Usec, Inc. v. U.S.
| Decision Date | 04 May 2007 |
| Docket Number | Slip Op. 07-65.,Court No. 02-00112.,Court No. 02-00114.,Court No. 02-00113. |
| Citation | 498 F.Supp.2d 1337 |
| Parties | USEC INC. and United States Enrichment Corporation, Plaintiffs, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Steptoe & Johnson LLP, (Eric C. Emerson, Sheldon E. Hochberg, and Evangeline D. Keenan), Washington, DC, for Plaintiff USEC Inc. and United States Enrichment Corporation.
Pillsbury Winthrop Shaw Pittman LLP, (Nancy A. Fischer, Joshua Dennison Fitzhugh, Sanjay J. Mullick and Stephan E. Becker), Washington, DC, for Plaintiff-Intervenor Ad Hoc Utilities Group.
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Michael D. Panzera and Stephen C. Tosini, Attorneys, Commercial Litigation Branch, Civil Division, United States Department of Justice, for Defendant United States.
Fried, Frank, Harris, Shriver and Jacobson LLP, (Jay R. Kraemer and William Taft), Washington, DC, for Defendant-Intervenors Urenco, Inc., Urenco Ltd., Urenco Deutschland GMBH, Urenco Capenhurst Ltd., and Urenco Nederland B.V.
Plaintiffs USEC Inc. and its wholly owned subsidiary United States Enrichment Corporation (collectively "USEC") challenge the final antidumping and countervailing duty determination of the United States Department of Commerce ("the Department" or "Commerce") with regard to low enriched uranium ("LEU") from Germany, the Netherlands, and the United Kingdom. This opinion considers antidumping issues, both general and countryspecific.
The administrative determination under review is the final determination by Commerce of sales at not less than fair value ("LTFV") with respect to LEU from Germany, the Netherlands, and the United Kingdom, covering the period of investigation ("POI") from October 1, 1999 through September 30, 2000, set forth in Notice of Final Determinations of Sales at Not Less Than Fair Value: Low Enriched Uranium From the United Kingdom, Germany, and the Netherlands, 66 Fed.Reg. 65,886 (December 21, 2001) ("Final Determination").
This court exercises jurisdiction pursuant to 28 U.S.C. § 1581(c).
This case comes before the court after consolidated decisions before a three-judge panel, the Court of Appeals for the Federal Circuit ("Federal Circuit") and several remands to the Department of Commerce. USEC v. United States, 259 F.Supp.2d 1310 (CIT 2003) ("USEC I"); USEC v. United States, 281 F.Supp.2d 1334 (CIT 2003) ("USEC II"); Eurodif S.A. v. United States, 411 F.3d 1355 (Fed.Cir.2005) ("Eurodif I"); Eurodif S.A. v. United States, 423 F.3d 1275 (Fed.Cir.2005) ("Eurodif II"); Eurodif S.A v. United States, 414 F.Supp.2d 1263 (CIT 2006) ("Eurodif III"); Eurodif S.A. v. United States, 431 F.Supp.2d 1351 (CIT 2006) ("Eurodif IV"); and Eurodif S.A. v. United States, 442 F.Supp.2d 1367 (CIT 2006) ("Eurodif V"). A brief review follows.
On December 7, 2000, USEC petitioned Commerce to initiate an antidumping duty investigation on imports of LEU from Germany, the Netherlands, and the United Kingdom. In its Final Determination, Commerce calculated zero percent margins for Germany and the Netherlands and a de minimis margin for the United Kingdom. Final Determination, 66 Fed.Reg. at 65,888. The antidumping and countervailing duty determination covered all. LEU.1
Urenco Ltd. ("Urenco"), the Defendant-Intervenor in these cases, is a holding company located in the United Kingdom, which holds 100 percent of the stock in Urenco Deutschland GmbH ("UD"), located in Germany; Urenco (Capenhurst) Ltd. ("UCL"), located in the United Kingdom; Urenco Nederland B.V. ("UN"), located in the Netherlands; and Urenco Investments, Inc. Urenco Ltd. owns Urenco, Inc., a Delaware corporation that acts as Urenco Ltd.'s marketing arm and contracts representative in the United States, through Urenco Investments.
The parties' challenges are now ripe for adjudication.2 In the court's original Scheduling Order, the three judge panel decided, and the parties agreed, to address initially "general issues" affecting the Department's threshold determinations, to be followed later by case-specific issues, such as "challenges to the Department of Commerce's calculation results and methods." Scheduling Order at 6 (August 5, 2002). The threshold issues were decided by the three judge panel and the Federal Circuit in USEC I, USEC Eurodif I, Eurodif II, Eurodif III, Eurodif IV and Eurodif V.
The Federal Circuit in both Eurodif I and Eurodif II held that the separative work unit ("SWU") contracts for uranium enrichment there at issue were contracts for services and therefore not subject to the antidumping duty ("AD") laws, and that 19 U.S.C. § 1673 unambiguously applies to sales of goods and not senrices.3 Eurodif I, 411 F.3d at 1361-62; Eurodif II, 423 F.3d at 1276. The court in Eurodif I held that there was no transfer of title or ownership of the LEU from the utility to the enricher since the utility retains title to the quantity of the enriched uranium that it supplies to the enricher. Eurodif I, 411 F.3d at 1360. Pursuant to the court's remand in Eurodif III, and as upheld by this court in Eurodif V, Commerce's Final Results of Redetermination Pursuant to Court Remand (June 19, 2006) ("Remand Redetermination") amended the scope language in the original antidumping and countervailing duty order, thereby excluding uranium enrichment services contracts from the order. See Eurodif III, 414 F.Supp.2d at 1263; Eurodif V, 442 F.Supp.2d at 1367; Remand Redetermination.4 Contracts for sales of LEU are unaffected by the previous Eurodif cases, and remain within the scope of the antidumping duty order. At oral argument, the parties agreed that the calculational issues related to enrichment services contracts in these case numbers are not mooted because Commerce, on remand in consolidated court numbers 02-00219 and 02-00221, did not address these particular issues.
Familiarity with the courts' prior opinions is presumed.
In reviewing Commerce's antidumping' duty determinations, the court must sustain any determination, finding, or conclusion 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); Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed.Cir. 1996). "Substantal evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (internal citations omitted). The possibility of drawing two inconsistent conclusions from the same evidence does not mean that Commerce's findings are not supported by substantial evidence. Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed. 131 (1966).
When reviewing the Department's construction of the antidumping statutes, the court first considers whether Congress has spoken directly to the question at issue. Chevron U.S.A. v. Natural Res. Del Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If Congress has addressed the issue, then the court must follow the expressed intent of Congress. Id. However, if the issue has not been addressed by Congress, "the court does not simply impose its own construction on the statute ... [r]ather ... the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. In its analysis, the court need not conclude that the agency's construction is the only permissible construction, or even the reading the court would have reached, in order to find the agency's interpretation reasonable. Id. at 843 n. 11, 104 S.Ct. 2778 (citing FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981)). "[A] court must defer to an agency's reasonable interpretation of a statute even if the court might have preferred another." Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed.Cir. 1994).
To ascertain whether Congress has spoken on an issue, the court considers the plain text of the statute, canons of statutory construction, structure of the statute, and legislative history. Timex V.I. v. United States, 157 F.3d 879, 882 (1998).
The first four issues discussed infra are common to each of USEC's challenges with respect to LEU from Germany, the Netherlands, and the United Kingdom. Country-specific issues are discussed in Section V infra. Case number 02-00112 concerns LEU from the United Kingdom, 02-00113 LEU from Germany, and 02-00114 LEU from the Netherlands.
Commerce Made a "Fair Comparison" Between Urenco's U.S. Export Price and Normal Value Based on Period of Investigation Sales Data
USEC argues that Commerce failed to make a "fair comparison" between Export Price ("EP")5 and Normal Value ("NV")6 because its date-of-sale methodology allegedly prevented it from doing so. Brief of USEC Inc. and United States Enrichment Corporation in Support of Rule 56.2 Motion for Judgment on the Agency Record ("USEC's Motion") at 18, 24.7 USEC also claims that Commerce erred in calculating Urenco's EP by comparing, or "blending" POI data with a pre-POI sales contract, resulting in a higher price than the POI sale alone and manipulating the LTFV calculation. Id. USEC states that it raised its concerns as early as the initial petition, and that Commerce has been silent on this issue. Id. at 12-13. USEC seeks a LTFV recalculation based only on the price of Urenco's new U.S. sales during the POI, "net of any effect of pre-POI sales activity." Id. at 14. Commerce may deviate from its standard methodology and practice in making comparisons, USEC contends, if conforming to them would not be fair, and if a deviation would more fully comply with the overarching purpose of the Act. Id. at 26.
USEC further argues that quantities of LEU "sold" during the...
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