AD Respondent Continues Attack on CV Profit Rate in Case de Minimis Rate Not Upheld
The Court of International Trade should send back the Commerce Department's constructed value (CV) profit rate for antidumping respondent Building Systems de Mexico (BSM) if the court does not uphold the de minimis rate calculated by Commerce on remand, BSM argued in Aug. 19 comments. Arguing that the remand results should be sustained, BSM, replying to the AD petitioner, continued to critique the CV profit rate in case the de minimis rate is not upheld (Building Systems de Mexico v. United States, CIT #20-00069).
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The case concerns the antidumping duty investigation on fabricated structural steel from Mexico, covering entries in 2018. In April, Judge Claire Kelly sent back multiple elements of the investigation, including the use of respondent Corey S.A.'s home market sales to calculate the amount of profit in BSM's CV. Commerce rejected the use of BSM's data for insufficient volume but relied on Corey's, even though it had less data. The court also sent the issue back to Commerce because it didn't address evidence showing that one of the projects related to Corey's home market sales wasn't contracted for during the review period as it has a 2017 project number, and showing that BSM's operations differ from Corey's.
On remand, Commerce said it couldn't use BSM's own home market sales to calculate CV, though it calculated a de minimis rate for BSM (see 2207210034). As for the court's concerns over the number of BSM's and Corey's sales, the agency said home market sales viability is based on volume, not number. In its comments, BSM argued that Commerce failed to show that its rate is representative and can be expected to be built into a fair sales price for the particular merchandise.
"Finally, BSM offered numerous alternatives that Commerce could use to obtain a more representative profit rate," the comments said. "... This included incorporating data for additional Corey sales completed within the [period of investigation] or potentially averaging Corey’s profit rate with BSM’s home market profit rate, which would increase the number of observations and volume of [fabricated structural steel] upon which the CV profit rate is based. Commerce, however, never considered these potential options to increase the representativeness of the profit rate. Commerce’s failure to consider these obvious alternatives renders its decision arbitrary and capricious and not in accordance with law."