Thai I-Mei Frozen Foods Co., Ltd. v. United States

United States Court of Appeals
for the Federal Circuit
__________________________

THAI I-MEI FROZEN FOODS CO., LTD.,
Plaintiff-Appellee,
v.
UNITED STATES,
Defendant-Appellant.
__________________________

2009-1516
__________________________

Appeal from the United States Court of International
Trade in Case No. 09-CV-0197, Judge Timothy C.
Stanceu.
____________________________

Decided: August 12, 2010
____________________________

MICHAEL T. GERSHBERG, Steptoe & Johnson LLP, of
Washington, DC, argued for plaintiff-appellee.

FRANKLIN E. WHITE, JR., Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellant. With him on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and PATRICIA M. MCCARTHY, Assistant Director, and
STEPHEN C. TOSINI, Trial Attorney.
__________________________
THAI I-MEI FROZEN FOODS v. US 2

Before LOURIE, MAYER, and LINN, Circuit Judges.
LOURIE, Circuit Judge.

The government appeals from the decision of the
United States Court of International Trade (“the Trade
Court”) holding unreasonable the Department of Com-
merce’s (“Commerce’s”) interpretation of its governing
statute and concluding that the constructed value profit
rate was not determined according to a reasonable
method. See Thai I-Mei Frozen Foods Co., Ltd v. United
States, 572 F. Supp. 2d 1353 (Ct. Int’l Trade 2008) (“Thai
I-Mei II”). Because Commerce’s first remand determina-
tion was in accordance with law, we reverse the Trade
Court’s decision.

BACKGROUND
Under the antidumping statute, Commerce imposes
duties on imported merchandise that “is being, or is likely
to be, sold in the United States at less than fair value”
and harms domestic industry. 19 U.S.C. § 1673. Sales at
less than fair value are those sales for which the “normal
value” (the price a producer charges in its home market)
exceeds the “export price” (the price of the product in the
United States). 19 U.S.C. § 1677(35)(B). If sales of com-
parable merchandise are not available for the agency to
determine normal value, the agency may use a con-
structed value. 19 U.S.C. § 1677b(e). The statute speci-
fies that constructed value is the sum of (1) the cost of
materials and processing used to produce the merchan-
dise in the ordinary course of business, (2) the actual
selling, general, and administrative expenses and actual
profits realized in production of a foreign like product in
the ordinary course of trade, and (3) container costs. Id.
3 THAI I-MEI FROZEN FOODS v. US

The statute further specifies three alternatives for situa-
tions where actual data are not available for the selling,
general, and administrative expenses and profit amounts.
First, Commerce may use actual amounts incurred by the
specific exporter or producer for merchandise in the same
general category as the subject merchandise (in contrast
to use of data for the foreign like product).
19 U.S.C. § 1677b(e)(2)(B)(i). The second alternative is
using the weighted average of actual amounts incurred by
other exporters or producers subject to investigation for
the foreign like product. 19 U.S.C. § 1677b(e)(2)(B)(ii).
The third alternative allows determination of the
amounts incurred and realized “based on any other rea-
sonable method . . . .” 19 U.S.C. § 1677b(e)(2)(B)(iii).
In February 2005, Commerce made a determination
that shrimp from Thailand were being dumped (i.e., sold
at less than fair value) in the United States at a margin of
5.29%. Certain Frozen Warmwater Shrimp from Thai-
land, 70 Fed. Reg. 5,145 (Feb. 1, 2005) (notice of amended
final determination of sales at less than fair value and
antidumping duty order), amending ministerial errors in
Certain Frozen and Canned Warmwater Shrimp from
Thailand, 69 Fed. Reg. 76,918 (Dec. 23, 2004) (notice of
final determination of sales at less than fair value). In
making its determination, Commerce used a constructed
value after finding that there was no viable home market
for the product.
To determine constructed value for Thai I-Mei, Com-
merce used profit data from the two other mandatory
respondents’ third country sales (in Canada), pursuant to
19 U.S.C. § 1677b(e)(2)(B)(iii), excluding data for sales it
determined were not made in the ordinary course of trade.
Sales outside the ordinary course of trade include below-
cost sales and certain transactions between affiliated
parties. Thai I-Mei Frozen Foods Co., Ltd v. United
THAI I-MEI FROZEN FOODS v. US 4

States, 477 F. Supp. 2d 1332, 1355 (Ct. Int’l Trade 2007)
(“Thai I-Mei I”), (citing 19 U.S.C. § 1677(15)). The ex-
cluded sales accounted for 20% of the total sales Com-
merce examined in making its determination; the
resulting profit margin calculated was 9.67%. In using
these profit data, Commerce rejected Thai I-Mei’s submis-
sion of data from other Thai companies’ sales of seafood in
third country markets, and its suggested profit of either
0% or 0.87%. 1
Thai I-Mei challenged Commerce’s determination in
the Court of International Trade. The Trade Court found
Commerce’s decision to use other respondents’ third
country sales to determine profit for its constructed value
calculation instead of the data set proffered by Thai I-Mei
to be supported by substantial evidence, under 19
U.S.C. § 1677b(e)(2)(B)(iii). Thai I-Mei I, 477 F. Supp. 2d
at 1341-48. However, the Trade Court found that Com-
merce had not adequately explained its exclusion of sales
outside the ordinary course of trade in making its profit
determination for Thai I-Mei. Id. at 1357. The Court of
International Trade remanded with instructions to “re-
consider this aspect of the Amended Final Determina-
tion.” Id. at 1358.
In its determination following the first remand,
Commerce continued to exclude sales outside the course of
ordinary trade from the third country sales data of the
other respondents in determining profit data for Thai I-

1 Commerce also did not cap the number it used for
profit, as required by 19 U.S.C. § 1677b(e)(2)(B)(iii),
determining that such a cap could only come from Thai
sales of similar category products, and that no market for
such products existed in Thailand. However, the court
found that Thai I-Mei did not exhaust its administrative
remedies on this point and was therefore barred from
challenging it. Thai I-Mei I, 477 F. Supp. 2d at 1353-54.
5 THAI I-MEI FROZEN FOODS v. US

Mai. Commerce noted that the “any other reasonable
method” language of the statute did not dictate the inclu-
sion or exclusion of sales outside the ordinary course of
trade, and that the preamble to Commerce’s regulations
requires a finding “depending on the circumstances and
availability of data.” Antidumping Duties; Countervailing
Duties, 62 Fed. Reg. 27,296, 27,359 (Dep’t of Commerce
May 19, 1997) (“Preamble”). Commerce also noted that
the “preferred” method, i.e., using the methodology of 19
U.S.C. § 1677b(e)(2)(A), requires exclusion of sales outside
the ordinary course of trade, and stated that it had
“looked to a methodology that mimics the preferred
method.” In a footnote, Commerce explained that like
subparagraph (B)(iii), subparagraph (B)(i) does not spe-
cifically exclude sales outside the ordinary course of trade
because that section references sales of merchandise that
is merely in the same general category as the subject
merchandise rather than sales of the foreign like product.
Commerce explained that it would not have sale-specific
data for sales of merchandise that were only in the same
general category because that merchandise will generally
not be subject to the investigation or review.
Commerce then evaluated the “circumstances and
availability of data,” and noted that because the data
were from two other respondents to the investigation,
Commerce was able to exclude sales outside the ordinary
course of business. As to the circumstances of the case,
Commerce relied on its exclusion of those sales when
calculating profit margins for the other two respondents
and that all three were exporters of the subject merchan-
dise, in contrast to other “(iii) cases where the merchan-
dise relied upon was same general category merchandise,
rather than also subject merchandise.” J.A. 71. Lastly,
Commerce found determinative that the three respon-
dents all made their sales during the same time period.
THAI I-MEI FROZEN FOODS v. US 6

The Trade Court again remanded, finding Com-
merce’s interpretation of the statute to be unreasonable
and its determination upon remand unsupported by
substantial evidence. Thai I-Mei II, 572 F. Supp. 2d 1353.
The court found it unreasonable to import a preference
from subsection 1677b(e)(2)(A) to subsection (B), which
operates as an alternative when the data necessary to
determine a margin under subsection (A) are not avail-
able. Id. at 1363. Specifically, the court found that the
exclusion of sales outside the normal course of trade in
subsection 1677b(e)(2)(A) had no bearing on the treat-
ment of such sales under subsection (B) because for
subsection (A), “the excluded non-ordinary-course sales
are those of the respondent under examination.” Id. at
1634. The Trade Court also criticized Commerce’s inter-
pretation of the statute because reading in a “preference”
for excluding non-ordinary-course sales would constrain
Commerce to implement this preference in all determina-
tions under subsection 1677b(e)(2)(B)(iii). That would be
in conflict with Commerce’s stated position that in deter-
minations under subsection (iii), “depending on the cir-
cumstances and the availability of data, there may be
instances in which [Commerce] would consider it neces-
sary to exclude certain home market sales that are out-
side the ordinary course of trade in order to compute a
reasonable measure of profit . . . .” Id. (quoting Preamble,
62 Fed. Reg. at 27,359).
The Trade Court next found that Commerce had not
offered a satisfactory justification for excluding sales
outside the ordinary course of trade from its profit calcu-
lations for Thai I-Mei. Thai I-Mei II, 572 F. Supp. 2d at
1370. The court was not convinced by Commerce’s rea-
soning that Thai I-Mei’s profit calculation should be
consistent with that of the other respondents, based on its
findings that the companies all produced and exported
7 THAI I-MEI FROZEN FOODS v. US

subject merchandise during the period of investigation.
Id. at 1368. Rather, the court noted that the similarities
“indicate little more than the basis under which Thai I-
Mei and the other two entities served as respondents in
the investigation.” Id. In addition, the court stated that
consistency among respondents did not provide a reason-
able basis for excluding the sales, because the reasoning
“reveals nothing of significance with respect to Thai I-
Mei’s estimated profit experience.” Id. at 1369. The court
noted that Thai I-Mei’s circumstances were likely differ-
ent from those of the other two respondents, given that its
dumping margin was much lower than theirs, even with
the use of the higher profit data. Id. at 1370.
On the second remand determination and under pro-
test, Commerce included sales outside the ordinary course
of trade in calculating Thai I-Mei’s profit. Based on the
resulting constructed value, Commerce calculated a de
minimis dumping margin for Thai I-Mei. The Trade
Court affirmed the second remand determination. Thai I-
Mei Frozen Foods Co., Ltd v. United States, 2009 WL
1783640 (Ct. Int’l Trade 2009) (“Thai I-Mei III”).
The government timely appealed. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
We review the decision of the Court of International
Trade de novo, “apply[ing] anew the same standard used
by the court, and [we] will uphold Commerce’s determina-
tion 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) (citation and internal quota-
tion marks omitted). Substantial evidence is “such rele-
vant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Universal Camera
THAI I-MEI FROZEN FOODS v. US 8

Corp. v. NLRB, 340 U.S. 474, 477 (1951). The Trade
Court 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 dele-
gates legislative authority, as evidenced by ‘the agency’s
generally conferred authority and other statutory circum-
stances.’” Cathedral Candle Co. v. U.S. Int’l Trade Com-
m'n, 400 F.3d 1352, 1361 (Fed. Cir. 2005) (quoting United
States v. Mead Corp., 533 U.S. 218, 229 (2001)). In order
to effectuate review of the reasonableness of agency
action, “[c]ourts look for a reasoned analysis or explana-
tion 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).
I.
The government argues that Commerce’s decision to
use only sales in the ordinary course of trade for calculat-
ing Thai I-Mei’s profit was reasonable and that the Trade
Court should have affirmed its first remand determina-
tion. The government contends that Commerce’s deter-
mination conforms to the statute because it ties decisions
concerning when to include or exclude sales outside the
ordinary course of trade to the availability of data.
The government further argues that the preferred
method of calculating profit described in 19 U.S.C.
§ 1677b(e)(2)(A), using the “actual amounts . . . realized
by the specific exporter or producer . . . for profits . . . in
the ordinary course of trade,” is an expression of Congres-
sional preference that profit be based upon sales made in
the ordinary course of trade. This method, according to
the government, is reasonably preferred because it uses
only sales that realize a profit to calculate an average
9 THAI I-MEI FROZEN FOODS v. US

“profit.” This interpretation, the government argues, is
further supported by other statutory provisions that
compel use of sales made in the ordinary course of trade,
such as for calculating normal value, 19 U.S.C. §
1677b(b)(1), and for calculating costs for purposes of
calculating a constructed value, 19 U.S.C. § 1677b(e)(1).
In addition, the government argues that its determi-
nation is in accordance with the Preamble to Commerce’s
regulations based on its finding as to the “circumstances
and availability of data.”
The government contends that the Trade Court sub-
stituted its judgment for that of the agency where the
statute allows Commerce to use “any . . . reasonable
method.” The government challenges the court’s interpre-
tation that because Congress did not expressly state that
below cost sales should be excluded from determinations
under subsection (iii), Commerce could not interpret it in
a way that incorporated that otherwise preferred method-
ology.
Lastly, the government argues that the Trade Court
inappropriately relied on the Uruguay Round Agreements
in its finding. The government argues that analysis of the
lawfulness of Commerce’s interpretation of the provisions
of U.S. law requires reference solely to U.S. law.
Thai I-Mei responds that the Court of International
Trade granted deference to Commerce’s interpretation,
but properly found it not in accordance with law because
of Commerce’s failure to provide an explanation for its
choice of data. Thai I-Mei argues that it is unreasonable
to use the same methodology for calculating profits for
different respondents under different statutory sections.
Specifically, Thai I-Mei argues that section
1677b(e)(2)(B)(iii) only applies when the respondent’s
“actual amounts” for profit are not available, in contrast
THAI I-MEI FROZEN FOODS v. US 10

to section 1677b(e)(2)(A). Because these situations are
different, Thai I-Mei argues, importing preferences from
subsection (A) to subsection (B)(iii) is not reasonable.
Instead, Thai I-Mei suggests that the normal practice
should be to include all sales in profit calculations under
subsection (B)(iii), and that any deviation from that
position must have a basis in the specific facts of a given
case. Thai I-Mei further argues that the mere availability
of data does not provide such a reasoned basis.
Lastly, Thai I-Mei argues that the Court of Interna-
tional Trade did not rely on the WTO Agreement in
rejecting Commerce’s proffered methodology. Rather,
Thai I-Mei argues that the court used the agreement to
inform its understanding of the statutory structure and
purpose.
II.
We agree with the government and reverse the Court
of International Trade’s decision remanding Commerce’s
first remand determination. Here, we are reviewing
Commerce’s application of a statute that clearly confers
authority on it to use “any other reasonable method” for
determining amounts incurred for profits. 19 U.S.C.
§ 1677b(e)(2)(B)(iii). Thus, we are squarely within the
territory of Chevron, U.S.A., Inc. v. Natural Res. Def.
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.” Id. at 844.
The relevant statutory provisions at issue
in this case are as follows:
For purposes of this subtitle, the con-
structed value of imported merchandise
shall be an amount equal to the sum of—
11 THAI I-MEI FROZEN FOODS v. US

(1) the cost of materials and fabrication or
other processing of any kind employed in
producing the merchandise, during a pe-
riod which would ordinarily permit the
production of the merchandise in the ordi-
nary course of business;

(2)(A) the actual amounts incurred and re-
alized by the specific exporter or producer
being examined in the investigation or re-
view for selling, general, and administra-
tive expenses, and for profits, in connection
with the production and sale of a foreign
like product, in the ordinary course of
trade, for consumption in the foreign coun-
try . . .

19 U.S.C. § 1677b(e)(1), (2)(A) (emphasis added). Sub-
section (e)(2)(B) provides three alternative types of data
for use in determining selling, general, and administra-
tive expenses and profit amounts “if actual data are not
available with respect to the amounts described in sub-
paragraph (A).” They provide as follows:
(i) the actual amounts incurred and real-
ized by the specific exporter or producer
being examined in the investigation or re-
view for selling, general, and administra-
tive expenses, and for profits, in
connection with the production and sale,
for consumption in the foreign country, of
merchandise that is in the same general
category of products as the subject mer-
chandise,
THAI I-MEI FROZEN FOODS v. US 12

(ii) the weighted average of the actual
amounts incurred and realized by export-
ers or producers that are subject to the in-
vestigation or review (other than the
exporter or producer described in clause
(i)) for selling, general, and administrative
expenses, and for profits, in connection
with the production and sale of a foreign
like product, in the ordinary course of
trade, for consumption in the foreign coun-
try . . . .

(iii) the amounts incurred and realized for
selling, general, and administrative ex-
penses, and for profits, based on any other
reasonable method, except that the
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)) in connec-
tion 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) (emphases added).
The Trade Court found Commerce’s use of subsection
(B)(iii), above, to be reasonable, Thai I-Mei I, 477 F. Supp.
2d at 1341-48, which neither party challenges here. In
addition, neither the government nor Thai I-Mei argues
that subsection (B)(iii) specifies either inclusion or exclu-
sion of sales made outside the ordinary course of trade,
13 THAI I-MEI FROZEN FOODS v. US

although Thai I-Mei argues for a default of inclusion,
based on the theory that “where Congress has included
specific language in one section of a statute but has
omitted it from another, related section of the Act, it is
generally presumed that Congress intended the omis-
sion.” Ad Hoc Comm. Of AZ-NM-TX-FL Producers of
Gray Portland Cement v. United States, 13 F.3d 398, 401
(Fed. Cir. 1994). However, given that subsection (B)(iii) is
a catch-all provision allowing “any reasonable method,”
without limitation as to ordinary-course sales, the cited
canon of statutory interpretation is inapplicable. Al-
though Congress specified exclusion of sales outside the
ordinary course of trade in subsections (A) and (B)(ii),
these specify precise data that will be used. Subsection
(B)(iii) is implicated when subsection (A) does not apply,
and is not limited to a specific type of data; thus, Congress
did not make any further specific requirements regarding
sales outside the ordinary course of trade. This level of
generality cannot be interpreted to create a presumption
that sales outside the ordinary course of trade must be
included. Thus, the only question is whether Commerce
reasonably concluded that it was appropriate to exclude
sales outside the ordinary course of trade, given the
available data and circumstances of this investigation.
We conclude that it did.
As an initial matter, we do not conclude that the
Court of International Trade erred in its reference to the
Uruguay Round Agreements, as the government argues.
The court used the agreement as context, informing its
analysis of the Congressional intent behind the statutory
provisions at issue. Thai I-Mei II, 572 F. Supp. 2d at
1363. As such, the court was not giving effect to provi-
sions of the Uruguay Round Agreements that were incon-
sistent with U.S. law, counter to 19 U.S.C. § 3512(a)(1).
THAI I-MEI FROZEN FOODS v. US 14

Although the government makes various arguments
to support its position that a general preference for exclu-
sion of sales outside the ordinary course of trade is rea-
sonable, we review only the bases on which Commerce
made its determination. Sec. & Exch. Comm'n v. Chenery
Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which
an administrative order must be judged are those upon
which the record discloses that its action was based”).
Thus, we review Commerce’s interpretation of the statute
and the agency’s Preamble to its regulations as “giv[ing]
us the discretion of whether or not to exclude such sales.”
J.A. 76. This includes Commerce’s understanding that it
only looks to subsection (B) where data necessary for a
determination under subsection (A) are not available, J.A.
69, its further statement that it looked to “a methodology
that mimics the preferred method,” id., and its analysis of
data availability and circumstances in this case. From
that view, it appears that Commerce’s expression of a
“general preference” was merely a reflection that where
all appropriate data are available, Commerce will use
only sales (of foreign like product, made by the respon-
dent) in the ordinary course of trade for determining
constructed profit value. We do not read Commerce’s
results to dictate a preference for excluding sales outside
the ordinary course of trade in all determinations pursu-
ant to subsection (B)(iii). Rather, it is a general state-
ment of the preferred method where data are available
and Commerce’s general goal of mimicking that prefer-
ence where they are not.
Commerce’s determination that there is a “statutorily
preferred method” for calculating profit that excludes
sales outside the ordinary course of business reflects the
structure of the statute, which dictates use of “actual
amounts” realized “for profits . . . in the ordinary course of
trade” for sales of the foreign like product where avail-
15 THAI I-MEI FROZEN FOODS v. US

able. 19 U.S.C. § 1677b(e)(2)(A). It is only when such
data are not available for those amounts that the alterna-
tive sections of the statute under subsection (B) are
implicated. Thus, it is reasonable for Commerce to have
concluded there was a general statutory preference for
sales (of foreign like products) made (by the respondent)
in the ordinary course of trade. In addition, the alterna-
tive methods outlined in subsection (B) all “mimic” the
methodology of subsection (A) by giving alternatives that
attempt to track its requirements. The Trade Court’s
discussion suggests that the main difference between
subsections (A) and (B) is that subsection (A) uses data
from the respondent itself, while (B) allows for data from
other respondents. Thai I-Mei I, 572 F. Supp. 2d at 1363.
However, subsection (B) sometimes calls for use of re-
spondent data, where available, as discussed below.
Subsection (B), as indicated, allows for three alterna-
tives. The first permits use of the “actual amounts . . .
realized by the specific exporter or producer being exam-
ined . . . for profits” for same general category products as
the subject merchandise. 19 U.S.C. § 1677b(e)(2)(B)(i).
This “same general category” section uses data from the
respondent, but does not specify that the contemplated
sales should be in the ordinary course of trade.
The second alternative recites use of “the weighted
average of the actual amounts incurred and realized by
exporters or producers that are subject to the investiga-
tion . . . for profits, in connection with the production and
sale of a foreign like product in the ordinary course of
trade, for consumption in the foreign country.” 19 U.S.C.
§ 1677b(e)(2)(B)(ii). That section allows for use of data
from other correspondents, although limited to like prod-
ucts, and only includes sales made in the ordinary course
of trade.
THAI I-MEI FROZEN FOODS v. US 16

Lastly, the statute directs Commerce to use “any
other reasonable method” to determine selling, general,
and administrative expenses and profit, leaving to Com-
merce whether sales outside the ordinary course of trade
should be included, inter alia. 19 U.S.C.
§ 1677b(e)(2)(B)(iii). Unlike the first alternative, there is
no limitation that data be for the specific exporter or
producer, and, unlike the second alternative, there is no
limitation that the data relate to foreign like products.
Subsection (B) thus varies the necessary inputs depend-
ing on availability of data, while following the general
structure of subsection (A).
As discussed above, the statute dictates the inclusion
only of sales in the ordinary course of trade under both
subsection (A) and subsection (B)(ii), both of which refer-
ence sales of foreign like products—those of the respon-
dent and of other respondents being examined,
respectively. That fact supports the idea that availability
of data plays a large role in how Commerce is to make its
determination generally and with respect to whether
sales outside the ordinary course of trade are excluded.
As the agency explained in its first remand results, Com-
merce may not be able to exclude sales outside the ordi-
nary course in some situations because it 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.” J.A. 70. Because
of the nature of the data used in this particular subsection
(B)(iii) determination, it was possible to exclude sales
made outside the ordinary course of trade.
Commerce’s methodology also does not contradict its
own Preamble to the regulations. The Preamble states
that for subsection (B)(iii) determinations, “the automatic
exclusion of below-cost sales would be contrary to the
statute.” Preamble, 62 Fed. Reg. at 27,359. The Pream-
17 THAI I-MEI FROZEN FOODS v. US

ble further states that “depending on the circumstances
and the availability of data, there may be instances in
which the Department would consider it necessary to
exclude certain home market sales that are outside the
ordinary course of trade.” Id. Because Commerce did not
mechanically exclude sales outside the ordinary course of
trade, but rather made a specific determination that
exclusion of the sales was appropriate in this case, it
complied with its stated interpretation in the Preamble.
The available data in this case as well as the circum-
stances Commerce found to be relevant suffice to show
that exclusion of sales outside the ordinary course of trade
was reasonable. As discussed above, availability of data
plays a large role in how profits are determined under the
statute. For example, where foreign like product data
exist for the specific respondent, Commerce makes its
determination pursuant to subsection (A). However, here,
there were no home market data from Thai I-Mei, nor
were there any third country data, as there were for the
other two respondents. Nonetheless, the third country
data that were used for the other two respondents were
for like products, and thus the data were sufficiently
detailed to enable Commerce to exclude sales outside the
ordinary course of trade. In addition to the availability of
data, Commerce determined that exclusion of sales out-
side the ordinary course of trade was appropriate in this
case for the purposes of consistency with its determina-
tions for the other two respondents. Although blind
copying of the methodology applied to other respondents
would not be appropriate, Commerce reasoned that “it is
not Thai I-Mei’s prices we are disregarding as being below
cost, it is the prices of the [other respondents].” J.A. 76.
Commerce reasonably chose to use profit data from other
respondents, and to calculate profit the same way it had
for those other respondents. Although Thai I-Mei argued
THAI I-MEI FROZEN FOODS v. US 18

that its circumstances were different from those of the
other respondents, it is unclear how the inclusion of sales
outside the ordinary course of trade would be relevant to
any such differences. Constructing values for use in
antidumping investigations is by necessity imperfect.
Where, as here, it has been undertaken under a reason-
able interpretation of the statute and with attention paid
to the particular circumstances of the case, we will not
disturb the results.
As discussed above, Commerce’s statement of a gen-
eral preference for exclusion of sales outside the ordinary
course of trade where, as here, the data are for like prod-
ucts sold by other respondents, is reasonable. Commerce
reasonably determined that in this case, where such data
were readily available, and indeed, had been used for the
other two respondents, it was reasonable to make its
determination excluding sales outside the ordinary course
of trade.
CONCLUSION
For the foregoing reasons, we reverse the Court of In-
ternational Trade’s decision reversing and remanding
Commerce’s reasonable interpretation of the statute and
remand for further action consistent with this opinion.
REVERSED AND REMANDED