Atar S.R.L. v. United States , 730 F.3d 1320 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
ATAR S.R.L.,
Plaintiff-Appellee,
v.
UNITED STATES
Defendant-Appellant,
AND
AMERICAN ITALIAN PASTA COMPANY,
DAKOTA GROWERS PASTA COMPANY,
AND NEW WORLD PASTA COMPANY,
Defendants.
______________________
2013-1001
______________________
Appeal from the United States Court of International
Trade in No. 07-CV-0086, Judge Timothy C. Stanceu.
______________________
Decided: September 11, 2013
______________________
DAVID J. CRAVEN, Riggle & Craven, of Chicago, Il-
linois, for plaintiff-appellee.
JANE C. DEMPSEY, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellant. With her on the brief were STUART F. DELERY,
2 ATAR S.R.L. v. US
Deputy Principal Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and REGINALD T. BLADES, JR., Assis-
tant Director. Of counsel on the brief was DEBORAH R.
KING, Senior Attorney, Office of Chief Counsel for Import
Administration, United States Department of Commerce,
of Washington, DC.
______________________
Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
LOURIE, Circuit Judge.
The United States, as Defendant-Appellant, appeals
from the final judgment of the United States Court of
International Trade (the “trade court”), which rejected
calculations advanced by the Department of Commerce
(“Commerce”) regarding, inter alia, the profit cap applica-
ble under 19 U.S.C. § 1677b(e)(2)(B)(iii) to merchandise
sold by Italian exporter Atar S.r.l. (“Atar”) in the ninth
administrative review of an antidumping duty order
directed to certain Italian pasta products. In response,
Commerce revised its profit cap determination, eventually
including above- and below-cost sales made by profitable
and unprofitable respondents in the prior administrative
review to satisfy the trade court’s remand orders. The
trade court thereafter sustained Commerce’s antidumping
duty calculations. Atar S.r.l. v. United States, 853 F.
Supp. 2d 1344 (Ct. Int’l Trade 2012) (“Atar IV”).
Because we conclude that Commerce’s original profit
cap calculation was reasonable, we reverse.
BACKGROUND
This appeal arrives with a lengthy and complex
history. On June 14, 1996, Commerce determined that
certain pasta products from Italy were being sold in the
ATAR S.R.L. v. US 3
United States at less than fair value. 1 Certain Pasta from
Italy, 61 Fed. Reg. 30,326 (Dep’t Commerce June 14,
1996) (notice of final determination of sales at less than
fair value). Shortly thereafter, Commerce published an
antidumping duty order imposing antidumping duties
against subject merchandise imported into the United
States. Certain Pasta from Italy, 61 Fed. Reg. 38,547(Dep’t of Commerce July 24, 1996) (notice of antidumping
duty order).
Some years later, Commerce conducted its ninth
administrative review of that antidumping duty order,
covering the period of July 1, 2004, through June 30,
2005. In pertinent part, Commerce arrived at an anti-
dumping duty margin of 18.18% for Atar. Certain Pasta
from Italy, 72 Fed. Reg. 7,011, 7,012 (Dep’t of Commerce
Feb. 14, 2007) (notice of final results) (“Final Results”).
To calculate antidumping margins, Commerce ordinarily
compares the export price of the subject merchandise with
the “normal value,” i.e., the price of like products sold in
the exporter’s home market or in a representative third
country. See 19 U.S.C. §§ 1677(35), 1677b(a)(1)(A)–(C).
In this case, however, Commerce determined that it could
not assess normal value by reference to Atar’s proffered
home-market or third-country sales data, so it approxi-
mated the normal value of Atar’s subject goods using a
constructed value approach. Atar S.r.l. v. United States,
637 F. Supp. 2d 1068, 1072–73 (Ct. Int’l Trade 2009)
(“Atar I”); see also 19 U.S.C. § 1677b(a)(4).
1 The order encompassed “certain non-egg dry pasta
in packages of five pounds (or 2.27 kilograms) or less . . . .
typically sold in the retail market.” Certain Pasta from
Italy, 61 Fed. Reg. 30,326, 30,329 (Dep’t of Commerce
June 14, 1996) (notice of final determination of sales at
less than fair value).
4 ATAR S.R.L. v. US
As defined by statute, the constructed value for mer-
chandise under antidumping review ordinarily equals the
sum of (1) the cost of materials and fabrication needed to
produce the merchandise in the ordinary course of trade;
(2) the exporter’s actual selling, general, and administra-
tive costs incurred and actual profits realized in the
production of a foreign like product in the ordinary course
of trade; and (3) packing and container costs. 19 U.S.C.
§ 1677b(e)(1), (e)(2)(A), (e)(3). To be considered as within
the “ordinary course of trade,” the sales under review
generally must arise from arm’s-length, above-cost trans-
actions. Id. §§ 1677(15), 1677b(b)(1), (f)(2). When the
exporter under consideration lacks viable comparison
market data as specified under § 1677b(e)(2)(A)—
including actual profits and actual sales, general, and
administrative (“SGA”) costs—the statute provides three
options for deriving substitute values. Option (i) uses the
actual amounts incurred and realized by the specific
exporter under review from foreign sales of merchandise
that falls within the same general category as the subject
merchandise. Id. § 1677b(e)(2)(B)(i). Option (ii) relies on
the weighted average of the actual costs incurred and
profits realized by the other exporters under review in
selling a foreign like product in the ordinary course of
trade. Id. § 1677b(e)(2)(B)(ii). Option (iii) serves as a
backstop that allows Commerce to derive the amounts
incurred and realized “based on any other reasonable
method,” provided that “the amount allowed for profit
may not exceed the amount normally realized by export-
ers . . . in connection with the sale, for consumption in the
foreign country, of merchandise that is in the same gen-
eral category of products as the subject merchandise.” Id.
§ 1677b(e)(2)(B)(iii). The provision limiting the allowable
profit in option (iii) is commonly referred to as the “profit
cap.” See, e.g., Atar I, 637 F. Supp. 2d at 1088 n.5.
In this case, Commerce determined that it could not
proceed under § 1677(e)(2)(A) to calculate the constructed
value of Atar’s products because Atar lacked data from a
viable comparison market. Certain Pasta from Italy,
ATAR S.R.L. v. US 5
Decision Memorandum for the Final Results, at 18 (Dep’t
of Commerce Feb. 14, 2007) (“Decision Mem.”), available
at http://ia.ita.doc.gov/frn/summary/italy/e7-2563-1.pdf.
Commerce therefore turned to the three alternatives set
forth in § 1677b(e)(2)(B).
Commerce disregarded option (i) because Atar did not
produce any products other than the subject merchandise.
Decision Mem. at 19. Option (ii) also proved unavailable
because the ninth administrative review included only
one other respondent, and Commerce concluded that
relying on that respondent’s reported profit and SGA cost
data would expose confidential business information. Id.
at 20.
Thus finding options (i) and (ii) inapposite, Commerce
invoked option (iii), which broadly authorizes the agency
to derive the necessary profit and SGA values via “any
other reasonable method,” subject to the statutory profit
cap. In so doing, Commerce sought “a methodology that
most closely simulate[d] the preferred method” of
§ 1677b(e)(2)(A). Decision Mem. at 19; see also id. at 18
(defining subsection (e)(2)(A) as “the preferred method”).
Accordingly, Commerce chose to estimate Atar’s profit
and SGA costs based on actual sales of a foreign like
product made in the ordinary course of trade, as specified
in § 1677b(e)(2)(A) as well as option (ii)—the difference
being that the data Commerce used originated not from
Atar or other respondents in the ninth review, but from
analogous sales by the six respondents 2 in the prior
(eighth) administrative review. See Decision Mem. at 14–
2 The respondents in the eighth administrative re-
view were: (1) Barilla G.e.R. Fratelli, S.p.A.; (2) Corticella
Molini e Pastifici S.p.A. and Pasta Combattenti S.p.A.;
(3) Industrie Alimentare Colavita, S.p.A.; (4) Pastificio
F.lli Pagani S.p.A.; (5) Pastificio Antonio Pallente S.r.l.
and Vitelli Foods LLC; and (6) Pastificio Riscossa F.lli
Mastromauro, S.r.l. Decision Mem. at 14 n.5.
6 ATAR S.R.L. v. US
21; Certain Pasta from Italy, 71 Fed. Reg. 45,017, 45,021–
22 (Dep’t of Commerce Aug. 8, 2006) (notice of prelimi-
nary results). Commerce concluded that its methodology
was “representative of Atar’s [SGA] and profit experience,
within the meaning of the profit cap as required by alter-
native (B)(iii), and not distortive.” Decision Mem. at 19
(emphasis added). Using those data to derive the con-
structed value for Atar’s subject merchandise, Commerce
reached its final antidumping duty margin of 18.18%.
Final Results, 72 Fed. Reg. at 7,012.
In March 2007, Atar brought suit in the trade court to
challenge the Final Results. The trade court upheld
Commerce’s decision to use a constructed value approach
but concluded that the agency had not employed a “rea-
sonable method” for calculating the constructed value of
Atar’s products under § 1677b(e)(2)(B)(iii). Atar I, 637 F.
Supp. 2d 1068. In particular, the court rejected Com-
merce’s decision to exclude data representing sales made
outside the ordinary course of trade (i.e., below-cost sales)
from the prior administrative review period as “arbi-
trary.” Id. at 1087. According to the court, Commerce
excluded below-cost sales based not on any analysis of
facts and circumstances relevant to Atar but rather on the
agency’s own default preferences for doing so. Id. at
1085–90. The court thus remanded for Commerce to
reconsider its constructed value profit and SGA cost
determinations. Id. at 1092–93.
Following Atar I, Commerce issued its first remand
redetermination on September 3, 2009. Although it
“continue[d] to believe that the methodology used in the
Final Results constitute[d] a ‘reasonable method,’” Com-
merce recalculated Atar’s constructed value using above-
and below-cost sales data obtained from those respond-
ents in the eighth administrative review that had earned
a net profit during that period of review (only two of the
six total respondents). Using the weighted average profit
and SGA cost values from all sales by those two respond-
ATAR S.R.L. v. US 7
ents to gauge Atar’s constructed value, Commerce devised
an amended antidumping duty margin of 14.45%.
On review, the trade court remanded again. Atar
S.r.l. v. United States, 703 F. Supp. 2d 1359 (Ct. Int’l
Trade 2010) (“Atar II”). The court concluded that Com-
merce’s revised method for determining Atar’s construct-
ed value profit was deficient for failing to separately and
independently calculate the statutory profit cap. Id. at
1364–67. Accordingly, the court set aside the first re-
mand redetermination and remanded again for Commerce
to reconsider Atar’s constructed value profit under option
(iii). Atar II, 703 F. Supp. 2d at 1370.
Commerce issued its second remand redetermination
on July 19, 2010. Commerce elected to continue using
data from the two profitable respondents in the prior
administrative review, including their above- and below-
cost sales to calculate Atar’s constructed value profit. In
addition, Commerce expressly used those same data to
establish a profit cap, contending that “the weighted-
average profit rate of the two [profitable] respondents . . .
after including sales made both within and outside the
ordinary course of trade, establishe[d] a reasonable profit
cap.” Because its constructed value profit figure—based
on the same data—did not exceed (and indeed matched)
the resulting profit cap, Commerce concluded that its
preexisting margin of 14.45% complied with statutory
requirements.
Once again, the trade court remanded. Atar S.r.l. v.
United States, 791 F. Supp. 2d 1368 (Ct. Int’l Trade 2011)
(“Atar III”). The court held that the second remand
redetermination had yielded an unlawful profit cap be-
cause Commerce had misinterpreted the statute and
misapplied the available facts. Commerce had deter-
mined that the statute required the profit cap to be a
positive amount, which in the agency’s view supported its
reliance on data only from profitable respondents in the
prior review. The court, however, rejected Commerce’s
statutory interpretation as unreasonable, holding that the
8 ATAR S.R.L. v. US
statute called for a flexible, case-by-case profit cap deter-
mination that did not require Commerce to exclude repre-
sentative data from unprofitable producers. Id. at 1376.
In addition, the court concluded that Commerce’s limited
focus on the two profitable respondents “ignored home-
market sales data [by the unprofitable producers] that
were material and probative of the general conditions in
the home market of Italy affecting the profitability of
domestic pasta producers operating there.” Id. at 1377.
The court reasoned that basing the calculation on only
two producers had heavily skewed Commerce’s weighted-
average profit cap figure toward a single large, profitable
exporter and therefore did not reflect the actual condi-
tions affecting the “amount normally realized” by Atar
and others operating in the Italian home market. Id. at
1377–78. The court therefore remanded again for Com-
merce to recalculate Atar’s constructed value profit using
a lawfully determined profit cap. Id. at 1380–81.
Commerce then issued its third remand redetermina-
tion on December 6, 2011, once again revising its con-
structed value profit and profit cap calculations. To
begin, Commerce returned to its original method from the
Final Results for deriving Atar’s constructed value profit
based on the above-cost sales of all six respondents in the
prior administrative review, citing our intervening deci-
sion in Thai I-Mei Frozen Foods Co. v. United States, 616
F.3d 1300 (Fed. Cir. 2010). Under protest, Commerce also
adopted a lower profit cap to comply with the trade court’s
remand instructions, using the weighted average of all
data (including below-cost sales) from all six respondents
in the eighth administrative review. Because the newly
derived profit cap imposed a ceiling on the allowable
constructed value profit figure calculated under Thai I-
Mei, the third remand redetermination resulted in a new
antidumping duty margin applicable to Atar of 11.76%.
The trade court affirmed Commerce’s third remand
redetermination. Atar IV, 853 F. Supp. 2d 1344. In Atar
IV, the court held that Commerce had used a reasonable
ATAR S.R.L. v. US 9
method for determining the profit cap—the amount of
profits “normally realized” by exporters or producers in
Atar’s home market. The court explained that “[t]he
inclusion of all sales, both above-cost and below-cost, in
the profit cap calculation produced a result that more
accurately reflected the profit conditions in the home
market as a whole than would one confined to sales made
in the ordinary course of trade.” Id. at 1349. The court
disposed of Atar’s complaints that Commerce should have
used a simple average, rather than a weighted average, of
data from the six respondents in the prior review, stating
that “Commerce must be allowed a degree of discretion as
to its methodological choices in determining a profit cap.”
Id. at 1350. As a result, the final 11.76% antidumping
duty margin from the third remand redetermination was
sustained, and the trade court entered final judgment
accordingly.
The government timely appealed. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
We review the trade court’s decision in this case de
novo, “apply[ing] anew the same standard used by the
court, and [we] will uphold Commerce’s determination
unless it is unsupported by substantial evidence on the
record, or otherwise not in accordance with law.” Mittal
Steel Point Lisas Ltd. v. United States, 548 F.3d 1375,
1380 (Fed. Cir. 2008). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. of
N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938). We must defer
to Commerce’s reasonable construction of its governing
statute where Congress “leaves a gap in the construction
of the statute that the administrative agency is explicitly
authorized to fill, or implicitly delegates legislative au-
thority, as evidenced by ‘the agency’s generally conferred
authority and other statutory circumstances.’” Cathedral
Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352,
1361 (Fed. Cir. 2005) (quoting United States v. Mead
10 ATAR S.R.L. v. US
Corp., 533 U.S. 218, 229 (2001)). To review the reasona-
bleness of agency action, “[c]ourts look for a reasoned
analysis or explanation for an agency’s decision as a way
to determine whether a particular decision is arbitrary,
capricious, or an abuse of discretion.” Wheatland Tube
Co. v. United States, 161 F.3d 1365, 1369 (Fed. Cir. 1998).
On appeal, the government contends that Commerce
reasonably excluded below-cost sales from its profit cap
calculations in the Final Results. Specifically, the gov-
ernment argues that Commerce followed its normal
approach to constructed value profit determinations by
excluding below-cost sales from its profit cap calculation.
Commerce determined normal value for respondents in
the eighth administrative review by excluding their
below-cost sales pursuant to § 1677b(b)(1), and, according
to the government, the agency’s use of an analogous
approach to derive Atar’s profit cap from the same data
reasonably reflected the “amount normally realized” from
the sale of like pasta products in Italy.
The government also argues that Commerce’s profit
cap calculations were consistent with a broad “statutory
preference” for deriving constructed value profits from
sales of a foreign like product made in the ordinary course
of trade, as set forth in § 1677b(e)(2)(A) and (e)(2)(B)(ii)
and reinforced by Thai I-Mei.
Finally, the government asserts that the trade court
afforded Commerce insufficient deference in interpreting
and applying § 1677b(e)(2)(B)(iii) under the review stand-
ard applicable to such administrative determinations.
Atar offers no substantive response. As appellee, Atar
did not file substantive briefing or participate in oral
argument; instead, Atar submitted papers stating that it
“has ceased commercial operations and does not possess
the resources” for meaningful participation. Appellee’s
Br. 2. Atar nonetheless urges affirmance of the trade
court’s “well reasoned and considered decision.” Id.
ATAR S.R.L. v. US 11
The only question presented in this appeal is whether
the trade court erred in rejecting Commerce’s exclusion of
below-cost sales from its profit cap calculations relating to
Atar’s subject merchandise. The governing statute allows
Commerce to calculate the amount allocated to profit in a
constructed value determination based on any reasonable
method,
except that the amount allowed for profit may not
exceed the amount normally realized by exporters
or producers (other than the [specific exporter or
producer being examined]) in connection with the
sale, for consumption in the foreign country, of
merchandise that is in the same general category
of products as the subject merchandise.
19 U.S.C. § 1677b(e)(2)(B)(iii) (emphasis added). The
quoted language sets the maximum allowable profit—the
profit cap—in constructed value determinations conduct-
ed under option (iii) of § 1677b(e)(2)(B) according to the
“amount normally realized” from sales of similar goods in
a reference market. As the trade court correctly recog-
nized, the statutory language “does not speak directly to
the question of how Commerce is to determine” the
amount normally realized, nor does it “direct that data on
unprofitable sales be included or excluded.” Atar III, 791
F. Supp. 2d at 1376. Because the statute in question is
ambiguous, we must proceed to step two of the framework
established in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), “and the defer-
ence it affords an agency’s ‘construction of a statutory
scheme it is entrusted to administer.’” Thai I-Mei, 616
F.3d at 1305 (quoting Chevron, 467 U.S. at 844). The
question, then, is whether Commerce acted reasonably in
this case by excluding below-cost sales data from the prior
administrative review in its calculation of Atar’s profit
cap. We conclude that it did.
As described, subsections (i) to (iii) of § 1677b(e)(2)(B)
provide Commerce with three avenues for deriving a
profit figure to replicate the fraction of the constructed
12 ATAR S.R.L. v. US
value that would be attributable to profit. The first option
relies on sales data from the specific exporter or producer
being considered, while the second uses a weighted aver-
age of profits made by other producers under review from
sales of a foreign like product. § 1677b(e)(2)(B)(i)–(ii).
Those two options set forth predefined formulas for as-
sessing constructed value profit that are grounded in
specific, objectively relevant data, and neither option
includes a separate profit cap. See id.
In contrast, the catch-all third option permits Com-
merce to calculate constructed value profit using “any
other reasonable method,” subject to a profit cap that
serves to prevent the various possible calculation methods
from yielding anomalous results that stray beyond the
“amount normally realized” from sales of merchandise in
the same general category. See § 1677b(e)(2)(B)(iii). Like
option (ii), however, the profit cap provision expressly
requires the use of data from different exporters or pro-
ducers than the one under consideration. See id. (“[T]he
amount allowed for profit may not exceed the amount
normally realized by exporters or producers (other than
the exporter or producer described in clause (i) . . . .”
(emphasis added)).
In this case, Commerce had no choice but to proceed
under option (iii). Atar had no comparison sales suitable
for use under option (i), and Commerce rejected option (ii)
because the ninth administrative review included only
one other respondent, and using that respondent’s data
alone would have revealed business-proprietary infor-
mation. Atar I, 637 F. Supp. 2d at 1082. If the ninth
administrative review had included sufficient data from
one or more additional respondents, however, under
option (ii) Commerce would have been required to exclude
data from those respondents’ below-cost sales in calculat-
ing Atar’s constructed value profit. See 19 U.S.C.
§ 1677b(e)(2)(B)(ii) (“[T]he weighted average of the actual
amounts . . . realized by exporters or producers that are
subject to the investigation . . . in connection with the
ATAR S.R.L. v. US 13
production and sale of a foreign like product, in the ordi-
nary course of trade . . . .” (emphasis added)).
While such data were not available here, Commerce
did have access to analogous data from the six respond-
ents in the previous administrative review. Using those
surrogate data, Commerce used methods that otherwise
mirrored option (ii) to calculate Atar’s constructed value
profit as the weighted average of the actual profits real-
ized from above-cost sales of a foreign like product by the
respondents in the eighth review. Decision Mem. 19. The
resulting profit figure undeniably would have qualified as
a permissible measure of constructed value profit if it had
been derived pursuant to option (ii) during the eighth
administrative review, and the record contains no indica-
tion that the relevant market underwent any substantial
intervening change that would meaningfully distinguish
the period of the eighth review (July 1, 2003 to June 30,
2004) from the timeframe now at issue (July 1, 2004 to
June 30, 2005). Once Commerce decided to mirror op-
tion (ii) by using data from other respondents, the exclu-
sion of below-cost sales made sense. As the Statement of
Administrative Action (“SAA”) that accompanied the
Uruguay Round Agreements Act 3 explains with regard to
option (ii), the consideration of below-cost sales of a for-
eign producer’s competitors could allow that producer to
“benefit perversely from its own unfair pricing.” SAA,
H.R. Rep. No. 103-316, at 840 (1994), reprinted in 1994
U.S.C.C.A.N. 3,773, 4,176. That is, a foreign producer
might have undercut the market, thereby forcing its
competitors to make unprofitable sales. Because the
3 By statute, the SAA “shall be regarded as an au-
thoritative expression by the United States concerning
the interpretation and application of the Uruguay Round
Agreements and this Act in any judicial proceeding in
which a question arises concerning such interpretation or
application.” 19 U.S.C. § 3512(d).
14 ATAR S.R.L. v. US
approach Commerce selected under option (iii) raised
those same concerns, it decided, consistent with the SAA’s
guidance, to avoid the risk of lowering Atar’s profit cap
based on any such unprofitable sales. We therefore
cannot conclude that Commerce acted unreasonably in
deciding that the same weighted-average profit rate
would not exceed the “amount normally realized” under
option (iii). 4
We recognize that the enumerated reference products
differ between option (ii) and the profit cap provision of
option (iii). Specifically, option (ii) contemplates profit
data from other respondents’ sales of a “foreign like
product,” while the profit cap provision references normal
returns from sales of “merchandise that is in the same
general category” as the subject products. Compare
§ 1677b(e)(2)(B)(ii), with (e)(2)(B)(iii). As explained in the
SAA, however, “[t]he term ‘general category of merchan-
dise’ encompasses a category of merchandise broader than
the ‘foreign like product.’” SAA at 840. In other words, a
4 In SKF USA Inc. v. United States, 263 F.3d 1369,
1377 (Fed. Cir. 2001), this court stated, in dictum, that
use of the methodologies set forth in subsections (B)(i) and
(B)(iii) of § 1677b(e)(2) would require the inclusion of
below-cost sales in the constructed value profit calculation
“because those methodologies do not require that the sales
be made ‘in the ordinary course of trade.’” In Thai I-Mei,
however, we addressed that argument directly and specif-
ically held that the inclusion of a reference to the ordinary
course of trade in § 1677b(e)(2)(A) and (B)(ii) did not apply
to subsection (B)(iii) because subsection (B)(iii) is a catch-
all provision that allows the use of “any other reasonable
method” to calculate profits. Because subsection (B)(iii)
“is not limited to a specific type of data,” we held that
Congress “did not make any further specific requirements
regarding sales outside the ordinary course of trade.” 616
F.3d at 1306.
ATAR S.R.L. v. US 15
“foreign like product” also necessarily qualifies as mer-
chandise within the “same general category” for purposes
of § 1677b(e). As such, the use of data from sales of a
foreign like product to address the profit cap requirement
fits within the scope of § 1677b(e)(2)(B)(iii).
Furthermore, the “same general category” language of
option (iii) does not prohibit Commerce from excluding
below-cost sales when calculating a profit cap. The trade
court concluded that “Congress did not intend for Com-
merce to exclude data on below-cost sales from its calcula-
tion when determining a profit cap.” Atar II, 703 F. Supp.
2d at 1365. In so doing, the court recited the following
language from the SAA: “[T]he Administration does not
intend that Commerce would engage in an analysis of
whether sales in the same general category are above-cost
or otherwise in the ordinary course of trade.” Id. (quoting
SAA at 841).
Despite this statement of intention, however, the SAA
does not prohibit Commerce from excluding below-cost
sales when deriving a profit cap. Read in context, the
cited language instead addresses the ordinarily limited
availability of data concerning third-party sales of mer-
chandise that does not qualify as a foreign like product in
the review but does fall within the same general category
of merchandise. The associated full paragraph from the
SAA reads as follows:
The administration does not intend Commerce to
require companies to submit all data necessary to
apply each alternative. For example, Commerce
will not require a company which has provided
profit information on its own sales of the particu-
lar foreign like product also to submit profit in-
formation on its sales of the same general
category of products solely to enable Commerce to
use the latter information to calculate profit for a
different company. Likewise, the Administration
does not intend that Commerce would engage in
an analysis of whether sales in the same general
16 ATAR S.R.L. v. US
category are above-cost or otherwise in the ordi-
nary course of trade.
SAA at 841.
The SAA thus recognizes that Commerce faces practi-
cal limitations on its ability to obtain comprehensive data
regarding the foreign sales of various related products in
a typical investigation. In general, Commerce “is unlikely
to have sale-specific data on merchandise in the same
general category because such merchandise is not subject
to the investigation or review.” Thai I-Mei, 616 F.3d at
1308 (internal quotation marks omitted). Accordingly,
the SAA makes clear that, in contrast to sales covering
the specific foreign like product, Commerce need not
gather the detailed and potentially voluminous data
necessary to differentiate sales made within and outside
the ordinary course of trade across an entire general
category of merchandise. But relieving Commerce of the
requirement to collect such detailed information in every
instance does not prohibit its use when available. Here,
data collected during the eighth administrative review
allowed Commerce to distinguish between above- and
below-cost sales of relevant comparison products, and,
having such information readily available, Commerce
reasonably elected to exclude below-cost sales in its profit
cap calculations in this case. The SAA passage on which
the trade court relied does not state an “unambiguously
expressed intent” of Congress to the contrary. Chevron,
467 U.S. at 843. 5
Finally, the trade court’s decision was in large part
founded on its perception that “below-cost sales were a
5 We also note that Commerce’s chosen methodolo-
gy in this case is consistent with other provisions of
§ 1677b that restrict calculations based on reported sales
of a foreign like product to those made in the ordinary
course of trade. See § 1677b(b), (e)(2)(A), (e)(2)(B)(ii).
ATAR S.R.L. v. US 17
significant feature of the home-market conditions affect-
ing the marketing of pasta in Italy” during the relevant
periods of review, such that Commerce’s attempts to
minimize or exclude below-cost sales distorted its calcula-
tion of the “amount normally realized” from sales in that
market. Atar III, 791 F. Supp. 2d at 1380; see also Atar I,
637 F. Supp. 2d at 1088 (faulting the Final Results for “a
failure to ground the decision to exclude those [below-cost]
sales in findings of fact . . . that are pertinent to Atar’s
specific situation”). Nevertheless, we have long recog-
nized that antidumping determinations “involve complex
economic and accounting decisions of a technical nature,
for which agencies possess far greater expertise than
courts.” Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034,
1039 (Fed. Cir. 1996). Moreover, the statutory language
at issue here is ambiguous. Accordingly, Commerce is
entitled to substantial deference in its choice of account-
ing methodology, and, as a reviewing court, we may not
substitute one reasonable approach for another according
to our own preferences. In addition, we note that Com-
merce has not advocated a rigid requirement that below-
cost sales data must be excluded from all profit cap de-
terminations. See Oral Arg. at 14:37, available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/2013-1001/all (“Commerce . . . must consider
each situation on a case-by-case basis, so, in this case,
Commerce did not automatically exclude below-cost
sales.”). That approach is consistent with the SAA’s
directive that Commerce should “determine on a case-by-
case basis the profits ‘normally realized’ by other compa-
nies on merchandise of the same general category.” SAA
at 841.
CONCLUSION
In view of the foregoing, we conclude that Commerce
acted reasonably in excluding below-cost sales data from
the prior administrative review when calculating the
constructed value profit cap applicable to Atar’s subject
merchandise under § 1677b(e)(2)(B)(iii). Accordingly, we
18 ATAR S.R.L. v. US
reverse and remand for further action consistent with this
opinion.
REVERSED AND REMANDED