Ad Hoc Utilities Group v. United States

Slip Op. 09-56

UNITED STATES COURT OF INTERNATIONAL TRADE

AD HOC UTILITIES GROUP,

Plaintiff,

v.
Before: Pogue, Judge
UNITED STATES,
Court No. 06-00229
Defendant,

- and -

USEC INCORPORATED, et al.

Defendant-Intervenors.

OPINION

[Defendant’s and Defendant-Intervenors’ motions to dismiss
granted.]
June 15, 2009

Pillsbury Winthrop Shaw Pittman LLP (Nancy A. Fischer, Joshua
D. Fitzhugh, Christine J. Sohar, Kemba T. Eneas and Stephan E.
Becker) for Plaintiff Ad Hoc Utilities Group.

Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Stephen C. Tosini), and, of counsel, David W. Richardson, Office
of Chief Counsel for Import Administration, Department of Commerce
for Defendant United States.

Steptoe & Johnson LLP (Eric C. Emerson, Alexandra E.P. Baj,
Sheldon E. Hochberg, Richard O. Cunningham, Sohini Chatterjee,
Thomas J. Trendl and Wentong Zheng) for Defendant-Intervenors USEC
Inc. and United States Enrichment Corp.

Akin Gump Strauss Hauer & Feld LLP (Valerie A. Slater,
Margaret C. Marsh, Bernd G. Janzen and Lisa W. Ross) for Defendant-
Intervenors Power Resources, Inc. and Crowe Butte Resources, Inc.

Pogue, Judge: The issue before the court is whether the
Court No. 06-229 Page 2
Plaintiff, a group of American utility companies that obtain and

use enriched uranium from Russia, has standing to challenge the

Department of Commerce’s (“Commerce”) decision not to terminate its

antidumping duty investigation of that uranium. Because the

utility companies individually do not each qualify either as

producers or importers of the subject uranium and because the

companies as a group do not qualify as a trade or business

association a majority of the members of which are producers or

importers, the court concludes that the group lacks standing and

therefore dismisses this action.

BACKGROUND

The current dispute has its roots in Commerce’s 1991

initiation of an antidumping duty investigation of imports of

uranium from the U.S.S.R. See Uranium from the Union of Soviet

Socialist Republics, 56 Fed. Reg. 63,711 (Dep’t Commerce Dec. 5,

1991) (initiation of antidumping duty investigation). Following

the dissolution of the U.S.S.R., Commerce continued its

investigation and preliminarily concluded that uranium imports from

the newly-independent states of Kazakhstan, Kyrgyzstan, Russia,

Tajikistan, Ukraine and Uzbekistan were being “dumped,” i.e.,sold

in the United States at less than fair value. See Uranium from

Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Ukraine and Uzbekistan,

57 Fed. Reg. 23,380 (Dep’t Commerce June 3, 1992) (preliminary

determinations of sales at less than fair value); Uranium from
Court No. 06-229 Page 3
Armenia, Azerbaijan, Byelarus, Georgia, Moldova and Turkmenistan,

57 Fed. Reg. 23,380 (Dep’t Commerce June 3, 1992) (preliminary

determinations of sales at not less than fair value). Faced with

these preliminary determinations, Russian and American

representatives entered into negotiations concerning the trade of

nuclear materials. These negotiations led to a set of agreements

circumscribing the origin, amount and means for importation of

Russian low enriched uranium (“LEU”) into the United States, and a

further Agreement Between the Government of the United States of

America and the Government of the Russian Federation Concerning the

Disposition of Highly Enriched Uranium Extracted from Nuclear

Weapons (the “HEU Agreement”). As part of these agreements,

Commerce undertook to suspend -- which is not to terminate1 -- its

antidumping duty investigation. See Uranium from Kazakhstan,

Kyrgyzstan, Russia, Tajikistan, Ukraine and Uzbekistan, 57 Fed.

Reg. 49,220 (Dep’t Commerce Oct. 30, 1992) (notice of suspension of

investigations and amendment of preliminary determinations).

Further, also in accordance with the agreements and related

legislation, Defendant-Intervenor USEC, Inc. (“USEC”), as the

“United States Executive Agent,” was designated as the only entity

in the U.S. with authority to purchase enriched uranium from

1
Generally, suspension may be pursuant to agreements
restricting the importation of merchandise subject to
investigation. See Section 734 of the Tariff Act of 1930, as
amended, 19 U.S.C. § 1673c. Further citations to the Act, unless
otherwise stated, are to the 2006 version of the United States
Code.
Court No. 06-229 Page 4
Russia, trade in such goods being generally restricted. See also

USEC Privatization Act of 1996 §§ 3102-15, as amended, 42 U.S.C. §§

2297h-1 to 2297h-13. Consequently, during the period of time

relevant here, American utility companies obtained LEU of Russian

origin by contracting with USEC,2 even though the utility companies

considered their purchase agreements to be contracts for uranium

enrichment services, and not sales of LEU subject to investigation

under the antidumping laws.

In related actions, Commerce also investigated sales of

uranium products from other countries, and in one of these

actions, USEC Inc. v. United States, 27 CIT 489, 259 F. Supp. 2d

1310 (2003) (“USEC I”), this Court held that, because of Commerce’s

“tolling regulation”3 and prior practice,4 Commerce’s decision to

2
USEC, the parent entity of the United States Enrichment
Corp., also has U.S. uranium-enrichment facilities, and sells its
enrichment services to U.S. utility companies.
3
The “tolling regulation,” now repealed, see Import
Administration, Withdrawal of Regulations Governing the Treatment
of Subcontractors (“Tolling” Operations), 73 Fed. Reg. 16,517
(Dep’t Commerce Mar. 28, 2008), stated that Commerce “will not
consider a toller or subcontractor to be a manufacturer or
producer [of merchandise under investigation for dumping] 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) (2007).
4
In USEC I, the court noted that:

under the regulation, Commerce will not find tollers or
subcontractors to be producers where such toller or
subcontractor does not acquire ownership and does not
control the relevant sale of the subject merchandise or
foreign like product.
Court No. 06-229 Page 5
5
treat “SWU contracts” for uranium enrichment as sales of enriched

uranium subject to antidumping investigation -- rather than as

“tolling” or subcontracting arrangements -- was unsupported by

substantial evidence, as there was no evidence that the enricher

ever took ownership of the goods. 27 CIT at 506, 259 F. Supp. 2d at

1326.6 The Federal Circuit affirmed this holding, concluding that

the “SWU contracts” were contracts for services rather than for

goods. See Eurodif S.A. v. United States, 411 F.3d 1355, 1364 (Fed.

Cir. 2005) (“Eurodif I”).

Relying on Eurodif I, and pursuant to 19 U.S.C. §

USEC I, 27 CIT at 497, 259 F. Supp. 2d at 1318.
5
“SWU contracts” are sales transactions structured so that
a utility contracts for the enrichment of a certain amount of
converted uranium (called “feed uranium”), which it supplies.
The enricher provides enriched uranium to the utility, in
exchange for a comparable amount of feed uranium and cash payment
for the amount of separative work units (“SWU”) necessary to
enrich the feed uranium. Although the enriched uranium is
typically not the same uranium as the feed uranium provided for a
given transaction, it is contractually treated as such.
6
Thus, in USEC I the Court held that:

if the text of 19 C.F.R. § 351.401(h) and Commerce’s
prior decisions were applied to the evidence on this
record, the SWU contracts would be treated as contracts
for the performance of services, and the enrichers
would be treated as tollers and the utilities as the
producers of LEU. Here, however, Commerce determined
that the enrichers were the producers . . . .
Commerce’s determination that enrichers are producers
and not tollers is against the weight of the evidence
on the record and inconsistent with both the agency’s
regulations and its prior decisions involving tolling
services . . . .

27 CIT at 502, 506, 259 F. Supp. 2d at 1323, 1326.
Court No. 06-229 Page 6
7 8
1516(a)(2)(A), Plaintiff Ad Hoc Utility Group (“AHUG”), in 2006,

filed this action to challenge Commerce’s decision -- in its second

“sunset” review of the suspension of its antidumping duty

investigation of uranium from Russia -- that in the absence of the

Russian-American agreements, continued dumping of enriched uranium

was likely. See Uranium From the Russian Federation, 71 Fed. Reg.

32,517 (Dep’t Commerce June 6, 2006) (final results of five-year

sunset review of suspended antidumping duty investigation) (“Second

Sunset Review”) and the accompanying Issues and Decision

Memorandum, A-821-802, Sunset Review (June 6, 2006)

http://ia.ita.doc.gov/frn/summary/RUSSIA/E6-8758-1.pdf (last

visited May 18, 2009) (“Decision Mem.”).9

Addressing the issue of AHUG’s standing to participate in the

Second Sunset Review, Commerce treated AHUG as an “industrial user”

of subject merchandise pursuant to 19 C.F.R. § 351.312,10 and

7
19 U.S.C. § 1516(a)(2)(A) provides that “[a]s used in this
section, the term ‘interested party’ [entitled to seek judicial
review] means a person who is--
(A) a manufacturer, producer, or wholesaler in the United
States....”
8
AHUG is a group of American utility companies.
9
In the administrative proceedings for the Second Sunset
Review, and relying on USEC I and Eurodif I, AHUG argued that
Commerce’s inclusion of SWU contracts, in its sunset review
analysis -- as a basis for its decision that termination of its
investigation would be likely to lead to a continuance or
recurrence of dumping -- was contrary to law. See 19 U.S.C.
§1675(c)(1)(A).
10
“In an antidumping or countervailing duty proceeding
under title VII of the Act and this part, an industrial user of
Court No. 06-229 Page 7
concluded that, in that administrative proceeding, AHUG did not

have standing as an “interested party” that is a “producer” of LEU.

Decision Mem. 2 n.1; cf. USEC I, 27 CIT at 512-13, 259 F. Supp. 2d

at 1331 (granting AHUG’s motion to intervene as of right as an

“interested party” as possible “toll” “producers” of subject

merchandise, and remanding to Commerce to resolve whether AHUG

members are “producers”); USEC Inc. v. United States, 27 CIT 1419,

1433, 281 F. Supp. 2d 1334, 1346 (2003) (“USEC II”) (affirming

Commerce’s practice of declining to apply the tolling regulation,

and finding domestic utilities were thus not foreign producers of

uranium, in the industry support context), aff’d in part, Eurodif

I, 411 F.3d at 1361.

The court consolidated this case with Court No. 06-00228,

Techsnabexport v. United States,11 and remanded the consolidated

case to Commerce to reconsider its conclusions in light of Eurodif

I. Techsnabexport v. United States, 31 CIT __, 515 F. Supp. 2d 1363

(2007) (“Tenex”).12 The court found that Commerce’s denial of

the subject merchandise or a representative consumer
organization, as described in section 777(h) of the Act [19
U.S.C. § 1677f(h)], may submit relevant factual information and
written argument to the Department . . . concerning dumping or a
countervailing subsidy. . . .” 19 C.F.R. § 351.312(b) (2008).
11
Court No. 06-00228 was a case brought by Techsnabexport,
the Russian executive agent responsible for the export of uranium
and uranium enrichment services from Russia. After Commerce’s
determination had been remanded, on March 12, 2008, the cases
were severed and the court granted Techsnabexport’s motion to
dismiss pre-consolidated Court No. 06-00228.
12
Familiarity with the court’s prior decision is presumed.
Court No. 06-229 Page 8
“interested party” status did not reflect consideration of the

nature of the transactions at issue here, and that therefore

Commerce’s determination did not reflect “consider[ation of] an

important aspect of the problem.” Tenex, 31 CIT at __, 515 F.

Supp. 2d at 1364-65 n.4 (quoting Motor Vehicles Mfrs. Ass’n v.

State Farm Mut., 463 U.S. 29, 43 (1983)). Accordingly, the court

allowed Commerce the opportunity to review its position regarding

AHUG’s status in these proceedings. Id.13

After reconsidering its position on remand, Commerce issued

its remand results. See Final Results on Redetermination Pursuant

to Court Remand, A-821-802, Suspension Agreement (Dec. 21, 2007),

available at http://ia.ita.doc.gov/remands/07-143.pdf (last visited

June 11, 2009) (“Remand Results”). In these Remand Results,

Commerce determined that contracts pursuant to the HEU Agreement

did not meet the definition of “SWU contracts” determined in

Eurodif I to be contracts for services. Id. 29-32. Thus, Commerce

did not exclude these transactions from its likelihood

determination. Id. Further, Commerce, in its volume of future

imports analysis, relied on a public report from the International

Trade Commission (“ITC”). See Uranium from Russia, USITC Pub. No.

3872, Inv. No. 731-TA-539-C (Second Review) (Aug. 2006). Commerce

13
The court deferred ruling on AHUG’s standing in this
judicial review proceeding, finding this to be one of those rare
cases in which the questions regarding jurisdiction were
intertwined with the merits of the case, and that further
information would be necessary.
Court No. 06-229 Page 9
noted the ITC report’s mention of certain “contingent contracts”

that the Russian uranium industry had entered into with American

utilities.14 In light of ITC’s reliance on these “contingent

contracts,” AHUG now also claims that many of its members have

“entered into negotiations and signed agreements [i.e., contingent

contracts] with Techsnabexport . . . or its agent for the purchase

of Russian EUP [i.e., enriched uranium product] or enrichment

services,” and that these contracts confer upon the utility

companies entering into them status as importers of the subject

merchandise. Supplemental Br. of the Ad Hoc Utilities Group on the

Relevance and Effect of the Supreme Court’s Eurodif Decision 5.

In its Remand Results, Commerce also reconsidered AHUG’s

status as an “interested party,” but decided that AHUG did not so

qualify. Remand Results 49-52. First, Commerce determined that

AHUG members were not “producers,” given that AHUG members “do not

14
Commerce noted from the report:

the Russian uranium industry had had discussions with
U.S. nuclear utilities about sales in the event the
suspended investigation was terminated; in fact, the
ITC reported that the Russian uranium industry had
entered into a number of contingent contracts with U.S.
utilities. Specifically, the ITC’s report states that
16 out of 29 responding uranium purchasers advised that
they had solicited or had been solicited to negotiate
contingent contracts for Russian-sourced uranium during
the period 2000-2005. The ITC notes that these
contingent contracts covered: conversion to UF6,
natural uranium hexafluoride, enrichment services, and
the purchase of enriched uranium product, or EUP.

Remand Results 36 (footnote omitted).
Court No. 06-229 Page 10
contract directly with the Russian LEU producer . . . . [,] can

only receive Russian LEU [] from USEC itself, which USEC purchased

from Tenex[,] . . . . [and] have no control over the Russian

producer’s production activities.” Id. 50-51. In addition,

Commerce noted that “title to the Russian LEU from HEU does

transfer from Tenex to USEC, belying AHUG’s claim that it is the

only entity that owns the LEU as a whole.” Id. 51. Second,

Commerce found that, because “USEC is the only U.S. importer of all

Russian LEU down-blended from HEU,” AHUG members could not qualify

as “importers.” Id.

Meanwhile, and subsequent to Commerce’s remand determination

at issue here, following Eurodif I, Defendants and Defendant-

Intervenors petitioned the Supreme Court for certiorari. This

court then stayed the proceedings in this case pending the final

resolution of the Eurodif matter. Subsequently, in January of

2009, the Supreme Court decided United States v. Eurodif S.A.,

___U.S.___, 129 S.Ct. 878 (2009) (“Eurodif II”), which reversed

USEC I and Eurodif I. The Supreme Court concluded that Commerce

may reasonably treat SWU transactions as “mixed cash-commodity”

sales of goods, i.e., purchases of LEU with cash and a certain

amount of feed uranium, see id. at 887 & n.8, as the ownership of

the LEU is most reasonably viewed as lying with the uranium

enricher prior to delivery. Id. at 888-89 n.9.

Now, as a result of Eurodif II, the parties in this matter are

once again before the court. Specifically, the Defendants have
Court No. 06-229 Page 11
moved, pursuant to USCIT R. 12(b)(1), to dismiss AHUG’s complaint

for lack of subject matter jurisdiction, asserting that AHUG fails

to qualify as an interested party authorized to challenge

Commerce’s review decision. As noted above, prior to Eurodif II,

AHUG insisted that its members have standing as foreign “producers”

of LEU, and, more recently, has raised its members’ standing as

“importers” of LEU. See 28 U.S.C. § 2631(c); 19 U.S.C. §

1677(9)(A).

Standard of Review

Plaintiff, as the party seeking to invoke the Court’s

jurisdiction, bears the burden to establish its standing to bring

its action. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342

(2006); Raines v. Byrd, 521 U.S. 811, 818 (1997); AutoAlliance

Int’l, Inc. v. United States, 29 CIT 1082, 1088, 398 F. Supp. 2d

1326, 1332 (2005). Thus, AHUG must demonstrate that its members

satisfy the statutory standing requirements. See 28 U.S.C. §

2631(c);15 19 U.S.C. § 1677(9).16

15
“A civil action contesting a determination listed in
section 516A of the Tariff Act of 1930 [19 U.S.C. § 1516a] may be
commenced in the Court of International Trade by any interested
party who was a party to the proceeding in connection with which
the matter arose.” 28 U.S.C. § 2631(c) (emphasis added).
16
The meaning of the term “interested party,” as used in 28
U.S.C. § 2631(c), is found in 19 U.S.C. § 1677(9). See 28 U.S.C.
§ 2631(k)(1) (“In this section. . . ‘interested party’ has the
meaning given such term in section 771(9) of the Tariff Act of
1930 [19 U.S.C. § 1677(9)].”). 19 U.S.C. § 1677(9)(A) defines
“interested party” as “a foreign manufacturer, producer, or
exporter, or the United States importer, of subject merchandise
or a trade or business association a majority of the members of
Court No. 06-229 Page 12
At the same time, in deciding whether the Plaintiff has

standing, the court is not bound by Commerce’s determinations of

“interested party” status in the administrative proceedings below.

See Zenith Radio Corp. v. United States, 5 CIT 155, 156 (1983)

(“The decision of the administrative agency to accept the

participation of [a plaintiff], even if done in terms of

recognizing them as ‘interested parties,’ cannot control the

Court’s understanding of a matter primarily related to the

invocation of its powers of judicial review.”).

Analysis

I. Pursuant to Eurodif II, AHUG Members Do Not Have Standing
as “Producers”

In light of Eurodif II, AHUG does not urge, in its most

recently filed brief, that its members have standing as LEU

“producers.” See AHUG Supplemental Br. 5-9. The court agrees.

After Commerce’s revocation of its tolling regulation and the

Supreme Court’s Eurodif II decision, it is clear that Commerce may

reasonably treat SWU transactions as sales of goods owned by the

enricher. As AHUG’ members, as opposed to the enricher, may no

longer be considered the owners of the enriched LEU at issue, AHUG

may no longer claim to have standing as a producer.

II. AHUG Members Have Not Established Standing as “Importers”

which are producers, exporters, or importers of such
merchandise.”
Court No. 06-229 Page 13
As noted above, 28 U.S.C. § 2631(c) requires that, in order to

obtain judicial review, a party both be “interested” and have

participated in the administrative proceedings below. See also 19

U.S.C. § 1516a(a)(2)(A) (“an interested party who is a party to the

proceeding in connection with which the matter arises may commence

an action in the United States Court of International Trade by

filing a summons, and . . . a complaint, . . . contesting any

factual findings or legal conclusions upon which the determination

is based.”).

AHUG undisputedly participated in the proceedings leading up

to the Second Sunset Review and the Remand Results. However, under

any of the statutory definitions of “importer” -- including either

as a group of individual companies or, arguably, as a trade or

business association -- AHUG does not meet the standing

requirements stated by section 2631(c).

The court has previously concluded that 19 U.S.C. §

1677(9)(A), which section 2631(c) applies -- because it requires a

majority of the members of an association or group to be producers,

exporters or importers -- precludes standing on the part of a group

with a majority of members that are not producers, exporter or

importers.17 Am. Grape Growers Alliance for Fair Trade v. United

17
To conclude otherwise would render the majority
requirement nugatory. See Duncan v. Walker, 533 U.S. 167, 174
(2001) (“a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall
be superfluous, void, or insignificant.” (quoting Mkt. Co. v.
Hoffman, 101 U.S. 112, 115 (1879))). This result may seem
Court No. 06-229 Page 14
States, 7 CIT 389 (1984). Therefore, AHUG must either show that it

would be considered a “trade or business association,” id., or it

must show that it is a “multiplied form of a single” importer. Id.

at 389-90 (the latter is identified as “the unified appearance of

those[,] who could appear separately[,] [for] administrative and

judicial convenience”). The former requires only a majority of

members, whereas the latter would require all members, to qualify

as “importers” to gain standing, where no member appears

individually. Cf. RSI (India) Pvt., Ltd. v. United States, 12 CIT

84, 86, 678 Fed. Supp. 304, 306 (1988) (“Congress has made an

exception [from the requirement that all members satisfy standing

requirements] only for importers when they are the majority of the

members of a trade or business association”).

In its briefing, AHUG has identified itself as a group of

individual companies, stating that it is not a trade or business

association and “has no legal existence or status separate from its

members.” Resp. of the Ad Hoc Utilities Group to the Court’s

Questions of Apr. 24, 200[9] (“AHUG Resp. to Apr. 2009 Questions”)

2. As a consequence, AHUG must demonstrate that all of its members

share the same qualities that qualify them for standing in the

action before the court.

anomalous where it precludes standing for a group even though an
individual member of that group would have standing, had that
member appeared as a plaintiff on its own behalf. Such a result
however is compelled by the majority requirement.
Court No. 06-229 Page 15
But according to AHUG’s evidence presented here, far fewer

than half of AHUG’s member signed:

agreements with the members or agents of members of the
Russian uranium industry on the record before the Court
in this proceeding under which the AHUG members would
clearly be the importers of record. . . .

Id. 4-5. Although AHUG claims that “a number of AHUG members

entered into negotiations with Russian uranium suppliers or their

agents,” id. 5, AHUG provides no specific number and refers only to

the record in a similar case before this court, Court No. 06-300

(challenging the Second Sunset Review of the International Trade

Commission’s decision on material injury to domestic industry).

AHUG itself concludes that its evidence demonstrates that far fewer

than half of its members “would qualify as United States importers

under 19 U.S.C. § 1677(9)(A).” AHUG Resp. to Apr. 2009 Questions 6.

AHUG’s evidence, at best, shows that a small minority of

utilities have fostered contingent contractual relationships with

Russian enrichers or may have conducted “face to face meetings”

with Russian enrichers to potentially contract. Id.; App. of

Confidential R. Docs. Cited in the Ad Hoc Utilities Group’s Initial

Br. in Supp. of Rule 56.2 Mot. for J. Upon the Agency R., Tab G.

It follows that even with a very broad interpretation of

“importer,” AHUG’s evidence does not suffice to show to the court

that all of its members are “importers.”

In any event, even if AHUG were a “trade or business

association,” standing would still be lacking. According to AHUG’s
Court No. 06-229 Page 16
revised corporate disclosure statement, AHUG includes nineteen

utility companies. See Revised Disclosure of Corp. Affiliations and

Financial Interest, Amended Attachment.18 Again, the evidence

before the court identifies that only a small minority of members

as potential importers. A small minority does not a majority make,

and will not give AHUG standing in this case. See Zenith Radio

Corp., 5 CIT at 156-57; Special Commodity Group on Non-Rubber

Footwear From Brazil, Am. Ass’n of Exps. & Imps. v. United States,

9 CIT 481, 483-84, 620 F. Supp. 719, 721-22 (1985); Matsushita

Elec. Indus. Co. v. United States, 2 CIT 254, 256-59, 529 F. Supp.

664, 667-69 (1981).

18
The utility companies include: Arizona Public Service
Co.; Constellation Energy Group, Inc.; Dominion Energy Kewaunee,
Inc.; Dominion Nuclear Connecticut, Inc.; Duke Energy Carolinas,
LLC; Entergy Services, Inc.; Exelon Corp.; Florida Power & Light
Co.; FPL Energy Seabrook, LLC; Luminant (formerly TXU Generation
Co.); Nebraska Public Power District; Pacific Gas & Electric Co.;
PPL Susquehanna, LLC; Progress Energy Carolinas, Inc.; Progress
Energy Florida, Inc.; Southern California Edison Co.; Southern
Nuclear Operating Co.; Union Electric Co. (d/b/a AmerenUE); and
Virginia Electric & Power Co. In a more recent filing in this
court, AHUG lists sixteen members - the above nineteen members
less Florida Power & Light Co.; FPL Energy Seabrook, LLC; and
Southern California Edison Co. See AHUG Resp. to Apr. 2009
Questions 3. However, this discrepancy does not change the
outcome in this case.
Court No. 06-229 Page 17
CONCLUSION

For the foregoing reasons, the court GRANTS the Defendant’s

and Defendant-Intervenors’ pending USCIT Rule 12(b)(1) motions to

dismiss for lack of subject matter jurisdiction.

Judgment will be entered accordingly.

/s/ Donald C. Pogue
Donald C. Pogue, Judge

Dated: June 15, 2009
New York, New York