Slip Op. 11-13 

UNITED STATES COURT OF INTERNATIONAL TRADE 

MCC EUROCHEM, 

 Plaintiff, 

 v. 

UNITED STATES, 

 Defendant. 

 Before: Leo M. Gordon, Judge 

 Court No. 10-00260 

MEMORANDUM and ORDER 

[Defendant’s partial motion to dismiss granted.] 

 Dated: February 4, 2011 

 Squire Sanders & Dempsey, LLP (Peter J. Koenig, Christine J. Sohar Henter, 

Christopher A. Williams) for Plaintiff MCC Eurochem. 

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, 

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice (David D’Alessandris, Trial Attorney); and Office of Chief 

Counsel, Department of Commerce (Shana Hofstetter), of counsel, for Defendant 

United States. 

Akin, Gump, Strauss, Hauer & Feld, LLP (Valerie A. Slater, Margaret C. Marsh) 

for Defendant-Intervenor Ad Hoc Committee of Domestic Nitrogen Producers. 

Gordon, Judge: Defendant moves pursuant to USCIT Rule 12(b)(5) to partially 

dismiss Plaintiff MCC Eurochem’s (“Eurochem”) complaint challenging the final results 

of the U.S. Department of Commerce’s (“Commerce”) administrative review covering 

solid urea from Russia during the July 1, 2008 through June 30, 2009 period of review. 

See Solid Urea from Russia, 75 Fed. Reg. 51,440 (Dep’t of Commerce Aug. 20, 2010) 

(final results) and accompanying Issues and Decision Memorandum, A-821-801, 

AR 2008/09 (Aug. 13, 2010), available at http://ia.ita.doc.gov/frn/summary/russia/2010-
Court No. 10-00260 Page 2 

20750-1.pdf (last visited Feb. 4, 2011). Defendant’s motion to dismiss is limited to 

Count 2 (¶ 11) of Eurochem’s complaint, which challenges Commerce’s “zeroing” 

methodology. The court has jurisdiction over this action pursuant to 28 U.S.C. 

§ 1581(c). For the reasons set forth below, the court grants Defendant’s motion and 

dismisses Count 2 (¶ 11) of Plaintiff’s complaint. 

Discussion

In deciding a USCIT Rule 12(b)(5) motion to dismiss for failure to state a claim 

upon which relief can be granted, the court assumes all factual allegations to be true 

and draws all reasonable inferences in the plaintiff's favor. Gould, Inc. v. United States, 

935 F.2d 1271, 1274 (Fed. Cir. 1991). In Count 2, Eurochem claims that “[t]he Final 

Results decision to zero was not supported by substantial evidence and not otherwise in 

accordance with law.” Pl. Compl. ¶ 11, ECF No. 6. More specifically, Eurochem claims 

that Commerce’s use of “zeroing” in the subject review constitutes an unreasonable 

application of the antidumping statute. Eurochem suggests that the legal landscape with 

respect to “zeroing” has fundamentally changed, which creates a novel legal issue 

distinguishable from prior decisions that have upheld Commerce’s “zeroing” 

methodology. Pl. Resp. Br. 8, ECF No. 26. In particular, Eurochem argues that 

Commerce’s use of “zeroing” in the current review is unlawful because it occurred after

the effective date of the United States’ change in policy and statutory interpretation 

regarding “zeroing” in investigations; after U.S. courts affirmed Commerce’s new 

statutory interpretation and policy to eliminate “zeroing” in investigations; and after the 

United States’ commitment to implement the World Trade Organization’s Japan Zeroing
Court No. 10-00260 Page 3 

decision that rejected application of “zeroing” in administrative reviews. Pl. Resp. Br. 7. 

Eurochem argues that these events carry legal significance and establish the basis for a 

claim that Commerce’s continued application of “zeroing” in administrative reviews, but 

not in investigations, is inconsistent with 19 U.S.C. § 1677(35). According to Eurochem, 

the U.S. Court of Appeals for the Federal Circuit has not “previously ruled on the 

question of whether construing section 1677(35) to have two different meanings in 

reviews and investigations is reasonable under prong II of Chevron U.S.A., Inc. v. 

Natural Res. Def. Council, 467 U.S. 837 (1984).” Pl. Resp. Br. 8. 

Eurochem’s arguments are unpersuasive. The Federal Circuit has consistently 

upheld the reasonableness of Commerce’s practice of “zeroing” in administrative 

reviews. See Koyo Seiko Co. v. United States, 551 F.3d 1286 (Fed. Cir. 2008); SKF 

USA, Inc. v. United States, 537 F.3d 1373 (Fed. Cir. 2008); NSK Ltd. v. United States, 

510 F.3d 1375 (Fed. Cir. 2007); Corus Staal BV v. United States, 502 F.3d 1370 (Fed. 

Cir. 2007); Timken Co. v. United States, 354 F.3d 1334 (Fed. Cir. 2004), cert. denied, 

Koyo Seiko Co. v. United States, 543 U.S. 976 (2004). The Federal Circuit has further 

denied petitions for rehearing and rehearing en banc in Koyo, NSK, and Timken. 

With regard to the specific challenge presented here, the Federal Circuit and the 

Court of International Trade have already considered and rejected the same legal 

argument that Eurochem advances in this case. See SKF USA, Inc. v. United States, 

___ F.3d ___, 2011 WL 73179 (Fed. Cir. Jan. 7, 2011) (“SKF”); Dongbu Steel Co. v. 

United States, 34 CIT ___, 677 F. Supp. 2d 1353 (2010) (“Dongbu”); Corus Staal BV v. 

United States, 32 CIT ___, 593 F. Supp. 2d 1373 (2008), aff’d without decision, 
Court No. 10-00260 Page 4 

370 Fed. Appx. 111 (Fed. Cir. 2010). Eurochem concedes that Count 2 raises the same 

legal issue addressed in SKF and Dongbu. Pl. Resp. Br. 4. (“In fact, two cases are 

currently pending appeal before the Federal Circuit challenging this exact same issue, 

which we are contesting.”). 

After briefing in this action was completed, the Federal Circuit issued its decision 

in SKF, which again sustained Commerce’s practice of “zeroing” negative dumping 

margins in administrative reviews. See SKF, ___ F.3d at ___, 2011 WL 73179 at *8. As 

noted above, the appellants in SKF raised the same legal argument that Eurochem 

brings here. Brief for Appellants at *32-*40, SKF, 2010 WL 894953; Reply Brief for 

Appellants at *17-*18, SKF, 2010 WL 2416207. The Federal Circuit, however, 

concluded that Commerce’s practice of “zeroing” was reasonable and thereby rejected 

appellants’ claim. SKF, ___ F.3d at ___, 2011 WL 73179, at *8. Likewise, in Dongbu,

the Court of International Trade entertained the very same argument that Eurochem 

relies on in this action and, after a thorough examination of the issue, the court 

sustained Commerce’s practice of “zeroing.” See Dongbu, 34 CIT at ___, 677 F. Supp. 

2d at 1362-66. 

The Federal Circuit’s decision in SKF constitutes controlling authority, and while 

Dongbu is not binding on the court, it is legally sound and consistent with Federal Circuit 

precedent. SKF and Dongbu make clear that Commerce’s practice of “zeroing” in 

administrative reviews remains a reasonable application of the antidumping statute 

under the second step of Chevron. 
Court No. 10-00260 Page 5 

Conclusion 

For these reasons, Eurochem cannot prevail on Count 2 (¶ 11) of its complaint. 

Accordingly, it is hereby 

ORDERED that Defendant’s partial motion to dismiss is granted; and it is further 

ORDERED that Count 2 (¶ 11) of Eurochem’s complaint is dismissed. 

 /s/ Leo M. Gordon 

 Judge Leo M. Gordon 

Dated: February 4, 2011 

 New York, New York