No Company-Specific AD Rate Allowed After Corporate Name Change Without "Successor-in-Interest Review,' CBP Says

An Italian radial ball bearing exporter that changed its name can't use a company-specific antidumping duty rate because the company didn't go through a successor-in-interest review with the Commerce Department, CBP said in a March 21 ruling (here). Avio, a U.S. company that purchased ball bearings from its parent company Avio S.p.A in Italy, challenged CBP's AD rate assessment and requested reliquidation in 2012 over some 2009 and 2010 entries. Those entries received an "all-others" rate of 69.98 percent due to an AD order on ball bearings from Italy. FiatAvio, the predecessor to Avio, received a final reseller rate of 3.13 percent in 1992.

Avio S.p.A and Avio requested a changed circumstances review from Commerce in 2012 "to reflect that FiatAvio S.p.A. changed its name to Avio S.p.A. and FiatAvio, Inc. changed its name to Avio, Inc., as a result of a 2003 corporate reorganization and equity purchase," CBP said. But, prior to that, there were no changed circumstances reviews involving the companies by Commerce that found Avio to be FlatAvio's successor-in-interest, CBP said. The agency "contends that because Avio S.p.A. did not request a successor-in-interest review by Commerce after it was purchased in 2003, when its name changed, it is not eligible for FiatAvio S.p.A.’s original case numbers and rates," it said.

Although Commerce in 2012 "recognized Avio as formerly known as FiatAvio and able to be afforded the same liquidation instructions, these events took place after Avio made entry of the merchandise at issue," CBP said. "Therefore, this finding cannot be applied retroactively to affect a rate change for merchandise that has already been entered." A successor-in-interest analysis isn't required by statute or regulation, but a 2010 Court of International Trade case found (see 10050530) that such reviews are appropriate in determining rates, CBP said. A past CBP ruling also held "a corporate name change does not automatically equate to a successor-in-interest determination by Commerce, and does not automatically afford a rate change applied through an administrative review," the agency said.

Avio did request an administrative review to receive its own company-specific rate in 2010, which Commerce began, but the company withdrew the request that same year, CBP said. "Because Avio did not fully undergo an administrative review, it never received its own specific antidumping duty rate, for the period of review at issue," the agency said. Also, "upon CBP’s inquiry, Commerce indicated that it has never been requested to determine that Avio S.p.A. is the successor-in-interest to FiatAvio S.p.A. in any orders on ball bearings and parts thereof from Italy," it said.

CBP's role in AD duties is purely ministerial and it must follow Commerce's duty rate instructions, CBP said. "Whether or not Avio and Avio S.p.A. are successors-in-interest to FiatAvio Inc., and FiatAvio S.p.A. is not for CBP to decide, and Commerce did not make that determination with regard to the period of review in which Avio made the pertinent entries," it said. "Accordingly, CBP cannot accept as fact that Avio S.p.A. is the successor-in-interest without specific instructions from Commerce." As a result, CBP said the entries were properly liquidated with the all-others rate of 69.98 percent.