Slip Op. 03-121
United States Court of International Trade
USEC INC. and UNITED STATES Before: Pogue, Wallach, and
ENRICHMENT CORPORATION, Eaton, Judges
Plaintiffs, Court No. 02-00112; and Court
Nos. 02-00113, 02-00114 and
v. Consol. Court Nos. 02-00219; 02-
00221, 02-00227, 02-00229, and
UNITED STATES, 02-00233
Defendant.
[Commerce’s remand determination reversed in part and affirmed in
part.]
Decided: September 16, 2003
Fried, Frank, Harris, Shriver & Jacobson (David E. Birenbaum, Jay
R. Kraemer, Mark Fajfar) for Plaintiffs and Defendant-Intervenors
Urenco Limited, Urenco Deutschland GmbH, Urenco Nederland B.V.,
Urenco (Capenhurst) Ltd., and Urenco, Inc.; Weil, Gotshal & Manges,
LLP (Stuart M. Rosen, Gregory Husisian, Jennifer J. Rhodes) for
Plaintiffs and Defendant-Intervenors Eurodif S.A., COGEMA, and
COGEMA, Inc.
Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Stephen C. Tosini, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice, David R. Mason,
Senior Attorney, Office of Chief Counsel for Import Administration,
U.S. Department of Commerce, Of Counsel, for Defendant United
States.
Steptoe & Johnson LLP (Sheldon E. Hochberg, Richard O. Cunningham,
Eric C. Emerson) for Defendant-Intervenors and Plaintiffs USEC Inc.
and United States Enrichment Corporation.
Shaw Pittman LLP (Stephan E. Becker, Nancy A. Fischer, Sanjay J.
Mullick, Joshua D. Fitzhugh) for Plaintiff-Intervenors Ad Hoc
Utilities Group.
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OPINION
Pogue, Judge: In USEC Inc. v. United States, 27 CIT __, 259 F.
Supp. 2d 1310 (2003) (“USEC I”),1 this Court remanded aspects of
the final affirmative antidumping and countervailing duty
determinations of the Department of Commerce (“the Department” or
“Commerce”) with regard to low enriched uranium (“low enriched
uranium” or “LEU”) from France, Germany, the Netherlands, and the
United Kingdom.2 The Court instructed Commerce to evaluate the
applicability of its tolling regulation, 19 C.F.R. § 351.401(h), to
determine whether the intervenors (the “utilities,” also the “Ad
Hoc Utilities Group” or “AHUG”) should be designated as producers
of LEU. USEC I, 27 CIT at __, 259 F. Supp. 2d at 1326. The Court
1
Familiarity with the Court’s prior opinion is presumed.
2
The determinations challenged in the original action were Low
Enriched Uranium from France, 67 Fed. Reg. 6,680 (Dep’t Commerce
Feb. 13, 2002) (notice of amended final determination of sales at
less than fair value and antidumping duty order); Low Enriched
Uranium from France, 66 Fed. Reg. 65,877 (Dep’t Commerce Dec. 21,
2001) (notice of final determination of sales at less than fair
value) (“LEU from France”); Low Enriched Uranium from France, 67
Fed. Reg. 6689 (Dep’t Commerce Feb. 13, 2002) (notice of amended
final determination and notice of countervailing duty order); Low
Enriched Uranium from France, 66 Fed. Reg. 65,901 (Dep’t Commerce
Dec. 21, 2001) (notice of final affirmative countervailing duty
determination); Low Enriched Uranium from Germany, the
Netherlands, and the United Kingdom, 67 Fed. Reg. 6,688 (Dep’t
Commerce Feb. 13, 2002) (notice of amended final determinations
and notice of countervailing duty orders); Low Enriched Uranium
from Germany, the Netherlands, and the United Kingdom, 66 Fed.
Reg. 65,903 (Dep’t Commerce Dec. 21, 2001) (notice of final
affirmative countervailing duty determinations).
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further directed that if Commerce found the tolling regulation
applicable, the agency should also (1) reconsider whether
application of the regulation affects the determination as to which
companies are “producers” for the purpose of the industry support
determination, USEC I, 27 CIT at __, 259 F. Supp. 2d at 1328; and
(2) reconsider its application of the countervailing duty laws.
USEC I, 27 CIT at __, 259 F. Supp. 2d at 1329. The Court now
reviews the results of the remand as presented in Commerce’s Final
Remand Determination, USEC Inc. and United States Enrichment
Corporation v. United States (June 23, 2003)(“Remand Determ.”).
Jurisdiction lies under 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. §
1516a(a)(2)(B)(i) (2000).
Background
The antidumping and countervailing duty investigations at
issue here covered all low enriched uranium. Low enriched uranium
is used to produce nuclear fuel rods, which in turn produce
electricity in nuclear reactors. See, e.g., USEC I, 27 CIT at __,
259 F. Supp. 2d at 1314. Uranium enrichment is one of five steps
in the production of nuclear fuel.3 See id.; LEU from France, 66
3
The steps involved in nuclear fuel production are: (1) mining
uranium ore; (2) milling and/or refining the ore into uranium
concentrate, referred to as natural uranium (U3O8); (3) converting
the natural uranium into uranium hexafluoride (UF6), or “feed
uranium;” (4) enriching uranium hexafluoride to create low
enriched uranium; and (5) using the low enriched uranium to
fabricate nuclear fuel rods for use in nuclear reactors. USEC I,
27 CIT at __, 259 F. Supp. 2d at 1314; see also LEU from France,
66 Fed. Reg. at 65,879.
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Fed. Reg. at 65,879. At issue in this proceeding is whether, for
purposes of application of the antidumping and countervailing duty
statutes, the “separative work unit” contracts entered into by the
utilities and the companies that enrich the uranium feedstock (the
“enrichers”) constitute subcontracting arrangements involving the
purchase of services or sales of enriched uranium.
As we more fully explained in USEC I, nuclear utilities employ
two types of contracts for procuring LEU from uranium enrichers.
See, e.g., USEC I, 27 CIT at __, 259 F. Supp. 2d at 1314. One is
a contract for enriched uranium product (“EUP contract”), in which
the utility simply purchases LEU from the enricher. See LEU from
France, 66 Fed. Reg. at 65,878, 65,884. In an EUP contract, the
price paid for the LEU covers all elements of the LEU’s value,
including the feed uranium and the effort expended to enrich it.
Transcript of Dep’t of Commerce Hearing in the Matter of Low
Enriched Uranium from France, Germany, the Netherlands, and the
United Kingdom (Oct. 31, 2001), Jt. App. Tab 6-A at 46 (“Hrg.
Trans.”). As noted in USEC I, all parties to this action agree
that sales of enriched uranium product constitute sales of
merchandise subject to the antidumping and countervailing duty
laws. USEC I, 27 CIT at __, 259 F. Supp. 2d at 1314.
The second type of contract is called a “separative work unit”
or “SWU” contract. A “separative work unit” is a measurement of
the amount of energy or effort required to separate a given
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quantity of feed uranium into LEU and depleted uranium, or uranium
“tails,” at specified assays. See LEU from France, 66 Fed. Reg. at
65,884. Under a SWU contract, a utility purchases separative work
units and delivers a quantity of feed uranium to the enricher. LEU
from France, 66 Fed. Reg. at 65,878, 65,884-85.
As discussed in USEC I, because feed uranium is fungible, the
specific feed uranium provided by a utility need not be used to
produce LEU for that utility. See USEC I, 27 CIT at __, 259 F.
Supp. 2d at 1315 (citing Resp. Br. of USEC, Inc. Opp’n
Cogema/Urenco Mot. J. Agency R. at 16-17 & n.21). Enrichers
maintain inventories of feed uranium, which is not segregated
according to source or ownership, and any uranium held by the
enricher may be used to produce LEU for any customer. Id.
Utilities purchase feed uranium from third parties,4 and prior
to delivering the feed uranium to the enricher, the utilities have
title, risk of loss, power to alienate or sell, and use and
possession of the feed uranium. The utility retains title to feed
uranium supplied to the enricher until the enricher delivers the
LEU ordered by the utility. In addition, at the time of delivery
of the LEU, the enricher recognizes that title to the LEU is also
held by the utility. As stated in one of the contracts in the
record, “[t]itle to the Feed Material shall remain with [the
4
Nothing in the record suggests that the parties from whom
utilities purchase the feed uranium are in any manner related to
the enrichers.
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utility] until the [LEU] Delivery associated with such Feed
Material . . . at which time the Feed Material shall be deemed to
have been enriched; whereupon [the utility] sha[ll] have title to
such [LEU] associated with such Feed Material and title to such
Feed Material will be extinguished.” Uranium Enrichment Services
Contract between [Utility A] and Urenco, Jt. App. Tab 3-F at JA-
1364; see also Uranium Toll Enrichment Services Contract between
[Utility B] and COGEMA, Inc., Jt. App. Tab 3-A at JA-1210; Uranium
Enrichment Services Contract between [Utility C] and COGEMA, Inc.,
Jt. App. Tab 3-E at JA-1302; Uranium Enrichment Services Contract
between [Utility D] and Urenco, Jt. App. Tab 3-G at JA-1399. In
USEC I, we described the SWU transactions as follows:
Pursuant to the SWU contracts, risk of loss or damage to
the feed uranium, as well as use and possession, pass
from the utility to the enricher upon delivery of the
feed uranium to the enricher. However, the enricher does
not obtain title to the feedstock; rather, actual title
is at all times with the utility. Nor does the enricher
have the power to sell a utility’s feedstock to a third
party. Moreover, it appears clear on this record that at
the moment when the LEU is delivered to the utility by
the enricher, the utility has title to and ownership of
the LEU. The feed uranium does not become an asset of
the enricher, nor is it ever reflected as such on the
enricher’s books and records.5
USEC I, 27 CIT at __, 259 F. Supp. 2d at 1315 (internal citations
5
See USEC I, 27 CIT at __, 259 F. Supp. 2d at 1315-16 n.5
(noting that (1) the foreign enrichers’ records, which were
verified by Commerce, did not reflect payments for customer-
provided uranium, (2) USEC requires utilities to pay the property
taxes on customer-provided uranium in USEC’s possession, and (3)
the record does not indicate that the enrichers treated customer-
provided uranium as an asset).
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omitted).
In reaching its original affirmative antidumping and
countervailing duty determinations, Commerce found that under both
LEU and SWU contracts the enrichers were producers of LEU for
purposes of the less-than-fair-value determination.6 The agency
concluded that EUP and SWU contracts were “functionally
equivalent,” in that “the overall arrangement under both types of
contracts is, in effect, an arrangement for the purchase and sale
of LEU.” LEU from France, 66 Fed. Reg. at 65,884-85.
In USEC I, this Court concluded that the circumstances of the
SWU transactions at issue resemble those of earlier cases involving
“tolling” or “subcontracting” arrangements in which Commerce
applied its tolling regulation, 19 C.F.R. § 351.401(h), to
determine that the tollee, rather than the toll manufacturer, or
subcontractor, was the producer of the subject merchandise. The
Court therefore directed Commerce to assess the applicability of
the tolling regulation, and thus, the propriety of designating the
6
To determine whether merchandise is being sold or is likely to
be sold in the United States at less than fair value, Commerce
compares the merchandise’s normal value, or the price at which
the merchandise is first sold for consumption in the exporting
country, to the export price or constructed export price, which
represents the price of the good when sold in or for export to
the United States. See 19 U.S.C. § 1673; 19 U.S.C. § 1677a; 19
U.S.C. § 1677b(a). In making an export price or constructed
export price determination, Commerce first must decide which
company is the producer or exporter of the merchandise. See 19
U.S.C. § 1677a(a)-(b); Taiwan Semiconductor Mfg. Co. v. United
States, 25 CIT __, __, 143 F. Supp. 2d 958, 966 (2001).
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enrichers as producers of LEU and respondents in the antidumping
and countervailing duty investigations. See USEC I, 27 CIT at __,
259 F. Supp. 2d at 1326, 1331. The Court also directed Commerce to
explain why it applied a different definition of the term
“producer” in the context of determining industry support than that
used in the context of calculating the dumping margin. USEC I, 27
CIT at __, 259 F. Supp. 2d at 1328.
In its Remand Determination, Commerce concludes once again
that the enrichers, rather than the utilities, are the producers of
LEU, finding that (1) “the enrichers make the only relevant sales
that can be used for purposes of establishing U.S. price and normal
value,” (2) the enrichers “are the only companies engaged in the
production of LEU,” (3) the enrichers “control the production of
LEU,” and (4) the utilities are “industrial users and consumers of
LEU.” Remand Determ. at 52. Commerce also explained that the
different definitions of the term “producer” are warranted by the
purposes underlying the relevant statutory provisions. Id. at 14-
15, 22-23, 25.
Standard of Review
This Court will uphold an agency determination unless it is
“unsupported by substantial evidence on the record, or otherwise
not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
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Discussion
I. Ownership of the Subject Merchandise
Commerce bases its selection of the enrichers as the producers
of LEU primarily on its conclusion that under the terms of the
contracts, the enrichers own all of the LEU that they have produced
but not yet delivered. See Remand Determ. at 52, 59. Commerce
asserts that the enrichers transfer title to and ownership of the
LEU to the utilities upon delivery of the LEU. Id. Therefore,
Commerce argues, the delivery of the LEU effects a transfer of
title and ownership for consideration, which constitutes a sale
under NSK Ltd. v. United States, 115 F.3d 965, 973 (Fed. Cir.
1997), and a relevant sale for the purposes of calculating a
dumping margin. Id. at 59-60.
As we discussed in USEC I, however, the SWU contracts
governing the transactions at issue establish a legal fiction that
the very feed uranium delivered by a utility to an enricher is
enriched and then returned as LEU to the utility. See USEC I, 27
CIT at __, 259 F. Supp. 2d at 1321-22; Oral Arg. Trans. at 33-34,
38, 41. The Court concluded that although the enrichers obtain the
right to use and possess the feedstock, and assume the risk of loss
or damage, there is no evidence that they ever obtain ownership of
either the feed uranium or the final enriched product. USEC I, 27
CIT at __, 259 F. Supp. 2d at 1315, 1323; see also Oral Arg. Trans.
at 30-35, 38, 41. Moreover, the contractual provisions addressing
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the retention of title in the feed uranium and passage of title in
the LEU suggest 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. See,
e.g, Oral Arg. Trans. at 33-34 (noting that the contractual
provisions specifying that a utility obtains title to LEU are
necessary because “if title to the product material were not
specified clearly in the contract, there could be a question”), 38
(“[The enricher] receives material that it is holding for the
account of the Utility customer, to be enriched and returned. And,
when it is returned in enriched form, title passes to the enriched
product. Title is extinguished in the feed.”); Uranium Enrichment
Services Contract between Cogema, Inc. and [Utility E], App. to
Response of USEC to Dep’t of Commerce’s Remand Determ. of June 23,
2003, Tab 1 at JA-9003 (“USEC Remand App.”); Uranium Enrichment
Services Contract between [a utility] and Urenco, USEC Remand App.
Tab 2 at JA-9074; see also contracts cited supra pp. 5-6. For
example, these provisions enable the utility to claim the amount of
feed uranium delivered, or the value thereof, from the enricher in
the event that the enricher breached the contract. Such a
contractual arrangement, which is apparently beneficial to both
parties, is aided by the essential fungibility of the material at
issue. Parsing the contractual provisions at issue does not lead
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to the conclusion that the enricher obtains ownership over the LEU
and then sells it to the utility. Rather, the contracts delineate
a transaction in which a utility provides raw material to an
enricher, pays for the service of processing the material, and
obtains the finished product after the manufacturing service has
been performed.
Because the enricher does not obtain ownership of the LEU
enriched under SWU contracts, the transfer of LEU by the enricher
to the utility cannot constitute a sale of merchandise under NSK
Ltd. v. United States. See 115 F.3d at 975 (concluding that a sale
“requires both a transfer of ownership to an unrelated party and
consideration”). Nothing in Commerce’s Remand Determination
provides any evidentiary or legal basis for a contrary conclusion.
Commerce’s basic premise in the Remand Determination is that “the
enrichers make the only relevant sales that can be used for
purposes of establishing U.S. price and normal value.” Remand
Determ. at 52. This statement, however, begs the question whether
these transactions can truly be construed as relevant sales of
merchandise. Commerce’s duty is to investigate “sales” at less
than fair value. The agency’s assertion that the enrichers’
transactions with the utilities are the only transactions that
could be such sales, without more, does not establish that there is
an evidentiary or legal basis to conclude that those transactions
constitute sales for purposes of our antidumping statutes.
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Commerce’s subsidiary factual determination is no more well-
founded. Commerce asserts that because the utilities only hold
title to the feedstock at the time prior to delivery, “[t]he
enricher, by contrast, would have rights as to the LEU.” Remand
Determ. at 58. Commerce, however, cannot and does not provide any
evidentiary basis for this supposition; nothing in the record
supports a determination that the enricher has any ownership
rights. Accordingly, Commerce’s determination is unsupported by
substantial evidence and not in accordance with law.
II. Equivalence of EUP and SWU Contracts
In addition to its claim that the enrichers obtain ownership
of the LEU, Commerce also bases its conclusions upon the assertion
that EUP and SWU contracts are fundamentally equivalent. Commerce
states that
the completed product, LEU, is entering the marketplace
through the transactions at issue. Utility customers
cannot obtain LEU by purchasing enrichment alone.
Rather, in every instance in which the utility customer
enters into a SWU transaction, it is obtaining LEU.
Remand Determ. at 61.
Commerce made essentially the same argument in its original
determinations when it stated that “the overall arrangement under
both [EUP and SWU] contracts is, in effect, an arrangement for the
purchase and sale of LEU.” LEU from France, 66 Fed. Reg. at
65,884. This Court dismissed that argument in USEC I when we
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stated that “under any tolling arrangement, the ‘overall
arrangement’ is one for acquisition of a good, usually manufactured
by the toller.” USEC I, 27 CIT at __, 259 F. Supp. 2d at 1324.
Furthermore, the SWU transaction does not account for the full
value of the finished product; rather, it accounts only for the
value of the enrichment processing. Cf. Response to Court Remand,
Taiwan Semiconductor Mfg. Co. v. United States, Jt. App. Tab 7-A at
JA-2604 (Dep’t Commerce June 30, 2000) (“Under the Department’s
practice, the ‘relevant sale’ must be a sale by the company that
owns the merchandise entirely, including all essential components,
can dispose of the merchandise at its own discretion, and, thus,
controls the pricing of the merchandise and not merely the pricing
of certain portions of production. . . . In contrast, a
subcontractor’s or toller’s price does not represent all elements
of value. Rather, the subcontractor or toller merely performs one
or more segments of the manufacturing process at the direction of
another entity. Thus, subcontracted production is distinguishable
from other types of production because the subcontractor does not
bear at least one element of cost which is essential to production
of the subject merchandise.”) (“SRAMS Remand Response”). Here, the
SWU transaction represents approximately 65 percent of the value of
the LEU, and is not equivalent to a sale of the finished product at
its full value. See USEC I, 27 CIT at __, 259 F. Supp. 2d at 1325
(indicating that natural uranium supplies “approximately 35 percent
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of enriched uranium’s total value”).
Commerce states in a footnote that “in a meaningful sense,
enrichment transactions do reflect the full value of the LEU since
the things of value provided by the utility customer to the
enricher (cash and natural uranium) account for the full value of
the LEU received by the customer from the enricher.” Remand
Determ. at 54 n.34. Yet this reasoning could be applied to any
subcontracting case, including some of Commerce’s earlier tolling
cases, in which a tollee provides raw materials to the toll
manufacturer and pays for the manufacturing services. For example,
in SRAMS from Taiwan, the value of the wafer design and design mask
provided by the design house plus the value of the manufacturing
processes performed by the toller, considered together, reflect the
full value of the finished product. In that case, however,
Commerce recognized that the toller was paid only for the actual
manufacturing processes, and that “a subcontractor’s or toller’s
price does not represent all elements of value.” SRAMS Remand
Response, Jt. App. Tab 7-A at JA-2603-04. In Certain Pasta from
Italy, Corex provided the materials to the toller and paid the
toller for its manufacturing services. 63 Fed. Reg. 53,641,
53,642 (Dep’t Commerce Oct. 6, 1998) (preliminary results of new
shipper antidumping duty administrative review). The payment to
the toller was characterized as a “processing fee,” and Commerce
determined that Corex, rather than the toller, was the producer of
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the subject merchandise. Id. Commerce has stated that
“[t]ypically, the subcontracting, or tolling, addressed by [the
tolling regulation] involves a contractor who owns and provides to
the subcontractor a material input and receives from the
subcontractor a product that is identifiable as subject
merchandise.” SRAMS Remand Response, Jt. App. Tab 7-A at JA-2604.
Consequently, we find unpersuasive Commerce’s argument that the
transaction between the tollee and toll manufacturer reflects the
full value of the merchandise produced.7
7
Commerce also cites to Polyvinyl Alcohol from Taiwan for the
proposition that “the sale of subject merchandise may occur in
two distinct transactions,” and “such relevant sales may be
combined to derive, and calculate, the price of the subject
merchandise.” Remand Determ. at 55-56 (citing Polyvinyl Alcohol
from Taiwan, 63 Fed. Reg. 32,810, 32,81[3-14] (Dep’t Commerce
June 16, 1998) (final results of antidumping duty administrative
review)). The transactions in Polyvinyl Alcohol from Taiwan to
which this comment refers are those between Perry and Chang Chun.
Commerce determined that Chang Chun, the toller, was the producer
of the subject merchandise and that the other company, Perry, was
merely an importer and reseller. See Polyvinyl Alcohol from
Taiwan, 63 Fed. Reg. 6,526, 6,527 (Dep’t Commerce Feb. 9, 1998)
(preliminary results of antidumping duty administrative review).
Perry had restructured its contractual arrangement with Chang
Chun after Commerce found that Chang Chun was selling subject
merchandise at less than fair value. See USEC I, 27 CIT at __,
259 F. Supp. 2d at 1320-21 n.11 (citing Polyvinyl Alcohol from
Taiwan, 63 Fed. Reg. at 6,527). Under the restructured contract,
Perry purchased inputs from an affiliate of Chang Chun and
arranged delivery of the inputs to Chang Chun for processing.
USEC I, 27 CIT at __, 259 F. Supp. 2d at 1321 n.11 (citing
Polyvinyl Alcohol from Taiwan, 63 Fed. Reg. at 6,527). As we
stated in USEC I, “[t]he crucial finding in Polyvinyl Alcohol
from Taiwan was that, under the circumstances, Perry had simply
restructured its payments to Chang Chun in an effort to
circumvent the antidumping duties.” USEC I, 27 CIT at __, 259 F.
Supp. 2d at 1321 n.11. By contrast, in considering DuPont’s
relationship with Chang Chun in the same case, Commerce held that
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III. The Tolling Regulation, 19 C.F.R. § 351.401(h)
In the Remand Determination, Commerce again concludes that the
tolling regulation does not apply in this case to designate the
utilities as producers of LEU for purposes of calculating export
price or constructed export price. See Remand Determ. at 47, 52.
As in its original determinations, Commerce concludes that the
enrichers are the producers of LEU. Id. at 45, 52, 56-57.
In explaining its decision, Commerce reasons that the tolling
regulation “does not purport to address all aspects of an analysis
of tolling arrangements,” and that the agency looks at the totality
of the circumstances in making its determination. Remand Determ.
at 49 (quoting Polyvinyl Alcohol from Taiwan, 63 Fed. Reg. at
32,813). Commerce distinguishes the prior tolling cases cited by
DuPont was the producer of the subject merchandise because DuPont
manufactured the primary input, shipped it to Taiwan for
processing by Chang Chun according to specifications supplied by
DuPont, and exported it from Taiwan back to the United States and
to third countries. See USEC I, 27 CIT at __, 259 F. Supp. 2d at
1320 (citing Polyvinyl Alcohol from Taiwan, 63 Fed. Reg. at
6,527).
The instant case is more similar to the contract between
DuPont and Chang Chun than to the contract between Perry and
Chang Chun. First, in the course of managing the sequential
steps in the production of nuclear fuel, the utility purchases
uranium feedstock from a third party and pays the enricher to
process it into LEU. See, e.g., USEC I, 27 CIT at __, 259 F.
Supp. 2d at 1314-15. Second, the utility does not merely import
and resell LEU. Finally, the contractual arrangement here long
predates the initiation of unfair trade investigations. See,
e.g., Hrg. Trans., Jt. App. Tab 6-A at 43-45; Oral Arg. Trans. at
42. Unlike the contract referred to in the Remand Determination,
the SWU contracts here are not simply restructured purchase
contracts.
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the Court in USEC I on the grounds that in each of those cases, the
agency “faced a choice of respondents, based upon its analysis of
the sales made by two entities - the toller on the one hand, and
the tollee on the other.” Remand Determ. at 48. Commerce argues
that in each of the earlier cases,
the tollee sold the subject merchandise, as contemplated
by the regulation. Second, in nearly all of these cases,
and in particular where the Department was required to
examine the totality of the circumstances to determine
the producer, the tollee engaged in manufacturing or
processing operations. In no instance did the Department
determine an entity was a producer based solely upon its
purchase of an input and the designation of product
specifications.
Remand Determ. at 62-63. The agency says that in this case, by
contrast, the tollees did not sell the completed merchandise. As
the utilities made no sales of the subject merchandise, Commerce
claims that they cannot be designated as respondents for the
purpose of establishing export price or constructed export price.
Therefore, Commerce concludes, “the tolling regulation cannot be
applied to the facts and circumstances of this case without
defeating the purpose of the regulation and the statutory
provisions that the regulation is designed to implement.” Remand
Determ. at 47. Commerce asserts that the tolling regulation does
not contemplate the circumstances of this case, and that “the
statutory provisions governing the establishment of U.S. price are
silent” as to how to calculate U.S. price in such circumstances.
Id. at 51; see also id. at 47 (“A fundamental requirement upon
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Consol. Court Nos. 02-00219, 221, 227, 229, and 233
which the tolling regulation is premised is that merchandise
produced through a tolling operation is sold to a party in the
United States. . . . In promulgating the tolling regulation, the
Department did not contemplate the situation in which the tollee
makes no sales of subject merchandise.”). Commerce thus proceeds
to evaluate “the totality of the circumstances in order to select
the appropriate respondents.” Remand Determ. at 50.
It is certainly true that the tolling regulation does not
“address all aspects of an analysis of tolling arrangements,”
Remand Determ. at 49 (quoting Polyvinyl Alcohol from Taiwan, 63
Fed. Reg. at 32,813), and that the agency may look at the totality
of the circumstances in making a determination. See, e.g.,
Stainless Steel Bar from India, 66 Fed. Reg. 13,496, 13,496 (Dep’t
Commerce Mar. 6, 2001) (preliminary results of new shipper
antidumping duty administrative review) (“In determining whether a
company that uses a subcontractor in a tolling arrangement is a
producer pursuant to 19 C.F.R. [§] 351.401(h), we examine all
relevant facts surrounding a tolling agreement.”); Polyvinyl
Alcohol from Taiwan, 63 Fed. Reg. at 32,813 (“[W]hen determining
whether a party is a producer or manufacturer of subject
merchandise, we look at the totality of the circumstances
presented.”). Nonetheless, we find Commerce’s continuing attempts
to distinguish its earlier tolling cases from the instant case
unpersuasive.
Court No. 02-00112, 113, 114; Page 19
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In support of its assertions, Commerce relies primarily on
SRAMS from Taiwan and Polyvinyl Alcohol from Taiwan, in which the
tollees participated in manufacturing or processing operations.
See SRAMS Remand Response, Jt. App. Tab 7-A at JA-2603, JA-2605
(finding that the tollee design house engaged in research and
development, thereby producing the intellectual property that was
“one of the primary determinants of the value of individual
products”); Polyvinyl Alcohol from Taiwan, 63 Fed. Reg. at 6,527;
Polyvinyl Alcohol from Taiwan, 63 Fed. Reg. at 32,817 (concluding
that DuPont was the producer of the subject merchandise, because it
manufactured the primary input and shipped it to a toller for
further manufacturing).
In a number of other cases, however, it appears that the
tollee did not engage in manufacturing or processing operations,
and was determined to be a producer based on procurement and
continued ownership of inputs or raw materials, payment of
processing fees to subcontractors for manufacturing, and overall
control of the series of processes (such as purchasing inputs,
procuring manufacturing services, and marketing and sales services)
involved in creating the final product. In Certain Pasta from
Italy, Commerce determined that Corex was the producer of the
subject pasta because Corex “(1) purchase[d] all of the inputs, (2)
pa[id] the subcontractor a processing fee, and (3) maintain[ed]
ownership at all times of the inputs as well as the final product.”
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Consol. Court Nos. 02-00219, 221, 227, 229, and 233
See 63 Fed. Reg. at 53,642. Corex also was “solely responsible for
the marketing and sales of the product and any freight
arrangements.” Id. Corex’s involvement in the production of the
subject merchandise apparently involved not manufacturing or
processing, but managing the successive steps in production of the
subject merchandise by procuring and maintaining ownership of the
material inputs and subcontracting the manufacturing processes. In
Certain Forged Stainless Steel Flanges from India, Commerce found
respondent Akai the producer of the subject merchandise, even
though Akai did not own the machinery used in producing flanges and
apparently did not engage in the actual manufacturing processes.
58 Fed. Reg. 68,853, 68,855-56 (Dep’t Commerce Dec. 29, 1993)
(notice of final determination of sales at less than fair value).
Instead, Commerce’s conclusion was premised on the following facts:
Akai purchase[d] and maintain[ed] title (during the
entire course of production) to the raw materials used
for the production of the vast majority of the flanges,
and . . . direct[ed] and control[led] the manufacturing
process insofar as it determine[d] the quantity, size,
and type of flanges to be produced. . . . Akai
control[led] the costs for all elements incorporated in
the production of the flanges.
Id. at 68,856. In explaining its conclusion, Commerce stated that
“[t]he Department is required to capture all the costs involved in
the production of the subject merchandise, and must therefore look
to the company that controls the costs of production of the
merchandise.” Id.; see also Dep’t of Commerce Mem. from Joseph A.
Spetrini to Troy Cribb, Issues and Decision Memorandum for the
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Consol. Court Nos. 02-00219, 221, 227, 229, and 233
Final Determination in the Antidumping Duty Investigation of
Stainless Steel Butt-Weld Pipe Fittings from Italy at 3 (Dec. 27,
2000) (unpublished), at www.ia.ita.doc.gov/frn/index.html
(concluding that a company that “perform[ed] all marketing and
selling functions,” “purchased the raw material,” and “maintained
ownership of all materials sent . . . for further production” was
the producer of subject merchandise, while the two companies that
actually performed manufacturing operations were tollers and not
producers); Stainless Steel Bar from India, 65 Fed. Reg. 59,173,
59,174 (Dep’t Commerce Oct. 4, 2000) (preliminary results of new
shipper antidumping duty administrative review) (finding a company
the producer of the subject merchandise where it “(1) [p]urchase[d]
all of the inputs, (2) pa[id] the subcontractor a processing fee,
and (3) maintain[ed] ownership at all times of the inputs as well
as the final product”).
In other cases, it appears that the tollee did engage in
manufacturing or processing operations, but this fact was not
crucial to Commerce’s determination that the tollee was the
producer. See, e.g., Dep’t of Commerce Mem. from Joseph A.
Spetrini to Faryar Shirzad, Issues and Decision Memorandum for the
Administrative Review of Certain Stainless Steel Wire Rod from
India for the Period of Review (“POR”) Covering December 1, 1999
through November 30, 2000 at 5 (May 29, 2002) (unpublished), at
www.ia.ita.doc.gov/frn/index.html (“[T]he sub-contractor is not the
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Consol. Court Nos. 02-00219, 221, 227, 229, and 233
producer of the wire rod, because the companies of the [tollee]
Viraj Group retain ownership of the material and control the sale
of the subject merchandise; therefore, [the Viraj companies] are
producers of subject merchandise.”). As we stated in USEC I,
“‘Commerce’s construction of “producer,” as memorialized in [the
regulation], emphasizes three factors: (1) ownership of the subject
merchandise; (2) control of the relevant sale . . . ; and (3)
control of production of the subject merchandise.’” USEC I, 27 CIT
at __, 259 F. Supp. 2d at 1318 (quoting Taiwan Semiconductor Mfg.
Co. v. United States, 25 CIT at __, 143 F. Supp. 2d at 966).
In the production of LEU, the utilities manage the successive
processes in the production of nuclear fuel, using contractors that
perform mining and milling of uranium, conversion of uranium into
uranium hexafluoride, enrichment of uranium hexafluoride to obtain
LEU, and fabrication of nuclear fuel rods. See, e.g., USEC I, 27
CIT at __, 259 F. Supp. 2d at 1314, 1322. The utilities manage the
entire process of creating nuclear fuel in order to manage costs
and assure a steady and reliable supply of fuel. See USEC I, 27
CIT at __, 259 F. Supp. 2d at 1316; Oral Arg. Trans. at 47, 53-54.
Enrichment is merely one step in this process, and the utilities
obtain it by providing a raw material to a subcontractor and paying
for the service of enrichment. As discussed in USEC I, the
utilities’ management of the process of producing nuclear fuel and
their relationship with the enrichers under SWU contracts render
Court No. 02-00112, 113, 114; Page 23
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
this case very similar to the tolling arrangements seen in earlier
cases. Consequently, the fact that the utilities do not
subsequently sell the finished product, but rather consume it in
the production of electricity, does not render the tolling
regulation inapplicable. Moreover, as noted in section I, supra,
nothing in the record provides a basis for determining that the
tolling arrangements at issue here constitute sales that may be
considered equivalent to the full-value sale of a finished product.
Accordingly, Commerce’s determination that its tolling regulation
is inapplicable to this case is neither supported by substantial
evidence nor in accordance with law.
IV. Definitions of “Producer” in the Contexts of Industry Support
and the Determination of Export Price or Constructed Export
Price
In USEC I, the Court directed Commerce to assess whether the
definition of “producer” in the industry support context should
differ from the definition applied in the context of determining
export price or constructed export price. See USEC I, 27 CIT at
__, 259 F. Supp. 2d at 1328. In addition, the Court directed that
“[i]f Commerce finds that the tolling regulation applies here, the
agency must consider whether those entities determined to be
‘producers’ under the tolling regulation are also ‘producers’ for
purposes of the industry support determination.” Id.
In its Remand Determination, Commerce concludes that in order
to qualify as the producer of a good for the purposes of industry
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Consol. Court Nos. 02-00219, 221, 227, 229, and 233
support, a company must have a “stake” in the domestic industry,
which the agency interpreted to mean that a company must be engaged
in the “actual production of the domestic like product” in the
United States. Remand Determ. at 13 (quoting S. Rep. No. 96-249 at
47 (1979)), 15-16. Commerce reasoned that “[w]hether a company is
at risk from unfairly traded imports depends on the nature and
extent of its operations in the United States. It stands to reason
that a company may be injured by unfairly traded imports where it
is in the business of producing the domestic like product.” Id. at
14. Commerce further reasoned that the tolling regulation is
inapplicable in the industry support context because its
application could lead to the inclusion of companies within the
domestic industry that would not be adversely affected by unfairly
traded imports of merchandise. See Remand Determ. at 16. Commerce
claims that such an outcome would defeat the purpose of the unfair
trade laws, which exist to aid domestic producers adversely
affected by unfair trade. See id. at 16-17; see also Torrington
Co. v. United States, 68 F.3d 1347, 1352 (Fed. Cir. 1995) (“The
purpose underlying the antidumping laws is to prevent foreign
manufacturers from injuring domestic industries by selling their
products in the United States at less than ‘fair value,’ i.e., at
prices below the prices the foreign manufacturers charge for the
same products in their home markets.”); Tung Mung Dev. Co. v.
United States, 26 CIT __, __, 219 F. Supp. 2d 1333, 1338-39 (2002).
Court No. 02-00112, 113, 114; Page 25
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
In the context of the less than fair value determination,
Commerce maintains that the purpose and intent of the statute
warrants application of a different definition of “producer” than
is used in the industry support context. Commerce explains that 19
U.S.C. §§ 1677a and 1677b focus on the price of a good, rather than
on its manufacture. Remand Determ. at 22-23. Section 1677a refers
to the “producer or exporter” of a good in connection with
selecting an appropriate respondent and sale price. Id. at 22; 19
U.S.C. § 1677a(a)-(b). Commerce explains that in this context, it
may be appropriate to select a toller as the producer when that
company, although it may not actually manufacture the good, is
responsible for setting the price “at which the merchandise is
first sold (or agreed to be sold) before the date of importation.”
19 U.S.C. § 1677a(a)-(b); Remand Determ. at 23-24 & n.21.
Absent application of the tolling regulation to the industry
support context, Commerce again concludes, as it did in the
original determinations, that USEC is the sole domestic producer of
LEU. Remand Determ. at 18-20. The agency concludes that for
purposes of the industry support determination, the utilities are
industrial users and purchasers of LEU, rather than producers,
because they do not actually produce LEU in the United States and
they do not maintain any manufacturing operations or facilities for
the production of LEU. Id. at 19-20 (noting also that the
“business interest” of the utilities, “like that of any industrial
Court No. 02-00112, 113, 114; Page 26
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
user, lies in obtaining lower priced LEU in an effort to keep the
cost of producing electricity down”). Consequently, as Commerce
concludes that USEC is the sole domestic producer of LEU, the
agency finds that the petitions had support within the domestic
industry as required by 19 U.S.C. § 1673a(c)(4). See id.
In explaining why it applies the tolling regulation in
establishing export or constructed export price, but not in the
industry support determination, Commerce has articulated reasons
that are consistent with the purposes of the two sections of the
statute. In accordance with Commerce’s reasoning, we acknowledge
that in this case, the utilities would benefit from, rather than be
injured by, the availability of lower-priced LEU or enrichment
services provided by foreign companies. Consequently, the Court
finds Commerce’s application of different definitions of “producer”
in these two contexts is reasonable and therefore in accordance
with law. See Pesquera Mares Australes Ltda. v. United States, 266
F.3d 1372, 1382 (Fed. Cir. 2001); Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). As the Court
upholds Commerce’s reasons for declining to apply the tolling
regulation in the industry support context, we also uphold the
agency’s finding that USEC is the sole member of the domestic
industry for the purposes of satisfying the industry support
requirement and permitting the investigation to proceed. See 19
U.S.C. §§ 1673a(b)(1), 1673a(c)(4)(A).
Court No. 02-00112, 113, 114; Page 27
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V. Applicability of the Countervailing Duty Statute
Title 19 U.S.C. § 1671 provides that Commerce may impose
countervailing duties where it determines that a government or
public entity within a country is providing a countervailable
subsidy8 “with respect to the manufacture, production, or export of
a class or kind of merchandise imported, or sold (or likely to be
sold) for importation, into the United States,” and imports of that
merchandise injure or threaten to injure a domestic industry.9 In
8
A “countervailable subsidy” is a “financial contribution” or
“any form of income or price support” that confers a benefit. 19
U.S.C. § 1677(5).
9
19 U.S.C. § 1671(a) states that
If -
(1) the administering authority determines that
the government of a country or any public entity within
the territory of a country is providing, directly or
indirectly, a countervailable subsidy with respect to
the manufacture, production, or export of a class or
kind of merchandise imported, or sold (or likely to be
sold) for importation, into the United States, and
(2) in the case of merchandise imported from a
Subsidies Agreement country, the Commission determines
that–
(A) an industry in the United States–
(i) is materially injured, or
(ii) is threatened with material injury,
or
(B) the establishment of an industry in the
United States is materially retarded,
by reason of imports of that merchandise or by
reason of sales (or the likelihood of sales) of
that merchandise for importation,
then there shall be imposed upon such merchandise a
countervailing duty . . . equal to the amount of the
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its Remand Determination, as in its original determinations,
Commerce concludes that the countervailing duty provisions are
applicable to both EUP purchase contracts and SWU enrichment
contracts.
In the Remand Determination, Commerce notes that “the scope of
the CVD law is clearer [than the scope of the antidumping law] in
that the plain language of the statute provides that the law is
applicable where the merchandise is either imported, or sold for
importation, into the United States.” Remand Determ. at 84. The
agency “interpret[s] the CVD law to apply whenever a foreign
government provides subsidies with respect to a class or kind of
merchandise that is imported into the United States,” and states
that “[a]ccordingly, we conclude that the law is applicable to all
imports of LEU from the respective countries under investigation.”
net countervailable subsidy.
19 U.S.C. § 1671(a). “Subsidies Agreement country” is defined in
19 U.S.C. § 1671(b) to mean countries that are WTO members or as
to which the United States has undertaken certain obligations.
In the case of non-Subsidies Agreement countries, no
determination of injury or threat of injury to the domestic
industry is required. 19 U.S.C. § 1671(c). France, Germany, the
Netherlands, and the United Kingdom are Subsidies Agreement
countries. See Membership of the World Trade Organization, WTO
Doc. No. 95-2450, WT/L/51/Rev.4 (Aug. 18, 1995), at
http://docsonline.wto.org; Agreement Establishing the World Trade
Organization, Apr. 15, 1994, 33 I.L.M. 1144, 1144 (1994)
(providing that multilateral agreements included in Annex 1,
which includes the Subsidies Agreement, are binding on all WTO
members).
Court No. 02-00112, 113, 114; Page 29
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Id. at 85.10
The language of the countervailing duty provisions states that
duties may be imposed where (1) merchandise is imported and (2) a
countervailable subsidy has been provided “with respect to the
manufacture, production, or export” of that merchandise. 19 U.S.C.
§ 1671(a)(1). Thus, no sale of the subject merchandise is required
for the application of the countervailing duty statute. Moreover,
in the countervailing duty context, the enricher may be considered
to “manufacture” or “produce” LEU by performing the processing
operations that transform feed uranium into enriched uranium.11
See, e.g., Oxford English Dictionary at www.oed.com (defining the
10
Commerce also states that “based up [its] analysis” that the
enrichers “own and hold title to the complete LEU product . . .
and transfer ownership and title to the utility customers for
consideration . . . these [SWU contract] sales are also relevant
for purposes of the CVD law.” Remand Determ. at 83-84. As
discussed above, we find incorrect Commerce’s conclusion that
pursuant to the SWU contracts the enrichers own and transfer
ownership in the complete LEU. Consequently, contrary to its
statement in the Remand Determination, Commerce’s conclusion that
SWU transactions are sales of subject merchandise cannot lend
support to Commerce’s countervailing duty finding. See id.
11
We concluded in section III, supra, that Commerce’s tolling
regulation applies in the antidumping context to designate the
utilities as “producers” of LEU. That regulation, which is
applicable in the context of determining export price or
constructed export price in order to assess a dumping margin,
does not apply in the countervailing duty context. Consequently,
for purposes of the countervailing duty determination, the
tolling regulation does not prohibit recognition of a
subcontractor or toll manufacturer as a producer of a good.
Thus, the tolling regulation does not contradict the conclusion
that the enrichers are “producers” of LEU for purposes of a
countervailing duty determination.
Court No. 02-00112, 113, 114; Page 30
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
verbs “produce” as, inter alia, “[t]o bring forth, bring into being
or existence. . . . [t]o bring (a thing) into existence from its
raw materials or elements, or as the result of a process; to give
rise to, bring about, effect, cause, make (an action, condition,
etc.) and “manufacture” as, inter alia, “[t]o make (a product,
goods, etc.) from, (out) of raw material; to produce (goods) by
physical labour, machinery, etc.” and “[t]o make up or bring (raw
material, ingredients, etc.) into a form suitable for use; to work
up as or convert into a specified product”) (emphasis supplied).
Consequently, we find Commerce’s interpretation that the
statutory countervailing duty provisions are applicable to imports
of LEU under both EUP purchase contracts and SWU enrichment
contracts reasonable.
There remains the question whether purchases of enrichment
services for more than adequate remuneration may constitute
countervailable subsidies. Title 19 U.S.C. § 1677(5)(E)(iv)
provides that a subsidy which confers a benefit exists “in the case
where goods or services are provided, if such goods or services are
provided for less than adequate remuneration, and in the case where
goods are purchased, if such goods are purchased for more than
adequate remuneration.” Thus, while the statute explicitly
provides a remedy for the provision of subsidies in the form of
goods or services, it also explicitly limits purchases that may
constitute subsidies to purchases of “goods.” 19 U.S.C. §
Court No. 02-00112, 113, 114; Page 31
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
1677(5)(E)(iv).
As in its original determinations, Commerce concludes in the
Remand Determination that the state-owned French electric utility,
EdF, purchased a good from and provided a subsidy to the French
enricher Eurodif. See Remand Determ. at 86; see also Low Enriched
Uranium from France, 66 Fed. Reg. 65,901, 65,902 (Dep’t Commerce
Dec. 21, 2001) (notice of final affirmative countervailing duty
determination); Dep’t of Commerce Mem. from Bernard T. Carreau to
Faryar Shirzad, Issues and Decision Memorandum: Final Affirmative
Countervailing Duty Determination: Low Enriched Uranium from France
– Calendar Year 1999 at 3-5 (Dec. 21, 2001) (unpublished), at
www.ia.ita.doc.gov/frn/index.html. Commerce first bases this
conclusion on its finding that SWU transactions constitute sales of
LEU, because the enricher obtains ownership of the LEU and
transfers ownership to the utility for consideration. See Remand
Determ. at 86-87. As discussed above, the Court has found this
conclusion incorrect. See supra pp. 11-12.
Commerce also states, however, that even if the SWU
transactions do not constitute sales of merchandise, EdF’s purchase
of enrichment from Eurodif still constitutes a countervailable
subsidy. The agency argues that “[f]irst, there is no question
that EdF obtains LEU in a series of purchase transactions (i.e.,
the purchase of natural uranium, the purchase of conversion, and
the purchase of enrichment).” Id. at 87. Accordingly, Commerce
Court No. 02-00112, 113, 114; Page 32
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
argues, EdF’s “payment of more than adequate remuneration to
Eurodif is made in connection with the major step in the process by
which EdF is ‘purchasing goods.’” Id. Second, Commerce argues
that
the fundamental purpose of the [countervailing duties]
provision is to address subsidization of manufacturing
operations that produce subject merchandise. In this
context, the purchase of manufacturing or processing is
a necessary component of the good. As a practical
matter, goods include any manufacturing or processing
that is necessary to produce the article. Thus, the sale
of manufacturing or processing, which is a necessary
component of the good, pertains to the purchase of goods,
and does not constitute the purchase of a “service” in
this context.
Remand Determ. at 87.
We find Commerce’s first argument unpersuasive. We have
found that the enrichment transaction here does not constitute a
sale of subject merchandise, and the mere fact that enrichment is
“purchased” as part of a series of transactions in the nuclear fuel
production process simply does not constitute a basis for
concluding that the purchase of enrichment processing is tantamount
to the purchase of a good. Moreover, it appears from the record
that under SWU contracts, Eurodif performs only the enrichment
portion of the nuclear fuel production process. Commerce stated in
its preliminary countervailing duty determination that “[f]or
purposes of this determination, we accept Eurodif’s assertion that
its operations are no different from those of USEC.” Low Enriched
Uranium from France, 66 Fed. Reg. 24,325, 24,327 (Dep’t Commerce
Court No. 02-00112, 113, 114; Page 33
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
May 14, 2001) (notice of preliminary affirmative countervailing
duty determination and alignment with final antidumping duty
determination). If, under SWU contracts, Eurodif performs only the
uranium enrichment, then EdF must contract with third parties for
the other steps in the production of nuclear fuel, including
procuring feed uranium and fabricating LEU into nuclear fuel rods.
See supra note 3 (listing the five steps in the production of
nuclear fuel). The fact that the utility contracts with third
parties, rather than with the enricher, to complete four of the
five steps in the nuclear fuel production process renders even less
plausible the claim that enrichment is merely part of an overall
goods transaction between the utility and enricher.
Commerce’s second argument posits that operations resulting
in or leading to the production of a good do not constitute
“services” for the purpose of the countervailing duty statute.
Remand Determ. at 87 (“[T]he sale of manufacturing or processing,
which is a necessary component of the good, pertains to the
purchase of goods, and does not constitute the purchase of a
“service” in this context.”). The agency bases this conclusion on
its understanding that “the fundamental purpose of the [statutory
countervailing duties] provision is to address subsidization of
manufacturing operations that produce subject merchandise.” Id.
The countervailing duty provisions are “intended to offset any
unfair competitive advantage enjoyed by foreign manufacturers or
Court No. 02-00112, 113, 114; Page 34
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
exporters over domestic producers as a result of subsidies.” S.
Rep. No. 103-412, at 88 (1994). To realize this legislative
intent, Commerce interprets the countervailing duty statute to
reach subsidies that help to defray the costs of manufacturing
subject merchandise. Noting that the statute does not define
“service,” the agency distinguishes manufacturing services, or
operations that result in the production of a good, from other
types of services which do not result in the production of a good.
See Remand Determ. at 87-88 (“The term ‘service’ is not defined in
the statute. Under its ordinary meaning, consistent with the
purpose of [19 U.S.C. § 1677(5)(D)], we interpret the term to mean
‘[t]he sector of the economy that supplies the needs of the
consumer but produces no tangible goods, as banking and tourism.’”)
(internal citation omitted). Under this interpretation, the agency
concludes that even transactions “solely for contract
manufacturing” are covered by 19 U.S.C. § 1677(5)(D), because the
manufacturing operations lead to the production of a good. Remand
Determ. at 88. Essentially, Commerce states that because
manufacturing operations are integral to the good produced,
subsidization of those operations constitutes subsidization of the
good itself. See id. at 89.
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
Court No. 02-00112, 113, 114; Page 35
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
and purpose of the countervailing duty statute. It is consistent
with the statute’s language because it preserves a real distinction
between “goods” and “services.” It is consistent with the
statute’s purpose because subsidization of a process essential to
the manufacture of a good lowers the manufacturer’s cost of
producing that good, which may enable the manufacturer to gain a
competitive advantage over an unsubsidized competitor.
In the case of enrichment processing, subsidization would
lower an enricher’s production costs, enabling the enricher to sell
enrichment processing at lower prices than an unsubsidized
enricher. This is the type of “unfair competitive advantage” the
statute is intended to counter, and therefore, Commerce’s
interpretation of the statute is reasonable and in accordance with
law. Consequently, we affirm Commerce’s determination that
purchase of enrichment for more than adequate remuneration may
constitute a countervailable subsidy.
Conclusion
In summary, we find Commerce’s explanation of its industry
support determination is in accordance with law, and we sustain
this portion of the Remand Determination. We also sustain
Commerce’s determination that the countervailing duty law may apply
to imports of LEU under either LEU purchase contracts or SWU
enrichment contracts, as well as the agency’s determination that
the purchase of enrichment for more than adequate remuneration may
Court No. 02-00112, 113, 114; Page 36
Consol. Court Nos. 02-00219, 221, 227, 229, and 233
constitute a countervailable subsidy. Because this opinion is
limited to general issues, see Scheduling Order at 4-5 (Aug. 5,
2002), we do not decide here the question whether the LEU imported
from the subject countries benefitted from countervailable
subsidies.
We also find Commerce’s determinations that LEU and SWU
contracts are equivalent and that the antidumping provisions are
applicable to SWU transactions are neither supported by substantial
evidence nor in accordance with law. Accordingly, with respect to
these conclusions, we find that Commerce’s Remand Determination is
unlawful and we reverse.
The parties are ordered to consult with each other and with
the Clerk of the Court and to file a revised scheduling order
within sixty days of the date of entry of this opinion.
________________________
Donald C. Pogue
Judge
________________________
Evan J. Wallach
Judge
________________________
Richard K. Eaton
Judge
Dated: September 16, 2003
New York, New York