Sichuan Dongfang Insulating Material Co., Ltd. v. United States

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.
UNITED STATES,
Defendant,
MITSUBISHI POLYESTER FILM, INC. and
SKC, INC.,
Defendant-Intervenors.
Before: Jane A. Restani, Judge
Consol. Court No. 12-00095
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.
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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.
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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).
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