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FAG Italia S.P.A. v. United States

Court of International Trade's determination that Commerce Department lacked authority to conduct a duty absorption inquiry with respect to a transfer order issued prior to January 1, 1995 affirmed because the conducting of such inquiries on transition orders is not authorized by antidumping statute; "foreign like product" issue remanded to Court for reasons set forth in SKF USA Inc. v. United States .

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Opinion for the court filed by Circuit Judge DYK, in which Circuit Judge PROST joins. Circuit Judge MICHEL concurs-in-part and dissents-in-part.

This case presents two issues. First, it involves the question whether the Department of Commerce (“Commerce”) properly defined “foreign like product” for purposes of 19 U.S.C. �� 1677b(a)(1) and 1677b(e). In SKF USA Inc. v. United States, 263 F.3d 1369 (Fed Cir. 2001), we vacated the Court of International Trade’s decision on that identical issue and remanded for Commerce to explain why it uses a different definition of “foreign like product” for price-based calculations for normal value than it does for calculations of constructed value. The parties agree that SKF USA governs here, and that we should likewise remand this case to Commerce for further consideration of that issue. Accordingly, we will not discuss the “foreign like product” issue further in this opinion. We vacate the decision of the Court of International Trade on this issue and remand for further proceedings consistent with our opinion in SKF USA.

Second, this case involves the question whether Commerce can properly conduct a duty absorption inquiry pursuant to 19 U.S.C. � 1675(a)(4) for “transition orders” *fn1 in 1996 and 1998, the second and fourth years after the deemed issuance date of transition orders under section 1675(c)(6)(D). We hold that Commerce’s action in conducting such inquiries is not authorized by the statute and affirm the judgment of the Court of International Trade in this respect. The opinion that follows addresses that issue. *fn2

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