SKF USA, Inc. v. United States Customs & Border Protection

556 F.3d 1337, 30 I.T.R.D. (BNA) 2121, 2009 U.S. App. LEXIS 2964

• Court: Court of Appeals for the Federal Circuit
• Decided: February 19, 2009
• Docket: 2008-1005, 2008-1006, 2008-1007, 2008-1008
• Status: Published

Opinions

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 an-tidumping duties collected by the United States to eligible “affected domestic producers” of the dumped goods. 19 U.S.C. § 1675e(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)(l)(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 sev-erable 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)(l).

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)(l)(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)(l), (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 19U.S.C. § 1675c(b)(l)(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 opposes the petition.” Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from Italy, 53 Fed.Reg. 45,361, 45,362 (Dep’t of Commerce Nov. 9, 1988) (prelim, determinations of sales at less than fair value). Commerce subsequently determined that the majority of the domestic antifriction bearing industry supported the petition.⁷

Before making its final dumping determinations, Commerce also held several public hearings in February 1989, in which Torrington and other interested parties filed pre- and post-hearing briefs.⁸ Each hearing examined imports from a different country. Commerce ultimately determined that imported antifriction bearings were being or were likely to be sold at less than fair value. See, e.g., Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, 54 Fed.Reg. 18,992 (Dep’t of Commerce May 3, 1989) (final determinations of sales at less than fair value).

As part of its own investigation of the petition’s allegations, the ITC sent detailed questionnaires to domestic ball bearing producers, seeking sales, employment, financial, and other data to help the ITC determine whether the domestic antifriction bearing industry had been materially injured (or threatened with material injury) by dumping. Eventually seven domestic companies, in addition to Torrington, supported the antidumping petition. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 73 Fed.Reg. 31,196, 31,220-21 (U.S. Customs and Border Protection May 30, 2008) (notice of intent to distribute) (listing eight companies as affected domestic producers eligible for Byrd Amendment distributions of antifriction bearing anti-dumping duties). The questionnaire responses of these petition supporters were hundreds of pages long, and several of the supporters prepared responses exceeding 300 pages. The supporters supplied voluminous data in response to the ITC’s questionnaires, including extensive price and shipment data, product specifications, customer lists, internal company reports, descriptions of competitors, and detailed market analyses. Since it was a domestic producer, SKF also responded to the ITC’s questionnaire, but stated that it opposed the antidumping petition.

During its investigation of the petition’s allegations, the ITC held two proceedings. On April 21, 1988, the ITC held a conference at which “all persons who requested the opportunity were permitted to appear in person or by counsel.” See U.S. Int’l Trade Comm’n, Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom: Preliminary Determinations, at 3, Publication 2083 (May 1988). The ITC’s report indicates that Torring-ton, the petitioner, appeared at the conference through counsel, assisted in the investigation, and submitted a post-conference brief providing over 120 pages of arguments, rebuttal, and analysis of the issues raised at the conference. See id. at A-62 n. 1 (“The petitioner ... identified about 20 specific bearing products for which it reportedly encounters significant import competition.... With the help of the petitioner, the [ITC] staff selected 6 of these products to request pricing data.”).

The ITC subsequently made a preliminary determination that there was a “reasonable indication that an industry in the United States is materially injured by reason of imports ... of antifriction bearings.” Id. at 1-2. On March 30, 1989, the ITC held a public hearing in connection with its final antidumping determination, where again “all persons who requested the opportunity were permitted to appear in person or by counsel.” U.S. Int’l Trade Comm’n, Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from the Federal Republic Of Germany, France, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom: Final Determinations, at 6, Publication 2185 (May 1989). Petitioner Torrington participated in this hearing by submitting pre-hearing and post-hearing briefs, as well as by providing economic testimony during the hearing on March 30, 1989. Petitioner Torrington’s pre-hearing brief was over 200 pages long, and the brief proposed findings of fact and provided detailed analyses of the data provided in responses to the ITC’s questionnaires. Much of the ITC’s preliminary and final determination reports were devoted to analysis of petitioner Torrington’s arguments. The ITC’s final determination was that the “industry in the United States is materially injured by reason of imports [of antifriction bearings] ... which have been found by the Department of Commerce to be [dumped].” Id. at 2.

After the ITC’s final material injury determination, Commerce issued anti-dumping duty orders against antifriction bearings imported from several countries, including Japan. These orders covered countries where SKF’s affiliated companies manufactured antifriction bearings that later were sold in the U.S. for less than fair value. SKF’s affiliated companies thus were subject to duties. See, e.g., Ball Bearings, Cylindrical Roller Bearings, and Parts Thereof from Sweden, 54 Fed.Reg. 20,907 (Dep’t of Commerce May 15, 1989) (antidumping duty orders).

Ill

This case presents no questions concerning the existence of dumping, material injury, or the appropriate antidumping duty rate. Rather, the issue is the constitutionality of the Byrd Amendment. As noted earlier, the Byrd Amendment requires the duties collected under an antidumping duty order to be shared with the petitioner and other “affected domestic producers” that supported the corresponding anti-dumping petition. 19 U.S.C. § 1675c(a), (b)(1). The Byrd Amendment requires the ITC to prepare a list of the affected domestic producers that petitioned for or supported each existing antidumping duty order, and directs Customs to pay qualifying producers a pro rata share of the collected antidumping duties each year to the extent of their qualifying expenditures. See id. § 1675c(d).⁹

On December 29, 2000, the ITC sent Customs the list of petitioners and petition supporters for each antidumping duty order in effect on January 1, 1999, as required under § 1675e(d)(l) of the Byrd Amendment. In August 2001, Customs published a notice of intent to distribute fiscal year 2001 Byrd Amendment funds that included the current list of these eligible affected domestic producers and invited them to file certifications to obtain distributions. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 66 Fed.Reg. 40,782 (U.S. Customs and Border Protection Aug. 3, 2001). SKF did not appear on the list and did not request to be added to the list. In July 2002, Customs published a similar notice and list for distributions of fiscal year 2002 Byrd Amendment funds. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 67 Fed.Reg. 44,722 (U.S. Customs and Border Protection July 3, 2002). SKF did not appear on or challenge this list. In July 2003, Customs published the notice and eligibility list for distributions of fiscal year 2003 Byrd Amendment funds. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 68 Fed.Reg. 41,597 (U.S. Customs and Border Protection July 14, 2003). Again, SKF did not appear on or challenge this list.

On March 1, 2005, for the first time, SKF asked the ITC to add SKF to its list of affected domestic producers under the antidumping duty order covering antifriction bearings from Japan.¹⁰ The ITC denied this request on April 20, 2005, explaining that the Byrd Amendment “allows for adding only those potentially eligible producers that indicated support of the petition by letter or through questionnaire response during the original investigation.” J.A. 66. The list of affected domestic producers under the Byrd Amendment for fiscal year 2005 was later published in the Federal Register, and SKF was not included. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 70 Fed.Reg. 31,566 (U.S. Customs and Border Protection June 1, 2005). On July 13, 2005, SKF submitted a certification to Customs requesting Byrd Amendment distributions for fiscal year 2005. On July 15, 2005, Customs denied SKF’s request because SKF did not appear on the ITC’s list of affected domestic producers.

On October 3, 2005, SKF filed a complaint in the U.S. Court of International Trade, alleging that the Byrd Amendment and the determinations by the ITC and Customs that SKF did not qualify for 2005 Byrd Amendment distributions violated the First Amendment and equal protection guarantees of the U.S. Constitution. SKF subsequently moved for summary judgment on the agency record. SKF challenged the distribution of duties collected pursuant to the antidumping orders covering ball bearings from several countries, or, in the alternative, of only the duties collected pursuant to the antidumping order covering ball bearings from Japan.

SKF argued that the Byrd Amendment violates the Constitution’s equal protection guarantees because, in light of the compensatory purpose of the Byrd Amendment, there is no rational basis for distributing antidumping duties only to domestic producers who supported an antidumping petition, and excluding similarly situated domestic producers who opposed or took no position on a petition. SKF also argued that the Byrd Amendment violates the First Amendment because it discriminates based on the viewpoint expressed by the party seeking to share in the distribution of antidumping duties.

The ITC and Customs (“the government”), supported by Timken U.S. Corporation (“Timken,” the successor to petitioner Torrington),¹¹ urged that the Byrd Amendment was constitutional under both the First Amendment and equal protection. The government asserted that the Byrd Amendment “identifies a group of beneficiaries that are entitled to compensation for unfair trade practices” and therefore had a rational basis. Def.’s Resp. to Pl.’s Mot. J. Upon Agency R. 27. The government also asserted that the Byrd Amendment did not unconstitutionally restrict speech. Timken belatedly raised a statute of limitations defense, and the Court of International Trade declined to allow Timken to amend its answer to raise this issue. See SKF USA Inc. v. United States, No. 05-00542 (Ct. Int’l Trade July 14, 2006) (Order).

On the merits, the Court of International Trade held that the Byrd Amendment’s restriction of distributions to antidumping petition supporters violated the Constitution’s equal protection guarantees, applied to the federal government through the Fifth Amendment. See SKF USA Inc., 451 F.Supp.2d at 1366. The court found that because the antidumping laws are designed to benefit entire industries rather than individual companies, and because dumping similarly injures all members of a domestic industry, parties who participate in antidumping investigations are similarly situated whether they support or oppose the antidumping petition being investigated. The court could not “discern a reasonable correlation between an entity’s decision to support a petition and the gravity of the entity’s injury.” Id. at 1362. Applying rational basis review, the Court of International Trade concluded that treating supporters and opposers of antidump-ing petitions differently was “not rationally connected to any legitimate objective” and thus that the Byrd Amendment unconstitutionally denied equal protection to SKF. Id. at 1362-63.

The court also held that the petition support requirement was severable from § 1675c(b)(l) of the Byrd Amendment. The effect was to replace the words “in support of the petition” with the words “in a petition” in § 1675c(b)(l)(A), and thus to define an “affected domestic producer” as “a petitioner or interested party in a petition with respect to which an antidumping duty order, a finding under the Antidump-ing Act of 1921, or a countervailing duty order has been entered.” Id. at 1365.

The Court of International Trade remanded the case to Customs and the ITC “to review their decisions denying SKF [Byrd Amendment] disbursements.” Id. at 1367. Pursuant to the remand, Customs and the ITC determined that SKF was eligible to receive over $1.4 million in 2005 Byrd Amendment distributions under the antidumping duty order covering anti-friction bearings from Japan. On review of these remand determinations, SKF argued that it was entitled to additional 2005 distributions, including distributions from antidumping duty orders involving antifriction bearings imported from additional countries. The Court of International Trade held that Customs and the ITC had complied with the remand. The court also held that SKF’s certifications requesting additional 2005 distributions were untimely, because 19 C.F.R. § 159.63(a) requires certifications to be filed within sixty days of Customs’ notice of intent to distribute Byrd Amendment funds for a particular fiscal year, and SKF’s additional certifications were filed more than a year after Customs’ July 2005 notice. See SKF USA Inc., 502 F.Supp.2d at 1334.

The parties timely appealed and cross-appealed to this court. The government and Timken appeal the Court of International Trade’s decision that SKF is eligible to receive Byrd Amendment distributions, and SKF cross-appeals the Court of International Trade’s decision that SKF did not timely file its amended certification requesting additional 2005 Byrd Amendment distributions.

DISCUSSION

We first address whether the Court of International Trade had jurisdiction to hear SKF’s claims. “[EJvery federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review¹.... ” Bender v. Williamsport Area Sch. Dist, 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)).

Under 28 U.S.C. § 1581®, “the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States” arising from “tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue” and their “administration and enforcement.” However, an action under 28 U.S.C. § 2636® is “barred unless commenced in accordance with the rules of the court within two years after the cause of action first accrues.” The government and Timken both argue that SKF’s challenge was untimely but on different theories. The government asserts that SKF’s cause of action accrued either in December 2000 when the ITC sent to Customs the list of affected domestic producers, or in August 2001 when Customs published the list of affected domestic producers. Timken, in contrast, contends that SKF’s cause of action accrued either when the Byrd Amendment was enacted on October 28, 2000, or in August 2001 when the ITC’s list of affected domestic producers was published.¹²

SKF argues that the statute of limitations defense has been waived because it was not timely raised in the Court of International Trade.¹³ The ITC and Timken argue that the statute of limitations is jurisdictional rather than an affirmative defense and thus can be raised for the first time on review.

Recently in John R. Sand & Gravel Co. v. United States, the Supreme Court addressed 28 U.S.C. § 2501, the statute of limitations for bringing claims in the Court of Federal Claims. — U.S.-, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). The Supreme Court held that because § 2501 is jurisdictional, it requires “sua sponte consideration” by courts even when a party waives the issue of timeliness. Id. at 752. • In holding § 2501 to be jurisdictional, the Supreme Court distinguished between statutes of limitations that are affirmative defenses and those that are jurisdictional, describing jurisdictional statutes of limitations as “seeking] not so much to protect a defendant’s case-specific interest in timeliness as to achieve a broader system-related goal.” Id. at 753.

We assume, but do not decide, that the statute of limitations in § 2636(f) is jurisdictional under John R. Sand & Gravel Co. We hold that the filing of SKF’s complaint was timely in any event because the cause of action did not accrue until June 1, 2005.¹⁴

SKF’s claim for Byrd Amendment distributions could accrue only when suit could be filed. “A limitations period ordinarily does not begin to run until the plaintiff has a ‘complete and present cause of action.’ ” Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 195, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1941)) (holding that a cause of action does not accrue under a pension plan statute until the plan’s trustees calculate payments and the payer then misses a scheduled payment). While SKF could have filed a facial challenge to the Byrd Amendment immediately after its enactment and could have filed suit before 2005 to challenge a pre-2005 fiscal year’s distributions, here SKF could not file suit to recover fiscal year 2005 Byrd Amendment distributions until it was known whether Byrd Amendment distributions would be available.¹⁵ When either the Byrd Amendment was passed in 2000 or when the list of eligible affected domestic producers was prepared or published in 2000 or 2001, it was not known whether there would be Byrd Amendment distributions available in 2005. For instance, Commerce could have reviewed and revoked the antidumping duty order, and then there would have been no collected duties to distribute. There might have been no imports of antifriction bearings in 2005 subject to the order, and thus no duties would have been collected. SKF also could not file suit to recover fiscal year 2005 Byrd Amendment distributions until SKF knew it had incurred qualifying expenditures during that fiscal year.

The earliest SKF’s claim could have accrued was when Customs published its notice of intent to distribute duties under Byrd Amendment for fiscal year 2005 and invited potentially eligible producers to file certifications requesting a share of the distributions. This notice, including the ITC’s list of affected domestic producers potentially eligible to receive such distributions, was published in the Federal Register on June 1, 2005. See Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 70 Fed.Reg. 31,566 (June 1, 2005). SKF filed its complaint on October 3, 2005, well within the two-year statute of limitations under § 2636(i). Thus the Court of International Trade’s jurisdiction over SKF’s claims was not time-barred.

We have jurisdiction under 28 U.S.C. § 1295(a)(5), and our review of statutory and constitutional issues is de novo. See U.S. Shoe Corp. v. United States, 296 F.3d 1378, 1381 (Fed.Cir.2002).

Although the Court of International Trade did not reach SKF’s First Amendment claims, on appeal SKF urges its First Amendment theory as its primary ground for affirming the Court of International Trade’s judgment.¹⁶ We first consider that question, recognizing in that connection our well established obligation to construe statutes to avoid constitutional difficulties.¹⁷ In performing this obligation, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895)). Indeed, courts are obligated to adopt a saving construction even when the interpretation finds little support in the literal language of the statute.¹⁸ While we need not go so far to sustain the statute here, contrary to the dissent, the doctrine of constitutional avoidance is not “irrelevant,” Dissenting Op. at 1368, but lies at the heart of our obligation as a reviewing court.

In addressing the constitutionality of the Byrd Amendment, it is also important to keep in mind that the statute does not prohibit particular speech. Statutes that are prohibitory in nature are rarely sustained, and cases addressing the constitutionality of such statutes are of little assistance in determining the constitutionality of the far more limited provisions of the Byrd Amendment.

In considering limited provisions that do not ban speech entirely, the purpose of the statute is important. As the Supreme Court noted in Ward v. Rock Against Racism, in many contexts “[t]he government’s purpose is the controlling consideration.” 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). This is not to suggest that a benign purpose will necessarily save a statute,¹⁹ but a suppressive purpose may render it unconstitutional. Moreover, the legitimacy of a statute’s purpose is important in a First Amendment analysis whether the appropriate test is strict scrutiny (requiring a determination of the state’s compelling interest) or some lesser form of scrutiny (requiring a determination of the state’s substantial interest).²⁰ Thus, purpose is a critical question, and we must first determine the purpose of the Byrd Amendment.

The government contends that the Byrd Amendment was designed to compensate domestic producers injured by dumping. That is correct.²¹ The problem here is that that appears not to be the Byrd Amendment’s only purpose. As the Court of International Trade correctly noted, the statute did not compensate all injured domestic producers, but only those who filed an antidumping petition and those who supported it. See SKF USA Inc., 451 F.Supp.2d at 1361-62.

The government disagrees, arguing that the statute’s only purpose was to compensate those who are injured by dumping, and that the statute simply used petition support as a surrogate for injury. In other words, the government argues that the sole purpose of the Byrd Amendment’s support requirement was to identify those producers suffering the greatest injury, asserting that the Byrd Amendment distributions are “not based upon the viewpoint expressed” in antidumping proceedings. Resp./Reply Br. of Def.-Appellant U.S. Customs & Border Protection at 15, 20. We find this suggestion simply implausible in light of the statute’s explicit restriction that only “a petitioner or interested party in support of the petition,” 19 U.S.C. § 1675c(l)(A), may receive Byrd Amendment distributions, the absence of any evidence in the legislative history that the support requirement was designed as a proxy for injury, and the availability of far more direct and accurate methods of measuring injury.²²

We turn then to the question of whether this subsidiary purpose renders the statute unconstitutional under the First Amendment.

SKF’s theory is that the Byrd Amendment’s restriction of distributions to anti-dumping petition supporters is impermissi-bly designed to penalize those who oppose antidumping petitions. SKF asserts that the Byrd Amendment “plainly discriminates among participants in an antidump-ing investigation on the basis of viewpoint by granting a financial benefit only to those domestic producers who publicly indicated support for a particular investigation.” Br. Pl.-Cross Appellant SKF USA Inc. 40 (internal quotation marks omitted). SKF argues that the Byrd Amendment violates the First Amendment because “a manufacturer who opposes an investigation is penalized ... for expressing its views on the matter.” Id. As the dissent points out, Dissenting Op. at 1364, if this were the purpose of the Byrd Amendment, it might well render the statute unconstitutional under Supreme Court cases such as Speiser v. Randall, 357 U.S. 513, 529, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 832, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and Legal Services Corp. v. Velazquez, 531 U.S. 533, 548, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001), each of which held unconstitutional the distribution of a government benefit designed to favor the speech preferred by the government.

However, this construction of the statute is not compelled or even supported by the available evidence. Neither the background of the statute, nor its articulated purpose, nor the sparse legislative history supports a conclusion that the purpose of the Byrd Amendment was to suppress expression.²³ Parties who are awarded antidumping distributions under the Byrd Amendment may say whatever they want about the government’s trade policies generally or about the particular antidumping investigation, provided they do so outside the context of the proceeding itself. Even within the proceeding, the Byrd Amendment does not prohibit opposing views but merely promotes the efforts of those who support enforcement.

An alternative construction also exists that is both more consistent with the available evidence of legislative intent and may save the statute. Under this construction, the purpose of the Byrd Amendment’s limitation of eligible recipients was to reward injured parties who assisted government enforcement of the antidumping laws by initiating or supporting antidumping proceedings. This interpretation is not only consistent with the statutory language but also is supported by the stated purpose to strengthen enforcement of the trade laws. Congressional findings supporting the Byrd Amendment state that “United States unfair trade laws have as their purpose the restoration of conditions of fair trade” and that “injurious dumping is to be condemned.” Pub.L. No. 106-387, § 1002, 114 Stat. at 1549A-72; see also 146 Cong. Rec. 23,117 (2000) (statement of Sen. Byrd) (describing the Byrd Amendment as necessary to “deter unfair trade practices”). These findings also state that “continued dumping ... after the issuance of antidumping orders ... can frustrate the remedial purpose of the laws” to the detriment of “domestic producers ... small businesses and American farmers and ranchers” and that the “United States trade laws should be strengthened to see that the remedial purpose of those laws is achieved.” Pub.L. No. 106-387, § 1002, 114 Stat. at 1549A-72-73.

The dissent rejects this interpretation, relying primarily on the government’s representations at oral argument that the Byrd Amendment is not designed to reward those who assist in enforcement. Dissenting Op. at 1365-66. We disagree. First, the government’s views that the Byrd Amendment was not designed to reward parties assisting the government is part and parcel of the government’s unsuccessful effort in this litigation (at odds even with the government’s position before the World Trade Organization)²⁴ to suggest that the Byrd Amendment compensation scheme is only designed to compensate affected parties, a position which both the majority and the dissent reject.

Second, the views of the government as litigator are simply not binding on the issue of Congressional intent. Indeed, the Supreme Court has repeatedly rejected the government’s litigation views in construing Congressional statutes. See, e.g., Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 646-47, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005) (recognizing and then rejecting the government’s interpretation of a statute); United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 223-24, 116 S.Ct. 2106, 135 (1996) (rejecting the government’s interpretation of a tax statute).

Third, the government, while rejecting the reward construction, does not remotely support the dissent’s suppression construction.

Fourth, and most importantly, the government’s arguments cannot relieve us of our obligation to construe the Byrd Amendment to avoid a finding of unconstitutionality. This obligation extends to the ascertainment of a statute’s purpose. Thus, for example, in United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527, 53 L.Ed. 836 (1909), the Supreme Court rejected the government’s interpretation of the statutory purpose, concluding that if the Court adopted the government’s view of the “result intended to be accomplished” by the statute, the Court would need to address several “grave constitutional questions.” 213 U.S. at 404-05, 406 (1909). The Court upheld the statute by adopting a view of the purpose of the statute different from that of the government, noting that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” Id. at 408, 412. So too, in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court upheld an immigration statute’s civil detention provisions by interpreting them to be limited in scope in order to avoid “a serious constitutional problem.” Id. at 690, 121 S.Ct. 2491. The Court concluded that there was no “clear indication of congressional intent” that the statute had only the purposes asserted by the government. Id. at 697, 121 S.Ct. 2491. Here too, as we have discussed, the reward construction of the Byrd Amendment is reasonable.²⁵

Finally, if we were to view this case as involving the construction of statutory language rather than an exercise in ascertaining statutory purpose, the result would be the same. The language of the Byrd Amendment is easily susceptible to a construction that rewards actions (litigation support) rather than the expression of particular views. Indeed, in some respects a limiting construction of the statute is necessary to cabin its scope so that it does not reward a mere abstract expression of support.²⁶ The Supreme Court has frequently adopted limiting constructions of statutory language not suggested by the government. For example, the Court in DeBar-tolo adopted a limiting construction of a provision of the National Labor Relations Act despite the broad construction urged by the Board. See DeBartolo, 485 U.S. at 575, 108 S.Ct. 1392; see also United States v. Int’l Bus. Machs. Corp., 517 U.S. 843, 868, 116 S.Ct. 1793, 135 L.Ed.2d 124 (1996) (Kennedy, J., dissenting) (“We have not considered ourselves foreclosed from adopting saving constructions the parties failed to suggest.”).

We proceed to consider whether the reward construction would make the statute constitutional. To be sure, the reward construction does not render the First Amendment irrelevant. The Supreme Court has held that the First Amendment right to petition includes the right to petition the courts (and administrative agencies) for relief, so long as the petition is not objectively baseless. Thus, in BE & K Construction Co. v. NLRB, the Court held that the National Labor Relations Board could not impose liability on an employer for litigating an unsuccessful lawsuit against a union where the lawsuit was not objectively baseless, because such litigation was protected by the First Amendment. 536 U.S. 516, 529-30, 536-37, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002). In Professional Real Estate Investors, Inc., v. Columbia Pictures Industries, Inc., the Court held that the First Amendment barred the imposition of antitrust liability for commencing litigation that was not objectively baseless. 508 U.S. 49, 51, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993); see also Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642, (1972) (recognizing that the First Amendment right to petition extends to petitioning “administrative agencies ... and to courts”).

Under that line of cases, we have little doubt that SKF’s opposition to the antidumping petition here is protected First Amendment activity.²⁷ But as the Supreme Court has made explicitly clear, its holding in BE & K Construction that litigation enjoys First Amendment protection does not suggest that it is unconstitutional to reward prevailing parties. The Court stated that “nothing in our holding today should be read to question ... the validity of statutory provisions that merely authorize the imposition of attorney’s fees on a losing plaintiff.” BE & K Constr., 536 U.S. at 537, 122 S.Ct. 2390. Nor do the Supreme Court’s cases suggest that an award of a portion of the government’s recovery to a party assisting enforcement (while not rewarding those who oppose enforcement) would be unconstitutional. In other words, the First Amendment, at least in some circumstances, does not bar rewarding parties who assist the government in litigation, even if such rewards disadvantage a losing party that asserted an unsuccessful defense that is not objectively baseless.

At the same time, the Supreme Court’s right to petition cases do not establish a standard for determining when such rewards would be permissible and when, if ever, they would be forbidden by the First Amendment. We think that rewarding those who support government enforcement is at least constitutional if those provisions satisfy the standards governing commercial speech. While the commercial speech doctrine typically applies to speech proposing a commercial transaction, it has been applied as well to regulation of other activities of a commercial nature. See, e.g., IMS Health Inc. v. Ayotte, 550 F.3d 42, 54-55 (1st Cir.2008) (upholding a statute regulating the data mining of physician prescription histories as commercial speech). In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York itself, the Supreme Court broadly defined “commercial speech” as “expression related solely to the economic interests of the speaker and its audience.” 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Rewarding parties under the circumstances here is similar to commercially contracting with them to assist in the performance of a government function, in this particular context assisting in the enforcement of government policy in litigation. The well established Central Hudson test seems appropriate.²⁸ See Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343.

Under Central Hudson, regulation of lawful and non-misleading commercial speech is permissible if (1) “the asserted governmental interest is substantial,” (2) “the regulation directly advances the governmental interest asserted,” and (3) the regulation “is not more extensive than is necessary to serve that interest.” Id. The Byrd Amendment satisfies this test, even if we view the Byrd Amendment as regulatory in nature.²⁹

First, preventing dumping is a substantial government interest. Congress has broad powers under the Constitution to regulate trade. See U.S. Const., Art. I, § 8, cl. 3; see also Bd. of Trustees of Univ. of Ill. v. United States, 289 U.S. 48, 56, 53 S.Ct. 509, 77 L.Ed. 1025 (1933) (Congress has “plenary” power to regulate foreign commerce); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 193, 6 L.Ed. 23 (1824). In addition, “[s]o long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (citing Regan v. Taxation with Representation, 461 U.S. 540, 549, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983)). No party here questions the authority of the government to ban dumping or to spend money to enforce the antidumping laws.

Second, the Byrd Amendment directly advances the government’s substantial interest in trade law enforcement by rewarding parties who assist in this enforcement. The government has a substantial interest in rewarding those who assist in the enforcement of government policy. We are not aware of any Supreme Court case that rejects the legitimacy of such rewards. Indeed, given its limited resources, it is now common for the government to reward those who assist in enforcing government policies through litigation or administrative proceedings. Such rewards may take a variety of forms. For example, qui tam actions reward private parties for successfully bringing suit on behalf of the government.³⁰ Such rewards have a long history. See Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 776-77, and nn. 5-7, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (describing the history of qui tam and informer statutes in England and the United States). Other statutes do not authorize private parties to commence the actions but allow the private parties a portion of the government’s recovery or otherwise reward the private parties’ assistance to the government. See 26 U.S.C. § 7623 (awarding a portion of the collected proceeds to whistleblowers who assist the Internal Revenue Service in detecting tax underpayments); 19 U.S.C. § 1619 (allowing compensation of informers who help enforce the customs laws). The government also rewards parties who vindicate government policy through the award of attorney’s fees to successful plaintiffs, for example, in actions under Title VII of the Civil Rights Act of 1964 and other statutes.³¹

The government’s authority to reward those who assist in enforcement is generally unquestioned, and as discussed above, the Supreme Court’s decision in BE & K Construction appears to conclude that such awards are generally permissible under the First Amendment. The Supreme Court’s decision in Legal Services Corp. v. Velazquez is not to the contrary. In Velazquez, the Supreme Court invalidated Congressional restrictions that barred government-funded legal services attorneys “from arguing to a court that a state statute conflicts with a federal statute or that either a state or federal statute by its terms or in its application is violative of the United States Constitution.” 531 U.S. at 537, 121 S.Ct. 1043. Velazquez hardly suggests that the government could not reward those who assist in supporting the validity of federal statutes. It rests entirely on the proposition that legal services lawyers did not perform that role. Rather they represented the interests of independent clients (who might or might not support the legislation) and not the interests of .the government.³²

In contrast, the Byrd Amendment — like qui tam proceedings, monetary awards of a portion of the government’s recovery, and awards of attorney’s fees — shifts money to parties who successfully enforce government policy. It is significant here that those who bring and support antidumping petitions receive Byrd Amendment distributions only if the antidumping petition is successful. The Byrd Amendment does not reward unsuccessful efforts.³³ At bottom, neither SKF nor its supporting amici appear to contend that parties providing significant assistance to the government in enforcing the antidumping laws may not be rewarded.

The remaining question is whether the Byrd Amendment is overly broad. See Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. At oral argument SKF agreed that petitioners in antidumping proceedings supply substantial assistance to the government in enforcing the trade laws. While in theory Commerce may itself initiate an antidumping duty investigation under 19 U.S.C. § 1673a(a), it is common for the government to rely on the filing of a private party petition with Commerce for an antidumping duty investigation under 19 U.S.C. § 1673a(b).³⁴ Not only do petitioners call the government’s attention to the existence of a violation (similar to an informer), they provide substantial assistance during the course of investigations. The general role of an antidumping petitioner is to gather and present information reasonably available to it in order to support its allegations that dumping is occurring and materially injuring a domestic industry. See 19 U.S.C. § 1673a(b)(l); 19 C.F.R. § 351.202(b); 19 C.F.R. § 207.11. In the antifriction bearing petition underlying this case, petitioner Torrington prepared and submitted the petition and then at two ITC proceedings appeared through counsel and submitted briefs to support its arguments. The Byrd Amendment’s reward of such assistance serves to advance the government’s interest in enforcing its trade laws.³⁵

However, SKF appears to contend that the government’s interest does not extend to rewarding those who merely support the petition.³⁶ The support requirement in the Byrd Amendment reflects the ITC’s practice of asking questionnaire recipients to advise the ITC whether they support, oppose, or take no position on an anti-dumping petition. This support question is part of the ITC’s material injury investigation and is not designed solely to determine eligibility for Byrd Amendment distributions. This practice indeed was established many years before the passage of the Byrd Amendment in 2000. See, e.g., J.A. 73 (Producers’ Questionnaire in the ITC’s antifriction bearings antidump-ing duty investigation in 1989); Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 981 (Fed.Cir.1994) (referring to the support question in a 1987 ITC antidumping investigation questionnaire). Those who support anti-dumping petitions typically fill out questionnaires from the ITC. Each of the successful Byrd Amendment claimants here did so.

While those supporting a petition by completing a questionnaire may supply less assistance than petitioners, the Central Hudson test does not require perfect correspondence of means and ends. As the Supreme Court held in Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), the “not more extensive than is necessary” portion of the Central Hudson test requires “a fit that is not necessarily perfect, but reasonable” and “leavefs] ... to governmental decision-makers to judge what manner of regulation may best be employed.” See also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 67, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (upholding a statute’s “incidental burden on speech” under the First Amendment because “[i]t suffices that the means chosen by Congress add to the effectiveness of’ the government’s substantial interest, applying the expressive conduct test formulated in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)); El Dia, Inc. v. P.R. Dep’t of Consumer Affairs, 413 F.3d 110, 117 (1st Cir.2005).

ITC questionnaires in particular are extremely detailed, requesting several years of data on a domestic producer’s shipments, employment, sales, finances, pricing, customers, and competitors. See, e.g., U.S. Int’l Trade Comm’n, Generic U.S. Producer Questionnaire, available at http://www.usitc.gov/trade_remedy/731_ ad_701_evd/ investigations/question/US-ProducerQuestionnaire.pdf. In proceedings before the World Trade Organization, the government has recognized that the costs of responding to such questionnaires are substantial. See Panel Report, United States' — Continued Dumping and Subsidy Offset Act of 2000, ¶ 4.834, WT/DS217/R, WT/DS234/R, (Sept. 16, 2002), available at http://www.wto.org/english/tratop_e/dispu_ e/217_234r_a_e.pdf (suggesting in a World Trade Organization proceeding that the cost of filing or supporting a U.S. anti-dumping petition would be “a million plus dollars”). The record here demonstrates that petition supporters in the antifriction bearing antidumping investigation spent substantial sums preparing their questionnaire responses. Indeed, the government has gone so far as to suggest that Byrd Amendment distributions are not of sufficient size to adequately compensate those who support such petitions for their efforts. See id. (“The costs of participating in an investigation for an industry, already materially injured or threatened with material injury, could be far greater than the [potential Byrd Amendment] disbursements received years later.”).

To be sure, domestic industry participants opposing the petition are also required to fill out questionnaires, as SKF did in this case. However, Congress could permissibly conclude that it is not required to reward an opposing party.

Opposing parties’ interests lie in defeating the petition, typically (as is the case here) because the domestic industry participant is owned by a foreign company charged with dumping. Indeed, SKF here undertook a role that was nearly indistinguishable from that played by a defendant in a qui tam or attorney’s fees award case. At the ITC’s April 21, 1988, preliminary determination conference, SKF urged through counsel that Torring-ton’s petition be denied, and provided an analysis of data to refute Torrington’s assertion that the U.S. antifriction bearing industry was being or was about to be materially injured by dumping. At the ITC’s March 80, 1989, final determination hearing, SKF urged through counsel that the domestic antifriction bearing industry was not being materially injured by dumping and was not threatened with material injury. To support this argument, SKF’s president testified that the history of the production capacity, capital investments, and sales prices of the domestic antifriction bearing industry demonstrated that it was not being materially injured. SKF submitted an economic analysis brief, and at the hearing SKF’s economic expert, Dr. Peter Linneman, a professor at the Wharton School of the University of Pennsylvania, testified about how his pricing analysis of the antifriction bearing industry showed no evidence of actual or threatened material injury. SKF’s counsel also introduced testimony from the executives and counsel of several foreign antifriction bearing producers that opposed Torring-ton’s petition.

Opponents may equally impede the investigation simply by refusing to cooperate. This is recognized by the statute itself, which recognizes that such failure to cooperate is a serious problem, and allows Commerce and the ITC to use “facts otherwise available” in making antidumping determinations when a party “withholds information that has been requested,” “fails to provide such information,” “significantly impedes a proceeding,” or provides unverifiable information. 19 U.S.C. § 1677e(a). The statute further allows Commerce and the ITC to find that a party has “failed to cooperate by not acting to the best of its ability to comply with a request for information,” and to subject such an uncooperative party to “an inference that is adverse to the interests of that party in selecting from among the facts otherwise available” when Commerce and the ITC make antidumping determinations. 19 U.S.C. § 1677e(b); see also H.R.Rep. No. 103-826 (Part I), at 105 (1994), reprinted in 1994 U.S.C.C.A.N. 3773, 3877. At various times we have upheld the efforts of Commerce and the ITC to compel a response from recalcitrant respondents or use the “facts available” mechanism.³⁷

At best the role of parties opposing (or not supporting) the petition in responding to questionnaires is similar to the role of opposing or neutral parties in litigation who must reluctantly respond to interrogatories or other discovery. There is no suggestion that such parties must be favored by an award of attorney’s fees or other compensation similar to that given to prevailing plaintiffs who successfully enforce government policy. It was thus rational for Congress to conclude that those who did not support the petition should not be rewarded. We emphasize again that Congress rewards only successful enforcement effort. Where the petition is unsuccessful, neither petition supporters nor opposers receive government payments under the Byrd Amendment.

In summary, the Byrd Amendment is within the constitutional power of Congress to enact, furthers the government’s substantial interest in enforcing the trade laws, and is not overly broad. We hold that the Byrd Amendment is valid under the First Amendment.³⁸

Because it serves a substantial government interest, the Byrd Amendment is also clearly not violative of equal protection under the rational basis standard.

SKF’s equal protection challenge to the Byrd Amendment is based on the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S.Ct. 693, 98 L.Ed. 884 (1954); see also Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (“Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975))). The applicable standard is rational basis review. See Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981) (“Social and economic legislation ... that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose.”); see also FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (“The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979))). We reject SKF’s equal protection challenge because we find that the Byrd Amendment is rationally related to the government’s legitimate purpose of rewarding parties who promote the government’s policy against dumping. The Byrd Amendment does not violate the equal protection guarantees of the Fifth Amendment.

In light of our disposition of this case, SKF’s claim that the Court of International Trade improperly denied SKF’s amended certification is moot.

CONCLUSION

For the foregoing reasons, the decision of the Court of International Trade is reversed.

REVERSED

COSTS

No costs.

1 . This requires that "the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product” and that "the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition.” 19 U.S.C. § 1673a(c)(4)(A).

2 . “Normal value” and "fair value” are for the most part synonymous. Commerce regulations state that " '[flair value’ is a term used during an antidumping investigation, and is an estimate of normal value.” 19 C.F.R. § 351.102(b)(22).

3 . The relevant portion of the Byrd Amendment, 19 U.S.C. § 1675c, reads:

(b) Definitions

As used in this section:

(1) Affected domestic producer

The term “affected domestic producer” means any manufacturer, producer, farmer, rancher, or worker representative (including associations of such persons) that—

(A) was a petitioner or interested party in support of the petition with respect to which an antidumping duty order, a finding under the Antidumping Act of 1921, or a countervailing duty order has been entered, and

(B) remains in operation.

Companies, businesses, or persons that have ceased the production of the product covered by the order or finding or who have been acquired by a company or business that is related to a company that opposed the investigation shall not be an affected domestic producer.

(4) Qualifying expenditure

The term “qualifying expenditure” means an expenditure incurred after the issuance of the antidumping duty finding or order or countervailing duty order in any of the following categories:

(A) Manufacturing facilities.

(B) Equipment.

(C) Research and development.

(D) Personnel training.

(E) Acquisition of technology.

(F) Health care benefits to employees paid for by the employer.

(G) Pension benefits to employees paid for by the employer.

(H) Environmental equipment, training, or technology.

(I) Acquisition of raw materials and other inputs.

(J) Working capital or other funds needed to maintain production.

(d) Parties eligible for distribution of anti-dumping and countervailing duties assessed

(1) List of affected domestic producers

The Commission shall forward to the Commissioner within 60 days after the effective date of this section in the case of orders or findings in effect on January 1, 1999, or thereafter, or in any other case, within 60 days after the date an antidumping or countervailing duly order or finding is issued, a list of petitioners and persons with respect to each order and finding and a list of persons that indicate support of the petition by letter or through questionnaire response. In those cases in which a determination of injury was not required or the Commission's records do not permit an identification of those in support of a petition, the Commission shall consult with the administering authority to determine the identity of the petitioner and those domestic parties who have entered appearances during administrative reviews conducted by the administering authority under section 1675 of this title.

4 . The Byrd Amendment was repealed in February 2006, but the repeal was not retroactive. The repeal provisions stated that "[a]ll duties on entries of goods made and filed before October 1, 2007 ... shall be distributed as if [the Byrd Amendment] had not been repealed.” Deficit Reduction Act of 2005, Pub.L. 109-171, § 7601(b), 120 Stat. 4, 154 (Feb. 8, 2006).

5 . The Byrd Amendment requires the ITC to prepare a "list of affected domestic producers,” defined as "a list of petitioners and persons with respect to each order and finding and a list of persons that indicate support of the petition by letter or through questionnaire response.” 19 U.S.C. § 1675c(d)(l).

6 . The foreign manufacturers included, for example, SKF’s affiliated companies such as SKF UK Limited in the United Kingdom and Aktiebolaget SKF in Sweden. See, e.g., Anti-friction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from the United Kingdom, 53 Fed.Reg. 45,312 (Dep't of Commerce Nov. 9, 1988) (prelim, determinations of sales at less than fair value); Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof from Sweden, 53 Fed.Reg. 45,319 (Dep't of Commerce Nov. 9, 1988) (prelim, determinations of sales at less than fair value).

7 . See, e.g., Antifriction Bearings (Other than Spherical Plain and Tapered Roller Bearings) and Parts Thereof from Italy and Spherical Plain Bearings and Parts Thereof, from Italy, 54 Fed.Reg. 19,096, 19,097 (Dep't of Commerce May 3, 1989) (final determinations of sales at less than and not less than fair value) (determining that petitioner had standing).

8 . See, e.g., Antifriction Bearings (Other than Spherical Plain Bearings and Tapered Roller Bearings) and Parts Thereof from the United Kingdom and Spherical Plain Bearings Parts Thereof from the United Kingdom, 54 Fed.Reg. 19,120, 19,121 (Dep’t of Commerce May 3, 1989) (final determinations of sales at less than and not less than fair value) ("A public hearing was held on February 14, 1989.”); Antifriction Bearings (Other than Needle Roller Bearings, Spherical Plain Bearings, and Tapered Roller Bearings) and Parts Thereof from Sweden and Needle Roller Bearings and Spherical Plain Bearings, and Parts Thereof, from Sweden, 54 Fed.Reg. 19,114 (Dep't of Commerce May 3, 1989) (final determinations of sales at less than and not less than fair value) ("A public hearing was held on February 9, 1989.”).

9 . Producers who did not appear on the ITC’s original list of an antidumping duty order's affected domestic producers can join the list under limited circumstances, such as by acquiring a company that was on the original list or by waiving the confidentiality of their support of the original petition. See 19 C.F.R. § 159.61(b)(l)(i); Cathedral Candle v. U.S. Int’l Trade Comm'n, 400 F.3d 1352, 1358-59 (Fed.Cir.2005) (noting that producers were added to a Byrd Amendment distribution list after waiving the confidentiality of their support for the original antidumping petition).

10 . Since that time, SKF has claimed that it is entitled to 2004 distributions. On September 29, 2006, SKF filed a complaint against Customs and the ITC in the Court of International Trade seeking 2004 Byrd Amendment distributions. Compl., Court No. 06-00328 (Ct. Int'l Trade September 29, 2004) (later consolidated into Consol. Court No. 06-00290). The government urges this claim is untimely. SKF also is seeking 2006 distributions. Compl., Court No. 07-000035 (Ct. Int'l Trade February 5, 2007).

11 . When Timken acquired Torrington in 2003, Timken became an affected domestic producer eligible to receive antifriction bearing Byrd Amendment distributions. See SKF USA Inc., 451 F.Supp.2d at 1363.

12 . The parties devote considerable attention to debating whether SKF’s cause of action falls under the continuing claim doctrine, which recognizes that under some circumstances a new cause of action accrues each time a periodic payment is denied, even though some antecedent event determined the right to the payment. See, e.g., Hatter v. United States, 203 F.3d 795, 797-98, 800 (Fed.Cir.2000) (en banc), aff'd in part, rev'd in part 532 U.S. 557, 121 S.Ct. 1782, 149 L.Ed.2d 820 (2001) (holding that where pursuant to statute taxes were withheld from judicial paychecks, a separate cause of action accrued with each individual paycheck under the continuing claim doctrine); Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1455-58 (Fed.Cir.1997) (holding that a claim was untimely because the cause of action accrued when the government administratively made an allegedly improper rent adjustment, and that later payments based on the earlier adjustment did not create separate causes of action under the continuing claim doctrine). The continuing claim cases are not, however, concerned with the question here — namely, whether a claim can accrue before the amount of the recovery can be calculated.

13 . Rule 8(d) of the Rules of the Court of International Trade requires a party to raise any statute of limitations defense in its answer. See Ct. Int'l Trade R. 8(d) (2002) (amended November 25, 2008; effective January 1, 2009) ("In pleading to a preceding pleading, a party shall set forth affirmatively ... statute of limitations ... and any other matter constituting an avoidance or affirmative defense.”).

14 . While the two-year statute of limitations applies to constitutional claims for monetary recovery, see Stone Container Corp. v. United States, 229 F.3d 1345, 1349-50 (Fed.Cir.2000), we also need not decide whether the statute of limitations here applies to facial constitutional claims. Some cases have suggested that a limitations period could not apply to facial First Amendment claims. See Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir.2004), cert. denied 544 U.S. 968, 125 S.Ct. 1725, 161 L.Ed.2d 615 (2005) ("We join the Fourth Circuit in expressing serious doubts that a facial challenge under the First Amendment can ever be barred by a statute of limitations.” (citing Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1168 (4th Cir.1991))).

15 . See also Bianchi v. United States, 475 F.3d 1268, 1274 (Fed.Cir.2007) (determining that a cause of action seeking royalties had accrued when the amount of royalties was calculated); Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.Cir.1988) ("It is generally stated that a claim 'first accrues' when all the events have occurred which fix the alleged liability of the defendant and entitle the plaintiff to institute an action.” (citing Japanese War Notes Claimants Assoc. of the Phil., Inc. v. United States, 178 Ct.Cl. 630, 373 F.2d 356, 358 (1967), cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967))).

16 . We also note that another decision of the Court of International Trade held that the support requirement of the Byrd Amendment violates the First Amendment. See PS Chez Sidney, LLC v. U.S. Int’l Trade Comm’n, 442 F.Supp.2d 1329, 1358-59 (Ct. Int'l Trade 2006). Appeals to our court from that decision have been stayed pending the outcome of this case.

17 . See United States ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909) ("[Wjhere a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.”); see also Edward J. DeBar-tolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) (”[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”).

18 . For example, in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), the Supreme Court construed the Protection of Children Against Sexual Exploitation Act of 1977 to require scienter regarding the age of performers, despite the lack of support for this construction given by a grammatical reading of the statute, in order to avoid "serious constitutional doubts." Id. at 78, 115 S.Ct. 464. In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533, (1979), the Supreme Court avoided constitutional questions by construing the National Labor Relations Act not to confer Board jurisdiction over teachers in church-operated schools, in light of "the absence of a clear expression of Congress' intent” to do so, id. at 507, 99 S.Ct. 1313, and despite the "[a]dmittedly ... very broad terms” of the statute, id. at 504, 99 S.Ct. 1313. Also, in International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961) the Court construed the Railway Labor Act as not giving unions the power to use a member’s dues to support political causes over the member's objection, in order to "avoid serious doubt” about the statute's constitutionality, without any basis in the statute's text. Id. at 749, 768-69, 81 S.Ct. 1784.

19 . See Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 117, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (“[0]ur cases have consistently held that illicit legislative intent is not the sine qua non of a violation of the First Amendment.” (internal quotation marks omitted)).

20 . See, e.g., Simon & Schuster, 502 U.S. at 118-19, 123, 112 S.Ct. 501 (addressing compelling interests).

21 . See Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1380 (Fed.Cir.2003) (noting that under the Byrd Amendment antidumping duties "bear less resemblance to a fine payable to the government, and look more like compensation to victims of anticompetitive behaviors”); 146 Cong. Rec. 23,117 (2000) (statement of Sen. Byrd) (describing the Byrd Amendment as designed in part for "compensation to U.S. industries” and providing a way for U.S. industries "to recover monetarily” from "losses sustained as a result of unfair foreign trade practices”).

22 . Indeed, the ITC itself determines that parties may suffer material injury even though they have not supported a petition. See U.S. Int’l Trade Comm’n, Certain Bearings From China, France, Germany, Hungary, Italy, Japan, Romania, Singapore, Sweden, and the United Kingdom (Review), at 46, Publication 3309 (June 2000) ("The level or extent of industry support for continuation of an [anti-dumping] order alone cannot be dispositive, for we ... are required to assess independently whether revocation [of the order] is likely to result in the continuation or recurrence of material injury.”).

23 . There is nothing in the legislative history of the Byrd Amendment to suggest that its purpose was to suppress expression. The legislative history addresses the primary purpose of the Byrd Amendment, to compensate injured parties. See 146 Cong. Rec. 23,117 (2000) (statement of Sen. Byrd) (referring to "our injured domestic industries” and describing the Byrd Amendment as designed in part to "help injured U.S. industries recover”).

24 . See Panel Report, United States — Continued Dumping and Subsidy Offset Act of 2000, ¶ 4.502, WT/DS217/R, WT/DS234/R (Sept. 16, 2002), available at http://www.wto.org/ english/tratop_e/dispu_e/217_234r_a_e.pdf (stating as the United States position in a World Trade Organization proceeding that the Byrd Amendment "has nothing to do with the administration of the anti-dumping and countervailing duty laws” and that "[t]he amount of the [Byrd Amendment] distributions have [sic] nothing to do with the injury to the domestic producer or the recovery of 'damages’ by the domestic producer”).

25 . Relying on Thompson v. Western States Medical Center, 535 U.S. 357, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002), the dissent suggests that only interests asserted by the government in litigation may be considered. Dissenting Op. at 1368-69. Western States stands for no such proposition. There the statute was on its face designed to (and did) prohibit speech. The Court declined to consider a justification for the prohibition that was not supported by the legislative history or the government in argument. See Western States, 535 U.S. at 373-74, 122 S.Ct. 1497. Here there is no prohibition, and in addressing the constitutional question we are left to choose between two constructions, neither of which is urged by the government: a purpose to suppress expression, or a purpose to reward assistance. Nothing in Western States remotely suggests that we can or should adopt the construction that renders the statute unconstitutional and that is less likely in light of the statute’s history-

26 . Thus, we construe the Byrd Amendment’s language providing for payments to a "petitioner or interested party in support of the petition” to only permit distributions to those who actively supported the petition (i.e., a party that did no more than submit a bare statement that it was a supporter without answering questionnaires or otherwise actively participating would not receive distributions). In other words, we agree with the Court of International Trade to the extent that it construed the Byrd Amendment to permit distributions to those who “participated.” SKF USA Inc., 451 F.Supp.2d at 1365. Each of the supporters in this case responded to an ITC questionnaire and thus participated actively in the proceeding.

27 . See, e.g., Globetrotter Software, Inc. v. Elan Computer Group, Inc., 362 F.3d 1367, 1377 (Fed.Cir.2004) (applying Professional Real Estate Investors to state-law tort claims and noting that "[a] plaintiff claiming that a patent holder has engaged in wrongful conduct by asserting claims of patent infringement must establish that the claims of infringement were objectively baseless”); C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1369 (Fed.Cir.1998) (''[S]ham litigation requires more than a failed legal theory.” (citing Prof'l Real Estate Investors, 508 U.S. at 60-61 & n. 5, 113 S.Ct.1920)).

28 . Even if we apply the test for speech combined with conduct in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), for reasons that are clear from the text the Byrd Amendment would still be constitutional.

29 . There is a serious question as to whether the Byrd Amendment should be treated as regulatory at all, since it merely rewards successful applicants. Alternatively, it might also be possible to view the Byrd Amendment as legitimately promoting the government's viewpoint. See Rust v. Sullivan, 500 U.S. 173, 193, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Regan v. Taxation with Representation, 461 U.S. 540, 546, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). We need not reach that question here.

30 . See 31 U.S.C. § 3730(b) (permitting private parties to sue as qui tam relators on behalf of the government under the False Claims Act, 31 U.S.C. § 3729, which provides penalties and damages for presenting false or fraudulent monetary claims to the government); Id. § 3730(d) (rewarding False Claims Act qui tam relators with between 10 and 30 percent of the government's recovery).

31 . See, e.g., S.Rep. No. 94-1011, at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910 (discussing the Civil Rights Attorney’s Fees Awards Act of 1976: "All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.”); 42 U.S.C. § 19737(e) (allowing attorney's fees to be awarded to prevailing parties other than the United States in the enforcement of voting rights).

32 . The Byrd Amendment is also unlike the city ordinance granting casino development preferences only to developers promoting the passage of gambling legislation. See Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 172 F.3d 397, 409-10 (6th Cir.1999) (holding that the ordinance was "content-based” and thus subject to strict scrutiny review under the First Amendment). The ordinance at issue in Lac Vieux did not reward the achievement of the enforcement of government policy through litigation, but instead involved "political support” for legislative efforts. Id. at 408.

33 . Fewer than half of the antidumping petitions brought from 1980 to 2006 were successful. Of the 1,110 antidumping cases, 469 or 42.3% received a final affirmative ITC determination. See (U.S. Int'l Trade Comm’n, Import Injury Investigations Case Statistics (FY 1980-2006), at 3 n. 6 (January 2008), available at www.usitc.gov/ trade_remedy/Re-port-01-08-PUB.pdf).

34 . See 19 C.F.R. § 351.202(a) ("The Secretary [of Commerce] normally initiates antidump-ing and countervailing duly investigations based on petitions filed by a domestic interested party.”).

35 . The dissent rejects the view that rewarding petition supporters satisfies this third prong of the Central Hudson test. Dissenting op. at 1373-74. For the reasons stated in the text, we disagree. Notably, the dissent fails to explain why an even narrower construction of the statute — urged by Timken — limiting the rewards to petitioners alone would not render the statute constitutional.

36 .However, SKF itself recognizes the contribution made by petition supporters: "[i]t is based on the information supplied by the domestic producers that participate in an investigation that the ITC reaches an injury determination, which leads to the issuance of an order.” Br. Pl.-Cross Appellant SKF USA Inc. at 48.

37 . See, e.g., Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed.Cir.2003) ("[T]he statutory mandate that a respondent act to 'the best of its ability’ requires the respondent to do the maximum it is able to do.”); F. lli De Ceceo Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed.Cir.2000) (”[I]t is within Commerce’s discretion to choose which sources and facts it will rely on to support an adverse inference when a respondent has been shown to be uncooperative.”).

38 . For the same reason, the Byrd Amendment does not fail the equal protection review applicable to statutes that disadvantage protected speech.

1 . While I disagree with section II of the majority’s opinion, I agree with the majority’s analysis of the Court of International Trade’s jurisdiction as set forth in section I of its opinion. See Maj. Op. § I.