Fag Italia s.p.a. v. United States

• Court: Court of Appeals for the Federal Circuit
• Decided: April 6, 2005
• Docket: 2002-1091
• Status: Published

Opinion

United States Court of Appeals for the Federal Circuit 02-1091, -1093

FAG ITALIA S.P.A., and FAG BEARINGS CORPORATION,

Plaintiffs-Appellees, and

SKF USA INC. and SKF INDUSTRIE S.P.A.,

Plaintiffs,

v.

UNITED STATES,

Defendant-Appellant, and

THE TORRINGTON COMPANY (now known as Timken U.S. Corporation),

Defendant-Appellant.

-------------

02-1096, -1099

FAG KUGELFISCHER GEORG SCHAFER AG and FAG BEARINGS CORPORATION,

SKF USA INC. and SKF GmbH,

Plaintiffs, and

NTN BEARING CORPORATION OF AMERICA and NTN KUGELLAGERFABRIK (DEUTSCHLAND) GmbH,

Plaintiffs, and INA WALZLAGER SCHAEFFLER KG (now known as INA Walzlager Schaeffler oHG) and INA BEARINGS COMPANY, INC. (now known as INA USA Corporation),

Plaintiffs-Appellees,

THE TORRINGTON COMPANY (now known as Timken U.S. Corporation),

------------

02-1180, -1181

NTN BEARING CORPORATION OF AMERICA and NTN KUGELLAGERFABRIK (DEUTSCHLAND) GmbH,

FAG KUGELFISCHER GEORG SCHAFER AG and FAG BEARINGS CORPORATION,

INA WALZLAGER SCHAEFFLER OHG and INA BEARINGS COMPANY, INC.,

UNITED STATES, Defendant-Appellant, and

THE TORRINGTON COMPANY (now known as Timken U.S. Corporation),

Max F. Schutzman, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, New York, argued for plaintiffs-appellees FAG Kugelfischer Georg Schafer AG, et al. With him on the brief was Adam M. Dambrov. Of counsel were Jeffrey S. Grimson, Mark E. Pardo, of Washington, DC, and Andrew B. Schroth, of New York, New York.

Stephen L. Gibson, Sonnenschein Nath & Rosenthal LLP, of Washington, DC, argued for plaintiffs-appellees INA Walzlager Schaeffler KG (now known as INA Walzlager Schaeffler oHG, et al.

Geert M. De Prest, Stewart and Stewart, of Washington, DC, argued for defendant- appellant The Torrington Company, etc. With him on the brief were Terence P. Stewart, William A. Fennell, and Lane S. Hurewitz. Of counsel was Wesley K. Caine.

Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant United States. On the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; and Michael D. Panzera, Attorney. Of counsel on the brief was Philip Curtin, Attorney, Office of Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC. Of counsel were Ada E. Bosque, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice; and John D. McInerney, Berniece A. Browne, and David R. Mason, Attorneys, United States Department of Commerce, of Washington, DC.

Appealed from: United States Court of International Trade

Senior Judge Nicholas Tsoucalas United States Court of Appeals for the Federal Circuit

02-1091, -1093

Plaintiffs, v.

THE TORRINGTON COMPANY (now known as Timken U.S. Corporation),

FAG KUGELFISCHER GEORG SCHAFER AG and FAG BEARINGS CORPORATION,

NTN BEARING CORPORATION OF AMERICA and NTN KUGELLAGERFABRIK (DEUTSCHLAND) GmbH,

Plaintiffs, and INA WALZLAGER SCHAEFFLER KG (now known as INA Walzlager Schaeffler oHG) and INA BEARINGS COMPANY, INC. (now known as INA USA Corporation),

Plaintiffs-Appellees, v.

THE TORRINGTON COMPANY (now known as Timken U.S. Corporation),

NTN BEARING CORPORATION OF AMERICA and NTN KUGELLAGERFABRIK (DEUTSCHLAND) GmbH,

FAG KUGELFISCHER GEORG SCHAFER AG and FAG BEARINGS CORPORATION,

INA WALZLAGER SCHAEFFLER KG (now known as INA Walzlager Schaeffler oHG) and INA BEARINGS COMPANY, INC. (now known as INA USA Corporation),

Plaintiffs-Appellees, v. UNITED STATES,

THE TORRINGTON COMPANY (now known as Timken U.S. Corporation),

___________________________

DECIDED: April 6, 2005 ___________________________

Before CLEVENGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit Judge.

CLEVENGER, Circuit Judge.

In this consolidated appeal, the United States and The Torrington Company

appeal the decision of the United States Court of International Trade that the

Department of Commerce is statutorily required to include imputed credit and inventory

carrying expenses in "total expenses" when imputed expenses are included in "total

United States expenses" for the purpose of calculating constructed export price profit.

The relevant facts in these cases are materially indistinguishable from those in

SNR Roulements v. United States, Nos. 01-1327, -1341 (Fed. Cir. Apr. 6, 2005). As

more fully described in SNR, the Court of International Trade erroneously interpreted

19 U.S.C. § 1677a as not permitting Commerce to use actual expenses instead of

imputed expenses to account for credit and inventory carrying costs when determining

"total expenses." As in SNR, we reverse the decision of that court and remand the cases with the

instruction that Plaintiffs be provided an opportunity to make a showing that their

dumping margins were wrongly determined because Commerce's use of actual

expenses did not account for U.S. credit and inventory carrying costs in the calculation

of total expenses.

COSTS

No costs.

REVERSE AND REMAND

02-1091, -1093 2 02-1096, -1099 02-1180, -1181