                                         Slip Op. 14-

               UNITED STATES COURT OF INTERNATIONAL TRADE

 TIANJIN WANHUA CO., LTD.,

                       Plaintiff,

 SICHUAN DONGFANG INSULATING
 MATERIAL CO., LTD. and FUWEI FILMS
 (SHANDONG) CO., LTD.,

                       Consolidated Plaintiffs,

               .v.                                  Before: Jane A. Restani, Judge

 UNITED STATES,                                     Consol. Court No. 12-00095

                       Defendant,

 MITSUBISHI POLYESTER FILM, INC. and
 SKC, INC.,

                       Defendant-Intervenors.



                                          OPINION

[Plaintiffs’ motion for judgment on the agency record in antidumping case denied. Defendant’s
motion to dismiss for failure to state a claim granted.]

                                                                      Dated: February , 2014

               David J. Craven, David A. Riggle, and Saichang Xu, Riggle & Craven, of
Chicago, IL, for plaintiff and consolidated plaintiffs.

               Loren M. Preheim, Senior Trial Counsel, and David F. D’Alessandris, Trial
Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of
Washington, DC, for defendant. With them on the brief were Jane C. Dempsey, Trial Attorney,
Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of counsel on the brief was Michael T. Gagain, Attorney, Office
of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of
Washington, DC.
Consol. Court No. 12-00095                                                                 Page 2


              Ronald I. Meltzer, Patrick J. McClain, David M. Horn, and Jeffrey I. Kessler,
Wilmer, Cutler, Pickering, Hale & Dorr, LLP, of Washington, DC, for defendant-intervenors.

               Restani, Judge: Before the court is the motion for judgment upon the agency

record pursuant to U.S. Court of International Trade Rule 56.2 filed by plaintiff Tianjin Wanhua

Co., Ltd. and consolidated plaintiffs Sichuan Dongfang Insulating Material Co., Ltd. and Fuwei

Films (Shandong) Co., Ltd. (collectively “plaintiffs”), seeking remand to the U.S. Department of

Commerce (“Commerce”) with instructions to preclude Commerce from using zeroing in the

antidumping administrative review at issue. See Pl.’s Rule 56.2 Mot. for J. upon the Agency R.,

ECF No. 41. Any other claims raised by the complaints are waived for failure to present them in

briefing before the court. See USCIT R. 56.2(c).1 In response, defendant United States (“the

Government”) filed a motion to dismiss for failure to state a claim upon which relief can be

granted pursuant to U.S. Court of International Trade Rule 12(b)(5). See Def.’s Mot. to Dismiss,

ECF No. 45.

               The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2006). Commerce’s

determinations, findings, and conclusions will be upheld unless they are “unsupported by

substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.

§ 1516a(b)(1)(B)(i).

               The crux of plaintiffs’ argument is that Commerce inadequately explained how 19

U.S.C. § 1677(35) permits an interpretation that allows for differing applications of zeroing in

antidumping investigations and reviews, citing JTEKT Corp. v. United States, 642 F.3d 1378



       1
         Remaining defendant-intervenors Mitsubishi Polyester Film, Inc. and SKC, Inc. have
filed no motions seeking any relief.
Consol. Court No. 12-00095                                                                  Page 3


(Fed. Cir. 2011) and Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011). The

issue of law now before the court is no different from that presented to the Court of Appeals for

the Federal Circuit (“Federal Circuit”) in Union Steel v. United States, 713 F.3d 1101 (Fed. Cir.

2013) (“Union Steel”). In that case, Commerce explained that its differing applications of

zeroing2 are due to the contextual differences between antidumping investigations and

administrative reviews, as well as Commerce’s discretion to take necessary and statutorily

permitted measures to meet international obligations. See id. at 1108–10. The Federal Circuit

found Commerce’s explanation adequate and, as a result, upheld Commerce’s use of zeroing in

administrative reviews. See id. at 1111.

               Plaintiffs have failed to put forth an argument distinguishing this case from Union

Steel, and, in fact, concede that this court is bound by Union Steel. See Pls.’ Combined Resp. &

Reply, ECF No. 50. Accordingly, the court grants the Government’s motion to dismiss for

failure to state a claim and denies plaintiffs’ motion for judgment on the agency record.

Judgment will enter accordingly.




                                                               /s/ Jane A. Restani
                                                                 Jane A. Restani
                                                                      Judge

Dated: February , 2014
       New York, New York




       2
        For a detailed explanation of the zeroing practice and its history, see Union Steel v.
United States, 823 F. Supp. 2d 1346 (CIT 2012).
