Skf Usa v. U.S. Customs and Border Protection

• Citation: 556 F.3d 1337
• Decision Date: 19 February 2009
• Docket Number: No. 2008-1006.,No. 2008-1007.,No. 2008-1005.,No. 2008-1008.,2008-1005.,2008-1006.,2008-1007.,2008-1008.
• Parties: SKF USA, INC., Plaintiff-Cross Appellant, v. UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendant-Appellant, and United States International Trade Commission, Defendant-Appellant, and Timken U.S. Corporation, Defendant-Appellant, and United States, Robert C. Bonner, Commissioner, United States Customs and Border Protection, and Daniel R. Pearson, Chairman, United States International Trade Commission, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

556 F.3d 1337

SKF USA, INC., Plaintiff-Cross Appellant, v. UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendant-Appellant, and United States International Trade Commission, Defendant-Appellant, and Timken U.S. Corporation, Defendant-Appellant, and United States, Robert C. Bonner, Commissioner, United States Customs and Border Protection, and Daniel R. Pearson, Chairman, United States International Trade Commission, Defendants.

No. 2008-1005.

No. 2008-1006.

No. 2008-1007.

No. 2008-1008.

United States Court of Appeals, Federal Circuit.

February 19, 2009.

Herbert C. Shelley, Steptoe & Johnson LLP, of Washington, DC, argued for plaintiff-cross appellant. With him on the brief were Alice A. Kipel and Susan R. Gihring.

Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant United States Custom and Border Protection. With him on the brief was Jeanne E. Davidson, Director. Of counsel on the brief was Andrew G. Jones, Office of Assistant Chief Counsel, United States Custom and Border Protection, of Indianapolis, IN.

Patrick V. Gallagher, Jr., Attorney, Office of the General Counsel, United States International Trade Commission, of Washington, DC, argued for defendant-appellant United States International Trade Commission. With him on the brief were James M. Lyons, General Counsel, and Neal J. Reynolds, Assistant General Counsel for Litigation.

Douglas W. Kmiec, Pepperdine University School of Law, of Malibu, California, argued for defendant-appellant Timken U.S. Corporation. With him on the brief were Terence P. Stewart, Amy S. Dwyer, and Patrick J. McDonough, Stewart and Stewart, of Washington, DC. Of counsel were Elizabeth J. Drake and Geert M. De Prest.

Joseph W. Dorn, King & Spalding LLP, of Washington, DC, for amicus curiae American Furniture Manufacturers Committee for Legal Trade. With him on the brief was Jeffrey M. Telep.

Gilbert B. Kaplan, King & Spalding LLP, of Washington, DC, for amicus curiae Micron Technology, Inc. With him on the brief were Jeffrey M. Telep and Tina M. Shaughnessy.

Jacques P. Soileau, Soileau Law Offices, of Breaux Bridge, Louisiana, for amicus curiae Pat Huval's Restaurant & Oyster Bar, Inc., et al.

John M. Gurley, Arent Fox LLP, of Washington, DC, for amicus curiae Koyo Corporation of U.S.A. With him on the brief was Nancy Noonan.

Michael T. Shor, Arnold & Porter LLP, of Washington, DC, argued for amici curiae Giorgio Foods, Inc., and PS Chez LLP. With him on the brief for amicus curiae PS Chez Sidney LLC was William Brown, of Cordova, Tennessee, and for Giorgio Foods, Inc., was Erum Mirza, Arnold & Porter LLP, of Washington, DC.

Before LINN and DYK, Circuit Judges, and STEARNS, District Judge.^*

Opinion for the court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge LINN.

DYK, Circuit Judge.

The Continued Dumping and Subsidy Offset Act of 2000 (the "Byrd Amendment") provides for the distribution of antidumping duties collected by the United States to eligible "affected domestic producers" of the dumped goods. 19 U.S.C. § 1675c(a) (2000). An "affected domestic producer" must be "a petitioner or interested party in support of the petition with respect to which an antidumping duty order . . . has been entered." Id. § 1675c(b)(1)(A).

In 2005 the United States International Trade Commission ("ITC") and United States Customs and Border Protection ("Customs") denied SKF USA's ("SKF's") request for Byrd Amendment distributions, on the ground that SKF was not an eligible "affected domestic producer" because it had not been a petitioner and had not supported the petition resulting in the relevant antidumping duty order. SKF challenged this determination and the constitutionality of the Byrd Amendment in the Court of International Trade on First Amendment and equal protection grounds. The Court of International Trade held that the requirement that a claimant be a petitioner or "support" an antidumping petition violated "the Equal Protection guarantees under the Fifth Amendment to the Constitution," and that the statutory language imposing this requirement was severable from the Byrd Amendment, making SKF potentially eligible to receive distributions. SKF USA Inc. v. United States, 451 F.Supp.2d 1355, 1366-67 (Ct. Int'l Trade 2006).

On remand, the ITC and Customs determined that under the Court of International Trade's decision, SKF was eligible for Byrd Amendment distributions of approximately $1.4 million and that SKF's claims for additional distributions (made for the first time on remand) were not timely. The Court of International Trade upheld these remand determinations. See SKF USA Inc. v. United States, 502 F.Supp.2d 1325, 1328, 1334 (Ct. Int'l Trade 2007). We reverse, because we conclude that the Byrd Amendment is constitutional.

BACKGROUND

I

The trade laws of the United States further the government's policy against the dumping of goods. The statutory definition of "dumping" is "the sale or likely sale of goods at less than fair value." 19 U.S.C. § 1677(34).

The Department of Commerce ("Commerce") calculates the "normal value" of the imported goods and compares that price with the price at which the imported goods are sold in the United States. See id. §§ 1677(1), 1677b(a). If the sales price is below the normal value, dumping has occurred. In turn, the ITC determines whether such dumping has "materially injured" or threatened material injury to a United States industry. Id. § 1673d(b)(1).

The government almost always relies on petitioners to initiate antidumping proceedings. The regulations specifically state that "[t]he Secretary [of Commerce] normally initiates antidumping ... duty investigations based on petitions filed by a domestic interested party." 19 C.F.R. § 351.202(a). A petition must satisfy certain requirements and be filed "by or on behalf of the industry." 19 U.S.C. § 1673a(c)(1)(A).¹ After the filing of a petition, Commerce sends questionnaires to foreign producers and exporters to determine whether dumping has occurred. If there is a question as to the adequacy of the petition, Commerce sends questionnaires to domestic industry members as well. The ITC sends questionnaires to domestic producers, requesting production and other data in order to assist it in determining whether the dumping alleged in the petition has materially injured a domestic industry or has threatened it with material injury. At least since 1988, the ITC questionnaires have asked whether the recipient of the questionnaire supported, opposed, or took no position on the petition. Commerce and the ITC rely heavily on information gleaned from responses to their questionnaires.

If Commerce makes a final determination that "the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value,"² and if the ITC makes a final determination that a U.S. industry has suffered or is threatened with material injury, Commerce issues an antidumping duty order. Id. § 1673d(a)(1), (b)(1), (c)(2); see also 19 C.F.R. pt. 207; 19 C.F.R. §§ 351.205(a), 351.210(a). Such an order imposes a duty "in an amount equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise." 19 U.S.C. § 1673. Such duties are collected by Customs.

The Byrd Amendment, enacted in 2000, requires that antidumping duties collected by Customs be distributed to "affected domestic producers" for "qualifying expenditures."³ Continued Dumping and Subsidy Offset Act of 2000, Pub.L. No. 106-387, § 1001-1003, 114 Stat. 1549, 1549A-72-75 (codified at 19 U.S.C. § 1675c (2000)), repealed by Deficit Reduction Act of 2005, Pub.L. 109-171, § 7601(a), 120 Stat. 4, 154 (Feb. 8, 2006; effective October 1, 2007).⁴ Under the Byrd Amendment, in order to qualify for distributions, a party must have been "a petitioner or interested party in support of the petition," and an interested party must have indicated that it supported a particular antidumping petition "by letter or through questionnaire response" to the ITC.⁵ 19 U.S.C. § 1675c(b)(1)(A), (d)(1).

II

On March 31, 1988, the Torrington Company ("Torrington"), a United States producer of antifriction bearings, filed a petition with Commerce and the ITC requesting the imposition of antidumping duties on imported antifriction bearings. See, e.g., Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from France, 53 Fed.Reg. 15,074 (Dep't of Commerce Apr. 27, 1988) (initiation of antidumping duty investigation). The petition alleged that imported bearings were being sold or were likely to be sold at less than fair value and that these imports materially injured or threatened to materially injure a United States industry. The petition also alleged that imported bearings were being sold at dumping margins ranging from 1% to 355%. See, e.g., Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, 53 Fed.Reg. 15,073 (Dep't of Commerce Apr. 27, 1988) (initiation of antidumping duty investigation); Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from Japan, 53 Fed.Reg. 15,076 (Dep't of Commerce Apr. 27, 1988) (initiation of antidumping duty investigation). The petition was over 200 pages in length and included scores of pages of sales data collected from several countries, product descriptions and comparisons, detailed analysis of the U.S. antifriction bearing industry, and extensive proprietary financial data.

In response to the petition, Commerce and the ITC initiated antidumping duty investigations. See, e.g., Antifriction Bearings from France, 53 Fed.Reg. at 15,074. Commerce sent questionnaires to foreign manufacturers,⁶ and to domestic industry members as well "[i]n order to determine whether a major proponent of the domestic industry...