to is a basis for having the 15-day requirement again, it's it's Roughly a single page form that way You know foreign interested parties have an understanding that yeah They better get going and be ready to submit to a full sunset review including submitting a substantive response But then also there are activities that go, you know foul will be on that once commerce really gets going

[00:11:43] Speaker 03:
In this particular instance, do you believe that the statutory language is ambiguous, such that we do want to go ahead and look into legislative history and the like?

[00:11:57] Speaker 01:
With respect to legislative history, I'll say that this is a little bit of a different situation than we see sometimes because the statement of administrative action is by statute a conclusive statement of Congress's intent.

[00:12:08] Speaker 01:
And so I think that makes it a little bit different from maybe some ambiguity situations.

[00:12:14] Speaker 01:
That said, we don't view this as ambiguous.

[00:12:18] Speaker 01:
We view this language as allowing, without ambiguity, commerce to set, as I've said, these sorts of procedural

[00:12:27] Speaker 01:
requirements in order to track things along in these situations.

[00:12:31] Speaker 02:
In that regard, you'd track right on with Lesko, right?

[00:12:34] Speaker 02:
Like you'd say that Lesko didn't speak to a writing requirement, so it was a fill the gap.

[00:12:42] Speaker 01:
Yes.

[00:12:42] Speaker 02:
Fill in the details scenario.

[00:12:44] Speaker 01:
Yes.

[00:12:46] Speaker 01:
Maintaining what I've said about this notion of substance versus procedure, which could get squishy in the middle, but I don't think is squishy in this case.

[00:12:53] Speaker 01:
Yes, right.

[00:12:56] Speaker 02:
OK, why don't you take the rest of your time for rebuttal.

[00:12:58] Speaker 01:
Thank you.

[00:13:17] Speaker 04:
May it please the court?

[00:13:18] Speaker 04:
Tatiana Sinati for the appellee.

[00:13:20] Speaker 04:
Thank you for this opportunity.

[00:13:23] Speaker 04:
This case requires the court to determine the best reading of section 1675C of the Tariff Act of 1930 as amended in 1994, which establishes the procedural and basic substantive rules commerce must follow in initiating and conducting sunset reviews of anti-dumping and countervailing duty orders.

[00:13:42] Speaker 04:
Sunset reviews are an important aspect of tariff laws that govern anti-dumping and countervailing duties because they allow orders to remain in place for additional five-year periods when necessary to protect domestic industries from unfair foreign trade practices.

[00:13:56] Speaker 02:
Do you have a problem with the government's 30-day requirement for the substantive response?

[00:14:03] Speaker 02:
No, Your Honor.

[00:14:04] Speaker 02:
And you agree that that falls within the government's procedural grant of authority?

[00:14:10] Speaker 02:
Correct, Your Honor.

[00:14:11] Speaker 02:
Yes.

[00:14:12] Speaker 04:
So what is the problem then with the 15 day notice requirement?

[00:14:15] Speaker 04:
The problem is it's precluded by the statutory text.

[00:14:18] Speaker 04:
So section, the statute doesn't speak to a deadline at all.

[00:14:22] Speaker 04:
I think if the statute said

[00:14:24] Speaker 04:
Domestic interested parties will have 45 days to provide the substantive information required.

[00:14:30] Speaker 04:
There'd be no dispute that commerce couldn't then say, guess what, we're only giving you 30 days because Congress would have spoken directly to that issue.

[00:14:37] Speaker 04:
That's what happened here.

[00:14:38] Speaker 04:
Congress spoke directly to the issue of the circumstances in which commerce can decide to revoke a sunsetting order without further review.

[00:14:47] Speaker 04:
And those circumstances are exclusively circumstances in which they haven't responded to the notice of initiation.

[00:14:54] Speaker 04:
with the substantive requirements provided in C2.

[00:14:57] Speaker 02:
What if Congress's substantive response regulation required everything in 15 days?

[00:15:07] Speaker 02:
That would be fine.

[00:15:08] Speaker 02:
It would be fine, so they could they could require a full substantive response in 15 days, but they can't require a placeholder.

[00:15:15] Speaker 04:
Yes, correct, because Congress has said

[00:15:21] Speaker 04:
You can only deem there to have been no response to a notice of initiation if no domestic interested party has provided the information required in C to A through C. I don't see how you get around the writing requirement concept.

[00:15:38] Speaker 02:
Like in Lesko, the same thing.

[00:15:39] Speaker 02:
The statute was silent as to form.

[00:15:43] Speaker 02:
But we nonetheless said, given that there had been a delegation of procedural

[00:15:50] Speaker 02:
rulemaking, fill the details type of grant of power that you were allowed to implement a writing requirement even though the statute itself did not require a writing requirement.

[00:16:01] Speaker 04:
I would say there hasn't been a full delegation of procedural rulemaking authority in the specific context of this statutory provision and I think it's noteworthy that Commerce keeps pointing to section 3513 not to section 1675 to talk about the limits and

[00:16:20] Speaker 04:
extent of its discretion to impose these rules.

[00:16:23] Speaker 04:
In this case, and there's no dispute that 1675 establishes the procedural rules commerce has to follow and those procedural rules require commerce to solicit three categories of information from domestic interested parties and it's only if they've solicited that information and do not receive it that they can say

[00:16:43] Speaker 04:
We are going to deem no interested domestic interested party and revoke an order without a further review.

[00:16:50] Speaker 03:
What is your response to our case, the MS International case?

[00:16:55] Speaker 03:
Are you familiar with that case?

[00:16:56] Speaker 03:
Yes, I am familiar with that case.

[00:16:59] Speaker 03:
Do you want to bring a reported distinction to our attention or?

[00:17:04] Speaker 03:
Yes.

[00:17:05] Speaker 03:
Okay.

[00:17:08] Speaker 04:
So this is distinct because in that case there was a true statutory gap.

[00:17:13] Speaker 04:
There was no deadline at all imposed in the statute and so Commerce acted within the scope of its discretionary authority to impose a reasonable deadline.

[00:17:23] Speaker 04:
Here we say there is no gap in terms of when the statute allows Commerce to decide there has been no response to a notice of initiation under 1675 C2.

[00:17:36] Speaker 00:
Congress has explicitly spelled out exactly when there can be no response Congress unless I'm missing something said 90 days is the measurement of whether there's been no response, correct?

[00:17:49] Speaker 04:
Congress said that commerce has 90 days after the publication of the notice of initiation to decide yes, whether there has been no response and then to the 30 days for Interested parties to make a substantive statutory response.

[00:18:07] Speaker 00:
That's commerce's creation not Congress, correct?

[00:18:10] Speaker 04:
Yes commerce has created the 30-day deadline for

[00:18:13] Speaker 00:
So what, in your view, allows commerce to do that?

[00:18:16] Speaker 00:
Because I think you've acknowledged commerce can do that.

[00:18:21] Speaker 00:
What is it that allows them to do that but doesn't permit them to do this lesser procedural requirement after 15 days?

[00:18:30] Speaker 04:
Well, I would say that the 90 days is a distinct deadline that has been imposed by Congress on the agency.

[00:18:37] Speaker 04:
So if the agency says we need 30 days to receive the responses and then I don't know what they do for the remaining 60 days before saying we haven't received one, so we're going to revoke, that's acceptable.

[00:18:53] Speaker 04:
Congress has specifically foreclosed is saying you can institute a new mechanism for determining whether or not there has been a response to the notice of initiation at all.

[00:19:05] Speaker 00:
Is there something in the statute that forecloses that or you just want me to read that prohibition into the fact of what looks like silence to me on this point?

[00:19:18] Speaker 04:
Well, I think the parties might agree that the statute is unambiguous, but we disagree on what it unambiguously provides.

[00:19:28] Speaker 04:
When you read 1675C2 and C3 together, it's obvious that no response to the notice of initiation under this subsection.

[00:19:38] Speaker 04:
So that's the specific text from C3A.

[00:19:41] Speaker 04:
It means no answer to the solicitation for the substantive content that C2A to C instructs the agency to seek.

[00:19:48] Speaker 04:
So that's where the explicit prohibition comes in.

[00:19:51] Speaker 02:
Now, do you necessarily preclude the idea that under 1675, Congress could request that C2 be fulfilled in a two-step process?

[00:20:07] Speaker 02:
Do you reject that idea?

[00:20:08] Speaker 02:
Like, for example,

[00:20:09] Speaker 02:
the part A, a statement of willingness to participate, they could say, okay, you've got to do the statement of willingness to participate within 15 days, and then you have to provide all the other detail in B and C within 30 days.

[00:20:22] Speaker 04:
I think that would work, and it's a really interesting question, I believe, because Congress specifically spoke to this in

[00:20:33] Speaker 04:
C3B, right?

[00:20:34] Speaker 04:
So what Congress said in C3B is if you get an inadequate response to the notice of initiation, if you only get some of the information that you requested in C2A, you still have to do a review.

[00:20:46] Speaker 04:
You can limit it to facts available.

[00:20:47] Speaker 04:
You can limit it to just what you've actually received from the parties.

[00:20:50] Speaker 04:
But you still have to do some review.

[00:20:52] Speaker 04:
So if we tease that out and say, OK, let's say the notice of intent is just part of the information requested under C2A to C,

[00:21:01] Speaker 04:
They didn't receive that part of the information but received everything else.

[00:21:06] Speaker 00:
They'd still have to conduct a review I Appreciate that response I took that as a yes con commerce could do that the two-step process to break up the requirements of the statutory substantive response but since

[00:21:23] Speaker 00:
you're here arguing about this.

[00:21:25] Speaker 00:
I take it you see some material difference between the statutory C2A requirement and the regulatory D1 requirement.

[00:21:35] Speaker 00:
What is that difference?

[00:21:38] Speaker 04:
Well, the regulation itself and commerce itself does delineate those as distinct requirements, so I don't think there is any actual argument that the notice of

[00:21:47] Speaker 04:
Initiation requirement is a piece of that substance.

[00:21:50] Speaker 00:
I understand it's a different piece of paper, but is it somehow some different information?

[00:21:55] Speaker 04:
It is different information, yes.

[00:21:56] Speaker 04:
It's seeking different information than the specific categories required.

[00:22:01] Speaker 04:
But I don't think that is as relevant as the fact that even if it was a piece of C2A to C,

[00:22:14] Speaker 04:
The statute still requires commerce to afford domestic interested parties the opportunity to respond to all three categories of information and still requires commerce to undertake at least some review even if they get an imperfect, inadequate, or incomplete response.

[00:22:31] Speaker 03:
What imposing the 15-day procedural deadline here help with the purpose of eliminating needless reviews?

[00:22:40] Speaker 04:
Well, I think that's another great question.

[00:22:44] Speaker 04:
Possibly, maybe, but in this case, Commerce asserts that's exactly why they need to have this.

[00:22:51] Speaker 04:
It's reasonable because we need it to eliminate needless reviews.

[00:22:55] Speaker 04:
Congress has already spoken to exactly that issue.

[00:22:57] Speaker 04:
Congress has already said to eliminate needless reviews we are requiring

[00:23:03] Speaker 04:
e-commerce to allow domestic interested parties the opportunity to provide these three categories of information and in doing that Congress very carefully balanced the interests of domestic interested parties so again referring back to the statement of administrative authority when the United States agreed to have sunset reviews at all

[00:23:26] Speaker 04:
They said we'll do it provided that we are not in any meaningful way reducing the rights that are available to our domestic industries and to make sure we're not doing that we're going to make sure domestic industries have an opportunity to be heard before we revoke an anti-duty or countervailing duty order that's been in place for

[00:23:43] Speaker 04:
five years, but to balance that against the need for needless reviews will give them, you know, will require them to put forward some information.

[00:23:51] Speaker 04:
So what commerce has done is come in and reorient, shift that balance that Congress already contemplated and struck by saying, no, we actually think that our interest in eliminating needless reviews is more important than anything Congress might have put into place.

[00:24:08] Speaker 04:
And so we're going to shift it around a little bit.

[00:24:11] Speaker 03:
It seems like, at bottom, you contend that there really is some type of conflict between this 15-day requirement and what the statute's saying.

[00:24:19] Speaker 03:
I'm thinking it's also commerce is just writing on silence, potentially, more analogous to what was happening in MS International.

[00:24:26] Speaker 03:
Could you just further explain to me where you're seeing the kind of conflict?

[00:24:31] Speaker 04:
Sure.

[00:24:32] Speaker 04:
OK.

[00:24:33] Speaker 04:
So I think if you look at the actual language of the statute itself,

[00:24:39] Speaker 04:
And this, maybe it's also important to back up this.

[00:24:44] Speaker 04:
So if you look at what, and this is Appendix 252, it's also on page 13 of the opening brief of Commerce.

[00:24:53] Speaker 04:
What Commerce said when they revoked this order is because no domestic interested party filed a timely notice of intent to participate

[00:25:00] Speaker 04:
We conclude no domestic interested party has responded to the notice of initiation under 19 USC section 1675 C3A.

[00:25:09] Speaker 04:
Which page were you reading from?

[00:25:11] Speaker 04:
Sorry, that is a quotation from Commerce's revocation order that's on page 13 of Commerce's opening brief.

[00:25:22] Speaker 04:
Then if you look at the statute itself,

[00:25:28] Speaker 04:
So they say, we have decided that no domestic interested party has responded to the notice of initiation.

[00:25:35] Speaker 04:
If you look at the statute, C3A describes the situation of no response.

[00:25:42] Speaker 04:
So Congress has spelled out when there is no response.

[00:25:46] Speaker 04:
And that's if no interested party responds to the notice of initiation under this subsection.

[00:25:52] Speaker 04:
Under this subsection means under subsection 1675C, so that must mean

[00:25:58] Speaker 04:
no response to the notice of initiation seeking what 1675 C2 directs commerce to seek those three categories of information and it is I think important and relevant that commerce does separately seek that substantive statutory response subject to a different

[00:26:18] Speaker 04:
regulatory time frame and there's no dispute Arcroma met that statutory deadline and provided all of the information required by statute so it is simply inconsistent with the statutory tax to say there has been no response under section 1675 C3A.

[00:26:45] Speaker 04:
okay there's nothing else all right thank you your honor

[00:27:00] Speaker 01:
I think the key here is my friend's concession that commerce could have set a 15-day requirement for substance of responses.

[00:27:08] Speaker 01:
So the point there being that commerce is able to sort of superintend this process in a way that maximizes efficiency.

[00:27:17] Speaker 01:
Having domestic interested parties submit this notice of intent to participate within 15 days and then giving everyone 30 days for the substantive response is completely consistent with the sort of procedural discretion that I've been advocating commerce possesses.

[00:27:33] Speaker 01:
For that reason,

[00:27:34] Speaker 01:
Again, we don't view there as a conflict with the statute, but rather that this is a procedural predicate to then submitting, responding to the no-submit initiation.

[00:27:43] Speaker 02:
But in this case, there's no doubt that they submitted a fulsome response within the 30-day window.

[00:27:51] Speaker 02:
Is that correct?

[00:27:52] Speaker 01:
They attempted to.

[00:27:52] Speaker 01:
It was rejected, but yes, they attempted to.

[00:27:55] Speaker 02:
And so, and ultimately, what

[00:27:58] Speaker 02:
commerce determined here was that no response, which I think she's technically right, is 1675C3A.

[00:28:07] Speaker 02:
Is the determination that was rendered, is that correct?

[00:28:09] Speaker 01:
That's right, Your Honor.

[00:28:11] Speaker 02:
So that says, if no interested party responds to the notice of initiation under this subsection, which has to be 1675C, right?

[00:28:20] Speaker 02:
The administering authority shows you a final termination within 90 days, revoking the order.

[00:28:26] Speaker 02:
terminating the suspension to which such notice relates.

[00:28:29] Speaker 02:
So your contention is that the no response is the no response to the 15-day placeholder?

[00:28:44] Speaker 01:
So because the attempted substantive response was rejected from the record, no substantive response was submitted.

[00:28:52] Speaker 01:
And the reason why that wasn't permitted.

[00:28:53] Speaker 02:
Wait, but I need to know whether your conclusion that there's no response is because of their failure to put a placeholder in at the 15 day point.

[00:29:04] Speaker 01:
Yes, because they did not put in that placeholder, they were not then allowed to submit the substance of response that they tried to submit.

[00:29:11] Speaker 01:
It was rejected due to the lack of the placeholder.

[00:29:14] Speaker 01:
So Commerce did find that no domestic interested party responded to the notice of initiation.

[00:29:20] Speaker 01:
The reason it found that is because the attempted substance of response had been rejected from the record due to the absence of the notice of intent to participate.

[00:29:29] Speaker 00:
I just want to make sure I'm clear I follow.

[00:29:31] Speaker 00:
So at A252, which is also the page 13 that your friend referred us to, when Commerce said we got no notice of no response under the statute, what they really were saying, you're telling us, is we got no notice under the statute because we rejected the one that we received.

[00:29:55] Speaker 00:
because it was untimely for failing to comply with our regulatory notice.

[00:30:00] Speaker 00:
That's right.

[00:30:01] Speaker 00:
We should read into that.

[00:30:02] Speaker 01:
That's correct, Your Honor.

[00:30:03] Speaker 01:
And with respect to that point that they did attempt to submit this within 30 days, there's a follow-on point that we haven't really gotten into that having set this 15-day notice of intent requirement, commerce should be allowed to enforce it because otherwise parties won't see a need to comply with it.

[00:30:19] Speaker 01:
And because it is a lawful exercise of discretion to set the requirement,

[00:30:24] Speaker 01:
Congress is then able to reject untimely attempted submissions subject to an extraordinary circumstances out of time filing requirement, which our chroma does not contend it meets.

[00:30:34] Speaker 02:
So in, in Lesko, we held that officially ordered or approved was not entirely clear what that meant here.

[00:30:48] Speaker 02:
Hasn't Congress defined what a response must be?

[00:30:55] Speaker 01:
So... So Commerce says response has to meet A, B, and C. Well, Commerce has to solicit A, B, and C, and C is a catch-all.

[00:31:04] Speaker 01:
So Commerce is able to solicit more than just what's listed here.

[00:31:10] Speaker 01:
But to your earlier question, Your Honor, our contention is that that is solicited in the

[00:31:17] Speaker 01:
Substantive response as part of the substance response and so the nose of initiation is something that precedes that That's an answer question.

[00:31:25] Speaker 00:
I'm not sure it does but Are you suggesting that the 15-day regulatory notice is an exercise of Commerce's authority under?

[00:31:39] Speaker 00:
C2C as such other information and

[00:31:43] Speaker 01:
So no, that does go to Judge Moore's earlier question.

[00:31:46] Speaker 01:
That has been the defendant intervener's assertion.

[00:31:50] Speaker 01:
We have not made that argument.

[00:31:51] Speaker 01:
Gotcha.

[00:31:52] Speaker 01:
Thank you.

[00:31:54] Speaker 02:
OK.

[00:31:55] Speaker 02:
Thank you.

[00:31:55] Speaker 02:
Thank both counsels.

[00:31:56] Speaker 02:
This case is taken under submission.

[00:31:58] Speaker 01:
Thank you, Your Honor.