author: LOURIE, Circuit Judge.

text:
    HALO ELECTRONICS, INC., Plaintiff-Appellee v. PULSE ELECTRONICS, INC., fka Pulse Engineering, Inc., Pulse Electronics Corporation, fka Technitrol, Inc., Defendants-Appellants
    2016-2006
    United States Court of Appeals, Federal Circuit.
    Decided: May 26, 2017

      Craig E. Countryman, Fish & Richardson, PC, San Diego, CA, argued for plaintiff-appellee. Also represented by Michael J. Kane, William Woodford, John A. Drag-seth, Minneapolis, MN.
    Mark Lee Hogge, Dentons US LLP, Washington, DC, argued for defendants-appellants. Also represented by Shailen-dra K. Maheshwari, Rajesh Charles Noro-nha, Nicholas Hunt Jackson.
    Before LOURIE, MOORE, and HUGHES, Circuit Judges.
   LOURIE, Circuit Judge.

Pulse Electronics, Inc. and Pulse Electronics Corporation (together, “Pulse”) appeal from the decision of the United States District Court for the District of Nevada awarding Halo Electronics, Inc. (“Halo”) prejudgment interest. See Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 2:07-cv-00331-APG-PAL, slip op. (D. Nev. Apr. 6, 2016) (Joint Appendix “J.A.” 1-2). Because we lack jurisdiction, we dismiss.

Background

Halo owns U.S. Patents 5,656,985, 6,297,720, and 6,344,785 (collectively, the “Halo patents”). In 2007, Halo sued Pulse for patent infringement. Pulse denied infringement and challenged the validity of the Halo patents. Pulse also filed a counterclaim not relevant to the issues in this appeal. Following trial, the jury found that: (1) Pulse directly infringed the Halo patents with products that it shipped into the United States; (2) Pulse induced others to infringe the Halo patents with products that it delivered outside the United States but ultimately were imported into the United States in finished end products; (3) it was highly probable that Pulse’s infringement was willful; and (4) the asserted claims of the Halo patents were not invalid for obviousness. The jury awarded Halo $1.5 million in reasonable royalty damages.

On May 28, 2013, after the conclusion of post-trial briefing, the district court held, inter alia, that Pulse had not willfully infringed Halo’s patents and entered judgment in favor of Halo in the amount of $1.5 million. Halo subsequently filed a bill of costs and the court taxed costs in the amount of $51,087.24. Halo did not file a motion for pre- or post-judgment interest in 2013.

Both parties appealed various aspects of the disposition to this court. Relevant here, Halo appealed from the district court’s conclusion that Pulse’s infringement was not willful and attendant failure to enhance damages, and this court affirmed. See Halo Elecs., Inc. v. Pulse Elecs., Inc., 769 F.3d 1371, 1381-83 (Fed. Cir. 2014), vacated and remanded, — U.S.-, 136 S.Ct. 1923, 195 L.Ed.2d 278 (2016). The parties asserted that this court had jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(1). In its opening brief, Halo characterized the May 28, 2013 judgment as a “final judgment.” J.A. 5017. On March 30, 2015, this court’s mandate issued (“Original Mandate”).

On June 9, 2015, Halo filed a motion in the district court seeking, inter alia, an accounting for supplemental damages and an award of pre- and post-judgment interest. Pulse filed an opposition to Halo’s motion contesting, inter alia, the timeliness of Halo’s motion for prejudgment interest.

On October 19, 2015, the Supreme Court granted, in part, Halo’s petition for a writ of certiorari, limiting its review to the question relating to enhanced damages. Halo Elecs., Inc. v. Pulse Elecs., Inc., — U.S.-, 136 S.Ct. 356, 193 L.Ed.2d 289 (2015). The Supreme Court subsequently held that the enhanced damages test applied by this court was inconsistent with 35 U.S.C. § 284, and vacated and remanded to this court for proceedings consistent with its opinion. Halo Elecs., Inc. v. Pulse Elecs., Inc., — U.S. ——, 136 S.Ct. 1923, 1935-36, 195 L.Ed.2d 278 (2016). On remand, this court recalled the Original Mandate on July 14, 2016. We then vacated the district court’s unenhanced damages award with respect to products that were delivered in the United States, remanded for proceedings consistent with the Supreme Court’s opinion on enhanced damages, and reaffirmed its prior opinion in all other respects. Halo Elecs., Inc. v. Pulse Elecs., Inc., 831 F.3d 1369, 1373 (Fed. Cir. 2016). On September 12, 2016, this court’s mandate issued (“Remand Mandate”).

On April 6, 2016, prior to the Original Mandate being recalled, the district court awarded Halo (1) prejudgment interest “at the rate set forth in Nev. Rev. Stat. § 17.130, compounded annually, through May 28, 2013”; (2) postjudgment interest; and (3) supplemental damages for direct infringement. J.A. 1. The court did not set the amount of total prejudgment interest or the date from which to begin calculating such interest. Rather, it ordered Halo to prepare an updated cálculation of the pre- and post-judgment interest amounts through the date of the court’s order, and the parties to submit briefing on the issue of pre- and post-judgment interest if they could not stipulate to the total amount of interest. The court also ordered Pulse to produce financial data to Halo to assess supplemental inducement damages.

On April 27, 2016, the parties submitted briefing disputing the amount of pre- and post-judgment interest and the correct date from which to start assessing prejudgment interest. Halo contended that prejudgment interest on the entire $1.5 million jury award of damages began to accrue on the date that the complaint and summons were served, March 20, 2007. Pulse responded that Halo had not suffered $1.5 million of damages at the beginning of the damages period and thus was not entitled to compensation in that amount of damages as of the date of filing of the complaint. Pulse asserted that the calculation of prejudgment interest needed to account for the fact that Pulse’s activities that were found to infringe occurred throughout the damages period.

On May 5, 2016, Pulse noticed this appeal of the district court’s April 6, 2016 order. At that time, the parties’ dispute regarding the appropriate calculation of prejudgment interest had not been resolved. During the September 27, 2016 status conference, the district court and the parties recognized that the court had not ruled on the outstanding interest calculation. Counsel for Pulse indicated that it would prefer that the district court wait to rule on the outstanding prejudgment interest dispute until after this court addressed prejudgment interest in the instant appeal.

On November 21, 2016, the court entered a stipulation of satisfaction of judgment for .the $1.5 million damages award, including costs, supplemental damages, and post-judgment interest. The stipulation expressly excluded prejudgment interest, enhanced damages, and attorney fees. As of the oral argument on April 5, 2017, those issues remained unresolved by the district court.

Discussion

We must first address whether we have jurisdiction. Pursuant to 28 U.S.C. § 1295(a)(1), which embodies the final judgment rule, our jurisdiction is limited to an appeal from a “final decision” of a district court. 28 U.S.C. § 1295(a)(1). The Supreme Court has stated that a final decision “generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988). In other words, “[i]f a ‘case is not fully adjudicated as to all claims for all parties,’ there is no ‘final decision’ and therefore no jurisdiction.” Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320 F.3d 1354, 1362 (Fed. Cir. 2003) (quoting Syntex Pharm. Int’l, Ltd. v. K-Line Pharm., Ltd., 905 F.2d 1525, 1526 (Fed. Cir. 1990)). The Supreme Court has explained that “a final judgment for money must, at least, determine, or specify the means for determining, the amount....” United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 233, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). The final judgment rule “serves a number of important purposes,” including avoiding “piecemeal appeals” and “promoting efficient judicial administration.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

28 U.S.C. § 1292(c)(2) is an exception to the final judgment rule. Pursuant to § 1292(c)(2) we have jurisdiction over “an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to [this court] and is final except for an accounting.” (emphasis added). We have held that § 1292(c)(2) “con-ferís] jurisdiction on this court to entertain appeals from patent infringement liability determinations when a trial on damages has not yet occurred ... [and] when willfulness issues are outstanding and remain undecided.” Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 1320 (Fed. Cir. 2013) (en banc).

Halo argues that this court lacks jurisdiction because (1) the April 6, 2016 order is not a final decision appealable under 28 U.S.C. § 1295(a)(1); and (2) this is not a proper interlocutory appeal pursuant to 28 U.S.C. § 1292(c)(2). Halo additionally contends that the appeal is improper because the district court did not issue a separate judgment as required by Federal Rule of Civil Procedure (“Rule”) 58. Halo further asserts that dismissal of this appeal will simplify the case and conserve judicial resources because the district court has several issues pending before it.

Pulse responds that we have jurisdiction pursuant to § 1295(a)(1) because the May 28, 2013 judgment was a final decision or, alternatively, under § 1292(c)(2) because the decision is final except for an accounting. Pulse contends that the prejudgment interest awarded by the district court is “final” and that further proceedings relating to this court’s Remand Mandate would be “no more than ‘an accounting.’ ” Appellants’ Reply Br. 9 (quoting Robert Bosch, 719 F.3d at 1319). Pulse asserts that a separate judgment is not required in this appeal under Rule 58(a)(4) because Halo’s motion is substantively an untimely Rule 59(e) motion.

We agree with Halo that we lack jurisdiction over the instant appeal. As an initial matter, whether the prior appeal from the May 28, 2013 judgment was properly taken pursuant to § 1295(a)(1) is not dispositive of whether we have jurisdiction in this appeal. See Pandrol, 320 F.3d at 1362 (noting that “the first appeal to this court was from a final judgment” and analyzing whether the court had jurisdiction over the subsequent appeal at issue). Accordingly, we assess whether the appealed-from decision satisfies the requirements of either § 1295(a)(1) or § 1292(c)(2).

We first address whether the April 6, 2016 order was a final decision. That order required the parties to either file a stipulation as to the amount of interest due or, “[i]f they disagree[d] on the calculation” of interest, to “file a brief ... explaining their respective positions.” J.A. 1-2. The parties disagreed with each other and filed briefs contesting the appropriate amount of prejudgment interest and how to calculate it, particularly disputing the date from which to begin assessing prejudgment interest. The district court never resolved the parties’ dispute regarding the date from which to begin calculating prejudgment interest or set the amount of prejudgment interest to be awarded to Halo. Oral Argument at 2:30-3:07, 10:30-11:07, Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 16-2006 (Fed. Cir. Apr. 5, 2017), http:// oralarguments.cafc.uscourts.gov/default. aspx?fl=2016-2006.mp3; Transcript of Hearing at 4:20-8:7, 9:17-10:4, Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 2:07-ev-00331-APG-PAL (D. Nev. Sept. 27, 2016), ECF No. 619; Halo’s Interest Calculation Requested by the Court’s April 6, 2016, Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 2:07-cv-00331-APG-PAL (D. Nev. Apr. 27, 2016), ECF No. 592; Brief of Pulse Electronics, Inc. and Pulse Electronics Corp. Regarding Calculation of Damages, Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 2:07-cv-00331-APG-PAL (D. Nev. Apr. 27, 2016), ECF No. 593. As a result, there is no final decision because the district court has not “determine[d], or specified] the means for determining the amount” of prejudgment interest. F. & M. Schaefer Brewing, 356 U.S. at 233-34, 78 S.Ct. 674 (holding that a district court opinion setting the amount of the refund was not a final judgment where “the action also sought recovery of interest ... from the date of payment to the date of judgment” and the district court’s “opinion does not state the date or dates of payment and, hence, did not state facts necessary to compute the amount of interest to be included in the judgment”). We therefore lack jurisdiction under § 1295(a)(1).

For similar reasons, we also lack jurisdiction pursuant to § 1292(c)(2). “As an exception to the final judgment rule, § 1292(c)(2) is to be interpreted narrowly.” Arlington Indus., Inc. v. Bridgeport Fittings, Inc., 759 F.3d 1333, 1339 (Fed. Cir. 2014). Regardless whether prejudgment interest is part of an accounting or not, the award of prejudgment interest itself in this case is not final. We have held that § 1292(c)(2) “does not go so far as to permit us to consider [a] non-final order” that is related to the accounting. Alfred E. Mann Found, for Sci. Research v. Cochlear Corp., 841 F.3d 1334, 1347 (Fed. Cir. 2016) (holding that this court lacked jurisdiction to review a district court order granting a motion for a new trial on damages where there was no final decision on damages); see also Russell Box Co. v. Grant Paper Box Co., 179 F.2d 785, 787 (1st Cir. 1950) (holding that the court lacked jurisdiction under a prior version of § 1292(c)(2) where the order appealed from was “a purely interlocutory one incidental to the accounting”). Thus, because the order appealed from is itself non-final, we lack jurisdiction under § 1292(c)(2).

We note that counsel for Pulse expressed concern at oral argument about preservation of its right to appeal an award of prejudgment interest at a later date. Oral Argument at 4:30-50, 8:20-35, Halo Elecs., Inc. v. Pulse Elecs., Inc., No. 16-2006 (Fed. Cir. Apr. 5, 2017). As discussed at oral argument and conceded by Halo, Pulse has preserved its right to later file a proper appeal concerning a final award of prejudgment interest. Id. at 9:19— 10:11,11:20-13:16.

Conclusion

We have considered Pulse’s remaining arguments regarding jurisdiction, but conclude that they are without merit. For the reasons set forth above, we dismiss for lack of jurisdiction.

DISMISSED

Costs

No costs.

      . “We have an obligation to assure ourselves of our jurisdiction before considering the merits of an appeal.” PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Accordingly, we take judicial notice of district court docket entries entered after the filing of the notice of appeal that relate to whether we have jurisdiction over this appeal. The relevant docket entries are "not subject to reasonable dispute because” they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); see also Function Media, L.L.C. v. Google, Inc., 708 F.3d 1310, 1316 n.4 (Fed. Cir. 2013).

      . Although it is our practice to follow precedent of the regional circuits on issues not unique to our areas of exclusive jurisdiction, we have adopted our own precedent on matters relating to our own appellate jurisdiction. See Woodard v. Sage Prods., Inc., 818 F.2d 841, 844 (Fed. Cir. 1987) (enbanc).

      . Because the calculation of prejudgment interest remains unresolved, Federal Rule of Appellate Procedure 4(a)(2) does not apply.

      . See also Ostemeck v. Ernst & Whinney, 489 U.S. 169, 177, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (explaining that it is adopting a rule that “prevent[s] appellate review before a postjudgment motion for prejudgment interest is resolved”); Dieser v. Cont’l Cas. Co., 440 F.3d 920, 924 (8th Cir. 2006) (holding that an "order [that] indicated that the amount of prejudgment interest was yet to be determined” was not a final judgment); Commercial Union Ins. Co. v. Seven Provinces Ins. Co., 217 F.3d 33, 37 (1st Cir. 2000) (holding that there was no final judgment until “the district court ruled on the question of pre-judgment interest and issued an amended judgment,” including determining "when prejudgment interest began to run”); Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir. 1996) (holding there was no final judgment where "the appropriate interest rate and the interest period remain as disputed issues”); Herzog Contracting Corp. v. McGowen Corp., 976 F.2d 1062, 1064-65 (7th Cir. 1992) (explaining that "the original judgment would not have been final only if it had deferred determination of [prevailing party’s] entitlement to prejudgment interest”).


source: Caselaw Access Project

license: Public Domain

text:
    MAVERICK TUBE CORPORATION, United States Steel Corporation, Plaintiffs-Cross-Appellants Boomerang Tube LLC, Energex Tube, TMK IPSCO, Tejas Tubular Products, Vallourec Star, L.P., Welded Tube USA Inc., Plaintiffs v. UNITED STATES, Defendant-Appellee v. Cayirova Boru Sanayi Ve Ticaret A.S., Toscelik Profil Ve Sac Endustrisi A.S., Defendants-Appellees Borusan Mannesmann Boru Sanayi Ve Ticaret A.S., Borusan Istikbal Ticaret, Defendants-Appellants
    2016-1649, 2016-1656, 2016-1689
    United States Court of Appeals, Federal Circuit.
    Decided: May 30, 2017

      Robert E. DeFrancesco, III, Wiley Rein, LLP, Washington, DC, argued for plaintiff-cross-appellant Maverick Tube Corporation. Also represented by Alan H. Price, Stephanie Manaker Bell, Tessa V. Capeloto, Laura El-Sabaawi, Jeffrey Owen Frank, Derick Holt, Usha Neelakan-tan, Adam Milan Teslik.
    Kelsey Rule, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, argued for plaintiff-cross-appellant United States Steel Corporation. Also represented by Debbie Leilani Shon, Jonathan Gordon Cooper, Jon David Corey, Philip Charles Sternhell.
    Hardeep Kaur Josan, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York, NY, argued for defendant-appellee United States. Also represented by Benjamin C. Mizer, Jeanne E. Davidson, Claudia Burke, Washington, DC; Scott Daniel McBride, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC.
    Mark B. Lehnardt, Antidumping Defense Group, LLC, Washington, DC, argued for defendants-appellees Cayirova Boru Sanayi Ye Ticaret A.S., Toscelik Pro-fil Ve Sac Endustrisi A.S. Also represented by David L. Simon, Law Offices of David L. Simon, Washington, DC.
    Julie Mendoza, Morris, Manning & Martin, LLP, Washington, DC, argued for defendants-appellants Borusan Mannes-mann Boru Sanayi Ve Ticaret A.S., Boru-san Istikbal Ticaret. Also represented by Donald Cameron, Jr., Mary Hodgins, Brady Mills, R. Will Planert, Sarah Suzanne Sprinkle.
    Before PROST, Chief Judge, LOURIE and TARANTO, Circuit Judges.
   LOURIE, Circuit Judge.

Borusan Mannesmann Boru Sanayi Ve Ticaret A.S. and Borusan Istikbal Ticaret (together, “Borusan”) appeal from the final judgment of the Court of International Trade (“the Trade Court”) sustaining the determination of the U.S. Department of Commerce (“Commerce”) on remand to apply adverse facts available (“AFA”) after Borusan did not report input purchases for two of its steel mills. See Maverick Tube Corp. v. United States, No. 14-00229, 2016 WL 703575 (Ct. Int’l Trade Feb. 22, 2016) (“Borusan II”); Final Results of Remand Determination, Maverick Tube Corp. v. United States, No. 14-00229, ECF No. 92, slip op. at 19-28 (Ct. Int’l Trade Aug. 31, 2015) (“Remand Results”). Maverick Tube Corporation and U.S. Steel (together, “Maverick”) cross-appeal, arguing that the Trade Court should not have vacated Commerce’s original finding that the Turkish market for hot-rolled steel (“HRS”) was distorted by government involvement. See Borusan Mannesmann Boru Sanayi Ve Ticaret v. United States, 61 F.Supp.3d 1306, 1327-31 (Ct. Int’l Trade 2015) (“Borusan I"); Certain Oil Country Tubular Goods From the Republic of Turkey, 79 Fed. Reg. 41,964 (Dep’t of Commerce July 18, 2014) (“Original Results”). In the alternative, Maverick challenges the Trade Court’s sustaining of Commerce’s refusal to apply AFA to the government of Turkey (“GOT”) for failing to provide data on the Turkish market for HRS or to adequately explain its lack of data. See Borusan II, 2016 WL 703575, at *2-3. For the reasons that follow, we affirm.

Background

On July 2, 2013, certain domestic producers of oil country tubular goods (“OCTG”) filed a petition with Commerce alleging that GOT was providing counter-vailable subsidies to domestic exporters. Borusan I, 61 F.Supp.3d at 1310-11. Commerce subsequently instituted a countervailing duty investigation. Certain Oil Country Tubular Goods from India and Turkey, 78 Fed. Reg. 45,502 (Dep’t of Commerce July 29, 2013). Although myriad arguments were presented to Commerce and the Trade Court prior to the present appeal, we recount only those facts relevant to the appealed issues.

After institution, Commerce selected Borusan and GOT as mandatory respondents. Because HRS is an input used in the manufacture of OCTG, Commerce then issued each a questionnaire relating to the provision of HRS in Turkey. As Borusan and GOT’s responses implicate different issues, we provide further factual and procedural background relating to each in turn.

A. Borusan

In its initial questionnaire, Commerce asked Borusan to report its purchases of HRS during the period of investigation (“POI”), “regardless of whether [Borusan] used the [HRS] to produce [OCTG] ” during that period. Joint Appendix (“J.A.”) 1645. Borusan responded that it had three production facilities during the POI: Gemlik, Halkali, and Izmit. J.A. 1645. During the POI, Borusan averred that (1) only Gemlik produced subject OCTG; and (2) no HRS purchased for the other facilities was transferred to Gemlik. J.A. 1645. Borusan only provided data for the Gemlik location because only that location “could have ben-efitted from subsidies attributable to the production or sale of the OCTG subject merchandise.” J.A. 1645.

Borusan noted that it had difficulties compiling that information. Specifically, Borusan contended that (1) the process of gathering the requested data was “extremely time consuming and burdensome,” resulting in ‘Veil over 300 printed pages”; and (2) gathering the requested data required Borusan to “extract the data from two different data systems.” J.A. 1645 & n.2! Accordingly, Borusan argued that requiring data for the other two locations “would impose great burdens on [Borusan] for no purpose.” J.A. 1645.

Commerce saw the matter differently. In a supplemental questionnaire, Commerce noted that Borusan “did not ... report HRS purchases for [Borusan]’s two other mills,” despite the original questionnaire asking for that information. J.A. 4393. Thus, Commerce asked Borusan to “please report all of [Borusan]’s purchases of HRS, including its purchases for the Halkali and Izmit mills.” J.A. 4393. Commerce did indicate, however, that if Borusan was “unable to provide this information,” it should “explain in detail why [Borusan could] not provide this information and the efforts [Borusan] made to provide it to [Commerce].” J.A. 4393.

In response, Borusan did not provide data for the Halkali and Izmit locations. Instead, Borusan further detailed its difficulties in compiling data for the Gemlik location. Borusan reiterated its statements from its initial response, explained that it had to separate expenses manually, and that the process for Gemlik alone “took over two weeks of preparation by numerous members of [Borusan]’s staff.” J.A. 5975-76. Thus, Borusan asked Commerce to “take into consideration the significant burdens associated with gathering” information relating to the Halkali and Izmit mills. J.A. 5976.

Borusan then attempted to invoke 19 U.S.C. § 1677m(c)(1) and (2), J.A. 5976-77, which provide that if an interested party notifies Commerce promptly after receiving a request that it is “unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative forms,” then Commerce “shall consider the ability of the interested party” and “may modify such requirements to the extent necessary to avoid imposing an unreasonable burden on that party.” Borusan explained that it had informed Commerce of the burdens associated with producing the requested information, and expanded on those burdens in response to the supplemental questionnaire. J.A. 5977. • Borusan indicated that it believed that the Gemlik data was sufficient because, in its view, the Gemlik data allowed Commerce to capture “any possible benefit from [Borusan]’s ... purchases that may have benefitted the production or sale” of the subject OCTG. J.A. 5977-78. Nevertheless, Borusan indicated “its intention []to fully cooperate” with Commerce’s investigation and “to respond to all reasonable requests for information.” J.A. 5978. If Commerce “insist[ed] on full reporting of all hot-coil purchases from every facility” then Boru-san indicated that it was “ready to provide that information with the understanding that it will require several weeks to do so.” J.A. 5978.

Commerce did not respond directly to Borusan’s response to the supplemental questionnaire. Instead, in its preliminary determination, and again in its post-preliminary calculation memo and final determination, Commerce determined that it was appropriate to apply AFA to Borusan because Borusan did not provide data relating to the Halkali and Izmit locations. Certain Oil Country Tubular Goods from the Republic of Turkey, 79 Fed. Reg. 41,-964, 79 ITADOC 41,964, Issues & Decision Memorandum, at 9-12 (Dep’t of Commerce July 18, 2014) (“Original Results Memo”). Commerce noted that it had twice requested data relating to all purchases of HRS and that Borusan did not provide those data or provide evidence that they were unavailable. Id. at 10-11. Thus, Commerce determined that Borusan “failed to cooperate by not acting to the best of its ability because Borusan withheld requested information on its purchases of HRS, despite having two opportunities, and never requested an extension.” Id. at 12. Borusan appealed the application of AFA to the Trade Court, which remanded to Commerce for further justification of why it needed data for the Halkali and Izmit locations. Borusan I, 61 F.Supp.3d at 1348-49.

On remand, Commerce determined that data on the Halkali and Izmit locations were necessary, and again determined that it was appropriate to apply AFA given that Borusan did not provide such data. See Borusan II, 2016 WL 703575, at *3-8 (discussing Commerce’s determination on remand). Borusan appealed again, and the Trade Court determined that Commerce’s application of AFA was supported by substantial evidence because “Commerce’s request for that information was still outstanding by the time Commerce reached its preliminary determination.” Id. at *8. Accordingly, the Trade Court determined that “substantial evidence supports that Borusan at least shared if not bore responsibility for the state of the record, and the state of the law does not, apparently, require more of Commerce.” Id.

B. GOT

Commerce’s questionnaire to GOT focused more on the general state of the Turkish HRS industry. Specifically, Commerce asked GOT to provide “[t]he total volume and value of Turkish domestic consumption of [HRS] and the total volume and value of Turkish domestic production of [HRS],” as well as data relating to the “percentage of domestic consumption accounted for by domestic production,” the “total volume and value of imports of [HRS],” and other data relevant to determining whether companies owned or effectively owned by GOT constituted a significant share of the market. J.A. 4401-04. GOT responded that data relating to HRS were not available, and so provided figures relating to “flat steel products.” J.A. 4401. GOT indicated that the flat steel data included “hot-rolled coils, cold-rolled coils, stainless coils, etc.” and referred to those numbers to answer Commerce’s questions. See J.A. 4401-03. In responding to another question, however, GOT stated that “the Erdemir Group ... produces [a] majority of HRS in Turkey.” J.A. 4404.

In its response, GOT also referenced a number of documents that appeared to describe government aid to the steel industry. See J.A. 16724-25. Accordingly, Commerce asked to review those documents. J.A. 16724. GOT responded that the documents were produced as a result of bilateral trade agreements between Turkey and the European Union (“EU”), and the process was conducted “on condition of confidentiality.” J.A. 16724. Moreover, GOT claimed that the documents requested by Commerce included proprietary information of companies not subject to the investigation, and that GOT therefore was not able to share those documents. J.A. 16724.

In its final determination, Commerce found that GOT exercised meaningful control over Erdemir Group and its subsidiary Isdemir (together, “Erdemir”), and therefore that it was appropriate to treat them as government bodies. Original Results Memo, 79 Fed. Reg. 41,964, 79 ITADOC 41,964, at 21-22. Borusan’s data indicated that it had purchased HRS from Erdemir; accordingly, Commerce turned to analyzing whether Borusan had received a benefit in making those purchases by comparing the price Borusan paid to other prices. Id. at 22-23.

Commerce generally prefers to compare prices paid to actual transactions in the country in question. See 19 C.F.R. § 351.511(a)(2)(i). If the market in that country is distorted by government involvement, however, then Commerce will consider the prices paid in that country as not an appropriate basis of comparison, Preamble; Countervailing Duties; Final Rule, 63 Fed. Reg. 65348, 65377 (Dep’t of Commerce Nov. 25, 1998) (the “Preamble”), and will instead look to world market prices, 19 C.F.R. § 351.511(a)(2)(i).

Commerce began here by determining whether the Turkish HRS market was distorted. Commerce noted that GOT averred that HRS production and consumption data were unavailable for the POI, and that the flat steel data included many non-HRS products. Original Results Memo, 79 Fed. Reg. 41,964, 79 ITADOC 41,964, at 23. Commerce relied upon import statistics for hot-rolled coil and proprietary business information, however, to find that domestic Turkish production of HRS “accounted for a majority of the total supply (inclusive of imports) in Turkey during the POI and previous two years.” Id. Commerce also noted that GOT had admitted that Erde-mir “accounts for the majority of HRS production in Turkey.” Id. at 24. Because domestic production accounted for a majority of total supply and Erdemir accounted for a majority of domestic production, Commerce found that Erdemir accounted for, at a minimum, a substantial portion of the domestic market, and so “the level of government involvement in the market was such that prices would be significantly distorted.” Id.

In reaching that conclusion, Commerce cited the Preamble, which states that Commerce recognizes that while “government involvement in a market may have some impact on the price of the good or service in that market, such distortion will normally be minimal unless the government provider constitutes a majority or, in certain circumstances, a substantial portion of the market.” Preamble, 63 Fed. Reg. at 65377. Accordingly, Commerce determined that prices paid in Turkey could not be independent of the government price, and used world prices to determine that Borusan had received “a countervailable subsidy of 15.58 percent.” Original Results Memo, 79 Fed. Reg. 41,964, 79 ITADOC 41,964, at 24-26.

Along with the application of AFA, Borusan appealed to the Trade Court Commerce’s finding that the Turkish market was distorted. The Trade Court vacated Commerce’s finding of distortion and remanded for further explanation. Borusan I, 61 F.Supp.3d at 1327-31. The Trade Court explained that Commerce’s finding required further explanation because (1) the Preamble indicates that “distortion will normally be minimal unless the government provider constitutes a majority or, in certain circumstances, a substantial portion of the market”; (2) Commerce had concluded that Erdemir only controlled a substantial portion of the market; and (3) Commerce had not cited any actual evidence of market distortion or explained the “certain circumstances” giving rise to its finding. Id. at 1328-31 (citing Preamble, 63 Fed. Reg. at 65,377). The case was consolidated for remand with another case, involving Toscelik Profil ve Sac Endustrisi A.S. and Cayirova Boru Sanayi ve Ticaret A.S. (together, “Toscelik”), other Turkish companies subject to similar claims by domestic industry litigants. Borusan II, 2016 WL 703575, at *2.

On remand, Commerce agreed that the language in the Preamble “does suggest a possible limitation on Commerce’s analysis to ‘certain circumstances’ when ‘a substantial portion of the market’ is at issue,” but “does not suggest the same constraint when the government ‘constitutes a majority of the market.’ ” See Remand Results, slip op. at 13. In the present case, however, Commerce averred that the data “suggest the possibility that the government provider in this case might, in fact, have constituted a majority of the market.” Id. Commerce noted that “the record evidence on this point is incomplete because GOT did not respond fully and comprehensively to Commerce’s requests for information,” id. at 13-14, and argued that it never found that Erdemir accounted for less than a majority of the Turkish HRS market; instead, it was “Commerce’s cautious conclusion based on the limited data on the record,” id. at 14. Thus, Commerce indicated that it was conducting its distortion analysis on remand under protest for two reasons. First, because the situation was “different from one in which the record information shows definitely that government providers account for less than the majority of the market for a good.” Id. at 14. Second, Commerce did not have relevant information because GOT did not provide it. Id. at 15.

Even though Commerce noted that the GOT was being “rewarded for not providing relevant information,” id. at 15, Commerce refused to apply AFA to GOT, id. at 29-32. Commerce noted that GOT stated that documents containing other relevant information could not be shared because of confidentiality agreements. Id. at 30. As to the HRS production information, Commerce expressed that although “it seems highly unlikely that the GOT would be unable to gather information on domestic steel production in Turkey, there is no evidence on the record which would contradict the GOT’s claim.” Id. at 30-31. Commerce also concluded that reassessing GOT’s failure to provide data was outside of the scope of the remand order from the Trade Court. Id.

When it performed its analysis, Commerce determined that there was insufficient evidence to support a finding that Erdemir accounted for a majority of the HRS market. Id. at 15-16. Commerce also determined that there was no evidence of the type of government controls that had led it to a conclusion of market distortion in past cases. Id. at 16-17. As it found that there was no evidence of market distortion in the record, Commerce then recalculated Borusan’s countervailable subsidy using Turkish transactions to be 2.08 percent. Id. at 18.

The Trade Court affirmed. Borusan II, 2016 WL 703575, at *2-3. It reasoned that, notwithstanding Commerce’s protests, neither Commerce nor Maverick could identify any dispositive evidence of market distortion, and nothing indicated that GOT was not being truthful regarding its access to data or the confidentiality requirements. Id. at *3. Given the evidence in the record, the Trade Court concluded that substantial evidence supported Commerce’s finding of no distortion and its decision not to apply AFA to GOT. Id.

Borusan timely appealed and Maverick timely cross-appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

Discussion

In appeals from the Trade Court, we apply the same standard of review that it applies, upholding Commerce’s determinations unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). A finding is supported by substantial evidence if a reasonable mind might accept the evidence as sufficient to support the finding. Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Although we review the decisions of the Trade Court de novo, “we give great weight to the informed opinion of the [Trade Court] ..., and it is nearly always the starting point of our analysis.” Ningbo Dafa Chem. Fiber Co. v. United States, 580 F.3d 1247, 1253 (Fed. Cir. 2009) (internal quotation marks, brackets, and citations omitted).

A. Borusan’s Appeal

Borusan argues that Commerce’s decision to apply AFA is unsupported by substantial evidence and contrary to law because Commerce must consider difficulties encountered by an interested party in responding to requests and modify requirements to avoid imposing an unreasonable burden. See Borusan’s Br. 19 (citing 19 U.S.C. § 1677m(c)(1)). Borusan contends that it cooperated with Commerce’s requests to the best of its ability because Commerce never unconditionally instructed Borusan to supply the information from the Halkali and Izmit locations; instead, Commerce’s supplemental questionnaire asked Borusan to provide the information or else explain why it could not do so. Because Borusan provided more detail explaining why production of the information relating to the Halkali and Izmit locations was unduly burdensome, Borusan argues, it directly responded to Commerce’s requests and thus cooperated to the best of its ability. Finally, Borusan contends that if Commerce determined that its supplemental response was insufficient, it was required to give Borusan “an opportunity to remedy or explain the deficiency.” 19 U.S.C. § 1677m(d).

Maverick and the United States respond that Commerce’s application of AFA is supported by substantial evidence. They contend that by failing to provide the data for the Halkali and Izmit locations in its first response, and again failing to provide those data in response to the supplemental questionnaire, Borusan did not cooperate to the best of its ability. Moreover, Maverick and the United States contend that Borusan never triggered 19 U.S.C. § 1677m(c)(1) or gave a proper response to Commerce’s supplemental questionnaire because it never indicated that it was unable to provide the requested information. They contend that Borusan was on notice that its initial response was deficient because Commerce issued the supplemental questionnaire seeking the same information.

We agree with Maverick and the United States that substantial evidence supports Commerce’s decision to apply AFA. Commerce requested information from Borusan, which Borusan did not provide and never claimed that it was'unable to provide.

“If [Commerce] ... finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from [Commerce], [then Commerce] ... may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.” (19 U.S.C. § 1677e(b)); see Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1337-38 (Fed. Cir. 2016) (discussing burdens of proof in administrative proceedings before Commerce). “Compliance with the ‘best of its ability’ standard is determined by assessing whether respondent has put forth its maximum efforts to provide Commerce with full and complete answers to all inquiries in an investigation.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003).

“Because Commerce lacks subpoena power, Commerce’s ability to apply adverse facts is an important one.” Essar Steel Ltd. v. United States, 678 F.3d 1268, 1276 (Fed. Cir. 2012). Thus, “[t]he purpose of the adverse facts statute is ‘to provide respondents with an incentive to cooperate’ with Commerce’s investigation.” Id. (quoting F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)).

Borusan does not dispute that it had access to information relating to the Hal-kali and Izmit locations, and that it did not provide that information. Moreover, although Borusan challenged before the Trade Court whether that information was necessary for Commerce’s determination, it does not raise that challenge before us. Accordingly, Borusan has waived any argument that the information from the Hal-kali and Izmit locations was unnecessary for Commerce’s investigation. See Lifestyle Enter., Inc. v. United States, 751 F.3d 1371, 1377 (Fed. Cir. 2014).

Thus, Borusan effectively concedes that it possessed information necessary to Commerce’s investigation, that Commerce requested that information, and that Boru-san did not provide that information. Such behavior cannot be considered “maximum effort to provide Commerce with full and complete answers.” Nippon Steel Corp., 337 F.3d at 1382.

Borusan’s arguments do not convince us otherwise. First, although Commerce’s supplemental request required it only to provide the information or explain why it was unable to do so, Borusan did neither. Borusan admits it did not provide the information, and the explanation of its difficulties does not constitute a statement that it was unable to provide the information.

Borusan’s invocation of § 1677m(c) in its supplemental response also does not change the outcome. By its own terms, § 1677m(e)(1) only applies where a party notifies Commerce “that such party is unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative forms.... ” Borusan never indicated that it was unable to provide the relevant information. Indeed, Borusan admitted that it could provide that information. Borusan also never suggested an alternative for the requested information; instead, its “alternative” was not providing the information at all.

Finally, we are not convinced by Boru-san’s argument relating to § 1677m(d). Bo-rusan had already failed to provide the information requested in Commerce’s original questionnaire, and the supplemental questionnaire notified Borusan of that defect. § 1677m(d) does not require more. See NSK Ltd. v. United States, 481 F.3d 1355, 1360 n.1 (Fed. Cir. 2007) (“Commerce ... satisfied its obligations under section 1677m(d) when it issued a supplemental questionnaire specifically pointing out and requesting clarification of [the] deficient responses.”).

Accordingly, Commerce’s application of AFA to Borusan is supported by substantial evidence and in accordance with law.

B. Maverick’s Cross-Appeal

Maverick’s cross-appeal raises two issues. First, it argues that the Trade Court should not have vacated Commerce’s original determination that the Turkish market for HRS was distorted. Second, it argues in the alternative that Commerce’s decision not to apply AFA to GOT is not supported by substantial evidence. We take each issue in turn.

Maverick argues that Commerce’s original determination was supported by substantial evidence because there was evidence that (1) Erdemir produced the majority of domestic HRS; (2) domestic production of HRS constituted a majority of the total supply; and (3) the share of domestic production of HRS was greater than the shares calculated for the flat-steel data provided by GOT. Because the evidence establishes that Erdemir controls at least a substantial portion, and possibly a majority, of the market, Maverick contends, this case is different from those where the government certainly controlled less than a majority. Although the Trade Court faulted Commerce for not explaining the “certain circumstances” leading to a finding of distortion, Maverick argues that the Trade Court ignored the role that GOT played in creating the deficient record.

Borusan and Toscelik respond that Commerce’s original determination of distortion was not supported by substantial evidence. They aver that there was no evidence that Erdemir controlled a majority of the Turkish market for HRS, and that even if Erdemir controlled a substantial portion of the market there was no evidence of circumstances which would suggest distortion. Instead, they contend, Commerce applied a per se rule that is inconsistent with the Preamble.

We agree with Borusan and Toscelik that Commerce did not adequately support its original finding of market distortion. Under the Preamble, which all parties treat as binding, government involvement “will normally be minimal unless the government provider constitutes a majority or, in certain circumstances, a substantial portion of the market.” 63 Fed. Reg. at 65377. Commerce’s analysis did not purport to find that Erdemir constituted a majority of the market and instead only found that Erdemir was the majority domestic producer and domestic production accounted for a majority of the Turkish market, and so “at a minimum, Erdemir ... accounted] for ‘a substantial portion of the market.’ ” Original Results Memo, 79 Fed. Reg. 41,964, 79 ITADOC 41,964, at 24 n.181 (quoting Preamble, 63 Fed. Reg. at 65377). From there, Commerce jumped to the finding that the market was distorted, without addressing or finding any circumstances which would actually suggest distortion. See id. at 24. Although it does appear possible that GOT controlled a majority of the market, neither Commerce nor Maverick cite any record evidence establishing that fact, and they also do not cite any record evidence of any indicia of distortion. We thus agree with Borusan, Toscelik, and the Trade Court that Commerce applied what amounted to a per se rule of market distortion after finding GOT controlled a substantial portion of the market, despite the Preamble’s language to the contrary. Therefore, Commerce’s original finding was not supported by substantial evidence.

Maverick next argues that Commerce erred on remand by not applying AFA to GOT. Maverick contends that because GOT failed to cooperate fully with Commerce’s investigation by not providing data for HRS production and not supplying requested documents, it did not act to the best of its ability. Maverick argues that not applying AFA frustrates the purpose of the statute by allowing GOT to benefit from its lack of responsiveness.

Borusan and Toscelik respond that Commerce’s determination not to apply AFA to GOT is discretionary, not mandatory, and is supported by substantial evidence. They contend that Commerce never found that GOT failed to respond to the best of its ability or withheld information, and in fact noted that GOT had provided timely responses to all of its questionnaires. Moreover, they assert that Commerce correctly determined that there was no evidence contradicting GOT’s claim that it did not possess production data for HRS or that requested documents could not be disclosed due to confidentiality agreements.

We agree with Borusan and Toscelik that Commerce’s decision not to apply AFA is supported by substantial evidence. Maverick’s argument that GOT withheld relevant information assumes that GOT had access to that information; as Commerce noted, however, there was no evidence that GOT had access to or maintained the HRS data that it claimed that it was unable to provide. Remand Results, slip op. at 30-31. Moreover, nothing contradicted GOT’s claim that the documents sought by Commerce could not be shared due to confidentiality agreements. See id. at 30.

Conclusion

We have considered the remaining arguments, but find them unpersuasive. For the foregoing reasons, the decision of the Trade Court is affirmed.

AFFIRMED

Costs

No costs.


author:
TARANTO, Circuit Judge.
      NEWMAN, Circuit Judge,

text:
    SUNTEC INDUSTRIES CO., LTD., Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee Mid Continent Nail Corporation, Defendant
    2016-2093
    United States Court of Appeals, Federal Circuit.
    Decided: May 30, 2017

      Mask B. Lehnardt, Antidumping Defense Group, LLC, Washington, DC, argued for plaintiff-appellant.
    Stephen Carl Tosini, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Benjamin C. Mizer, Jeanne E. Davidson, Patricia M. McCarthy; Michael Thomas Gagain, Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC.
    Before NEWMAN, TARANTO, and CHEN, Circuit Judges.
   Dissenting opinion filed by Circuit Judge NEWMAN.

TARANTO, Circuit Judge.

This case arises from the U.S. Department of Commerce’s third administrative review of its antidumping-duty order covering certain steel nails from China. Mid Continent Nail Corporation, a domestic entity, asked Commerce to initiate the third administrative review to determine the proper duty rates for the covered period, but Mid Continent did not serve the request directly on Suntec Industries, a Chinese exporter and producer named in the antidumping order and in the request. As this case comes to us, it is undisputed that Mid Continent thereby violated a service requirement stated in a Commerce regulation. When Commerce actually initiated the review about a month after receiving the request, it published a notice of the initiation in the Federal Register, as provided in 19 U.S.C. § 1675(a)(1), which states that Commerce shall initiate review “if a request for such a review has been received and after publication of notice of such review in the Federal Register.” Despite the Federal Register publication, however, Suntec did not participate in the review. Evidently because of a lapse in its relationship with the counsel who had been its representative for years in the steel-nail proceedings, Suntec remained unaware of the review until Commerce announced the final results (or a few days earlier).

Based on the service deficiency regarding the request for the review, Suntec sued in the Court of International Trade to set aside the results of the review at least as applied to Suntee. The court rejected the challenge. It held that Suntee had failed to demonstrate that it was substantially prejudiced by the service error as to the request for the review in this case. In particular, it concluded that the Federal Register notice of initiation of the review constituted notice to Suntee as a matter of law and fully enabled Suntee to participate in the review because Suntee did not show any prejudice from not knowing of the request in the pre-initiation period. We affirm.

I

In 2008, Commerce issued an antidump-ing-duty order, under 19 U.S.C. § 1673, covering certain steel nails from China. Certain Steel Nails from the People’s Republic of China: Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed. Reg. 33,977 (Dep’t of Commerce June 16, 2008). The Final Determination expressly covers Suntee, which was among the few foreign entities for which Commerce specifically verified information (at Suntec’s Shanghai location) pursuant to 19 U.S.C. § 1677m(i). Id. at 33,-977, 33,980, 33,982, 33,983; see J.A. 194. Suntee had established its entitlement to a rate separate from the China-wide rate of 118.04 percent, and Commerce assigned Suntee a rate of 21.24 percent. 73 Fed. Reg. at 33,981, 33,984.

The common annual administrative-review process pursuant to 19 U.S.C. § 1675 then began. In the first two years after issuance of the 2008 order, ie., the years beginning August 1, 2008, and August 1, 2009, respectively, Commerce published Federal Register notices announcing the opportunity to request, Mid Continent requested, and Commerce then initiated (announced by publication in the Federal Register) administrative reviews of the proper duty rate under the order. In each year, the request and initiation included Suntee. In each year, Mid Continent served the request on a Chinese law firm that Suntee had designated as representing it; the certificates of service list that firm’s Shanghai address, not Suntec’s own, different Shanghai address. In each year, Suntee participated in the review by filing a “separate rate certification,” Mid Continent then dropped its review request as to Suntee, and Commerce in turn rescinded the review of Suntee. See J.A. 194-96. The effect was to leave the 21.24 percent rate in place for Suntee. See Certain Steel Nails from the People’s Republic of China: Notice of Partial Rescission of the First Anti-dumping Duty Administrative Review, 75 Fed. Reg. 43,149, 43,150 & nn.1-2 (Dep’t of Commerce July 23, 2010).

This case concerns the third annual administrative review, for the year beginning August 1, 2010. On August 1, 2011, Commerce published a Federal Register notice of the opportunity to request a review, J.A. 196, and on August 31, 2011, Mid Continent requested such a review, naming Sun-tec among many other entities, J.A. 196, 208. The certificate of service shows that, as in the first two administrative reviews, Mid Continent mailed a copy of the request to the Suntec-designated Shanghai lawyers’ address, not to Suntec’s own Shanghai address. J.A. 196. Five weeks later, on October 3, 2011, Commerce published a notice of initiation of the review in the Federal Register. Initiation of Anti-dumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 76 Fed. Reg. 61,076 (Dep’t of Commerce Oct. 3, 2011) (Notice of Initiation). The notice of initiation in the Federal Register expressly lists Suntee as a party subject to the administrative review. Id. at 61,082.

Commerce conducted the review and issued its final determination on March 18, 2013. Certain Steel Nails from the People’s Republic of China; Final Results of Third Antidumping Duty Administrative Review; 2010-2011, 78 Fed. Reg. 16,651 (Dep’t of Commerce Mar. 18, 2013). The final determination recites that Suntec, among other entities, did not apply for a rate separate from the China-wide rate and therefore was assigned the China-wide rate of 118.04 percent. Id. at 16,652. As for the reason for Suntec’s non-participation, it is now undisputed that Suntec was in fact unaware of the third administrative review until just after, or perhaps nine days before, the final determination issued. J.A. 73,197, 244.

Thirty-one days after Commerce published the final results,. Suntec challenged the initiation of the administrative review in the Court of International Trade, arguing that the initiation was invalid as to Suntec because Mid Continent did not serve Suntec with the request for review as required by 19 C.F.R. § 351.303(f)(3)(ii). The court first denied Commerce’s motion to dismiss. The court concluded that it had jurisdiction under 28 U.S.C. § 1581(i) and that Suntec’s complaint allegations, if true, would establish that Mid Continent failed to comply with the service requirements contained in 19 C.F.R. § 351.303(f)(3)(ii). Suntec Indus. Co. v. United States, 951 F.Supp.2d 1341, 1346-48, 1349 (Ct. Int’l Trade 2013).

Subsequently, the court considered and granted Commerce’s motion for summary judgment. The court concluded that Mid Continent did violate the service requirement of 19 C.F.R. § 351.303(f)(3)(ii). Under the regulation, “an interested party that files with the Department a request for ... an administrative review ... must serve a copy of the request by personal service or first class mail on each exporter or producer specified in the request ... by the end of the anniversary month or within ten days of filing the request for review, whichever is later.” Id. Mid Continent did not serve a copy of the request on Suntec. Suntec Indus. Co. v. United States, No. 13-00157, 2016 WL 1621088, at *1, *4 (Ct. Int’l Trade Apr. 21, 2016).

Nevertheless, the court held that Suntec was not entitled to relief because it had failed to make a showing that would permit a reasonable finding that it was prejudiced by Mid Continent’s failure to serve its request for initiation of the administrative review. In particular, the court concluded that the Federal Register notice of initiation sufficed as a matter of law to give Suntec notice of the proceeding upon its initiation, so that, to show prejudicial error, Suntec had to establish prejudice from losing the five-week pre-initiation period to prepare for participation in the review post-initiation. It held that Suntec had made no showing of any such pre-initiation prejudice. On that basis, the court granted Commerce’s motion for summary judgment. Id. at *7.

Suntec appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(5).

II

We review the existence of jurisdiction in the Court of International Trade in this case de novo. Int’l Custom Prods. v. United States, 467 F.3d 1324, 1326 (Fed. Cir. 2006); Consol. Bearings Co. v. United States, 348 F.3d 997, 1001 (Fed. Cir. 2003). We review the grant of summary judgment de novo. StoreWALL, LLC v. United States, 644 F.3d 1358, 1361 (Fed. Cir. 2011). “When reviewing a Court of International Trade decision in an action initiated under 28 U.S.C. § 1581(i), this court applies the standard of review set forth in 5 U.S.C. § 706.” PS Chez Sidney, L.L.C. v. U.S. Int’l Trade Comm’n, 684 F.3d 1374, 1379 (Fed. Cir. 2012); 28 U.S.C. § 2640(e).

A

We begin with the government’s contention that the Court of International Trade lacked jurisdiction to hear this case. Suntec’s complaint invoked jurisdiction under 28 U.S.C. § 1581(i), whose language, as relevant here, confers jurisdiction over a civil action arising out of a law providing for duties on the importation of merchandise for reasons other than the raising of revenue or for “administration and enforcement with respect to” such duties. That language covers antidumping duties, and associated administration and enforcement, but to ensure that the statute works as intended, “we have held ‘that jurisdiction under subsection 1581(i) may not be invoked if jurisdiction under another subsection of section 1581 is or could have been available, unless the other subsection is shown to be manifestly inadequate.’” Hutchison Quality Furniture, Inc. v. United States, 827 F.3d 1355, 1360 (Fed. Cir. 2016) (quoting Hartford Fire Ins. Co. v. United States, 544 F.3d 1289, 1292 (Fed. Cir. 2008)). To determine whether another subsection could have been available, “[w]e look to the ‘true nature of the action.’ ” Id. (quoting Hartford Fire Ins., 544 F.3d at 1293).

The government argues that this case is outside § 1581(i) because Suntec could have challenged Commerce’s final determination under § 1581(c). We disagree. To adopt the government’s contention that this case comes within § 1581(c), we would have to conclude that Suntec was or could have been a party to the administrative review. We cannot draw that conclusion.

28 U.S.C. § 1581(c) gives the Court of International Trade exclusive jurisdiction over any civil action commenced under 19 U.S.C. § 1516a. The relevant provisions of § 1516a are those which allow “an interested party who is a party to the proceeding in connection with which the matter arises” to “commence an action” to “contest ] any factual findings or legal conclusions upon which” a “final determination” in an administrative review under 19 U.S.C. § 1675 “is based.” 19 U.S.C. § 1516a(a)(2)(A), (B)(iii) (emphasis added). The requirement that the plaintiff have been a party in the administrative review is reinforced by 28 U.S.C. § 2631(c) (“A civil action contesting a determination listed in [19 U.S.C. § 1516a] may be commenced ... by any interested party who was a party to the proceeding in connection with which the matter arose.”) (emphasis added). See 19 C.F.R. § 351.102(b)(36) (“‘Party to the proceeding’ means any interested party that actively participates, through written submissions of factual information or written argument, in a segment of a proceeding.”).

Suntec was not a party to the administrative review. And we cannot conclude, in our jurisdictional analysis, that Suntec could have been such a party. We assume the correctness of Suntec’s merits contention for the jurisdictional analysis here. Cf. Rocky Mountain Helium, LLC v. United States, 841 F.3d 1320, 1325 (Fed. Cir. 2016) (standing analysis assumes correctness of merits allegations). Suntec’s claim on the merits is that it could not have participated because it did not get notice of the proceeding and hence did not know that the proceeding was underway. 28 U.S.C. § 1581(c) is manifestly inadequate where a party is challenging the initiation of an administrative review based on the contention that it did not participate in the review precisely because it did not get the legally required notice. The Court of International Trade therefore had jurisdiction in this case under § 1581(i).

B

The merits question presented to us takes as a given two premises not contested on this appeal. One is that Mid Continent violated a regulation in requesting the third administrative review when it failed to mail a copy of the request to Suntec itself and instead mailed a copy to Suntec’s designated legal representatives in Shanghai, as it had done in the first two administrative reviews. The second is that Suntec’s non-participation in the third administrative review likely cost it a good deal of money, at least on a per-unit basis. Rather than retaining its earlier 21.24 percent rate, it was assigned the China-wide rate of 118.04 percent. What is at issue here is the connection between the service deficiency and Suntec’s non-participation in the review.

The question on appeal is not whether the regulatory service deficiency could be a basis for judicial review under 5 U.S.C. § 706 even aside from whether the deficiency was prejudicial. The Court of International Trade did not rule, and Commerce does not contend on appeal, that Suntec is barred from challenging Commerce’s actions (its initiation of and final determinations in the review) because it was only Mid Continent, not Commerce, that was responsible for providing, and failed to provide, service as required by the governing regulation. We may therefore assume that such a service deficiency can be a basis, in a proper case, for setting aside Commerce’s actions as, e.g., “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).

Section 706, however, does not stop there in prescribing when a court may set aside agency action. Section § 706 commands that, when a court hears a challenge to an agency action, “due account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706. The Supreme Court has held that the § 706 “rule of prejudicial error” command requires application of a traditional harmless-error analysis and that the person seeking relief from the error has the burden of showing prejudice caused by the error. Shinseki v. Sanders, 556 U.S. 396, 406, 409, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). Accordingly, the question presented here is whether Suntec has met its burden of establishing the connection between the service deficiency and Suntec’s absence from the review that is required to constitute a showing of prejudicial error.

The crucial fact here is that there was an intervening event between the request and the review: the Federal Register notice of initiation of the review. If that notice of initiation constituted notice as a matter of law, then Suntec was responsible for its own non-participation in the review after that notice, and to show harm from the earlier service defect it would have had to show that it lost an opportunity for pre-initiation preparation that it would have needed to ,make post-initiation participation effective. Such a showing might be difficult, given that Commerce gave Suntec and others 60 days after initiation to make pertinent filings. See Notice of Initiation, 76 Fed. Reg. at 61,077. We need not say, however, what might be required to make such a showing. In this case, Suntec made no such showing based on the pre-initi-ation period and does not meaningfully argue otherwise in this court.

The question therefore comes down to whether the Federal Register notice constituted effective notice as a matter of law, to be treated as indistinguishable from actual notice. Like the Court of International Trade, we conclude that the Federal Register notice did constitute notice as a matter of law.

Our court and other courts have often recognized that a failure to give a person a required notice can be harmless—e.g., where the person has actual knowledge of the relevant information or the notice defect was cured by a subsequent notice given in time for the person to act on the matter. See, e.g., United States v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320, 1329-30 (Fed. Cir. 2013) (denying relief despite Commerce’s violation of notice requirement in context of suspension of liquidation); Dixon Ticonderoga Co. v. United States, 468 F.3d 1353, 1355-56 (Fed. Cir. 2006) (denying remedy where party did not show that it was prejudiced by agency’s failure to provide notice at time required by regulation); Kemira Fibres Oy v. United States, 61 F.3d 866, 875-76 (Fed. Cir. 1995) (as Dixon, 468 F.3d at 1355, summarized, “holding that failure to timely comply with the notice requirement of 19 C.F.R. § 353.25(d) did not deprive the Department of Commerce of the authority to commence an administrative review where the antidumping review was noticed by the agency after the regulatory deadline”); Intercargo Ins. Co. v. United States, 83 F.3d 391, 394-96 (Fed. Cir. 1996) (finding lack of required information in notice harmless); see also U.S. Telecom Ass’n v. Fed. Communications Comm’n, 825 F.3d 674, 725 (D.C. Cir. 2016) (denying remedy for failure to provide notice where parties had actual knowledge of the final rule); Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487-88 (9th Cir. 1992) (denying remedy for failure to provide notice during rulemaking because the parties had actual notice of the proceedings); Aero Mayflower Transit Co., Inc. v. Interstate Commerce Comm’n, 711 F.2d 224, 232 (D.C. Cir. 1983) (denying remedy for insufficiently informative agency notice where party contesting decision learned the relevant information in subsequent proceedings in time to present challenges).

We applied that familiar principle, and the requirement to show substantial prejudice of a notice defect, in PAM, S.p.A. v. United States, 463 F.3d 1345, 1348 (Fed. Cir. 2006), specifically in the context of the same regulatory service deficiency that is at issue here. In PAM, the domestic petitioners failed to serve PAM, a foreign exporter, with their request that Commerce initiate an administrative review, as required by 19 C.F.R. § 351.303(f)(3)(ii). Four weeks later, Commerce initiated the review and published notice of initiation in the Federal Register. PAM, listed in the notice, entered an appearance in the review the next day. PAM, 463 F.3d at 1346. When the review was complete, PAM argued that it was entitled to have the review set aside as to it because of the service defect. Id. at 1347. This court rejected that contention, reversing the Court of International Trade’s contrary ruling. Id. at 1346.

The court held that PAM had to show prejudice to secure relief for the service defect. The court explained: “Even if a regulation is intended to confer an important procedural benefit, if the failure of a party to provide notice as required by such a regulation does not prejudice the non-notified party, then we think neither the government, the non-serving party, nor the public should be penalized -for such a failure.” Id. at 1348. Acknowledging the procedural benefit provided by the regulation, the court followed American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 539, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970), as well as this court’s Remira and Intercargo decisions, and held that PAM had to “show substantial prejudice” from the service deficiency to secure relief. PAM, 463 F.3d at 1347-48.

The court then held that PAM had not shown “that it was substantially prejudiced by [petitioners’] lack of service, which delayed its notification by several weeks.” Id. at 1349. The court relied on the fact that “PAM received constructive and actual notice of the review by publication in the Federal Register” before the review began. Id. And while PAM did not have the pre-initiation time to prepare, it did not show prejudice as a result, because Commerce gave it “more than enough time to ‘catch up.’ ” Id.

PAM makes clear how a deficiency in service of the request for a review could in some cases be prejudicial notwithstanding a fully effective Federal Register notice of initiation of the review. In particular, the un-served person may be able to prove prejudice from loss of pre-initiation time to prepare for effective post-initiation participation in the review. The regulation demanding service of the request is therefore not rendered unenforceable by treating the Federal Register notice of initiation as effective notice. But there was no such (uncured) prejudice in PAM. And in the present matter, as we have noted, Suntec has not shown, or even meaningfully argued for, prejudice relating to the pre-initiation period.

Accordingly, this case differs from PAM only in that here the Federal Register notice was not actually seen by Suntec, whereas PAM evidently saw the notice in its case. The question is whether the Federal Register notice nevertheless suffices to require the same no-prejudice result as in PAM. We conclude that it does, based on the background law regarding Federal Register notices and the specific congressional prescription of Federal Register notice for the initiation of administrative reviews under 19 U.S.C. § 1675(a).

The background law includes two provisions of the Federal Register Act, codified in Title 44 of the U.S. Code. Those provisions establish a broad, non-agency-specific default rule that Federal Register notices are treated as legally effective notices in a wide range of circumstances. See, e.g., Wolfson v. United States, 492 F.2d 1386, 1392 (Ct. Cl. 1974) (“It is well settled that when regulations are published in the Federal Register they give legal notice of their contents to all who may be affected thereby.”); Aris Gloves, Inc. v. United States, 281 F.2d 954, 958 (C.C.P.A. 1958) (“Congress intended a proper publication in the Federal Register to be considered reasonable public notice unless otherwise provided by statute.”).

One of the Title 44 provisions says: “Unless otherwise specifically provided by statute, filing of a document, required or authorized to be published by section 1505 of this title, except in cases where notice by publication is insufficient in law, is sufficient to give notice of the contents of the document to a person subject to or affected by it.” 44 U.S.C. § 1507. That provision applies to the initiation notice here. Congress specifically required Commerce to publish the notice in the Federal Register, 19 U.S.C. § 1675(a)(1), and Commerce did so. Section 1507, standing alone, therefore applies to make the publication “sufficient to give notice of [its] contents ... to a person subject to or affected by it,” 44 U.S.C. § 1507, which includes Suntec.

The second Title 44 provision of relevance is 44 U.S.C. § 1508, which addresses a narrower situation of certain notices of timing information regarding hearings or opportunities to be heard. The provision says: “A notice of hearing or of opportunity to be heard, required or authorized to be given by an Act of Congress, ... shall be deemed to have been given to all persons residing within the States of the Union and the District of Columbia, except in cases when notice by publication is insufficient in law, where the notice is published in the Federal Register” and it satisfies certain timing conditions related to “the date fixed in the notice for the hearing or for the termination of the opportunity to be heard.” 44 U.S.C. § 1508. In this case, it is undisputed that the initiation notice at issue gave Suntec an opportunity to be heard by specified dates after the initiation. Notice of Initiation, 76 Fed. Reg. at 61,076-77, 61,082; see 19 U.S.C. § 1675(e) (requiring that in administrative reviews, Commerce “shall, upon the request of an interested party, hold a hearing in accordance with section 1677c(b)”); 19 U.S.C. § 1677(9) (“interested party” includes a “foreign manufacturer, producer, [and] exporter”). But for the fact that Suntec is not a resident of the States or the District of Columbia, 44 U.S.C. § 1508 would supplement section 1507’s confirmation that the Federal Register notice of initiation sufficed to give notice.

Section 1508, however, does not apply to Suntec, a foreign firm, and so does not aid Commerce here. On the other hand, section 1508 does not resolve this case against Commerce. The provision merely declares the legal sufficiency of Federal Register notices of opportunities to be heard for the designated domestic firms, as a default rule applicable in a wide range of contexts not specific to any particular statutory regime. It sets a generic background floor of sufficient notice for domestic firms for the hearing-related circumstances covered. Section 1508 does not go further and declare that such notice is legally insufficient for foreign firms, regardless of the statutory context. It does not do so in terms, and it would not be sensible to read this generic, floor-setting provision as doing so impliedly. In particular, section 1508 cannot reasonably be read to deem Federal Register notice of a hearing or opportunity to be heard legally insufficient as to foreign firms where a specific statutory or regulatory regime makes clear that such Federal Register notice provides foreign entities legally sufficient notice. That is the case here.

Under the relevant provisions of Title 19, we must conclude that a Federal Register publication of a notice of a review’s initiation is sufficient as a matter of law to give notice to the named foreign exporters and producers. Congress was explicit in prescribing Federal Register publication as the mechanism of notice: Commerce “shall” review the duties “if a request for such a review has been received and after publication of notice of such review in the Federal Register.” 19 U.S.C. § 1675(a)(1). It said just that while also guaranteeing “a hearing in accordance with” 19 U.S.C. § 1677c(b) to any “interested party” requesting one. 19 U.S.C. § 1675(e). Congress recognized that it is central, not incidental, to the review process that the “interested parties” typically include foreign firms named in the antidumping order as subject to antidumping duties: in defining “interested party,” Congress listed “foreign manufacturer, producer, [and] exporter” first in its covered examples. 19 U.S.C. § 1677(9). And in the “hearing” provision mentioned in § 1675(e), Congress further confirmed that Federal Register notice suffices to give notice: “Any hearing required or permitted under this title shall be conducted after notice published in the Federal Register.... ” 19 U.S.C. § 1677c(b).

The legal sufficiency of Federal Register notice, we conclude, follows from the statutory provisions at issue. And we do not think that Suntec has identified anything implausible about the congressional scheme when so understood. A foreign exporter or producer that is expressly named in an antidumping order, and is subject to continuing antidumping duties for the protection of U.S. industry, can reasonably be expected to have knowledge of the established mechanism for regular reviews (upon request) to determine the final amount of duties owed, of the potentially severe consequences of non-participation by a foreign entity from a non-market economy, and of the need to maintain representation to monitor developments. Sun-tec itself had such knowledge, participating in the first two annual reviews and maintaining, until the lapse that caused the problem in this review, a relationship with counsel to provide the necessary monitoring. It is not unreasonable for Congress to provide a simple, familiar Federal Register notice mechanism that deems those in Suntec’s position properly notified upon publication.

Suntec argues that it is irrelevant whether it is deemed to have gotten notice of the initiation of the review because Commerce can initiate a review only after receiving a valid request and a request is not valid unless it includes a certification of service. But that argument is just a reformulation of the assertion that, under the regulations, there was a service deficiency as to the request; deeming the request invalid changes nothing. The alternative articulation of the same point thus does not alter at all the need to show prejudice from the identified error. Suntec has not made that showing, because the Federal Register notice was effective as to initiation and Suntec showed no prejudice from the pre-initiation deficiency.

III

For the foregoing reasons, we affirm the judgment of the Court of International Trade.

AFFIRMED

NEWMAN, Circuit Judge,

dissenting.

I respectfully dissent. Suntec did not receive the personal service required by regulation; the Court of International Trade held that the regulation was violated. Suntec Indus. Co. v. United States, 2016 WL 1621088, at *1, *4 (Ct. Int’l Trade Apr. 21, 2016). And Suntec never had actual notice of the review by Commerce and did not participate in the review. Id. at *3 (accepting Suntec’s affidavits as true).

The regulatory violation was not harmless, and Suntec was substantially prejudiced, for it did not have the opportunity to participate at all. Constructive notice is not within the statute or rule. Commerce is required to enforce its regulation that requires the requestor to provide service to a party. 19 C.F.R. § 351.303(f)(3)(ii) contemplates that foreign entities may not be readers of the Federal Register and explicitly requires direct notice. PAM, S.p.A. v. United States, 463 F.3d 1345 (Fed. Cir. 2006), describes the potential harm to a party that had actual notice and actually participated in the proceeding. Suntec had no such notice, and did not participate.

Precedent includes some situations in which notice defects were harmless. In PAM and other cases, the person complaining about the lack of required regulatory notice nonetheless had actual notice and appeared to participate in the action. Since the early 1800’s, a party who appeared in person or by attorney was deemed to have waived any defects in service. Knox v. Summers, 7 U.S. 496, 497, 3 Cranch 496, 2 L.Ed. 510 (1806) (“The court were unanimously of the opinion, that the appearance by attorney cured all irregularity of process.”); Pollard v. Dwight, 8 U.S. 421, 428-29, 4 Cranch 421, 2 L.Ed. 666 (1808) (“By appearing to the action, the defendants in the court below placed themselves precisely in the situation in which they would have stood, had process been served upon them, and consequently waived all objections to the non-service of process.”); Creighton v. Kerr, 87 U.S. 8, 12, 20 Wall. 8, 22 L.Ed. 309 (1873) (“A general appearance waives all question of the service of process.”). The same principle applies here; a party who is un-served but appears anyway waives the issue of defects in service. However, Suntec was not served and did not appear.

The Administrative Procedure Act’s prejudice requirement allows for harmless error, but the error here was not harmless. Suntec did not participate because it was, as we must accept, unaware of the proceeding. Suntec was unaware of the proceeding because it was not informed that the request for review had been filed, and therefore had no reason to expect that a review would be instituted.

Without the notice required by Commerce’s rule, the request was faulty and Commerce could not institute review of Suntec. By statute, the administering authority shall review “if a request for such a review has been received.” 19 U.S.C. § 1675(a)(1) (emphasis added). Absent a request that was properly served, Commerce cannot institute a review. Commerce requires the requestor of an administrative review to provide actual notice to foreign manufacturers as part of the request for review. Commerce’s rule requires:

Request for review. In addition to the certificate of service requirements under paragraph (f)(2) of this section, an interested party that files with the Department a request for an expedited an-tidumping review, an administrative review, a new shipper review, or a changed circumstances review must serve a copy of the request by personal service or first class mail on each exporter or producer specified in the request and on the petitioner by the end of the anniversary month or within ten days of filing the request for review, whichever is later. If the interested party that files the request is unable to locate a particular exporter or producer, or the petitioner, the Secretary may accept the request for review if the Secretary is satisfied that the party made á reasonable attempt to serve a copy of the request on such person.

19 C.F.R. § 351.303(f)(3)(ii). This regulation requires that a requestor “must serve a copy of the request by personal service or first class mail on each exporter or producer specified in the request.” Compliance with 351.303(f)(3)(ii) is not optional. The provision stating that the “Secretary may refuse to accept [the] document” appears in Rule 351.303(f)(2), which generally deals with certificates of service for “documents filed with the Department.” Rule 351.303(f)(3)(ii) expressly states that its requirements are “in addition to the certificate of service requirements under paragraph (f)(2).”

Here, there was no personal service, and the Secretary made no finding that the requestor made a reasonable attempt to serve. Without one of those two requirements, the rule is violated and the request is defective.

Commerce brushes off the violation as a harmless procedural defect. But the only way to render the violation harmless is by assuming that Suntec was obligated to appear, although without notice that the request had been filed. The court creates that obligation by charging Suntec with constructive notice by publication of the institution of the review in the Federal Register. Constructive notice is a legal fiction. Torry v. Northrop Grumman Corp., 399 F.3d 876, 878 (7th Cir. 2005) (“When a court says that the defendant received ‘constructive notice’ of the plaintiffs suit, it means that he didn’t receive notice but we’ll pretend he did”).

However, constructive notice is not applicable here. Given Commerce’s regulations, Suntec’s duty to inquire did not begin until it received the required actual notice of the request. The Federal Register Act does not, by itself, compel foreign entities to monitor the Federal Register. Nor does the Tariff Act. The regulations require actual notice. Commerce assigned the burden to the requestor to provide actual notice to all the foreign manufacturers that a request had been filed. Foreign manufacturers are entitled to rely on the regulations that Commerce has promulgated. “It is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their Government.” St. Regis Paper Co. v. United States, 368 U.S. 208, 229, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961).

Commerce cannot, after the fact, nullify the regulatory scheme it created. From the court’s contrary holding, I respectfully dissent.

      . Suntec participated in the fourth and fifth administrative reviews, seeking and receiving a rate separate from the (still 118.04 percent) China-wide rate. See Certain Steel Nails from the People’s Republic of China: Final Results of Fourth Antidumping Duty Administrative Review; 2011-2012, 79 Fed. Reg. 19,316, 19,-318 (Dep’t of Commerce Apr. 8, 2014) (assigning Suntec 10.42 percent rate); Certain Steel Nails from the People’s Republic of China: Final Results of Fifth Antidumping Duty Administrative Review; 2012-2013, 80 Fed. Reg. 18,816, 18,817 (Dep't of Commerce Apr. 8, 2015) (assigning Suntec 16.62 percent rate).

      . Commerce argues that the Court of International Trade misapplied the standard of review when it considered Suntec’s extra-record evidence. We need not address that argument because we conclude that affir-mance is required even in light of Suntec's evidence.

      . The government argues that PAM, S.p.A. v. United States, 463 F.3d 1345 (Fed. Cir. 2006), demonstrates that § 1581(c) was available to Suntec in this case to challenge the initiation of the review. But PAM is unlike this case, because the exporter in PAM participated in the administrative review. See PAM, 463 F.3d at 1346-47.

      . We implicitly recognized the point in Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015), when we held that a notice defect was not cured by eventual notification after the deadline for submission of evidence. See id. at 1345 ("At least in this context, a 'cure' of the notice defect must mean some source providing notification of the same opportunity a correct notice would have provided.”).

      . Indicating the distinctive character of the statutorily prescribed "hearing,” the same provision declares that the hearing "shall not be subject to” a “procedure” sub-chapter of the Administrative Procedure Act, 5 U.S.C. §§ 551-559, or to that Act's "right of review” provision, 5 U.S.C. § 702. 19 U.S.C. § 1677c(b).

      . We note that the statute requires only receipt of a request and Federal Register publication of a notice of initiation, not service of the request on identified exporters. 19 U.S.C. § 1675(a)(1). A regulation requires "[e]ach document filed with [Commerce to] include a certificate of service,” with the penalty for failure to do so being that the "Secretary may refuse to accept [the] document.” 19 C.F.R. § 351.303(f)(2). Here, the Secretary accepted the request for review. Furthermore, the regulation that addresses the required contents of requests does not mention service on the exporters. See 19 C.F.R. § 351.213(b)(1) (stating that an interested party may request review of particular exporters or producers only if it “states why [it] desires the Secretary to review those particular exporters or producers”).