HQ H262512
PRO 2-05
H262512 SMS
OT:RR:CTF:ER
Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, OH 44130
Attn: Kimberly Williams, Import Specialist
RE: Application for Further Review of Protest Number 4102-12-100072 concerning Radial Ball Bearings from Italy under Antidumping Order A-475-201
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 4102-12-100072, filed by Avio, Inc. (“Avio”) on June 7, 2012, which contests the antidumping rate assessed its entries of radial ball bearings and parts thereof, and requests re-liquidation by U.S. Customs and Border Protection (“CBP”). We regret the delay in our response.
FACTS:
Between May 10, 2009 and December 7, 2009, Avio made 30 entries of radial ball bearings, manufactured by SKF Industrie S.p.A and exported by Avio S.p.A, from Italy, to the Port of Chicago. Avio, a U.S. company, purchased the radial ball bearings, from its parent company, Avio S.p.A., and imported them into the United States, as evident from the commercial invoices and air waybill. On the commercial and entry documents, Avio declared its 30 entries under antidumping case number A-475-201-012, which is a company specific case number for manufacturer, SKF Industrie S.p.A. All of the following 30 entries are subject to the instant protest.
Entry Number
Date of Entry
Liquidation Date
Entry Number
Date of Entry
Liquidation Date
xxx-xxxx954-9
05/10/2009
12/09/2011
xxx-xxxx503-0
07/24/2009
12/09/2011
xxx-xxxx187-3
05/14/2009
12/09/2011
xxx-xxxx601-1
08/06/2009
12/09/2011
xxx-xxxx331-2
05/22/2009
12/09/2011
xxx-xxxx811-2
08/12/2009
12/09/2011
xxx-xxxx657-5
05/26/2009
12/09/2011
xxx-xxxx139-0
08/19/2009
12/09/2011
xxx-xxxx203-7
05/27/2009
12/09/2011
xxx-xxxx877-1
09/04/2009
12/09/2011
xxx-xxxx762-8
06/02/2009
12/09/2011
xxx-xxxx888-8
09/04/2009
12/09/2011
xxx-xxxx276-9
06/12/2009
12/09/2011
xxx-xxxx422-9
09/11/2009
12/09/2011
xxx-xxxx908-8
06/12/2009
12/09/2011
xxx-xxxx466-6
09/11/2009
12/09/2011
xxx-xxxx268-3
06/17/2009
12/16/2011
xxx-xxxx740-1
09/16/2009
12/09/2011
xxx-xxxx886-4
06/26/2009
12/09/2011
xxx-xxxx248-2
09/21/2009
12/09/2011
xxx-xxxx329-2
06/30/2009
12/16/2011
xxx-xxxx874-9
10/29/2009
12/09/2011
xxx-xxxx895-2
07/01/2009
12/09/2011
xxx-xxxx900-2
10/29/2009
12/09/2011
xxx-xxxx525-9
07/07/2009
12/09/2011
xxx-xxxx808-5
11/20/2009
12/09/2011
xxx-xxxx616-8
07/17/2009
12/09/2011
xxx-xxxx195-6
12/07/2009
12/09/2011
xxx-xxxx492-0
07/20/2009
12/09/2011
xxx-xxxx986-8
12/07/2009
12/09/2011
The above entries, of radial ball bearings from Italy, are subject to antidumping duties under antidumping duty order A-475-201. See Duty Orders: Ball Bearings and Cylindrical Roller Bearings, and Parts Thereof From Italy, 54 Fed. Reg. 20903 (May 15, 1989). Therefore, liquidation of these entries was suspended pending further instructions from the U.S. Department of Commerce (“Commerce”).
On July 15, 2010, Commerce issued automatic liquidation instructions for ball bearings and parts thereof from Italy, instructing CBP to assess antidumping duties on the merchandise entered, during the pertinent period of time, at the cash deposit or bonding rate in effect on the date of entry, except for the firms that requested an administrative review. See Message No. 0196304 (July 15, 2010). Avio S.p.A “(formally known as FiatAvio)”, SKF Industrie S.p.A. and Somecat S.p.A. were listed as excepted firms, in which liquidation remained suspended until after completion of the antidumping review. Id. On November 30, 2010, Commerce issued a Notification of Partial Recession of Administrative Review for Antidumping Duty Order on Ball Bearings and Parts Thereof from Italy (A-475-201), informing CBP that among other firms, Avio S.p.A., rescinded its request for administrative review covering the period of May 1, 2009 through April 30, 2010. See Message No. 0334302 (Nov. 30, 2010). However, Commerce specifically instructed CBP to assess antidumping duties at the cash deposit or bonding rate on entries of merchandise produced or exported by the firms that rescinded their request for review, “unless the entries were made under the company names and/or CBP specific numbers for specific companies listed” in which administrative review was not rescinded/completed. Id. (emphasis added). SKF Industrie S.p.A. was listed as a firm in which its administrative review was neither rescinded nor completed, and Commerce instructed that entries specifically entered under case number A-475-201-012, “must remain suspended until further notice.” Id. As, Avio declared its 30 entries under antidumping case number A-475-201-012, the entries remained suspended, pending further instructions from Commerce.
On August 24, 2011, Commerce published the final results of its administrative review of certain manufactures/exporters, subject to the antidumping duty order on ball bearings and parts thereof from Italy, for the period of May 1, 2009 through April 30, 2009. See Ball Bearings and Parts Thereof From France, Germany, and Italy: Final Results of Antidumping Administrative and Changed Circumstances Reviews, 76 Fed. Reg. 52937 (Aug. 24, 2011). On October 14, 2011, Commerce issued public liquidation instructions for ball bearings and parts thereof from Italy produced by manufacturer SKF Industrie S.p.A. or Somecat S.p.A, and entered between May 01, 2009 and April 20, 2010. See Message No. 1287303 (Oct. 14, 2011). Commerce instructed that as a result of its clarification of its assessment regulations, for all shipments of ball bearings and parts thereof from Italy and produced by SKF Industrie S.p.A., entered under case number A-475-201-012, between May 1, 2009 and April 30, 2010, CBP must assess antidumping duties at the all-others rate in effect on the date of entry. Id., see also, Antidumping and Countervailing Proceedings: Assessment of Antidumping Duties, 68 Fed. Reg. 23954 (May 6, 2006). The all-others rate for ball bearings and parts thereof from Italy is 69.98 percent. Id. Furthermore, Avio and Avio S.p.A. were not included in the final administrative review or specifically in the liquidation instructions, as having a specific rate.
On March 18, 2011, CBP requested guidance from Commerce, as to whether it should treat Avio S.p.A. as FiatAvio S.p.A. and liquidate the pertinent entries under FiatAvio S.p.A.’s case number, A-475-201-003, or the case number of manufacturer, SKF Industrie S.p.A., A-475-201-012. See DOC Inquiry No. 12088 (Mar. 18, 2011). Commerce responded, by stating “DOC has never been requested to or determined that Avio S.p.A. is the successor-in-interest to FiatAvio in any of the orders on ball bearings and parts thereof from . . . Italy . . . .” Id. Commerce further stated that: “[r]eferences in the liquidation messages to ‘Avio (formerly known as FiatAvio)’ reflect the language outside parties used in their requests for administrative reviews and withdrawals of such requests; they do not reflect determinations by DOC.” Id. On November 16, 2011, CBP issued a Notice of Action, which indicated that the antidumping liquidation instructions for ball bearings from Italy, case number A-475-201-012, resulted in a rate advance and issuance of a bill for duties. On December 9, 2011 and December 16, 2011, CBP liquidated the 30 entries in accordance with the liquidation instructions under Message Number 1287303, and assessed an antidumping duty equal to the all-others rate of 69.98 percent. The instant protest was filed on June 7, 2012, seeking re-liquidation of these entries under the case number, A-475-201-003, and the 1992 final reseller rate for FiatAvio, of 3.13 percent. We note that this protest, is the lead protest to protest number 4101-15-100186, filed by Avio on March 21, 2015, which disputes the rate CBP assessed another group of entries of ball bearings made by Avio and exported from Italy.
Pertaining to FiatAvio, on June 24, 1992, Commerce published a notice of final results of antidumping duty administrative review, for the period of May 1, 1990 through April 30, 1991. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; et al.; Final Results of Antidumping Duty Administrative Reviews, 57 Fed. Red. 28360 (June 24, 1992). On June 30, 1992, pursuant to the final results, Commerce issued cash deposit instructions for shipments of ball bearings from Italy, entered after June 24, 1992, in which FiatAvio was assigned a specific rate of 3.13 percent under case number A-475-201-003. See Message No. 2182112 (June 30, 1992). Since these final results and cash deposit instructions were issued, FiatAvio has not requested any subsequent administrative reviews, and its specific rate has not been amended since 1992.
On January 20, 2012, Avio and Avio S.p.A., requested changed circumstances reviews from Commerce, with respect to ball bearings and parts thereof from Italy, among other countries. Avio S.p.A and Avio requested a changed circumstances review 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. See DOC Memorandum, Ball Bearings from France, Germany, Italy, and Japan- Request for Changed Circumstances review of the Antidumping Duty Order on Ball Bearings and Parts Thereof from France, Germany, Italy, and Japan (Mar. 7, 2012). Prior to January 20, 2012, no entity requested that Commerce make a successor-in-interest determination regarding FiatAvio S.p.A. and Avio S.p.A., nor did Commerce conduct a changed-circumstances review concerning successors-in-interest for these companies in any prior administrative review concerning ball bearings and parts thereof from Italy. Id. Commerce explained that prior to the 2008/2009 administrative review, FiatAvio S.p.A. is the only party who previously established a cash deposit rate, under case number A-475-201-003. Id. Commerce further indicted that, while, on June 20, 2010, Commerce initiated an administrative review on “Avio S.p.A. (formally known as FiatAvio S.p.A)”, as mentioned above, Avio withdrew this request on September 28, 2010. Id. On March 7, 2012, Commerce ultimately recommended not to initiate changed-circumstances reviews with respect to ball bearings and parts thereof from Italy, among other countries, as it would not provide Avio the relief it sought as the reviews are prospective, not retroactive, and it would not affect the 2009/2010 entries that already occurred. Id. Additionally, Commerce explained that because the entries in question were from previous period of reviews, where administrative reviews had already been conducted, a changed-circumstances review could not be used to change those results. Id.
Upon CBP’s request for more information, Avio submitted several documents in support of its position. Avio submitted an ACE report effective June 24, 1992, which listed a specific rate of 3.13 percent, but does not indicate which company was assigned this rate. Avio also provided a Commerce memorandum dated June 25, 2010, from Richard Rimlinger to Laurie Parkhill entitled “Ball Bearings and Parts Thereof from Various Countries – Data for Selection of Respondents”, which indicates that because of the number of administrative requests received for review of the anti-dumping orders on ball bearings for the period of May 1, 2009 until April 30, 2010, and lack of resources, Commerce would only review certain respondents, dependent on questioner responses. Lastly, Avio provided a letter from Commerce, dated June 19, 2012, in which Commerce recognized that there has been confusion concerning whether Avio Inc. and Avio S.p.A. are the same entities known formally as FiatAvio Inc. and FiatAvio S.p.A., respectively. Commerce stated:
We have reviewed the record of this company and found that the Department’s Federal Register initiation notice, respondent selection memorandum, and liquidation instructions refer to “Avio (formerly, Fiat Avio)”. This coupled with the fact that the Department sent questionnaires to Fiat Avio and received and accepted responses by Avio, provide the Department sufficient evidence to find that liquidation instructions for Avio should similarly apply to Fiat Avio.
Avio argues that due to a “ministerial broker error” its Customs broker, entered all of Avio’s imports as imports from the manufacturer, SKF Industrie S.p.A., under A-475-201-012, at a rate of 69.98 percent, instead of from the reseller, Avio S.p.A. Avio contends that because FiatAvio S.p.A. underwent a name change to Avio S.p.A, as a result of a corporate divestment and equity purchase, in 2003, with the company structure and business remaining unchanged, it should be assessed the FiatAvio S.p.A. specific reseller rate. Avio S.p.A. does not manufacture the merchandise but remains an exporter and reseller of the ball bearings. FiatAvio does not appear on any of the commercial invoices or entry documents. Avio also contends that in previous administrative reviews “Avio S.p.A. (formally known as FiatAvio S.p.A),” has been referenced by Commerce and the Automated Commercial Environment (“ACE”) data demonstrates Avio S.p.A. is assigned the specific rate of 3.13 percent. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 75 Fed. Reg. 37759 (June 30, 2010).
CBP 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. Additionally, the Port argues because the merchandise was entered using the A-427-201-012 case number, for four years (2006-2010), the entries were liquidated correctly, at the rate provided to CBP at the time of entry.
ISSUE:
Whether CBP properly assessed the appropriate antidumping duties.
LAW AND ANALYSIS:
As an initial matter, we note that Avio timely filed its protest within 180 days from the dates of liquidation. See 19 U.S.C. § 1514(c)(3)(A). CBP liquidated protestant’s entries on December 9, 2011 and December 16, 2011, and the protest was filed on June 7, 2012, within 180 days. Under 19 C.F.R. § 174.24, further review shall be accorded a party when the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by CBP. See 19 C.F.R. § 174.24(b). We determine Avio’s protest involves questions of law or fact not previously ruled upon by CBP; accordingly, further review is warranted pursuant to 19 C.F.R. §§ 174.24(b), (c), and 174.26(b)(1)(iv).
While both CBP and Commerce play a part in the enforcement of the antidumping laws, their roles are separate and distinct. Pursuant to 19 U.S.C. § 1673, Commerce calculates and determines the antidumping duty rate, Commerce then directs CBP to collect the estimated duties. See 19 U.S.C. § 1673e (a)(1). CBP is required to collect the antidumping duties imposed by Commerce. See 19 U.S.C. § 1673(g). Generally, assessed antidumping duties properly applied by CBP are not protestable, as “Customs has a merely ministerial role in liquidating antidumping duties.” Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). See also Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002) (holding that correcting a ministerial, factual error of CBP is protestable). In Mitsubishi Electronics America, Inc., the court stated:
Customs merely follows Commerce’s instructions in assessing and collecting duties. Customs does not determine the ‘rate and amount’ of antidumping duties under 19 U.S.C. § 1514(a)(2). Customs only applies antidumping rates determined by Commerce. Further, Customs has a merely ministerial role in liquidating antidumping duties under 19 U.S.C. § 1514(a)(5).
Id. at 977. Therefore, Commerce is required to determine the rate of antidumping duty to be assessed. CBP’s ministerial role is to follow the liquidation instructions and to compute the duty by applying the antidumping duty rate set by Commerce to the appraised value as determined by CBP. However, inasmuch as Avio protests the liquidation and disputes the application by CBP of Commerce’s liquidation instructions, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002).
The “successor-in-interest analysis was not explicitly created by statute or by regulation, but is an agency [(Commerce)] practice designed to facilitate the proper implementation of the [trade] laws.” East Sea Seafoods, LLC v. United States, 703 F. Supp. 2d 1336, 1352 (Ct. Int'l Trade 2010). “Commerce has explained that the purpose of conducting a successor-in-interest analysis during an administrative review is to determine ‘the appropriate rate to be assigned to entities affected by . . . some . . . change which raises the questions of the company’s status in the proceeding.’” Id. at 1351 (quoting Brass Sheet and Strip from Canada; Final Results of Antidumping Duty Administrative Review, 57 Fed. Reg. 20,460, 20,461 (May 13, 1992)). In East Sea Seafoods, after a name change precipitated the successor-in-interest review, Commerce did not find a successor-in-interest due to the changes in ownership, coupled with the changes in management and supplier base. Id. at 1349. In HQ W231301, dated February 16, 2007, based on all the evidence reviewed, Commerce found that the company Fischer operates as the same business entity as Citrosuco; thus, successor-in-interest, was established. In HQ W231301, we quoted instructions from Commerce’s International Trade Administration, Import Administration, Customs Unit Liaison:
[T]he effective date that Citrosuco underwent a corporate name change and became Fischer differs from the effective date of the successor-in-interest determination for Customs purposes, i.e., these are two different legal points. The effective date Citrosuco became Fischer pertains to the date on which as a legal and factual matter Citrosuco underwent certain corporate changes to become Fischer. That effective date is different from the date Citrosuco’s cash deposit rate can be applied to entries from Fischer. According to our practice, the change in the cash deposit rate is prospective in nature, i.e., after the successor in interest determination is published in a final determination. If two entries came in prior to our successor-in-interest determination, the only way to change the rate applied to those entries is through a[n] administrative review. Fischer did not request a [changed circumstance review or admin[istrative] review in FCOJ from Brazil, so those entries retain the all others rate.
Id. As held in HQ W231301, 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.
Avio petitioned to obtain a change in circumstances review in January 2012; however, the entries under protest were entered between May 10, 2009 and December 7, 2009. While in June 2012, Commerce 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. Therefore, this finding cannot be applied retroactively to affect a rate change for merchandise that has already been entered into the United States. Exporter Avio S.p.A. could have prospectively submitted information to Commerce so that it could determine whether or not, Avio S.p.A. is the successor-in-interest to FiatAvio. Such finding would have allowed Commerce to collapse the companies and treat them as a single entity under its regulations and liquidation instructions, prior to the entries of the ball bearings under protest. See, e.g. Marine Harvest (Chile) S.A. v. United States, 26 244 F. Supp. 2d 1364 (Ct. Int'l Trade 2002). However, as Avio did not obtain a changed circumstances review prior to making its entries, between May 10, 2009 and December 7, 2009, it cannot retroactively be afforded the FiatAvio specific rate.
Furthermore, an antidumping administrative review may be requested by an interested party, an exporter or producer covered by the antidumping order, or an importer of the subject merchandise. See 19 C.F.R. § 351.213(b)(1)-(3). Reviews must be requested pursuant to section 751 (A)(1) of the Tariff Act of 1930, as amended in accordance with section 351.213 of Commerce’s regulations. Under 19 U.S.C. § 1675(b)(1), Commerce may also conduct a review after receiving information of changed circumstances sufficient to warrant a review of a final affirmative determination that resulted in an antidumping duty order. See 19 C.F.R. § 351.216. If no review is requested, automatic assessment occurs. See 19 C.F.R. § 351.212(c). In this instance, Avio did request an administrative review to obtain a specific company antidumping duty rate, and while, on June 20, 2010, Commerce initiated an administrative review on “Avio S.p.A. (formally known as FiatAvio S.p.A)”, Avio withdrew this request on September 28, 2010, before a final determination was made. 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.
As noted above, Commerce is required to determine the rate of antidumping duties to be assessed. CBP’s ministerial role is to follow the liquidation instructions and to compute the duty by applying the antidumping duty rate set by Commerce. 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. Accordingly, CBP cannot accept as fact that Avio S.p.A. is the successor-in-interest without specific instructions from Commerce. As indicated in HQ W231301, a change in cash deposit rate is only done after a successor-in-interest determination is made, and not after a company undergoes a corporate name change. Furthermore, because Avio and Avio S.p.A. did not undergo a complete administrative review, Commerce has not provided them with a separate rate. Barring either of Avio’s options to obtain a company specific rate, Avio is subject to SKF Industrie S.p.A.’s manufacturer rate, under A-475-201-012, as indicated by Avio on the entry documents. Therefore, in accordance with Commerce’s instructions, Avio’s entries of ball bearings, made between May 10, 2009 and December 7, 2009, exported by Avio S.p.A, and manufactured by SKF Industrie S.p.A., were properly liquidated at the all-others rate of 69.98 percent. See Message No. 1287303 (Oct. 14, 2011).
The protestant contends that the names of the exporter, as declared on the administrative reviews, and the submitted evidence proves that Avio S.p.A. is the same as FiatAvio S.p.A. and is eligible for a duty rate of 3.13 percent, pursuant to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France; et al.; Final Results of Antidumping Duty Administrative Reviews, 57 Fed. Red. 28360 (June 24, 1992). While Avio requests that CBP evaluate the evidence and hold that Avio S.p.A is the successor-in-interest to FiatAvio S.pA., this is a determination that is made by Commerce, not CBP. Commerce has not made a change in circumstances or successor-in-interest determination, and Avio was not a part of the applicable administrative review, as it withdrew its request. See Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and the United Kingdom: Partial Rescission of Antidumping Duty Administrative Review, 75 Fed. Reg. 69402 (Nov. 12, 2010). 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. See DOC Inquiry No. 12088 (March 18, 2011). Commerce also explained that references to “Avio (formally known as FiatAvio) reflects the language outside parties used in their requests for administrative review and withdrawals of such requests; they do not reflect determinations by [Commerce].” Id. Accordingly, Commerce has not instructed CBP to afford Avio a company specific rate or the rate assigned FiatAvio. Therefore, Avio’s entries of ball bearings, made between May 10, 2009 and December 7, 2009, exported by Avio S.p.A, and manufactured by SKF Industrie S.p.A., were properly liquidated at the all-others rate of 69.98 percent.
HOLDING:
Consistent with the decision set forth above, we find that Avio Inc.’s entries were properly liquidated at the all-others rate of 69.98 percent and protest 4102-12-100072 should be DENIED.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision to counsel for the protestant, together with the Customs Form 19, no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division