1093 FAG ITALIA S.P.A., and FAG BEARINGS CORPORATION v. United States

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,
Plaintiffs-Appellees,
and
SKF USA INC. and SKF GmbH,
Plaintiffs,
and
NTN BEARING CORPORATION OF AMERICA
and NTN KUGELLAGERFABRIK (DEUTSCHLAND) GmbH,
Plaintiffs,
and

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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,
Defendant-Appellant,
and
THE TORRINGTON COMPANY
(now known as Timken U.S. Corporation),
Defendant-Appellant.
- - - - - - - - - - - -
02-1180, -1181
NTN BEARING CORPORATION OF AMERICA
and NTN KUGELLAGERFABRIK (DEUTSCHLAND) GmbH,
Plaintiffs,
and
SKF USA INC. and SKF GmbH,
Plaintiffs,
and
FAG KUGELFISCHER GEORG SCHAFER AG and FAG BEARINGS CORPORATION,
Plaintiffs-Appellees,
and
INA WALZLAGER SCHAEFFLER OHG and INA BEARINGS COMPANY, INC.,
Plaintiffs-Appellees,
v.
UNITED STATES,

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Defendant-Appellant,
and
THE TORRINGTON COMPANY
(now known as Timken U.S. Corporation),
Defendant-Appellant.
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

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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,
Plaintiffs-Appellees,
and
SKF USA INC. and SKF GmbH,
Plaintiffs,
and
NTN BEARING CORPORATION OF AMERICA and
NTN KUGELLAGERFABRIK (DEUTSCHLAND) GmbH,
Plaintiffs,
and

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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,
Defendant-Appellant,
and
THE TORRINGTON COMPANY
(now known as Timken U.S. Corporation),
Defendant-Appellant.
------------
02-1180, -1181
NTN BEARING CORPORATION OF AMERICA and
NTN KUGELLAGERFABRIK (DEUTSCHLAND) GmbH,
Plaintiffs,
and
SKF USA INC. and SKF GmbH,
Plaintiffs,
and
FAG KUGELFISCHER GEORG SCHAFER AG and FAG BEARINGS CORPORATION,
Plaintiffs-Appellees,
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.

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UNITED STATES,
Defendant-Appellant,
and
THE TORRINGTON COMPANY
(now known as Timken U.S. Corporation),
Defendant-Appellant.
___________________________
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."

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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

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