Slip Op. 14-90 

UNITED STATES COURT OF INTERNATIONAL TRADE 

JBF RAK LLC, 

 Plaintiff, 

 v. 

UNITED STATES, 

Defendant,

 and 

MITSUBISHI POLYESTER FILM, INC., 

DUPONT TEIJIN FILMS and SKC, INC., 

TORAY PLASTICS (AMERICA), INC., 

 Defendant-Intervenors. 

 Before: Judith M. Barzilay, Senior Judge 

 Court No. 12-00099 

OPINION

[Defendant’s motion to dismiss granted.] 

 July 30, 2014 

Jack D. Mlawski and John J. Galvin, Galvin & Mlawski, for Plaintiff. 

Stuart F. Delery, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. 

McCarthy, Assistant Director, (David F. D’Alessandris), Trial Counsel, Commercial Litigation 

Branch, Civil Division, U.S. Department of Justice, of counsel, Justin R. Becker and Shana A. 

Hofstetter, Office of the Chief Counsel for Import Administration, U.S. Department of 

Commerce, for Defendant. 

Ronald I. Meltzer, Patrick J. McLain, David M. Horn, and Jeffrey I. Kessler, Wilmer Cutler 

Pickering Hale and Dorr LLP, for Defendant-Intervenors. 

BARZILAY, Senior Judge: Before the court is Plaintiff JBF RAK LLC’s (“JBF RAK”) 

motion for judgment on the agency record under USCIT Rule 56.2, challenging Defendant U.S. 
Court No. 12-00099 Page 2 

Department of Commerce’s (“Commerce”) final results of the administrative review covering 

polyethylene terephthalate film (“PET Film”) from United Arab Emirates for the November 1, 

2009 through October 31, 2010 period of review. See Polyethylene Terephthalate Film, Sheet, 

and Strip From the United Arab Emirates, 77 Fed. Reg. 20,357 (Dep’t Commerce Apr. 4, 2012) 

(final results) (“Final Results”); see also Issues and Decision Memorandum for Polyethylene 

Terephthalate Film, Sheet, and Strip from the United Arab Emirates, A-520-803 (Mar. 29, 

2012), available at http://enforcement.trade.gov/frn/summary/UAE/2012-8108-1.pdf (last visited 

July 30, 2014). JBF RAK claims that Commerce erred by applying its zeroing methodology in 

the context of an administrative review. JBF RAK Br. 6. JBF RAK claims that the Federal 

Circuit’s decision in Union Steel v. United States, 713 F.3d 1101 (Fed. Cir. 2013) is contrary to 

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

States, 642 F.3d 1378 (Fed. Cir. 2011). JBF RAK Br. 8. Commerce, in turn, has filed a motion 

to dismiss for failure to state a claim upon which relief may be granted under USCIT Rule 

12(b)(5). Def. Br. 4. The court has jurisdiction under 28 U.S.C. § 1581(c). 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 Federal Circuit’s decision in Union Steel has settled this issue. In Union Steel, the 

Federal Circuit sustained Commerce’s explanation for applying its zeroing methodology in 

administrative reviews (and not in investigations). See Union Steel, 713 F.3d at 1107-1111. 

“Commerce explained that its differing applications of zeroing 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.” Tianjin Wanhaua Co. v. United States, 38 CIT __, __, 961 F. Supp. 2d 1335, 1336 
Court No. 12-00099 Page 3 

(2014) (“Tianjin”) (citing Union Steel, 713 F. 3d at 1108-10). Commerce, therefore, may 

lawfully apply its zeroing methodology in administrative reviews. Although JBF RAK attempts 

to characterize Union Steel as having “misapprehended” zeroing, JBF RAK Br. 4, 9-10, it is 

nevertheless binding authority on the issue presented here concerning Commerce’s application of 

zeroing in the context of a review. JBF RAK, moreover, has failed to distinguish this case from 

Union Steel in a manner that might justify reaching the merits. Commerce, for its part, has 

provided an explanation of its zeroing policy in this case that is consistent with the explanation 

provided in Union Steel. See Issues and Decision Memorandum at 2-10. In the court’s view, JBF 

RAK is attempting to litigate an issue that has already been settled by the Federal Circuit. See

Tianjin, 961 F. Supp. 2d at 1336. Accordingly, JBF RAK has failed to state a claim upon which 

relief can be granted. See USCIT R. 12(b)(5). Judgment will be entered accordingly. 

Dated: July 30, 2014 /s/ Judith M. Barzilay ______ 

 New York, New York Judith M. Barzilay, Senior Judge