Appeal from the United States Court of International Trade in case no. 02-00635, Judge Evan J. Wallach.
The opinion of the court was delivered by: Reyna, Circuit Judge.
Before RADER, Chief Judge, NEWMAN and REYNA, Circuit Judges.
The now-repealed Continued Dumping and Subsidy Offset Act of 2000 (the "Byrd Amendment") allowed affected domestic producers ("ADPs") to receive distributions of antidumping duties collected by the United States. See Pub. L. No. 106-387, §§ 1001-1003, 114 Stat. 1549, 1549A-72 to -75 (codified at 19 U.S.C. § 1675c (2000)), repealed by Deficit Reduction Act of 2005, Pub. L. No. 109-171, § 7601, 120 Stat. 4, 154 (Feb. 8, 2006) (effective Oct. 1, 2007). PS Chez Sidney, L.L.C. ("Chez Sidney") appeals the decision of the United States Court of International Trade affirming the determination of the United States International Trade Commission ("ITC") that it did not qualify as an ADP under the Byrd Amendment because its final questionnaire response indicated that it "t[ook] no position" regarding the underlying petition. See PS Chez Sidney, L.L.C. v. Int'l Trade Comm'n (Chez I), 442 F. Supp. 2d 1329, 1331-32 (Ct. Int'l Trade 2006). In addition, Chez Sidney appeals the affirmance of the decision of U.S. Customs and Border Protection ("Customs") that it was required to make distributions to Chez Sidney only to the extent that it could recover the funds from other ADPs. See PS Chez Sidney, L.L.C. v. U.S. Int'l Trade Comm'n (Chez III), 558 F. Supp. 2d. 1370, 1373 (Ct. Int'l Trade 2008). Because we conclude that Chez Sidney is an ADP for the purpose of receiving Byrd Amendment distributions and that the Byrd Amendment imposes no conditions on the recovery of such funds, we reverse.
This case arises out of Chez Sidney's attempt to obtain Byrd Amendment distributions under an antidumping duty order related to crawfish tail meat. The Byrd Amendment requires the ITC to send Customs an initial list of ADPs within 60 days after the issuance of an anti-dumping duty order. See § 1675c(d)(1). In order to be included on the list, a domestic producer must have been either a petitioner or an "interested party in support of the petition." Id. § 1675c(b)(1)(A); see also 19 C.F.R. § 159.61(b)(1) (2012). Domestic producers can show support either "by letter or through questionnaire response." See § 1675c(b)(1)(A), (d)(1). Within 60 days of the end of each fiscal year, Customs makes distributions to the ADPs on this list that it determines have submitted timely certifications of qualifying expenditures. See § 1675c(d); 19 C.F.R. § 159.64; see also Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 77 Fed. Reg. 32,718, 32,751-52 (June 1, 2012) (announcing that Customs intends to distribute Byrd Amendment funds for fiscal year 2012, including funds related to the Crawfish Tail Meat/China order).
On September 20, 1996, the Crawfish Processors Alliance ("Alliance") filed a petition with the Department of Commerce ("Commerce") alleging dumping of crawfish tail meat from China.*fn1 The ITC issued questionnaires to domestic crawfish producers, including Chez Sidney, during the preliminary phase of the investigation. In its completed response, Chez Sidney indicated that it supported the petition by checking the box labeled "support." Although the record contains only two pages of the response, it is evident that missing portions of the response contained substantial information about the U.S. and Chez Sidney's crawfish production, as the ITC asks producers to supply detailed production, financial, and other information. After preliminarily determining that there was an indication of material injury to the domestic crawfish industry, the ITC sent final questionnaires to 47 firms identified as possible producers, including Chez Sidney. In its response to the final questionnaire, Chez Sidney checked the "take no position" box on whether it supported the petition and also indicated that it had completed the questionnaire. The record contains no indication that Chez Sidney participated in the investigation in any other way, that it took any action indicating that it did not support the petition, or that it in any way opposed the potential imposition of antidumping duties on imports of crawfish tail meat from China. The ITC subsequently issued an affirmative final determination that the crawfish tail meat industry in the United States had been materially injured by virtue of imports of crawfish tail meat that had been sold in the United States at less than fair value. Crawfish Tail Meat from China Determination, 62 Fed. Reg. 49,255 (Sept. 19, 1997). On September 15, 1997, the Department of Commerce issued an antidumping duty order. Notice of Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Freshwater Crawfish Tail Meat From the People's Republic of China, 62 Fed. Reg. 48,218, 42,219 (Sept. 15, 1997).
In October 2000, Congress enacted the Byrd Amendment. Pursuant to § 1675c(d)(1), the ITC provided Customs with a list of eligible ADPs for each antidumping duty order then in effect. The list identified the Alliance as a group of domestic crawfish tail meat producers but did not list individual members. Nor is it clear from the record which of the individual members filed questionnaire responses or otherwise checked boxes indicating support of the petition. The Alliance sent a letter to Customs identifying the members who sought to be added to the list, and Customs added most of the members to the list on June 20, 2002. Customs declined to add six members who had neither submitted letters nor responded to the questionnaires.
In August 2002, Chez Sidney requested that the ITC add it as an ADP and submitted to Customs its certification for a distribution under the Byrd Amendment. The ITC denied Chez Sidney's request because Chez Sidney's response to the final questionnaire "d[id] not indicate support for the petition." J.A. 93. Chez Sidney requested reconsideration, arguing that the statement of support on its preliminary response was sufficient. The ITC again denied the request, stating:
The Commission has reconsidered your request to add PS Chez Sidney, LLC to the list of petitioners and other entities supporting petitions in the subject investigation and again finds that it is inappropriate to do so. Chez Sidney provided conflicting statements on its position with respect to the petition by indicating support for the petition in the preliminary phase of the investigation but changing its position to expressly "take no position" in the final phase of the investigation. Further, as the latter is the latest expressed position during the original investigation, under these circumstances the Commission does not find it to be appropriate to add Chez Sidney Seafood, Inc. (the company's name at the time) to the list.
J.A. 98. Customs likewise denied Chez Sidney's request
for a Byrd Amendment distribution because the ITC had not added Chez Sidney to the list of eligible ADPs.
On October 2, 2002, pursuant to 28 U.S.C. § 1581(i), Chez Sidney filed a complaint with the Court of International Trade challenging the ITC's determination that Chez Sidney had not supported the petition. Chez I, 442 F. Supp. 2d at 1335. Chez Sidney immediately moved to enjoin Customs from making distributions to eligible parties, but its motion was denied.
Chez Sidney also moved for summary judgment on the grounds that the "support" requirement of the Byrd Amendment violated the First Amendment or, in the alternative, that the ITC had misinterpreted the Byrd Amendment when it found that Chez Sidney had failed to satisfy the support requirement. See id. at 1337-38. The Court of International Trade granted the motion, concluding that the Byrd Amendment violated the First Amendment. Id. at 1359-60. It declined to resolve the statutory argument, stating that it would not substitute its judgment for the ITC's regarding "the factual question of whether Chez Sidney indicated support for the subject petition." Id. at 1332. The court certified the issue for immediate review and reserved the questions of severability and damages. Id. at 1359.
In July 2007, the Court of International Trade addressed the issues of severability and damages. PS Chez Sidney, L.L.C. v. U.S. Int'l Trade Comm'n (Chez II), 502 F. Supp. 2d 1318, 1320 (Ct. Int'l Trade 2007). It determined that the unconstitutional sections of the Byrd Amendment were severable, id. at 1323, and struck the support requirement from the definition of an ADP in § 1675c(b)(1)(A) and from the description of the list of ADPs in § 1675c(d)(1), id. at 1324. It then remanded the matter to the ITC for a determination of whether, under the new definition, Chez Sidney qualified to be on the list of ADPs and, if so, to Customs for a determination of the sufficiency ...