Eurodif S.A. v. U.S., Slip Op. 06-75.

• Citation: 431 F.Supp.2d 1351
• Decision Date: 18 May 2006
• Docket Number: Slip Op. 06-75.,Court No. 02-00219.
• Parties: EURODIF S.A., Compagnie Générale Des Matières Nucléaires and Cogema, Inc., et.al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

431 F.Supp.2d 1351

EURODIF S.A., Compagnie Générale Des Matières Nucléaires and Cogema, Inc., et.al., Plaintiffs, v. UNITED STATES, Defendant.

Slip Op. 06-75.

Court No. 02-00219.

United States Court of International Trade.

May 18, 2006.

Before: Pogue, Wallach, and Eaton, Judges.

PER CURIAM.

This matter arises after remand pursuant to Eurodif S.A. v. United States, 411 F.3d 1355 (Fed.Cir.2005) ("Eurodif I ") and Eurodif S.A. v. United States, 423 F.3d 1275 (Fed.Cir.2005) ("Eurodif II"). In accordance with these decisions, we ordered "that Commerce upon remand shall revise such final determination and order in accordance with the `decisions in Eurodif I and Eurodif II. Commerce shall specifically explain how its final determination and order on remand has eliminated all SWU transactions as required by Eurodif I and Eurodif II." Eurodif S.A. v. United States, 414 F.Supp.2d 1263, 1263, 30 CIT ___, ___ (2006) (emphasis added) ("Eurodif III").

In totality, Commerce in its Final Results of Redetermination Pursuant to Court Remand, recalculated the duty margin by excluding all low enriched uranium ("LEU") covered by separative work unit ("SWU") contracts from its margin calculation. See Low Enriched Uranium from France: Final Results of Redetermination Pursuant to Court Remand, Consol. Ct. No. 02-00219, Slip Op. 06-02 (January 5, 2006 CIT) at 3 ("Remand Redetermination"). Despite the contrary holdings of Eurodif I and Eurodif II and the specific instructions of this court, however, Commerce concluded that it will not modify the scope of the antidumping duty order to exclude LEU covered by SWU contracts. Id. at 4-5.

Responding to Commerce's conclusion, Eurodif S.A., Cogema, and Cogema, Inc. (collectively "Eurodif") claim that Commerce erred in its Remand Redetermination. Eurodif claims that any LEU covered by SWU contracts should be excluded from the scope of the antidumping duty order. As such, Eurodif asks the court to direct Commerce to amend to:

(1) Liquidate all entries without antidumping duties on LEU imported to fulfill SWU contracts (and therefore refund cash deposits already tendered on such entries);

(2) exclude LEU imported to fulfill SWU contracts from the scope of the order (3) cease the suspension of liquidation and any deposit requirement on such entries.

Eurodif's Comments re: Commerce's Final Results of Redetermination Pursuant to Ct. Remand at 13.

Alternatively, Defendent-Intervenors, USEC Inc. and United States Enrichment Corporation (collectively "USE C"), argue that Commerce excluded too many goods from the margin calculation through its failure to investigate the facts behind the SWU contracts. See Resp. USEC Inc. & U.S. Enrichment Corp. Final Results of Redetermination Pursuant to Ct. Remand at 3-8 ("USEC's Resp."). Specifically, USEC argues that although the SWU contracts may facially suggest that they cover the provision of services, in fact, in some instances, the title over the uranium used in the process transfers during the transaction, making that transaction a sale of goods. By failing to undertake this investigation, USEC avers, Commerce impermissibly excluded non-service oriented transactions. Id. at 4-6. Additionally, USEC argues that Commerce failed to consider whether Cogema and suppliers of uranium ores were affiliated and, thereby, improperly excluded certain LEU covered by SWU contracts from the dumping margin. Id. at 6-8.

We will address each issue.¹

(1) Failure to re-open the record to investigate the facts behind SWU transactions:

USEC claims that although the contracts in question might be read as service contracts, in some instances, the transactions may really entail the sale of goods under the test enunciated in Eurodif I and Eurodif II. See id. at 4-6. USEC argues that some transactions involve the enricher's client providing certain feed uranium and receiving from the enricher LEU not made from the uranium the client supplied. Id.² Under such an arrangement, USEC asserts, title over the feed uranium supplied by the client must transfer to the enrichers, and title over the enricher's uranium (which the client receives back) must revert to the client. Therefore, USEC claims, such arrangements would constitute a sale of goods under the Federal Circuit's Eurodif I and Eurodif II.

In its Remand Redetermination, Commerce found that our remand instructions did "not allow for a transaction-by-transaction analysis of each SWU contract or of the broader context of each sale made under these contracts." Remand Redetermination at 3. Rather, Commerce concluded that our order required the exclusion of all LEU covered by SWU contracts regardless of any other factors parties raised regarding the enriching transactions covered by SWU contracts. Therefore, Commerce declined to reopen the record in order to investigate USEC's allegations. Id.

We agree with Commerce. The Federal Circuit held in Eurodif II that the "inescapable conclusion flowing from [the circumstances present] is that the enrichers do not `sell' LEU to utilities pursuant to the SWU contracts at issue here." Eurodif II, 423 F.3d at 1278. In so holding, Eurodif II reaffirmed Eurodif I's holding that under "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." Id. (quoting Eurodif I, 411 F.3d at 1362). Both Eurodif I and Eurodif II found that this conclusion was not altered by factual circumstances operating behind the individual contracts at issue here. Significantly, in specifically rejecting the argument USEC raises here, Eurodif II held that "[w]hile 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 supplie[d] to the enricher." Id. (quoting Eurodif I, 411 F.3d at 1362).

Accordingly, the Federal Circuit has already considered this issue and held that the facts/arguments USEC raises in this respect are of no moment. Thus, Commerce's Remand Redetermination on this issue is sustained.

(2) Affiliated Party Feed Purchase Claim

Next, USEC contends that "Commerce's approach failed to examine whether a given SWU transaction in which the natural uranium was supplied by Cogema — a respondent in this case — or an affiliate thereof should be treated as a sale of merchandise." USEC's Resp. at 6. Commerce did not squarely address this issue apparently finding that the remand instructions did not direct it reopen the record on this question.

Commerce is correct. Nothing in this court's remand order pertained to this question. In our original decision USEC Inc. v. United States, 27 CIT ___, ___, 259 F.Supp.2d 1310, 1316 n. 4 (2003), we specifically noted that the record did not indicate that such an affiliation was relevant to Commerce's decision. Commerce chose not to pursue this analysis. See Final Remand Determination for USEC Inc. And United States Enrichment Corporation v. United States, Court Nos. 02-00112, 02-00113, 02-00114, and Consol. Court Nos. 02-00219, 02-0000221, 02-00227, 02-00229, and 02-00233 Slip. Op. 03-34, (March 25, 2003) at 60. As such, Commerce's Remand Determination now before the court is sustained on this issue.

(3) Scope of the Order

Last, Eurodif argues that we should remand with instructions for Commerce to modify the scope of the antidumping order to exclude LEU covered by SWU contracts. Commerce and USEC concede, as they must, that when the court finds that the scope of an order improperly extends to certain goods, Commerce must ordinarily revise the antidumping duty order to exclude such goods. Nevertheless, both argue that the order's scope is proper here. Directing the court to 19 U.S.C. § 1677(25), Commerce argues that "`subject merchandise' means the class or kind of merchandise that is within the scope of an investigation, a review, a suspension agreement, [or] an order under this subtitle...." Because all LEU imported is of the "class or kind of merchandise ... within the scope of an ... order," Commerce claims, all LEU must fall within the order. Commerce admits that certain LEU may be excluded from antidumping duties by virtue of the Federal Circuit's holdings in Eurodif I and Eurodif II. Nonetheless, Commerce claims that those goods are only excludable on the basis of the non-physical features, i.e., that they are covered under SWU contracts. See, e.g., Def.'s Resp. Parties Remand Cmts. 6-7; cf. Remand Redetermination at 5.³ Non-physical features, Commerce contends, are not a basis for distinguishing goods from the "class or kind of merchandise" subject to the antidumping duty order. Consequently, Commerce concludes that the adjustments Eurodif I and Eurodif II require may only be made in an administrative review rather than through modifying the antidumping duty order.

The first flaw with Commerce's argument is that it is circular — LEU produced under SWU contracts are only of the "class or kind of merchandise" covered by the order if Commerce does not modify the order's definition of the "class of kind of merchandise" to exclude such merchandise in compliance with Eurodif I and Eurodif II. Put differently, if the Federal Circuit's decisions direct Commerce to modify the order to exclude LEU covered by SWU contracts, then such imports would not be of the "class or kind of merchandise ... within the scope of ... an order." Because the holdings of Eurodif I and Eurodif II obligate Commerce to "eliminate[] all SWU transactions" from its antidumping duty order, Eurodif III, 414 F.Supp.2d at 1263, 30 CIT at ___, such merchandise may not be of the "class or kind of merchandise" covered by the antidumping duty order. Therefore, pursuant to these opinions, the scope of...