Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit
04-1209, -1210
EURODIF S.A.,
COMPAGNIE GENERALE DES MATIERES NUCLEAIRES,
and COGEMA, INC.,
Plaintiffs-Appellants,
and
AD HOC UTILITIES GROUP,
Plaintiff-Appellant,
v.
UNITED STATES
Defendant-Cross Appellant,
and
USEC INC. and UNITED STATES ENRICHMENT CORPORATION,
Defendants-Cross Appellants.
Stuart M. Rosen, Weil, Gotshal & Manges LLP, of New York, New York, argued for
plaintiffs-appellants Eurodif S.A., et al. With him on the brief were Gregory Husisian, of
Washington, DC, and Jennifer J. Rhodes, of New York, New York.
Nancy A. Fischer, Shaw Pittman LLP, of Washington, DC, argued for plaintiff-appellant
AD HOC Utilities Group. With her on the brief were Stephan E. Becker, Sanjay J. Mullick, and
Joshua D. Fitzhugh.
Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for defendant-cross appellant United States.
On the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and
Jeanne E. Davidson, Deputy Director. Of counsel on the brief were John D. McInerney, Chief
Counsel, Berniece A. Browne, Senior Counsel, and Robert L. Lafrankie, Senior Attorney, Office
of Chief Counsel for Import Administration, United States Department of Commerce, of
Washington, DC.
Sheldon E. Hochberg, Steptoe & Johnson LLP, of Washington, DC, argued for
defendants-cross appellants USEC Inc., et al. With him on the brief were Richard O.
Cunningham, Eric C. Emerson, Matthew S. Yeo, Evangeline D. Keenan, and Alexandra E.P.
Baj.
Appealed from: United States Court of International Trade
Judge Donald Pogue
United States Court of Appeals for the Federal Circuit
04-1209, -1210
EURODIF S.A.,
COMPAGNIE GENERALE DES MATIERES NUCLEAIRES,
and COGEMA, INC.,
Plaintiffs-Appellants,
and
AD HOC UTILITIES GROUP,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Cross Appellant,
and
USEC INC. and UNITED STATES ENRICHMENT CORPORATION,
Defendants-Cross Appellants.
__________________________
DECIDED: March 3, 2005
__________________________
Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit
Judge.
PROST, Circuit Judge.
This interlocutory appeal comes to us from the United States Court of
International Trade, which certified four separate questions for appeal to this court. The
Ad Hoc Utilities Group (“AHUG”), Eurodif S.A. (“Eurodif”), Compagnie Generale des
Matieres Nucleaires (“CGMN”) and Cogema, Inc. appeal two issues from the Court of
International Trade. The United States, USEC, Inc. and the United States Enrichment
Corporation (the latter two collectively referred to as “USEC” in this opinion) cross-
appeal two issues. We affirm the Court of International Trade’s decision affirming the
Department of Commerce’s (“Commerce”) industry support determination. We also
affirm the court’s decision that uranium enrichment contracts constitute a provision of
services, rather than a sale of goods. Finally we reverse the court’s decision regarding
subsidies, and hold that overpayment for uranium enrichment services by foreign
government entities cannot constitute a countervailable subsidy. Because we need not
review the court’s decision regarding Commerce’s application of the tolling regulation in
the context of export price determination, we decline to do so.
BACKGROUND
Enriched uranium fuel rods are used by the utility industry to generate nuclear
power. The process of producing those rods involves multiple steps. First, uranium ore
must be mined. Second, the ore must be milled or refined into concentrated uranium.
Third, that concentrated uranium must be converted into uranium hexafluoride. Fourth,
that uranium hexafluoride must be enriched into low enriched uranium (“LEU”). Fifth,
and finally, LEU is used to fabricate uranium rods. This case involves the fourth step in
the process of creating uranium rods—the enrichment of uranium hexafluoride into LEU.
Many utilities in the United States contract to buy uranium from a third-party
seller and then contract to have that uranium enriched by a uranium enricher. Only one
entity in the United States enriches uranium into LEU—USEC, formerly an arm of the
federal government. A variety of foreign enrichers, including Eurodif, CGMN and
04-1209, -1210 2
Cogema, compete with USEC and also enrich the uranium of American utility
companies.1
Contracts for enriched uranium come mainly in two different forms. The first form
involves contracts that provide money for the sale of enriched uranium, otherwise
known as enriched uranium product, or EUP, contracts. The second form, the form
relevant to this appeal, involves the transfer of unenriched uranium by a buyer to an
enricher and the purchase of separative work units (“SWU”) from the enricher. In these
SWU contracts, the enricher enriches the unenriched uranium and delivers LEU to the
purchaser. Although the enricher may not necessarily produce a particular utility’s LEU
from the uranium that utility provides to the enricher, the utility retains title, during the
enrichment process, to the quantity of unenriched uranium that it supplies to the
enricher.
In most of the transactions relevant to this case, AHUG and American utilities
entered into SWU contracts with European enrichers. These utilities compensated
enrichers to process unenriched uranium into LEU. In another critical transaction, a
partially public French utility, Electricite de France (“EdF”), entered into an SWU
contract with French enricher Eurodif. In that contract, EdF allegedly paid Eurodif
greater than adequate compensation for the enrichment of uranium.
On December 7, 2000, USEC petitioned Commerce to undertake an antidumping
and countervailing duty investigation focusing on LEU coming from France, Germany,
the Netherlands, and the United Kingdom. On December 21, 2001, Commerce issued
1
The Court of International Trade thoroughly documented the factual
background to this case in its opinion. See USEC Inc. v. United States, 281 F. Supp. 2d
1334 (Ct. Int’l Trade 2003) (“USEC II”).
04-1209, -1210 3
its final determinations in that investigation. Those determinations focused on two main
issues: (1) whether SWU contracts were contracts for the sale of goods and not
services and, therefore, subject to U.S. antidumping and countervailing duty statutes,
and (2) whether domestic utilities or foreign enrichers were “producers” of LEU for the
purposes of determining whether or not there was sufficient industry support to begin an
antidumping and countervailing duty investigation in the first place. In its final
determinations, Commerce concluded that SWU contracts are contracts for the sale of
goods and not services. It also decided that the foreign enrichers of uranium, and not
the domestic utilities, were “producers” of LEU.
AHUG and the foreign enrichers party to this case appealed Commerce’s
determination to the Court of International Trade, arguing that a uranium enrichment
contract is a contract for the provision of services and not the sale of goods and,
therefore, not subject to federal antidumping and countervailable subsidy statutes.
AHUG also disputed Commerce’s contention that only the foreign enrichers are
“producers” for domestic industry support determination purposes, arguing that
Commerce’s determination that foreign enrichers were “producers” of LEU was
inconsistent with its prior decisions. AHUG further contended that if the domestic
utilities are considered producers of LEU, Commerce would not have sufficient domestic
industry support to commence an investigation pursuant to 19 U.S.C. § 1673a(c)(4).
The Court of International Trade agreed with AHUG and determined that
Commerce’s characterization of the enrichment contracts between AHUG and foreign
enrichers as contracts for the sale of goods was not sustainable. USEC Inc. v. United
States, 259 F. Supp. 2d 1310, 1324-26 (Ct. Int’l Trade 2003) (“USEC I”). It also found
04-1209, -1210 4
that Commerce’s determination that the foreign enrichers were “producers” of LEU was
against the weight of the evidence and inconsistent with prior Commerce decisions. Id.
at 1317-26. As a result, the court remanded the case to allow Commerce to reconsider
its determinations.
In its remand determination, Commerce reiterated its original positions. Final
Remand Determination, USEC Inc. and United States Enrichment Corp. v. United
States (June 23, 2003) (“Remand Determination”). AHUG and the foreign enrichers
then appealed that remand determination to the Court of International Trade. In its
second consideration of Commerce’s determinations, the court concluded that (1)
Commerce’s interpretation of the word “producer” in the context of making an industry
support determination was reasonable and in accordance with law; (2) uranium
enrichment contracts were contracts for services and not for goods; (3) payment by a
foreign government entity of more than adequate remuneration to a foreign enricher for
enrichment services qualified as a countervailable subsidy; and (4) Commerce’s
interpretation of the word “producer” for the purposes of making an export price
determination was inconsistent with its previous determinations in other cases and thus
not in accordance with law. USEC Inc. v. United States, 281 F. Supp. 2d 1334 (Ct. Int’l
Trade 2003) (“USEC II”).
Because the resolution of the issues decided by the court in USEC II are
potentially dispositive of this entire case, the Court of International Trade certified four
specific questions for appeal to this court. The four certified questions are:
(1) Whether Commerce’s decision not to apply its tolling regulation to determine
whether American utilities should be considered “producers” of low enriched uranium
04-1209, -1210 5
(LEU) for the purposes of determining whether there was enough domestic industry
support to proceed with an investigation is in accordance with law. (Commerce
determined that foreign enrichers and not domestic utilities were “producers” of LEU for
the purposes of determining domestic industry support. Remand Determination at 6-
36.)
(2) Whether Commerce’s decision that the enrichment of uranium feedstock
pursuant to separative work unit (SWU) contracts constitutes a sale of goods instead of
services is supported by substantial evidence and in accordance with law. (Commerce
determined that SWU contracts like EUP contracts are contracts for the sale of goods.
Remand Determination at 70-81.)
(3) Whether Commerce’s decision that payment of more than adequate
remuneration for enrichment services by partially public foreign entities to foreign
enrichers constitutes a countervailable subsidy is in accordance with law. (Commerce
determined that the transaction between EdF and Eurodif was a sale of goods to a
government entity for more than adequate remuneration and, therefore, subject to the
countervailing duty statute. Remand Determination at 82-99.)
(4) Whether Commerce’s decision to apply a definition of “producer” in the
context of export price determination that is different from the definition it used in the
industry support determination is reasonable and therefore in accordance with law.
(Commerce determined that foreign enrichers were “producers” of LEU for the purposes
of determining LEU export price. Remand Determination at 69-70.)
We have jurisdiction to hear this appeal under 28 U.S.C. § 1292(d)(1).
DISCUSSION
04-1209, -1210 6
In reviewing the Court of International Trade’s decisions in this case, we apply
the same standard used by that court in evaluating Commerce’s determinations,
findings and conclusions and hold unlawful any decisions found to be unsupported by
substantial evidence or otherwise not in accordance with law. 19 U.S.C.
§ 1516a(b)(1)(B)(i) (2000).
A. The Tolling Regulation and Commerce’s Industry Support Determination
Before an antidumping and countervailing duty investigation can be initiated, the
petition on which that investigation is based must meet certain industry support
requirements. A petition is considered to be filed on behalf of an industry if:
(i) the domestic producers or workers who support the
petition account for at least 25 percent of the total
production of the domestic like product, and
(ii) the domestic producers or workers who support the
petition account for more than 50 percent of the
production of the domestic like product produced by that
portion of the industry expressing support for or
opposition to the petition.
19 U.S.C. § 1673a(c)(4)(A) (2000).
Commerce determined that in order to be a producer, an entity must have a
“stake” in the domestic industry in question. Commerce then defined having a “stake”
as undertaking the “actual production of the domestic like product” within the United
States. Remand Determination at 13. Commerce’s industry support determination
considered USEC to be the only domestic producer of LEU. Accordingly, Commerce
found that there was sufficient domestic industry support to begin an antidumping and
countervailing subsidy investigation. The Court of International Trade affirmed
04-1209, -1210 7
Commerce’s determination that foreign uranium enrichers were “producers” for the
purposes of § 1673a(c)(4)(A).
On appeal, appellants AHUG, Eurodif, CGMN and Cogema argue that American
utility companies should be considered “producers” for the purposes of determining
whether USEC’s petition has sufficient industry support to trigger Commerce’s
antidumping and countervailing duty investigation. In support, they note that
Commerce’s tolling regulation orders Commerce not “to consider a toller or
subcontractor to be a manufacturer or producer where the toller or subcontractor does
not acquire ownership, and does not control the relevant sale, of the subject
merchandise or foreign like product.” 19 C.F.R. § 351.401(h) (2004). According to the
appellants, if the tolling regulation were applied in this case, Commerce could not initiate
any antidumping or countervailing duty investigation because the domestic utilities
would be considered “producers” for the purposes of an industry support
determination—and given such a definition of “producer,” the dictates of
§ 1673a(c)(4)(A) would not be satisfied. They draw further support for their argument
from prior Commerce determinations that held that control of the aspects of
manufacture is sufficient to qualify an entity as a “producer.” Finally, they buttress their
argument by alleging that Commerce improperly and inconsistently applied the tolling
regulation by using it to determine the export price of LEU but declining to apply it in its
industry support determination.
The Court of International Trade rejected AHUG’s argument and sustained
Commerce’s interpretation of the term “producer” for the purpose of an industry support
determination as well as its refusal to apply the tolling regulation to encompass
04-1209, -1210 8
American utilities within the definition of the term “producer.” USEC II, 281 F. Supp. 2d
at 1346. The court supported its holding by determining that Commerce’s use of the
tolling regulation was in keeping with the purposes of the industry support statute and
that Commerce’s interpretation of the word “producer” was reasonable and, thus, in
accordance with law. Id. On this issue, we agree with the Court of International Trade
and affirm Commerce’s initial industry support determination.
Commerce’s determination that domestic utilities were not “producers” of LEU is
consistent foreign enrichers, and not domestic utilities, were “producers” of LEU is
consistent with the purpose of § 1673a(c)(4)(A). Section 1673a(c)(4) speaks of
“industry support” and, as expressed in legislative history, Congress intended the
industry support statute “to provide an opportunity for relief for an adversely affected
industry and to prohibit petitions filed by persons with no stake in the result of the
investigation.” S. Rep. No. 249, 96th Cong., 1st Sess. 47 (1979). This view was
echoed by the Court of International Trade when it noted that “[t]he language in the
legislative history is broad and unqualified. It contrasts industries suffering adverse
effect with those having no stake: the former have standing, the latter do not.” Brother
Indus. (USA), Inc. v. United States, 801 F. Supp. 751, 757 (Ct. Int’l Trade 1992).
Commerce interpreted having a “stake” as requiring that a company “perform some
important or substantial manufacturing operation.” Remand Determination at 14
(internal quotations and citations omitted). There is no basis to conclude that
Commerce’s interpretation in this context is unreasonable or not in accordance with law.
Further, determining the export price of a good and determining whether a
petition has enough support for an investigation to be initiated are two different tasks
04-1209, -1210 9
that were delegated to Commerce for different purposes. Thus, using the tolling
regulation in one context but not using it in another is a clearly insufficient basis upon
which to conclude that Commerce’s action was not in accordance with law.
B. The Characterization of Enrichment Contracts
Under the statutory scheme adopted by Congress, the sale of goods (or
“merchandise”) is covered by the antidumping duty statute. See 19 U.S.C. § 1673. The
provision of services, however, is not covered by that statute.
In a previous case dealing with SWU contracts and the Contract Disputes Act
(“CDA”), we agreed with the government’s argument that an SWU contract for the
enrichment of uranium is a service contract and, thus, not covered by the CDA. See
Fla. Power & Light Co. v. United States, 307 F.3d 1364 (Fed. Cir. 2002). The parties
dispute the relevance of Florida Power to this case.
On appeal, the government and USEC submit that Commerce’s finding that SWU
contracts are contracts for the sale of goods is supported by substantial evidence and in
accordance with law and that the Court of International Trade’s holding to the contrary
should be reversed. They rely on three principal contentions.
First, they argue that this court’s precedents in NTN Bearing Corp. of Am. v.
United States, 368 F.3d 1369 (Fed. Cir 2004), AK Steel Corp. v. United States, 226
F.3d 1361 (Fed. Cir. 2000), and NSK Ltd. v. United States, 115 F.3d 965 (Fed. Cir.
1997) support their argument that the SWU contracts in question were sales of
merchandise and not arrangements for services. They point to this court’s construction
of the word “sold” in NSK as supporting the view that a sale requires “both a transfer of
ownership to an unrelated party and consideration.” See NSK, 115 F.3d at 975. They
04-1209, -1210 10
also cite to our opinions in AK Steel and NTN as supporting this construction.
According to the government and USEC, this straightforward interpretation should cover
the SWU contracts because those contracts involved a transfer of title to LEU from the
enricher to the utilities upon sampling and weighing of the LEU and consideration paid
by the utilities to the enrichers.
Second, the government and USEC assert that Commerce’s characterization of
the SWU contracts as contracts for the sale of goods is in keeping with the general
purpose of the antidumping statute, which they articulate as “provid[ing] domestic
producers protection from all dumped imports.”
Third, the government and USEC point to the deferential standard of review
under which we review Commerce determinations as precluding a reversal of
Commerce’s determination on this issue. They argue that because Commerce’s
determination that SWU contracts are contracts for the sale of goods is, in their eyes,
supported by substantial evidence and in accordance with law, we should affirm it.
It is on these grounds, according to the appellants, that Florida Power is
inapposite to this case. Because Florida Power dealt with a contractual dispute under
the CDA and not an antidumping investigation, it is not, in their view, applicable here.
Moreover, they argue that Florida Power stands for the proposition that “SWU contracts
[fall] into neither [the category of sales of goods nor the category of contracts for
services].” As support, they point to language in our opinion in Florida Power that
indicates that an SWU contract “does not fall neatly into” either side of the goods-
services divide. See Fla. Power, 307 F.3d at 1373. The government and USEC
04-1209, -1210 11
consider this language sufficient to support Commerce’s determination given the
deferential standard of review to be applied in this case.
The Court of International Trade rejected Commerce’s determination that the
SWU contracts in this case were contracts for the sale of goods and not services,
resting its decision on the fact that the enrichers never obtained ownership of either the
feed (unenriched) uranium during enrichment or the final LEU product. USEC II, 281
F. Supp. 2d at 1339. Furthermore, according to the court, the SWU contracts between
the utilities and the enrichers demonstrated “an intention to establish a continuous chain
of ownership in the utility while maintaining the enricher’s ability to cover its obligations
under the contract should it encounter difficulties in producing or providing LEU for a
customer.” Id. The court also found that “nothing in the evidentiary record supports a
determination that the enricher has any ownership rights [under the SWU contracts].”
Id. at 1340. Agreeing with the Court of International Trade, we reject Commerce’s
determination that the SWU contracts in this case are contracts for the sale of goods.
In reviewing the contracts in this case, it is clear that ownership of either the
unenriched uranium or the LEU is not meant to be vested in the enricher during the
relevant time periods that the uranium is being enriched. While it is correct that a utility
may not receive the LEU that was enriched from the exact unenriched uranium that it
delivered to the enricher, it is nevertheless true that up until the sampling and weighing
of the LEU before delivery, the utility retains title to the quantity of unenriched uranium
that is supplies to the enricher. The utility’s title to that uranium is only extinguished
upon the receipt of title in the LEU for which it contracted. Therefore, the SWU
contracts in this case do not evidence any intention by the parties to vest the enrichers
04-1209, -1210 12
with ownership rights in the delivered unenriched uranium or the finished LEU. As a
result, the “transfer of ownership” required for a sale under NSK is not present here.
As previously noted, we explicitly dealt with whether or not SWU contracts were
contracts for services or goods in Florida Power (albeit in the context of a CDA claim
and not in the context of an antidumping investigation). In that case, the government
argued that SWU contracts were contracts for services and not goods. There, the
government pointed out in its briefs that the SWU contracts in that case consistently
referred to “enrichment services” and that the “fundamental purpose” of those contracts
was “the provision of enrichment services.” The government further declared that the
utilities’ argument in that case that the SWU contracts arranged for the sale of goods
because title passed between utilities and enrichers “rest[ed] on [a] technicality.”2
The relevant SWU contract terms in that case are identical to the contract terms
in this case. Indeed, the government successfully defeated the CDA claim of the
utilities in Florida Power solely on the ground that the SWU contract in that case was a
contract for services and not for goods. And while Florida Power is not binding
precedent for this case because of the different statutory scheme involved, we find its
reasoning and its conclusion persuasive.
2
The title argument that “rest[ed] on [a] technicality” in that case is strikingly
similar to the title argument that the government advances in this case. There, the
government argued that despite the temporary transfer of title of uranium from the utility
to the enricher, the fact that the utilities were entitled to claim any leftover material from
uranium enrichment (also known as “tails”) showed that the SWU contract was a
contract for services. Here, the utilities were likewise contractually entitled to reclaim
the uranium “tails” and title to the quantity of unenriched uranium transferred by the
utility only passed to the enricher once the utilities received title to the LEU from the
enrichers.
04-1209, -1210 13
In addition, while it is true that we stated that SWU contracts “[do] not fall neatly
into either [a sale of goods or a contract for services],” our opinion definitively held that
the SWU contract in that case was a contract for the provision of services. Fla. Power,
307 F.3d at 1373.3 Holdings of this court are no less decisive because they may have
been difficult to develop. Indeed, our characterization of the SWU contract in Florida
Power, however we may have arrived at it, created the sole basis for denying the
utilities in that case relief under the CDA. And even under the deferential standard of
review that we apply in this case, we choose not to ignore our previous holdings,
particularly where the circumstances in a previous case are nearly identical to the case
at hand.
Moreover, while the statutory schemes involved in Florida Power and those
involved in this case are different, they do not change the essential nature of the
transaction involved in this case. Even though the government is correct in arguing that
3
In regards to the contracts between utilities and the government for
enrichment of uranium, we stated in Florida Power:
It seems clear that if the government purchased
natural uranium directly from a third party, enriched the
uranium, and sold it to the customer utilities, the contracts
would be for the disposal of personal property and would be
covered by the CDA. It seems equally clear that if the
government simply enriched each utility's uranium for a fee,
it would be providing a service, not disposing of personal
property.
In light of the evidence that DOE used feed material
from other customers, and sometimes its own feed material,
to fulfill a particular enriched customer’s order of enriched
uranium, this case does not fall neatly into either the above
categories, but it is closer to the latter. The nature of the
contractual pricing scheme, in particular, persuades us that
the transaction is properly characterized as a service rather
than a sale.
307 F.3d at 1373.
04-1209, -1210 14
the general purpose of the antidumping statute is not the same as the general purpose
of the CDA, it is incorrect in asserting that this dissimilarity of purposes is sufficient to
compel a different result in this case. A contract for services of the kind that we discuss
here entails a certain set of obligations on the part of contracting parties that do not
change with the statutory scheme. Thus, unless Congress specifically gave guidance in
the statutory text that certain contracts normally considered service contracts should be
considered contracts for the sale of goods in the antidumping context, the different
overall purposes of the CDA and antidumping statute are insufficient to alter our
analysis here. And nothing in the text of the antidumping statute or its legislative history
evidences such a Congressional intent to re-characterize contracts like the SWU
contracts at issue in this case for the purposes of antidumping investigations by
Commerce.
The persuasive power of Florida Power might be mitigated if the government
were capable of showing that the contract in that case differed in relevant part from the
contracts in this case. No such showing has been made. In Florida Power, we held
that an SWU contract was not a contract for “the procurement of property” under the
CDA. 307 F.3d at 1373-74. Though we did say that SWU contracts do “not fall neatly”
either into the category of contracts for services or the category of contracts for the sale
of goods, we found that “the nature of the contractual pricing scheme . . . persuade[d]
us that the [SWU] transaction is properly characterized as a service rather than a sale.”
Id. The pricing scheme in the Florida Power SWU contracts is the same as the pricing
scheme in the contracts at issue in this case. In both cases, utilities bought separative
work units from enrichers. In both cases, they delivered unenriched uranium and
04-1209, -1210 15
monetary compensation to enrichers in return for enrichment services. In both cases,
there were similar title and transfer provisions. And in both cases, the contracts
explicitly contemplated the rendering of “enrichment services.”
We therefore conclude that the SWU contracts at issue in this case were
contracts for the provision of services and not for the sale of goods. Accordingly, we
find that the LEU produced as a result of those contracts is not subject to the
antidumping statute and hold that Commerce’s contentions to the contrary are not in
accordance with law.
C. EdF, Eurodif and Countervailable Subsidies
In order to be subject to a countervailing duty (or subsidy) investigation, an arm
of a foreign government must make a “financial contribution” to a manufacturer that can
take one of four forms:
(i) the direct transfer of funds, such as grants, loans, and
equity infusions, or the potential direct transfer of funds
or liabilities, such as loan guarantees,
(ii) foregoing or not collecting revenue that is otherwise
due, such as granting tax credits or deductions from
taxable income,
(iii) providing goods or services, other than general
infrastructure, or
(iv) purchasing goods.
19 U.S.C. § 1677(5)(D) (2000). A public entity can provide a subsidy if it provides
goods or services to a manufacturer for less than adequate remuneration or if it buys
goods from the manufacturer for more than adequate remuneration. 19 U.S.C.
§ 1677(5)(E). The statute does not contemplate the purchase of services for more than
adequate remuneration to be a subsidy.
04-1209, -1210 16
The government and USEC assert that EdF, a partially public French utility,
entered into a uranium enrichment contract with Eurodif that paid Eurodif more than
adequate remuneration. In their view, the contract was also for the sale of goods
(instead of services) and thus covered by 19 U.S.C. § 1677(5)(E). In the alternative,
they argue that the contract between EdF and Eurodif provided more than adequate
remuneration to one step (enrichment) in the manufacture of a good (LEU in this case)
and was thus covered by § 1677(5). As a result, the transaction between EdF and
Eurodif was subject to a countervailing duty investigation.
The Court of International Trade rejected the government’s principal theory but
agreed with its alternative theory. The court found that “Commerce’s distinction
between manufacturing processes that lead to the production of subject merchandise
and other services that do not produce tangible goods is consistent with the language
and purpose of the countervailing duty statute.” USEC II, 281 F. Supp. 2d at 1350. The
court further elaborated that this theory was in keeping with the statutory language
“because it preserves a real distinction between ‘goods’ and ‘services.’” Id. We must
disagree.
Section 1677(5) is clear as to what constitutes a subsidy—and the purchase of a
service by a foreign public entity, however related to the manufacture of a good, is not
contemplated in the statute as being a subsidy.4 While the provision of services by a
government entity to another entity for less than adequate compensation may be
considered a subsidy, the plain language of § 1677(5) does not allow for the purchase
4
Section 1677(5)(B) defines a subsidy as including the case in which an
authority “provides a financial contribution . . . to a person and a benefit is thereby
conferred.” Section 1677(5)(D), quoted supra, defines “financial contribution.”
04-1209, -1210 17
of services by a government entity from another entity to be considered a subsidy.
Thus, to the extent that the government argues that Commerce is owed deference
under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984), we reject that argument because we find that the plain meaning of the statute is
unambiguous.
Furthermore, § 1677(5)(D)(iii) clearly shows that Congress was aware of the
distinction between contracts for services and contracts for goods. Aware of the
distinction, Congress could have easily included the purchase of services by public
entities in the statutory definition of a subsidy. Because it did not, we must assume that
the omission was intentional. See Clay v. United States, 537 U.S. 522, 528 (2003)
(“When Congress includes particular language in one section of a statute but omits it in
another section of the same Act, we have recognized, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
(internal quotations and citations omitted)).
While the Court of International Trade, the government and USEC are correct
that the purpose of the subsidy statute is to defeat unfair competitive advantage, that
purpose cannot exceed the metes and bounds of the subsidy statute as established by
its text. See Negonsott v. Samuels, 507 U.S. 99, 105 (1993) (“[A court’s] task is to give
effect to the will of Congress, and where it has been expressed in reasonably plain
terms, that language must ordinarily be regarded as conclusive.” (quoting Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982))).
Given that we have already concluded that the SWU contracts in this case were
contracts for the provision of services and not for the sale of goods, we hold that 19
04-1209, -1210 18
U.S.C. § 1677(5) is inapplicable in this case. Accordingly, Commerce’s determination to
the contrary is not in accordance with law.
D. Commerce’s Tolling Regulation and Its Determination of Export Price
Because our holdings regarding the previous three issues obviate the need for us
to reach the issue of whether Commerce properly employed its tolling regulation in its
determination of export price, we decline to do so.
CONCLUSION
For the reasons stated above, we hold that:
(1) Commerce’s determination that USEC’s petition had sufficient industry
support to trigger an antidumping and countervailing subsidy investigation was in
accordance with law;
(2) Commerce’s finding that the SWU contracts in this case were contracts for
the sale of goods was neither supported by substantial evidence nor in accordance with
law; and
(3) Commerce’s application of 19 U.S.C. § 1677 to the SWU transaction between
EdF and Eurodif was not in accordance with law.
Therefore, we affirm the Court of International Trade’s decision regarding
Commerce’s industry support determination. We likewise affirm the court’s finding that
the SWU contracts in this case were contracts for services and not for goods or
merchandise. We reverse the court’s holding that EdF’s SWU contract with Eurodif
made the LEU produced by Eurodif subject to the countervailing subsidy statute.
AFFIRMED-IN-PART and REVERSED-IN-PART
04-1209, -1210 19