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, Illinois, for plaintiff-appellee. 

 JANE C. DEMPSEY, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendantappellant. 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., Assistant 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 applicable 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 antidumping 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 approximated 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 merchandise 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 administrative 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 transactions. 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 exporters . . . 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.” 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 respondents2 in the prior 

(eighth) administrative review. See Decision Mem. at 14–

2 The respondents in the eighth administrative review 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 preliminary 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 alternative (B)(iii), and not distortive.” Decision Mem. at 19

(emphasis added). Using those data to derive the constructed 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 “reasonable 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 Commerce’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 “arbitrary.” 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,’” Commerce recalculated Atar’s constructed value using aboveand below-cost sales data obtained from those respondents 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 Commerce’s revised method for determining Atar’s constructed 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 remand 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 belowcost sales to calculate Atar’s constructed value profit. In 

addition, Commerce expressly used those same data to 

establish a profit cap, contending that “the weightedaverage 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 because Commerce had misinterpreted the statute and 

misapplied the available facts. Commerce had determined 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 determination that did not require Commerce to exclude representative data from unprofitable producers. Id. at 1376. 

In addition, the court concluded that Commerce’s limited 

focus on the two profitable respondents “ignored homemarket 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 weightedaverage profit cap figure toward a single large, profitable 

exporter and therefore did not reflect the actual conditions 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 Commerce to recalculate Atar’s constructed value profit using 

a lawfully determined profit cap. Id. at 1380–81.

Commerce then issued its third remand redetermination on December 6, 2011, once again revising its constructed 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 decision 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 IMei, 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 jurisdiction 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 authority, 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 reasonableness 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 government 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 standard 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 conducted 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 recognized, 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 deference 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 average 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 assessing 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 Commerce 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 producers 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 information. 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 calculating 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 ordinary course of trade . . . .” (emphasis added)). 

 While such data were not available here, Commerce 

did have access to analogous data from the six respondents 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 realized 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 indication 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 option (ii) by using data from other respondents, the exclusion of below-cost sales made sense. As the Statement of 

Administrative Action (“SAA”) that accompanied the 

Uruguay Round Agreements Act3 explains with regard to 

option (ii), the consideration of below-cost sales of a foreign 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 authoritative 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 merchandise’ 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 specifically 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 catchall 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 merchandise 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 Commerce to exclude data on below-cost sales from its calculation 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 merchandise 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 particular foreign like product also to submit profit information 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 ordinary course of trade.

SAA at 841. 

The SAA thus recognizes that Commerce faces practical 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 methodology 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 affecting 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 calculation 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 recognized 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 accounting 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 Commerce has not advocated a rigid requirement that belowcost sales data must be excluded from all profit cap determinations. See Oral Arg. at 14:37, available at

http://www.cafc.uscourts.gov/oral-argumentrecordings/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-bycase basis the profits ‘normally realized’ by other companies 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