# Petition for Writ of Certiorari — USEC, Inc. v. Eurodif S.A. (Nos. 07-1078, 07-1059) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0068%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text $6 ~ FILED No. 07. 071078 FEB15 2008 adie OFFICE OF THE CLERK Supreme Court of the United States USEC INC. and UNITED STATES ENRICHMENT CORPORATION, Petitioners, v. EURODIF S.A.; COMPAGNIE GENERALE DES MATIERES NUCLEAIRES; COGEMA, INC.; AD HOC UTILITIES GROUP; and UNITED STATES, Respondents. On PETITION FOR A Writ oF CERTIORARI TO THE UNITED StaTEs Court OF APPEALS FOR THE FEDERAL CIRCUIT -_-—— PETITION FOR A WRIT OF CERTIORARI» SHELDON E. HocHBERG Counsel of Record Eric C. EMERSON CHARLES G. COLE MICHAEL A. VaTis JOHN P NOLAN STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 429-3000 Attorneys for Petitioners USEC Inc. and United States Enrichment Corporation 212923 ed COUNSEL PRESS (800) 274-3321 * (800) 359-6859 QUESTION PRESENTED The antidumping law allows for duties to be imposed on “foreign merchandise . . . sold in the United States at less than its fair value.” The Commerce Department construed that phrase as including transactions in which a U.S. customer furnishes cash and fungible raw material to a foreign producer and receives a substantially transformed finished product. The question presented in this case is whether the Federal Circuit erred in failing to accord Chevron deference to that construction, when a contrary one will prevent the Commerce Department from applying the antidumping law to imports causing or threatening material injury to a domestic industry. a0 RULE 29.6 STATEMENT USEC Inc. owns 100% of the stock of United States Enrichment Corporation. USEC Inc. has no parent corporation and no publicly held company owns 10% or more of its stock. USEC Inc. is a publicly held company whose stock is traded on the New York Stock Exchange under the symbol “USU”. il TABLE OF CONTENTS Page QUESTION PRESENTED .................. i RULE 29.6 STATEMENT ............ceeee0. ii TABLE OF APPENDICES .................. vi TABLE OF AUTHORITIES ................. viii ED © inns Videos dgnenwexcdwenbe 1 EE 60046 va dteecenénndesdednnse 1 STATUTORY PROVISIONS INVOLVED ..... 2 STATEMENT OF THE CASE ............... 3 I. STATUTORY BACKGROUND......... 4 II. FACTUAL BACKGROUND ........... 6 III. THE PROCEEDINGS BELOV ....... 8 A. The Commerce Proceedings ....... 8 B. CIT Review and Commerce’s Redetermination ...........scccee- 10 C. Federal Circuit Decisions on Interlocutory Review .............. 12 iv Contents Page D. Proceedings on Remand from the PUTED v ccdbdnecdcdbos vases 14 E. Final Federal Circuit Decision ..... 15 F. Proceedings Regarding Imports of EE ond euk ce eckednkvats oe 16 REASONS FOR GRANTING THE PETITION ..— 17 I. THE COMMERCE DEPARTMENT REACHED A REASONABLE CON- STRUCTION OF AN AMBIGUOUS STATUTORY PHRASE. ........cccees: 20 A. Congress Has Not Directly Spoken to the Question Presented in This GIG Nid écknnedveavacds iaeabeadiue 20 B. Commerce’s Construction of the Antidumping Statute Was _ RRR EP apie Fira n i SneS 22 1. The Term “Sale” Has Been Broadly Construed When Used in Regulatory Statutes. ........... 23 Vv Contents Page 2. Commerce’s Construction of the Antidumping Law Is Consistent With the Line Congress Has Drawn Between “Goods” and “Services” in a Relevant Trade DRL: vc ccccxnudéouwsdeeacaese 27 C. The Federal Circuit Departed From the Teachings of Chevron and ©. DOES oc Kudbwieeccdscnccbsuscnse 28 II. THIS CASE PRESENTS AN ISSUE WITH IMPORTANT NATIONAL SRT EMME Koc cccsscasvdecessyne 32 ee MTT TTT 37. vi TABLE OF APPENDICES Appendix A — Opinion Of The United States Court Of Appeals For The Federal Circuit Decided March 3, 2005 .................24.. Appendix B — Opinion Of The United States Court Of Appeals For The Federal Circuit Decided September 9, 2005 ................. Appendix C — Opinion And Judgment Of The United States Court Of Appeals For The Federal Circuit Decided September 21, DE See coe aad Cabbie wenden ces Appendix D — Final Determination By The Department Of Commerce Dated December een eda bw kukkeke’s6en oes Appendix E — Amended Final Determination By The Department Of Commerce Dated ee nc dcctaweveneesckeeens Appendix F — Opinion Of The United States Court Of International Trade Decided March ee eS, Se iv eneweees eee Appendix G — Final Remand Determination By The Department Of Commerce Dated June 23, EG LaCie ia dodbesceeeusiebeseetees vii Appendices Appendix H — Opinion Of The United States Court Of International Trade Decided ED DER EE Sede wccecenececoectccess Appendix I — Opinion And Order Of The United States Court Of International Trade Decided i ks dekh ane eee Appendix J — Order For Remand Of The United States Court Of International Trade Decided PG IPT OPT TE POT TT Terie er Appendix K — Final Results Of Redetermination By The Department Of Commerce Dated ae Appendix L — Opinion Of The United States Court Of International Trade Decided May 18, PPS ch db rensdindudetenesadshcananbeecs ne Appendix M — Final Results Of Redetermination By The Department Of Commerce Dated June 19, 2006............. Appendix N — Opinion Of The United States Court Of International Trade Decided August ETD At cide essd Reha sandseidnccduwknc nse ies ‘etl = 73, meee viii TABLE OF CITED AUTHORITIES Page CASES Atlantic Cleaners & Dyers, Inc. v. United States, ED dbs t a cceceeuduneneneues 31 Bershad v. McDonough, 428 F.2d 693 (7th Cir. 1970) ................. 21 Callery Properties v. FPC, 335 F.2d 1004 (5th Cir. 1964) ................ 25 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., ais cues etnseennnee passim Dist. of Columbia v. Carter, nc oss was ctadeusebwns 22 Environmental Defense v. Duke Energy Corp., SE ED bed ncescnsctvveboune 31 Eurodif S.A. v. United States, 411 F.3d 1355 (Fed. Cir. 2005) ............. passim Eurodif S.A. v. United States, 414 F. Supp. 2d 1263 (Ct. Int’l Trade 2006)... 14 Eurodif S.A. v. United States, 423 F.3d 1275 (Fed. Cir. 2005) ............. passim ix Cited Authovities Page Eurodif S.A. v. United States, 431 F. Supp. 2d 1351 (Ct. Int’) Trade 2006)... 14 Eurodif S.A. v. United States, 442 F. Supp. 2d 1367 (Ct Int'l Trade 2006) ... 15 Eurodif S.A. v. United States, 506 F.3d 1051 (Fed. Cir. 2007) ............. 1, 15,17 FDA v. Brown & Williamson Tobacco Corp., SPEED Sc ceed icccuncéscecscdens 22 Florida Power & Light Co. v. United States, 307 F.3d 1364 (Fed. Cir. 2002) ............. passim Gray v. Powell, re Pere eer 24, 25 Nat'l Park Hospitality Ass’n v. Dep’t of Interior, I icin cc dceeabewnntessees 30 National Cable & Telecommunications Ass’n v. Brand X Internet Services, Pee EE, ee divicccccnevceseseus passim NSK Ltd. v. United States, 115 F.3d 965 (Fed. Cir. 1997) ................ 13, 27 Puerto Rico v. Shell Co. (P-R.), ee tee ceeeiadens i a C ited Authorities SEC v. Nat'l Sec., Inc., 393 U.S. 453 (1969) ....... peseceecsesecs Skranak v. Castenada, 425 F.3d 1213 (9th Cir. 2005) ............. Techsnabexport v. United States, 515 F. Supp. 2d 1363 (Ct. Int’] Trade 2007) United Gas Improvement Co. v. Callery Properties, Inc., 382 U.S. 223 (1966) ............ eb United Gas Improvement Co. v. Continental Oil Co., ee ee ERNE) we vecccvsesccvccccecs United States v. Cleveland Baseball Co.., 532 U.S. 200 (2001) ......... cece eee eee United States v. Fausto, Se es PEED vivid vcccccccccsececes USEC Inc. v. United States, 259 F. Supp. 2d 1310 (Ct. Int’] Trade 2003) ... ~ USEC Inc. v. United States, 281 F. Supp. 2d 1334 (Ct. Int’l Trade 2003) ... USEC Inc. v. United States, Be GBs Be BU GUD o oc bccccccscccescess 1,12 ‘Smarutes 19 U.S.C. 19 U.S.C. 19 U.S.C. 19 U.S.C. 19 U.S.C. 19 U.S.C. 19 U.S.C. 19 U.S.C. 19 U.S.C. 19 U.S.C. 19 U.S.C. 28 U.S.C. 28 U.S.C. 41 U.S.C. 42 U.S.C. xi Cited Authorities Page EE dh veeecescneesdnceseseenbeess 2,5 PPT TeTTrerrer errr Te 2,5 Ach s concedtesueetsecescebun 2, 5- EEE $eCeccsvnsvacseccevcdos 5 NEED b60 ce0scocceredcusenune 6 PED wesrscdesasehesetunes bie 6 DT ¢éadinenseesseuctscideeteente 5 DEE kvccbecducedaneveccebeses 5 DE icivcernscysteudesuesne beeen 5 Ch wttdbitedeiagdnstenenes ; Oe DD cc0enssnneenesoteeepen 18, 27, 28 paneer: 1 TE ticnhaniceiseetsshnbnewe 12 Css capedcondheveuantid 13, 29 REE Wehbe ecb tnduvddcndnesesauess 6 xii Cited Authorities Page INTERNATIONAL AGREEMENTS Agreement Concerning the Disposition of Highly Enriched Uranium Extracted From Nuclear Weapons, U.S.—Russ., Feb. 18, 1993, Temp. State Dep’t No. 93-59, 1993 WL 152921 ...... 33 Amendment to the Agreement Suspending the Antidumping Investigation on Uranium From the Russian Federation, 73 Fed. Reg. 7705 (Dep’t of Commerce Feb. 11, 2008) .......... 35 ADMINISTRATIVE PROCEEDINGS Final Remand Determination, USEC Inc. v. United States (Dep’t of Commerce June 23, Eh ee bi dg oe eke acd bw se’ 3 passim Low Enriched Uranium from France (Dep’t of Commerce June 19, 2006) (final results of redetermination) ...............-.eeeeeeees 15 Low Enriched Uranium from France (Dep't of Commerce March 3, 2006) (final results of ee ee eeter 14 Low Enriched Uranium from France, 66 Fed. Reg. 65,877 (Dep’t of Commerce Dec. 21, 2001) (final affirmative determination) .......... passim xiii Cited Authorities Low Enriched Uranium from France, 67 Fed. Reg. 6,680 (Dep’t of Commerce Feb. 13, 2002) (amended final determination) .............. Uranium from the Russian Federation, 71 Fed. Reg. 32,517 (Dep’t of Commerce June EE et Uckccargll . bag bade ed &euis teks auae wes RULBS Py CE ED e005 bbicccccesccnsesoneud’s REGULATIONS SP Gs PEED bce cccccccecvcesscccssen MISCELLANEOUS Press Release, USEC, “USEC and U.S. Energy Department Sign Accord” (June 18, 2002) ... World Nuclear Ass’n, Information Paper: Uranium Enrichment (Oct. 2007) ........... Page 36 on USEC Inc. and United States Enrichment Corporation (collectively “USEC”) respectfully petition for a writ of certiorari to review the judgment of the Federal Circuit in this case. OPINIONS BELOW The final judgment of the court of appeals is reported at 506 F.3d 1051. (App. 31a). The question presented by this petition was raised and decided on interlocutory appeal; the court of appeals’ judgment on interlocutory appeal is reported at 411 F.3d 1355 (App. la), affirmed on rehearing at 423 F.3d 1275 (App. 24a). The decision of the U.S. Court of International Trade from which interlocutory appeal was taken is reported at 281 F. Supp. 2d 1334 (App. 268a). The Department of Commerce’s original determination is reported at 66 Fed. Reg. 65,877, (App. 41a), and its redetermination following initial judicial review, (App. 147a), is available at http://ia.ita.doc.gov/remands/ 03-34.pdf. JURISDICTION The judgment of the court of appeals was entered on September 21, 2007. Extensions of the time for filing a petition for writ of certiorari were granted by Chief Justice Roberts on December 11, 2007, and January 15, 2008. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). 2 STATUTORY PROVISIONS INVOLVED Section 1673 of Title 19, U.S. Code (2000), provides in relevant part that: If-— (1) the administering authority determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and (2) 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 an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise. 3 STATEMENT OF THE CASE At issue is a fundamental question with regard to the scope of the antidumping law of the United States: whether the Commerce Department can reasonably determine that imported foreign merchandise has been “sold” within the meaning of that law where a foreign producer receives fungible raw material and cash from a U.S. customer and delivers a substantially transformed finished product. ; Based on the totality of the circumstances, the | Commerce Department concluded that the transactions in this case—involving low enriched uranium— constituted sales of merchandise under the antidumping law. Because the transactions were found to have taken place at dumped prices and to have injured a U.S. industry, the Department imposed off-setting duties. The Federal Circuit, however, reversed Commerce’s determination, concluding that the transactions involved sales of services outside the scope of the antidumping law. It relied on its own interpretation of certain provisions of the contracts as creating a continuous chain of title in the buyer to the raw materials and finished product. The court’s decision was subsequently implemented so as to exclude imports made pursuant to such contracts from the scope of the antidumping order. The Federal Circuit’s decision was clearly improper under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), as it usurped the Commerce Department’s authority to interpret and apply ambiguous terms in a statute the Department is responsible for administering. By giving conclusive 4 effect to the contract terms drafted by the foreign producer and U.S. customer, and ignoring the circumstances of the transactions and the purposes of the antidumping law, the decision undermines the ability of the Commerce Department to fulfill its statutory mission of protecting U.S. industries from unfairly priced imports. At the same time, the decision threatens a historic disarmament agreement between the United States and Russia. This agreement uses the U.S. commercial nuclear fuel market as a channel to facilitate the conversion of nuclear weapons of the former Soviet Union to peaceful use—an objective that will be jeopardized if that market is disrupted by unfairly priced imports of enriched uranium. Such market disruption would also threaten the viability of the sole remaining domestic uranium enrichment facility, as well as a project to build a new enrichment facility employing a more advanced enrichment technology, both of which utilize the only U.S. enrichment technologies available to meet U.S. defense needs. Thus, the Federal Circuit’s decision—indefensible under Chevron—has enormous implications for both the scope of the antidumping law and U.S. energy security and non-proliferation objectives. I. STATUTORY BACKGROUND “Dumping” describes the practice of international price discrimination whereby a producer or exporter sells its merchandise in an export market at less than fair value. The U.S. antidumping regulatory framework is embodied in the Tariff Act of 1930, as amended. The Tariff Act defines “dumping” as “the sale or likely sale 5 of goods at less than fair value,” 19 U.S.C. § 1677(34) (2000).' The Act provides that, when “foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value,” and when those sales are found to cause or threaten to cause “material injury” to an industry in the United States, antidumping duties shall be imposed on imports of that merchandise. /d. § 1673. The Department of Commerce and the United States International Trade Commission are jointly responsible for administering the antidumping law. Commerce determines whether foreign merchandise is being sold in the United States at less than its fair value, id. §§ 1673(1), 1677(1), and the Commission determines whether a domestic industry producing a product “like” the imported merchandise has been materially injured or threatened with material injury. Jd. § 1673(2). Upon the filing of a petition by an affected domestic industry, both agencies conduct their own investigations, and if both agencies make affirmative final determinations, Commerce will issue an antidumping duty order. /d. § 1673d(c)(1). In its investigation, Commerce calculates a dumping margin based on the “normal value,” which is generally determined by reference to the prices at which the producer or exporter sells the same goods in its home market or in third-country markets. The dumping margin is the amount by which the normal value exceeds the U.S. price of the subject merchandise. /d. § 1677b. Importers of merchandise subject to antidumping duty orders must then pay cash deposits in the amount of this dumping margin in order to enter that merchandise into the United States. 1. Unless otherwise indicated, all references to the United States Code are to the 2000 edition. 6 Id. § 1673e(a)(3). The actual amount of duty owed on particular imports is determined retrospectively through administrative reviews that may be requested on an annual basis. Jd. § 1675(a)(1). II. FACTUAL BACKGROUND Nuclear power plants generate approximately 20% of the electricity consumed in the United States each year. The fuel for these plants is fabricated from low enriched uranium (“LEU”), which typically is produced through a process of enrichment. Enrichment involves increasing the level of fissionable U,,. from 0.711% (the percentage by weight found in natural uranium) to levels that will sustain a chain reaction needed to generate electricity (generally 3-5%). Uranium in which'the U,,. content has been enriched to a level of 20% or more is weapons-grade material and is referred to as “highly enriched uranium” or “HEU.” The United States has only one plant in operation that produces LEU for nuclear fuel. This plant is owned by the U.S. government and operated by USEC pursuant to a lease entered into under the terms of the USEC Privatization Act of 1996, 42 U.S.C. § 2297h. Companies that produce LEU such as USEC and the French company in this case, Eurodif S.A., are called “enrichers.” Transactions between enrichers and their utility customers generally involve one of two types of contracts: “EUP” contracts (or “enriched uranium product” contracts) or “SWU” contracts (“separative work unit” contracts). There is no difference in the LEU that is produced and deliverea to the customer in the two transactions. 7 In an.E UP transaction, the utility contracts for the delivery of LEU and pays a cash price that covers the entire value of the LEU. There is no dispute that LEU imports pursuant to EUP contracts involve sales of merchandise subject to the antidumping law. In a SWU transaction, the utility also contracts for the delivery of LEU, but pays cash and delivers raw material (natural, or “unenriched,” uranium) to the enricher. There is no requirement in the contract that the LEU be produced from the unenriched uranium delivered by the customer. Because of the nature of the production process’ and the fact that natural uranium is fungible and is not physically segregated by the enricher according to who supplied it, the LEU delivered to a customer is not produced from the batch of natural uranium delivered by that customer. Enrichers continuously produce LEU from their fungible inventory of unenriched uranium, and the LEU delivered by an enricher may have been produced even before the utility provided any natural uranium pursuant to its contract or even before the order for the LEU was placed. App. 49a, 219a. 2. Both USEC and Eurodif use the gaseous diffusion method for producing LEU. Their plants are among the largest industrial plants in the world. The gaseous diffusion process involves continuously forcing and recycling uranium hexafluoride gas under pressure through more than 1,000 cascades, each of which contains porous membranes or diaphragms. As U,,. molecules are lighter than the U,,, molecules that are also contained in uranium as it comes out of the ground, the process results in two streams of gas, one slightly enriched in U,,, and one that is somewhat depleted in U,,.. See World Nuclear Ass'n, Information Paper: Uranium Enrichment (Oct. 2007), http:// www.world-nuclear.org/info/inf28.htm!. 8 Ill. THE PROCEEDINGS BELOW A. The Commerce Proceedings On December 21, 2001, following a year-long antidumping investigation, Commerce published a notice of final determination regarding LEU from France. Low Enriched Uranium from France, 66 Fed. Reg. 65,877 (Dep’t of Commerce Dec. 21, 2001) (App. 41a), as amended, 67 Fed. Reg. 6,680 (Dep’t of Commerce Feb. 13, 2002) (App. 90a) (collectively “Final Determination”). In its Final Determination, the Department found that LEU from France was being sold, or was likely to be sold, in the United States at less than fair value. In addition, the U.S. International Trade Commission determined that the domestic uranium enrichment industry was being injured or was likely to be injured by the foreign imports. As a result of these determinations, Commerce issued an antidumping duty order with regard to imports of French LEU. The Department calculated an antidumping duty rate of 19.95 percent.’ 3. At the same time Commerce also issued an affirmative countervailing duty determination (7.e., a determination regarding subsidies provided by foreign governments to the production of the imported merchandise) involving LEU from France, as well as affirmative countervailing duty determinations involving LEU produced by another foreign enricher and imported from Germany, the Netherlands, and the United Kingdom. While the initial appeals involved those countervailing duty determinations as well as the antidumping duty determination on LEU from France, the countervailing duty orders have either been revoked or are not at issue here. 9 The central issue in the antidumping proceeding before Commerce, and in the subsequent appeals to the U.S. Court of International Trade (CIT) and Federal Circuit, was whether LEU imports pursuant to SWU transactions constituted sales of merchandise, subject to the antidumping law, or sales of services, outside the scope of that law. Commerce concluded that all LEU entering the United States from France was subject to the antidumping law “regardless of the way in which the sales for such merchandise were structured,” App. 47a, 54a, and that this conclusion furthered Congress’s intent in enacting the antidumping law. App. 63a. Commerce found that enrichment accounts for 60% of the value of the LEU, and that it substantially transforms the unenriched uranium, thereby creating a “new and different article of commerce.” App. 62a-63a. The Department also noted that imports under. either form of contract involve trade in goods, and that exclusion of imports pursuant to “contract manufacturing” from the scope of the antidumping law would have “profound implications for the international trading system as a whole” by enabling parties to convert “trade in goods into trade in so-called ‘manufacturing services’.... We simply do not consider a major manufacturing process to be a ‘service’ in the same sense that activities such as accounting, banking, insurance, transportation and legal counsel are considered by the international trading community to be services.” App. 63a-64a. The Department found that the overall arrangements in both EUP and SWU transactions involved the sale of LEU and that “{iJn reaching this 10 conclusion, we have looked beyond the four corners of the contract and have examined the totality of the circumstances surrounding the transactions... .” App. 80a. Accordingly, the antidumping order applied to all imports of LEU from France, including imports pursuant to SWU contracts. B. CIT Review and Commerce’s Redetermination Eurodif S.A., the foreign enricher in this case, contested Commerce’s Final Determination before the Court of International Trade. Eurodif argued that the importation of LEU pursuant to SWU transactions involved sales of services outside the scope of the antidumping law. Its arguments were based, in part, on Commerce’s “tolling” regulation, 19 C.F.R. § 351.401(h) (2007). A tolling arrangement is one in which the tollee provides raw materials to the toller, who produces finished merchandise that is delivered to the tollee. The regulation provides guidance as to which entity’s prices and costs (7.e., the toller’s or the tollee’s) will be examined in determining whether dumping has occurred. The CIT agreed with Commerce that the tolling regulation does not exempt imported merchandise from antidumping proceedings. USEC Inc. v. United States, 259 F. Supp. 2d 1310, 1325 (Ct. Int’l Trade 2003) (App. 131a). Nevertheless, the CIT remanded the case to Commerce for reconsideration of how the tolling regulation affected the Department’s conclusion that transactions under SWU contracts involved a sale of goods, not services. 1] On remand, the Department considered both the tolling regulation and its prior precedent, and reexamined the extensive evidence of record regarding how SWU transactions were actually implemented. Final Remand Determination, USEC Inc. v. United States (Dep’t of Commerce June 23, 2003) (App. 147a). The Department found that these transactions involve “the transfer of ownership [from the enricher to the utility] in the complete LEU product for consideration,” App. 217a, and constituted a sale of merchandise. App. 219a-220a. Commerce explained that the enricher “hold[s] inventories of uranium from various sources, including uranium owned by the enricher itself, and produce[s] LEU without relying solely upon the input from a particular customer.” App. 221a. Commerce found that the enricher, not the customer, owns the LEU from the time it is produced until the time it is delivered “because the LEU produced by the enricher cannot be identified as having been derived from the feedstock provided by any particular custemer.” App. 219a. Further, the record indicates that LEU delivered to a utility customer by an enricher under an enrichment contract may be produced before any natural uranium supplied by that customer could have been part of the production process for that LEU, thereby making it impossible to conclude that the LEU produced and delivered by the enricher is in any way derived from the uranium supplied by the customer. Id. Based on these factors, Commerce concluded that the delivery of LEU pursuant to SWU transactions involves a sale of merchandise subject to the antidumping law. App. 222a. 12 The CIT, on review, rejected the Department’s conclusion. USEC Inc. v. United States, 281 F. Supp. 2d 1334 (Ct. Int’] Trade 2003) (App. 268a). Focusing exclusively on the provisions of the SWU contracts, rather than the total evidence of record considered by the Department, the CIT found that the contracts create a “legal fiction” that the natural uranium delivered by the utility is enriched by the enricher and returned as LEU to the utility, and “suggest an intention to establish a continuous chain of ownership in the utility. ...” App. 277a. In the CIT’s view, regardless of the facts of the enrichment process and how SWU transactions are implemented, “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.” App. 278a. C. Federal Circuit Decisions on Interlocutory Review The parties then sought and obtained an order from the CIT permitting an interlocutory appeal to the Federal Circuit pursuant to 28 U.S.C. § 1292(d)(1). USEC Inc. v. United States, 27 C.1.T. 1925 (2003) (App. 306a). The Federal Circuit granted the interlocutory appeal and affirmed the CIT’s decision. Furodif S.A. v. United States, 411 F.3d 1355, 1361-64 (Fed. Cir. 2005) (“EFurodif I’) (App. 11a-21a). In evaluating what it referred to as “[t]he [c Jharacterization of [e |nrichment(cjontracts,” App. 12a, the Federal Circuit placed central reliance on a previous case in which the court was called upon to characterize 13 U.S. Government SWU contracts under a different statute, the Contract Disputes Act (CDA), 41 U.S.C. § 601, et seq. (1988), to determine whether interest was payable on certain judgments against the United States, Florida Power & Light Co. v. United States, 307 F.3d 1364 (Fed. Cir. 2002). In that case, the court had agreed with the government’s argument that contracts for the enrichment of uranium by the Department of Energy were service contracts not covered by the CDA. App. 15a-16a. The court below extended Florida Power’s contract-based approach to this case. In its view, “the contracts in this case” made clear that ownership of neither the natural uranium nor the LEU was “meant to be vested in the enricher during the relevant time periods that the uranium is being enriched.” App. 15a. “As a result, the ‘transfer of ownership’ required for a sale under [NSK Ltd. v. United States, 115 F:3d 965 (Fed. Cir. 1997)] is not present here.” App. 15a. USEC and the United States then sought rehearing and rehearing en banc, in part based on the court’s improper reliance on Florida Power as a basis for failing to defer to Commerce’s construction of the antidumping statute. Subsequent to those filings, this Court handed down its decision in National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005), which clarified that a court must defer to an agency’s construction of a statute even if the court had reached a different interpretation in a prior judicial decision unless that prior decision had found that the statute compelled the court’s interpretation. /d. at 982-85. USEC and the United States brought this decision to the attention of the court in a Rule 28(j) letter. See Fed. R. App. P 28(j). The Federal Circuit denied rehearing en banc, but granted rehearing for the limited purpose of addressing the 14 applicability of the Brand X decision. While acknowledging that under Brand X deference would be due to Commerce if the antidumping statute were ambiguous, the court stated, “We now clarify ... that the antidumping statute unambiguously applies to the sale of goods and not services.” Eurodif S.A. v. United States, 423 F.3d 1275, 1278 (Fed. Cir. 2005) (“E’'urodif IT’) (App. 28a). D. Proceedings on Remand from the Federal Circuit Following remand to Commerce, Eurodif S.A. v. United States, 414 F. Supp. 2d 1263 (Ct. Int’l Trade 2006) (App. 317a), Commerce stated that it would not assess antidumping duties on imports under SWU transactions. It concluded, however, that it need not amend the scope of the antidumping order because LEU imported pursuant to SWU transactions is physically indistinguishable from imports of LEU pursuant to EUP transactions that would continue to be covered by the order. Rather, in future administrative reviews it would examine the facts of record regarding particular imports and apply the Federal Circuit decisions to those imports. Low E'nriched Uranium from France, (Dep’t of Commerce March 3, 2006) (final results of redetermination) (App. 320a). On appeal, the CIT rejected Commerce’s approach and ordered it to modify the scope of the antidumping duty order to exclude all entries of French LEU imported pursuant to SWU transactions. Eurodif S.A. v. United States, 431 F. Supp. 2d 1351 (Ct. Int’l Trade 2006) (App. 327a). 15 Commerce then adopted language limiting the scope of the antidumping order, while continuing to note its disagreement with both the Federal Circuit’s decisions in Eurodif J and IJ and the CIT’s rejection of its first redetermination. It also specified a form by which the French enricher and U.S. utility customer could certify that particular imports met the conditions for exclusion from the order. Low Enriched Uranium from France, (Dep’t of Commerce June 19, 2006) (final results of redetermination). (App. 340a). E. Final Federal Circuit Decision Following the CIT’s affirmance of Commerce’s second redetermination, Fwrodif S.A. v. United States, 442 F. Supp. 2d 1367 (Ct Int’l Trade 2006) (App. 356a), the United States and USEC again appealed to the Federal Circuit. The United States argued that the CIT had erroneously rejected Commerce’s first redetermination approach. USEC argued that the determination whether particular imports of LEU were excludable from the order pursuant to the Federal Circuit’s earlier decision should be affected by certain additional factors, e.g., whether an affiliate of the enricher supplied the unenriched uranium in the transaction and whether the unenriched uranium was delivered to the enricher after the delivery of the LEU to the utility customer. The Federal Circuit concluded that both appeals raised issues that could best be resolved when particular facts were at issue, and dismissed the appeals as unripe. Hurodif S.A. v. United States, 506 F.3d 1051 (Fed. Cir. 2007) (App. 31a). 16 With the Federal Circuit’s dismissal of the appeals, the Federal! Circuit’s interlocutory decisions in Furodif I and Furodif IT have now become incorporated in a final judgment. Absent review by this Court, those decisions will become the governing law regarding the dividing line between trade in goods that are subject to the antidumping law and trade in services that are outside the scope of the antidumping law. F. Proceedings Regarding Imports of Russian LEU The impact of the Federal Circuit’s decisions is already being felt in another important antidumping case. It is one that has significant implications for the continued successful implementation of a bilateral program for the importation of Russian LEU derived from the dismantling of nuclear weapons of the former Soviet Union. The case involves an antidumping investigation ints uranium imported from Russia that was suspended in 1992 as a result of an agreement between the United States and Russia. The agreement currently limits imports of Russian LEU but permits the importation of LEU that has been produced through a process of down-blending the highly enriched uranium in the weapons material with uranium with a much lower U,,. content. In the pending case, Commerce has conducted a sunset review and concluded that terminating the suspension agreement would likely lead to the continuation or recurrence of dumping. Uranium from the Russian Federation, 71 Fed. Reg. 32,517 (Dep’t of Commerce June 6, 2006). 17 On September 27, 2007, however, in light of the Federal Circuit’s decisions in Furodif, the CIT remanded that determination and directed Commerce to exclude future imports of Russian LEU pursuant to SWU transactions from the scope of that case. Techsnabexport v. United States, 515 F. Supp. 2d 1363 (Ct. Int’l Trade 2007). On December 21, 2007, Commerce filed the results of its remand with the CIT. In its remand results, Commerce applied the Eurodif precedent, and concluded based on the specific facts in that review that dumping would likely continue or recur if the suspended investigation were terminated. Other parties in the case, including an association of U.S. utilities and the Russian exporter of LEU, have filed comments with the Court of International Trade urging the court to expressly direct Commerce to explicitly exclude all imports of Russian LEU pursuant to SWU contracts from the case. The court has not yet ruled on Commerce’s remand determination. REASONS FOR GRANTING THE PETITION The Federal Circuit’s decisions improperly narrow the scope of the antidumping statute. They significantly limit the protection that law was meant to afford to domestic producers from injurious, unfairly priced imports. Because of the Federal Circuit’s exclusive role in the appellate review of antidumping cases, its decisions will conclusively decide the question presented absent review by this Court. The antidumping statute clearly applies to sales of merchandise, but it does not define when merchandise is “sold.” In particular, Congress has not “directly spoken 18 to the precise question at issue” in this case: whether the statute encompasses import transactions where the U.S. customer supplies cash and raw materials to the foreign producer and the foreign producer delivers a substantially transformed finished product. In this circumstance, the Federal Circuit’s failure to defer to Commerce’s reasonable construction of the statute is fundamentally inconsistent with Chevron, 467 US. 837. The Department considered the language and purpose of the antidumping law and examined the “totality of the circumstances” to determine that the import transactions in this case constitute sales of merchandise under the antidumping statute. The reasonableness of that construction is illustrated by cases interpreting other regulatory statutes applying to the “sale” or “purchase” of goods, where courts have interpreted such terms broadly— looking beyond the formalities of the contract—to effectuate the regulatory purposes of the statute at issue. Moreover, Commerce’s approach to the dividing line between what constitutes a transaction involving goods, rather than one involving services, is consistent with how Congress has drawn that line in another trade statute. See 19 U.S.C. § 2114b(5) (defining “services” as “economic activities whose outputs are other than tangible goods” for purposes of delineating the U.S. Trade Representative’s authority for negotiating international agreements on trade in services). Rather than deferring to the Commerce Department’s reasonable construction of the antidumping law, the Federal Circuit placed significant weight on its own characterization of U.S. government SWU contracts in Florida Power, a case that arose under a different statute with a different 19 purpose. The court’s approach would remove imported merchandise from the scope of the antidumping law based solely on the manner in which the parties choose to structure their transaction—a result that the Commerce Department reasonably concluded could not have been intended by the Congress. Finally, the Federal Circuit’s decisions are having a significant impact beyond the immediate case. By removing antidumping constraints on LEU imports when SWU contracts are employed, the Federal Circuit’s decisions jeopardize conditions of fair pricing in the U.S. LEU market. This in turn threatens the continued successful implementation of a historic agreement between the United States and Russia for the importation of LEU down-blended from nuclear weapons of the former Soviet Union. In addition, by removing legal constraints on unfairly priced LEU imports, the decision also threatens market disruption that could undermine the viability of the only operating U.S. — enrichment plant, and jeopardize initiatives to expand — U.S. capacity to produce enriched uranium. Such initiatives include a multi-billion dollar project now being deployed by USEC at U.S. government facilities pursuant to agreements with the Department of Energy using the only advanced U.S. enrichment technology available to meet future U.S. defense needs. 20 I. THE COMMERCE DEPARTMENT REACHED A REASONABLE CONSTRUCTION OF AN AMBIGUOUS STATUTORY PHRASE. This petition presents a classic example of the trouble that a federal appellate court can cause when it fails to follow the basic framework of Chevron. Under that decision, the court must first determine whether the Congress has “directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. If not, then the court must “not simply impose its own construction on the statute as would be necessary in the absence of administrative interpretation,” but must defer to a “permissible construction of the statute” by the agency. Id. at 843 (citation omitted); see National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 980 (2005) (“If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction . . . even if the agency’s reading differs from what the court believes is the best statutory interpretation.”). Here, the Federal Circuit failed to follow this funde#mental principle. A. Congress Has Not Directly Spoken to the Question Presented in This Case. The antidumping law does not define the terms “merchandise” or “sold,” and Congress has not spoken directly to the precise question at issue here. There is no explicit congressional guidance as to whether the phrase “foreign merchandise ... sold” includes transactions such as the ones at issue here: where the U.S. customer supplies cash and raw materials to the 21 foreign producer and the foreign producer delivers a substantially transformed finished product. In Eurodif II, the Federal Circuit concluded that “the antidumping statute unambiguously applies to the sale of goods and not services.” App. 28a. But this conclusion missed the central point. No one contests that the statute applies to the sale of goods and not services. The question is what “sale of goods” (or, more precisely, “merchandise . . .sold”) means, and whether that phrase encompasses transactions like the ones at issue in this case. On that issue the statute is ambiguous. This Court has previously held that analogous statutory terms were ambiguous. For example, this Court has concluded that whatever the term “sale” may mean in other contexts, its meaning in the Securities Exchange Act of 1934 was not unambiguous and required an examination of the Act’s purpose and its relation to the particular conduct at issue. SEC v. Nat'l Sec., Inc., 393 U.S. 453, 466-67 (1969). As the circuit courts have - similarly observed, “(t]he phrase ‘any purchase and sale’ ... is... not to be limited or defined solely in terms of commercial law of sales and notions of contractual rights and duties.” Bershad v. McDonough, 428 F.2d 693, 696- 67 (7th Cir. 1970) (collecting cases). ““Whatever the terms “purchase” and “sale” may mean in other contexts,’ they should be construed in a manner which will effectuate the purposes of the specific section of the Act in which they are used.” /d. (quoting SEC. v. Nat'l Sec., Inc., 393 U.S. at 467 (alteration in original omitted)). 22 This is consistent with a more general principle: “In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). “[WJords generally have different shades of meaning, and are to be construed if reasonably possible to effectuate the intent of the lawmakers; andj this meaning in particular instances is to be arrived at, not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law, and the circumstances under which the words were employed.” Dist. of Columbia v. Carter, 409 U.S. 418, 420 (1973) (quoting Puerto Rico v. Shell Co. (PR.), 302 U.S. 253, 258 (1937)). B. Commerce’s Construction of the Antidumping Statute Was Reasonable. Given the antidumping statute’s silence as to how the phrase “merchandise ... sold” should be applied where a customer supplies raw materials to a foreign producer and in exchange receives a finished product, Commerce appropriately considered the statute’s underlying purpose and the totality of the circumstances relating to the SWU transactions. On that basis it reasonably concluded that, like imports of identical LEU under EUP contracts, LEU imports pursuant to SWU transactions involved a sale of merchandise. Commerce’s approach in this regard was consistent with precedent in other regulatory settings where agencies and reviewing courts had to determine if a “sale” subject to 23 the regulatory statute had taken place, and other indicia of how Congress wants the line drawn in international commerce between what constitutes trade in goods and what constitutes trade in services. 1. The Term “Sale” Has Been Broadly Construed When Used in Regulatory Statutes. Many regulatory statutes apply to “sales” of goods between contracting parties. In interpreting the reach of such statutes, regulatory agencies and cour’s have looked beyond the contract language to determine whether a “sale” or “purchase” subject to the regulatory regime has taken place, and have given due regard to the realities of the transaction at issue and the purpose of the underlying statute. For example, in United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 392-400 (1965), the Court held that the phrase “sale in interstate commerce of natural gas” in the Natural Gas Act applied to a transaction in which the pipeline company did not purchase natural gas, but rather leased gas fields and arranged for the production of gas by another company. Because there was no transfer of title to the gas, the pipeline claimed there was “no sale.” Nevertheless, this Court upheld the Federal Power Commission’s decision that the Natural Gas Act applied. It found that the transaction was “very close in economic effect to conventional sales of natural gas,” id. at 396. The Court stressed the importance of not undermining a regulatory 24 act’s scope by applying overly technical interpretations of “sale” under local law: Without impugning in any way the good faith and genuineness of the transactions, we think it clear that the lease-sales here in question can nonetheless be considered “sales” of natural gas in interstate commerce for purposes of the Act. A regulatory statute such as the Natural Gas Act would be hamstrung if it were tied down to technical concepts of local law. Id. at 400 & n.7. The Court further stressed the need to interpret statutory terms “by reference ‘to the purpose of the Act and the facts involved in the economic relationship’ rather than exclusively by reference to common law standards or local law.” Jd. The Court in United Gas Improvement relied on the “closely analogous” case of Gray v. Powell, 314 U.S. 402 (1941). In Gray, a railroad leased coal mines, mined the coal using a contractor, and then consumed the coal in its own operations. The railroad argued that it was not subject to the price controls of the Bituminous Coal Act of 1987 because there had been no “sale or other disposal” of coal within the meaning of the Act. Specifically, the railroad pointed out that, “as lessee of the mineral rights [the railroad] is the owner of the coal when it is extracted and until it is consumed and therefore no title ever passes” from the independent contractor to the railroad. The Court rejected this focus on title as the basis for identifying a “sale or other disposal” of goods, holding that “the purpose of Congress, 7? 25 which was to stabilize the industry through price regulation, would be hampered by an interpretation that required a transfer of title, in the technical sense, to bring a producer’s coal, consumed by another party, within the ambit of the coal code.” 314 U.S. at 416.‘ Indeed, courts have found a sale of goods for regulatory purposes even where there was no delivery of goods at all. In Callery Properties v. FPC, 335 F.2d 1004, 1021 (5th Cir. 1964), the court held that the Federal Power Commission could find a sale of natural gas based on payments under take-or-pay contract provisions even when no natural gas was delivered. “When viewed realistically in light of the imperative necessity for long term gas supply commitments, we agree with the Commission that this arrangement constitutes a sale within its power of regulation.” The Supreme Court later expanded the relief granted, but did not disturb the ruling on the scope of “sale.” United Gas Improvement Co. v. Callery Properties, Inc., 382 U.S. 223 (1966). Just as the agencies in those cases, Commerce here looked to the purpose of the antidumping statute and the characteristics of the transactions in concluding that asale of merchandise occurred. As Commerce concluded in its Final Determination, “Congress did not intend the {antidumping} and [countervailing duty] laws to be applicable to merchandise based upon the way in which parties structure their transactions. .. .” App. 65a. ae 4. In addition, the Court rejected the rail: 2ad’s claim that it was the “producer” of the coal within the meaning of the Act’s exemption for coal “consumed . . . by the producer’”: “To determine upon which side of the median line the particular instance falls calls for the expert, experienced judgment of those familiar with the industry.” Gray, 314 U.S. at 413. 26 These cases show that, in order to assure the effectiveness of a regulatory scheme, this Court has found a sale of goods even when there was no contractual transfer of title to the goods. Similarly, here Commerce reasonably could conclude that application of the antidumping law should not be undermined by the “legal fiction” in the parties’ contracts that the customer retains title to a quantum of raw material until it receives the LEU. Commerce’s conclusion is particularly reasonable in light of the facts found by the Department (and not disputed by the CIT or Federal Circuit): ¢ the enricher produces a new and substantially transformed product (LEU) from commingled fungible unenriched uranium (App. 62a-63a, 69a, 218a); ¢ the LEU is not produced from the raw material delivered by the customer—and may even have been produced before the customer delivered the unenriched uranium (App. 219a);° and ¢ from the time of production through the time of delivery of the imported LEU to the customer, no customer could claim ownership of the delivered LEU (App. 219a). 5. Indeed, there is no requirement under aSWU contract that the enricher produce anything in response to the customer’s order. An enricher may fill the order with LEU produced in the past or with LEU obtained from third parties, as is the case with USEC’s delivery of Russian LEU down-blended from nuclear weapons of the former Soviet Union. This further indicates that the object of the transaction is not a service to be performed by the enricher on the customer’s property, but rather the supply of LEU by the enricher—the same object as in the case of an EUP contract. 27 Thus, even in light of the definition of sale in prior Federal Circuit case law—“a transfer of ownership to an unrelated party and consideration,” NSK Ltd. v. United States, 115 F.3d 965, 975 (Fed. Cir. 1997)—a “sale” could reasonably have been found here. Certainly, under the broad view of “sale” taken by this Court and the regulatory precedents cited, the Department’s construction was permissible. 2. Commerce’s Construction of the Antidumping Law Is Consistent With the Line Congress Has Drawn Between “Goods” and “Services” in a Relevant Trade Statute. The proper interpretation of a law may be affected by a later enacted statute not directly amending the statute at issue. See, e.g., United States v. Fausto, 484 U.S. 439, 453 (1988) (“This classic judicial task of reconciling many laws enacted over time, and getting them to ‘make sense’ in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute.”). That principle of interpretation is relevant here. An indication of congressional intent as to the dividing line for international trade purposes between trade in services and trade in goods is the provision of U.S. trade law, enacted in 1984, that authorizes the U.S. Trade Representative to negotiate trade agreements covering services. 19 U.S.C. § 211 4a. It defines “services” as “economic activities whose outputs are other than tangible goods.” Jd. § 2114b(5). Congress’s view that an economic activity resulting in the output of a tangible 28 good does not constitute a “service” for international trade purposes further supports the reasonableness of Commerce’s interpretation that SWU transactions— which unquestionably involve the production and importation of a tangible good—do not constitute the provision or sale of a service. Indeed, the Federal Circuit’s ruling creates a gap in Congress’s allocation of responsibilities for international trade matters. The USTR has authority to negotiate trade agreements covering “services,” which § 2114b(5) defines as not including economic activities whose outputs are tangible goods. As that definition makes clear, this authority covers such traditional services as banking, insurance, and advertising, but plainly does not cover manufacturing or processing that yields a tangible good, whether it is enriched uranium, a sophisticated computer chip, or a machine tool. Thus, the Federal Circuit has created a situation in which some key economic activities that result in imports into the United States are neither subject to the Commerce Department’s jurisdiction under the antidumping law as sales of goods nor subject to the authority of the USTR to negotiate rules covering such imports under international agreements relating to services. C. The Federal Circuit Departed From the Teachings of Chevron and Brand X. Rather than deferring to Commerce’s reasonable construction of the phrase “merchandise . . . sold” in the antidumping statute, the Federal Circuit focused on how the court itself had characterized SWU transactions in its own Florida Power decision. In that case, the court 29 was presented with the question of whether SWU contracts between the Department of Energy and US. utilities should be considered sales of goods or sales of services under the Contract Disputes Act, 41 U.S.C. § 601, et seg. (1988). The court found that the transactions had aspects of both categories: “In light of the evidence that DOE used feed material from other customers, and sometimes its own feed material, to fulfill a particular ... order of enriched uranium, this case does not fall neatly into either the above categories. ...” See Florida Power & Light Co. v. United States, 307 F.3d 1364, 1373 (Fed. Cir. 2002) (emphasis added). Despite its recognition in Florida Power that SWU transactions do not “fall neatly” on either side of the goods/services divide, the Federal Circuit in Eurodif I treated this issue as having been decisively resolved: “Holdings of this court are no less decisive because they may have been difficult to develop.” App. 17a. But that very “difficulty” in characterizing the DOE SWU contracts reflects ambiguity—precisely the sort of ambiguity that, when applied to this case, should have signaled to the court its duty to defer to Commerce's reasonable construction. But, on rehearing, the Federal Circuit nevertheless insisted that its decision in Florida Power was entitled to persuasive weight.° The court’s reliance on Florida Power was improper for two fundamental reasons. First, Florida Power interpreted an entirely different statute—the Contract Disputes Act. That statute is focused on delineating the rights of the parties to the contract relative to each other. 6. See Eurodif I], at App. 28a (noting that in Ewrodif J the court had found Florida Power to be “persuasive” authority). 30 See Nat'l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 805 (2003) (“The CDA establishes rules governing disputes arising out of certain Government contracts.”). This case, however, involves the Commerce Department’s construction of the antidumping statute, the purpose of which is to protect nonparties to the import contracts—domestic producers that must compete with imports from foreign producers. In this context, contract provisions cannot be given dispositive weight. Given the starkly different purposes of the statutes at issue in Florida Power and here, reliance on that case was unwarranted.’ Second, even if Florida Power had interpreted the antidumping statute, its conclusion could not justify the court’s refusal to give deference to Commerce’s reasonable interpretation of the statute unless it was clear that Congress had unambiguously intended that imports pursuant to SWU transactions do not constitute sales of LEU. “A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency 7. For much the same reason, court decisions addressing commercial disputes between the parties to a contract are not relevant here. In that context, in declaring the relative rights of the parties, the court may properly seek to give effect to the intentions of the parties as reflected in the language of their contract. In addition, there is no agency application of a statute to be considered. Those cases are not determinative of how a transaction should be characterized under a regulatory regime where the interests of third parties are implicated and an expert agency has been designated to implement the statute. 31 discretion.” National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). The court of appeals plainly expressed its unwillingness to “ignore our previous holdings” because of the factual similarities of the underlying transactions. App. 28a, citing to App. 17a. But that is precisely what it must do | under Brand X. See id. (court must approach inquiry as if it were “reviewing the agency’s construction on a blank slate”); see also Skranak v. Castenada, 425 F.3d 1218, 1220 (9th Cir. 2005) (under Brand X, a court reviews subsequent agency determination as if it had “never addressed the topic”). Since Brand X would have required the Federal Circuit to take a “blank slate” approach even if its earlier decision had interpreted the antidumping statute, the Federal Circuit’s reliance on Florida Power—which arose under a completely different statute—is even less appropriate. In short, the Federal Circuit’s decisions in Furodif I and I] fail to follow the teachings of Chevron and Brand X. The court concluded that a transaction it deemed to be a sale of a service under one statute cannot be a sale of merchandise under an entirely different statute unless Congress specifically says it is. This conclusion is contrary to repeated instruction from this Court that the same words used in different statutes, or even in different parts of the same statute, can have different constructions depending upon the purposes of the law. See, e.g., Environmental Defense v. Duke Energy Corp., 127 S. Ct. 1423, 1433-34 (2007); United States v. Cleveland Baseball Co. , 582 U.S. 200, 213 (2001); Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). Moreover, the Federal Circuit’s approach places a burden of explicit statement on Congress when 32 it has entrusted application of the second statute to an expert agency with knowledge of complex industry arrangements. And the Federal Circuit reached this conclusion despite the two statutes’ very different terms and entirely different purposes; despite the role of the Commerce Department in interpreting the antidumping law; and despite the fact that the court in Florida Power itself found the characterization of such contracts to be a close question even under the Contract Disputes Act. Il. THIS CASE PRESENTS AN ISSUE WITH IMPORTANT NATIONAL IMPLICATIONS. The Federal Circuit’s decisions have important implications for U.S. trade law, for national security, for our nation’s energy policy, and for jurisprudential principles of deference to Executive Branch agencies. Any of these implications alone would warrant this Court’s granting certiorari. That all of these factors are present here makes this case especially worthy of this Court’s consideration. First, this case involves the basic question: what is a sale of merchandise covered by the antidumping statute? This question is central to the jurisdiction of the Commerce Department and the scope of protection afforded domestic industries by that law. Because of the pivotal importance of this question, it was certified to the Federal Circuit, which issued two opinions attempting to address it. The Federal Circuit’s rulings have the potential to create a significant loophole in the antidumping law that would exclude import transactions from the scope of that law based on how the contracts are structured. Arrangements for contract manufacturing are prevalent throughout industry—and will certainly become more prevalent in import transactions if the Federal Circuit's decisions are not reversed. 33 Second, application of the Federal Circuit’s ruling to LEU has important implications for national security, as it endangers the continued successful implementation of a 1993 agreement between the United States and Russia for the dilution (or “down-blending”) of weapons material and sale of the resulting LEU in the United States.* In that agreement (commonly known as the “Megatons to Megawatts” program), Russia agreed to sell 500 metric tons of highly enriched uranium converted to LEU over a period of twenty years. Under the agreement, USEC, as U.S. executive agent, each year purchases the down-blended LEU in amounts equal to approximately one-half of the annual U.S. consumption for LEU, and ten percent of total U.S. electricity consumption. In doing so, USEC assumes all risk associated with the sale of the down-blended LEU, including the risk of maintaining a sufficiently large backlog of SWU and EUP contracts to absorb both the large quantity of down-blended LEU and the roughly equal amount of LEU that USEC produces in Kentucky, at the sole remaining U.S. uranium enrichment plant. The revenues from these contracts are used to pay for the LEU imported under the HEU Purchase Agreement, as well as the cost and upkeep of the domestic LEU plant and investment in a project (discussed below) to deploy new U.S. uranium enrichment technology that is critical to U.S. national and energy security. 8. Agreement Concerning the Disposition of Highly Enriched Uranium Extracted From Nuclear Weapons, U.S.—Russ., Feb. 18, 1993, Temp. State Dep’t No. 93-59, 1993 WL 152921 [hereinafter “IIEU Purchase Agreement” or “Megatons to Megawatts”. 34 As of December 31, 2007, there remain approximately 178 metric tons of Russian HEU— equivalent to approximately 7,000 nuclear warheads— to be down-blended and sold in the United States. This ‘represents approximately 35% of the total amount of weapons material to be down-blended under the program. Absent measures to restrain dumping of LEU imports, completion of the program is at risk. In addition to producing LEU by down-blending the highly enriched uranium in nuclear warheads, Russia has significant capacity, through four large enrichment plants, to produce LEU from natural uranium far in excess of its domestic needs. If this Russian LEU can be imported into the United States outside the scope of the antidumping law, it would disrupt the market conditions needed to ensure the continued success of the weapons dismantling program, since imports of commercially-produced LEU at dumped prices would undermine USEC’s ability to sell the down-blended Russian LEU. The U.S. government has been able to maintain the necessary market conditions for the suecess of the Megatons to Megawatts program because of a 1992 agreement with Russia (referred to as the “Russian Suspension Agreement”) that suspended an antidumping investigation on imports of uranium from Russia, including imports of LEU. That agreement permits imports of Russian LEU under the Megatons to Megawatts program, and pursuant to an amendment signed on February 1, 2008, will permit very limited 35 imports of commercial LEU under annual quotas.’ However, if the loophole created by the Federal Circuit in this case is not corrected, the ability to enforce those quotas will be undermined. Since the Russian Suspension Agreement is predicated upon the antidumping law, unless the Eurodif loophole is closed Russia will be able to export unlimited quantities of LEU pursuant to SWU transactions over and above any quotas established in the Russian Suspension Agreement. Failure to correct this loophole would thus leave the U.S. government without the means to ensure that the market remains favorable to full implementation of the Megatons to Megawatts program. Moreover, the Court of International Trade has concluded that, in light of the Hwrodif decisions, imports of Russian LEU under SWU contracts cannot be subject to the antidumping law. Techsnabexport v. United States, 515 F. Supp. 2d 1363 (Ct. Int'l Trade 2007). Because the Federal Circuit’s Eurodif decisions have been treated as controlling in the Russian proceeding, their foundations have not been reexamined in that case. Accordingly, this case alone provides a complete record for review of the statutory interpretation issue affecting both proceedings. Third, USEC is currently seeking to finance and deploy a new multi-billion dollar enrichment plant under its 2002 Memorandum of Understanding with the United 9. The amendment to the Russian Suspension Agreement is reproduced at 73 Fed. Reg. 7705 (Feb. 11, 2008). 36 States Department of Energy.'® Removal of the protections that the antidumping law provides against unfairly priced LEU imports could undermine that endeavor. It would also threaten the viability of the existing U.S. enrichment plant. This could further increase the United States’ dependence on foreign sources of energy at a time when energy independence is increasingly regarded as a vital aspect of economic and national security. Moreover, both USEC’s new plant and its existing plant employ the only uranium enrichment technologies available to meet U.S. defense needs. Other enrichment plants that are being developed or under consideration would employ foreign enrichment technologies, which are subject to restrictions that render them unavailable for the defense needs of the United States military. Finally, this case raises broader jurisprudential issues regarding lower courts’ adherence to the principles set forth by this Court in Chevron and in Brand X. Those principles require due regard for Executive Branch functions and respect for expert agency determinations when construing and applying critical terms like “sale” in regulatory regimes created by Congress. 10. See Press Release, USEC, “USEC and U.S. Energy Department Sign Accord” (June 18, 2002), available at http:// www.usec.com/v2001 02/Content/News/NewsTemplate.asp? page =/v2001_02/Content/News/N ews Files/06- 18-02. htm. 37 CONCLUSION Few international trade cases have the manifest importance of this one. On this rare occasion when a trade law decision implicates such significant national policies, the petition for a writ of certiorari should be granted. Respectfully submitted, SHELDON E. HocHBERG Counsel of Record Eric C. EMERSON CHARLES G. COLE MICHAEL A. VATIS JOHN P NOLAN STEPTOE & JOHNSON LLP 1330 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 429-3000 Attorneys for Petitioners USEC Inc. and United States Enrichment Corporation la APPENDIX A— OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT DECIDED MARCH 3, 2005 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Nos. 04-1209, 04-1210 EURODIF S.A., COMPAGNIE GENERALE DES MATIERES NUCLEAIRES, and COGEMA, INC., Plaintiffs-Appellants, and AD HOC UTILITIES GROUP Plaintiff-Appellant, V. UNITED STATES, Defendant-Cross Appellant, and } USEC INC. and UNITED STATES ENRICHMENT CORPORATION, Defendants-Cross Appellants. March 8, 2005, Decided 2a Appendix A OPINION JUDGES: Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit Judge. OPINION BY: PROST PROST, Circuit Judge. This interlocutory appeal comes to us from the United States Court of International Trade, which certified four separate questions for appeal to this court. The Ad Hoc Utilities Group (““AHUG”), Eurodif S.A. (“Eurodif”), Compagnie Generale des Matieres Nucleaires (“CGMN”) and Cogema, Inc. appeal two issues from the Court of International Trade. The United States, USEC, Inc. and the United States Enrichment Corporation (the latter two collectively referred to as “USEC” in this opinion) cross-appeal two issues. We affirm the Court of International Trade’s decision affirming the Department of Commerce’s (“Commerce”) industry support determination. We also affirm the court’s decision that uranium enrichment contracts constitute a provision of services, rather than a sale of goods. Finally we reverse the court’s decision regarding subsidies, and hold that overpayment for uranium enrichment services by foreign government entities cannot constitute a countervailable subsidy. Because we need not review the court’s decision regarding Commerce’s application of the tolling regulation in the context of export price determination, we decline to do so. 3a Appendix A BACKGROUND Enriched uranium fuel rods are used by the utility industry to generate nuclear power. The process of producing those rods involves multiple steps. First, uranium ore must be mined. Second, the ore must be milled or refined into concentrated uranium. Third, that concentrated uranium must be converted into uranium hexafluoride. Fourth, that uranium hexafluoride must be enriched into low enriched uranium (“LEU”). Fifth, and finally, LEU is used to fabricate uranium rods. This case involves the fourth step in the process of creating uranium rods—the enrichment of uranium hexafluoride into LEU. Many utilities in the United States contract to buy uranium from a third-party seller and then contract to have that uranium enriched by a uranium enricher. Only one entity in the United States enriches uranium into LEU-USEC, formerly an arm of the federal government. A variety of foreign enrichers, including Eurodif, CGMN and Cogema, compete with USEC and also enrich the uranium of American utility companies.' Contracts for enriched uranium come mainly in two different forms. The first form involves contracts that provide money for the sale of enriched uranium, otherwise known as enriched uranium product, or EUP 1. The Court of International Trade thoroughly documented the factual background to this case in its opinion. See USEC Inc. v. United States, 281 F.Supp.2d 1334 (Ct. Int’l Trade 2003) (“USEC IT”). | ae 4a Appendix A contracts. The second form, the form relevant to this appeal, involves the transfer of unenriched uranium by a buyer to an enricher and the purchase of separative work units (“SWU”) from the enricher. In these SWU contracts, the enricher enriches the unenriched uranium and delivers LEU to the purchaser. Although the enricher may not necessarily produce a particular utility's LEU from the uranium that utility provides to the enricher, the utility retains title, during the enrichment process, to the quantity of unenriched uranium that it supplies to the enricher. In most of the transactions relevant to this case, AHUG and American utilities entered into SWU contracts with European enrichers. These utilities compensated enrichers to process unenriched uranium into LEU. In another critical transaction, a partially public French utility, Electricite de France (“EdF’”’), entered into an SWU contract with French enricher Eurodif. In that contract, EdF allegedly paid Eurodif greater than adequate compensation for the enrichment of uranium. On December 7, 2000, USEC petitioned Commerce to undertake an antidumping and countervailing duty investigation focusing on LEU coming from France, Germany, the Netherlands, and the United Kingdom. On December 21, 2001, Commerce issued its final determinations in that investigation. Those determinations focused on two main issues: (1) whether SWU contracts were contracts for the sale of goods and not services and, therefore, subject to U.S. antidumping Sa Appendix A and countervailing duty statutes, and (2) whether domestic utilities or foreign enrichers were “producers” of LEU for the purposes of determining whether or not there was sufficient industry support to begin an antidumping and countervailing duty investigation in the first place. In its final determinations, Commerce concluded that SWU contracts are contracts for the sale of goods and not services. It also decided that the foreign enrichers of uranium, and not the domestic utilities, were “producers” of LEU. AHUG and the foreign enrichers party to this case appealed Commerce’s determination to the Court of International Trade, arguing that a uranium enrichment contract is a contract for the provision of services and not the sale of goods and, therefore, not subject to federal antidumping and countervailable subsidy statutes. AHUG also disputed Commerce’s contention that only the foreign enrichers are “producers” for domestic industry support determination purposes, arguing that Commerce’s determination that foreign enrichers were “producers” of LEU was inconsistent with its prior decisions. AH UG further contended that if the domestic utilities are considered producers of LEU, Commerce would not have sufficient domestic industry support to commence an investigation pursuant to 19 U.S.C. § 1673a(c)(4). The Court of International Trade agreed with AHUG and determined that Commerce’s characterization of the enrichment contracts between AHUG and foreign enrichers as contracts for the sale of goods was not 6a Appendix A sustainable. USEC Inc. v. United States, 259 F.Supp.2d 1310, 1324-26 (Ct. Int’l Trade 2003) (“USEC 7”). It also found that Commerce’s determination that the foreign enrichers were “producers” of LEU was against the weight of the evidence and inconsistent with prior Commerce decisions. /d. at 1317-26. As a result, the court remanded the case to allow Commerce to reconsider its determinations. In its remand determination, Commerce reiterated its original positions. Final Remand Determination, USEC Inc. and United States Enrichment Corp. v. United States (June 28, 2003) (“Remand Determination”). AHUG and the foreign enrichers then appealed that remand determination to the Court of International Trade. In its second consideration of Commerce’s determinations, the court concluded that (1) Commerce’s interpretation of the word “producer” in the context of making an industry support determination was reasonable and in accordance with law; (2) uranium enrichment contracts were contracts for services and not for goods; (3) payment by a foreign government entity of more than adequate remuneration to a foreign enricher for enrichment services qualified as a countervailable subsidy; and (4) Commerce’s interpretation of the word “producer” for the purposes of making an export price determination was inconsistent with its previous determinations in other cases and thus not in accordance with law. USEC Inc. v. United States, 281 F.Supp.2d 1334 (Ct. Int’] Trade 2003) (“USEC IT”). 7a Appendix A Because the resolution of the issues decided by the court in USEC I] are potentially dispositive of this entire case, the Court of International Trade certified four specific questions for appeal to this court. The four certified questions are: (1) Whether Commerce’s decision not to apply its tolling regulation to determine whether American utilities should be considered “producers” of low enriched uranium (LEU) for the purposes of determining whether there was enough domestic industry support to proceed with an investigation is in accordance with law. (Commerce determined that foreign enrichers and not domestic utilities were “producers” of LEU for the purposes of determining domestic industry support. Remand Determination at 6-36.) (2) Whether Commerce’s decision that the enrichment of uranium feedstock pursuant to separative work unit (SWU) contracts constitutes a sale of goods instead of services is supported by substantial evidence and in accordance with law. (Commerce determined that SWU contracts like EUP contracts are contracts for the sale of goods. Remand Determination at 70-81.) (3) Whether Commerce’s decision that payment of more than adequate remuneration for enrichment services by partially public foreign entities to foreign enrichers constitutes a countervailable subsidy is in accordance with law. (Commerce determined that the transaction between EdF and Eurodif was a sale of goods to a government entity for more than adequate 8a Appendix A remuneration and, therefore, subject to the countervailing duty statute. Remand Determination at 82-99.) (4) Whether Commerce’s decision to apply a definition of “producer” in the context of export price determination that is different from the definition it used in the industry support determination is reasonable and therefore in accordance with iaw. (Commerce determined that foreign enrichers were “producers” of LEU for the purposes of determining LEU export price. Remand Determination at 69-70.) We have jurisdiction to hear this appeal under 28 U.S.C. § 1292(d)(1). DISCUSSION In reviewing the Court of International Trade’s decisions in this case, we apply the same standard used by that court in evaluating Commerce’s determinations, findings and conclusions and hold unlawful any decisions found to be unsupported by substantial evidence or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i) (2000). A. The Tolling Regulation and Commerce’s Industry Support Determination Before an antidumping and countervailing duty investigation can be initiated, the petition on which that investigation is based must meet certain industry 9a Appendix A support requirements. A petition is considered to be filed on behalf of an industry if: (i) the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and (ii) the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition. 19 U.S.C. § 1673a(c)(4)(A) (2000). Commerce determined that in order to be a producer, an entity must have a “stake” in the domestic industry in question. Commerce then defined having a “stake” as undertaking the “actual production of the domestic like product” within the United States. Remand Determination at 13. Commerce’s industry support determination considered USEC to be the only domestic producer of LEU. Accordingly, Commerce found that there was sufficient domestic industry support to begin an antidumping and countervailing subsidy investigation. The Court of International Trade affirmed Commerce's determination that foreign uranium enrichers were “producers” for the purposes of § 1673a(c)(4)(A). 10a Appendix A On appeal, appellants AHUG, Eurodif, CGMN and Cogema argue that American utility companies should be considered “producers” for the purposes of determining whether USEC’s petition has sufficient industry support to trigger Commerce’s antidumping and countervailing duty investigation. In support, they note that Commerce’s tolling regulation orders Commerce not “to consider a toller or subcontractor to be a manufacturer or producer where the toller or subcontractor does not acquire ownership, and does not control the relevant sale, of the subject merchandise or foreign like product.” 19 C.F.R. § 351.401(h) (2004). According to the appellants, if the tolling regulation were applied in this case, Commerce could not initiate any antidumping or countervailing duty investigation because the domestic utilities would be considered “producers” for the purposes of an industry support determination—and given such a definition of “producer,” the dictates of § 1673a(c)(4)(A) would not be satisfied. They draw further support for their argument from prior Commerce determinations that held that control of the aspects of manufacture is sufficient to qualify an entity as a “producer.” Finally, they buttress their argument by alleging that Commerce improperly and inconsistently applied the tolling regulation by using it to determine the export price of LEU but declining to apply it in its industry support determination. The Court of International Trade rejected AH UG’s argument and sustained Commerce’s interpretation of the term “producer” for the purpose of an industry support determination as well as its refusal to apply the lla Appendix A tolling regulation to encompass American utilities within the definition of the term “producer.” USEC I], 281 F:Supp.2d at 1346. The court supported its holding by determining that Commerce’s use of the tolling regulation was in keeping with the purposes of the industry support statute and that Commerce’s interpretation of the word “producer” was reasonable and, thus, in accordance with law. /d. On this issue, we agree with the Court of International Trade and affirm Commerce’s initial industry support determination. Commerce’s determination that domestic utilities were not “producers” of LEU is consistent with the purpose of § 1673a(c)(4)(A). Section 1673a(c)(4) speaks of “industry support” and, as expressed in legislative history, Congress intended the industry support statute “to provide an opportunity for relief for an adversely affected industry and to prohibit petitions filed by persons with no stake in the result of the investigation.” S.Rep. No. 249, 96th Cong., Ist Sess. 47 (1979). This view was echoed by the Court of International Trade when it noted that “[t]he language in the legislative history is broad and unqualified. It contrasts industries suffering adverse effect with those having no stake: the former have standing, the latter do not.” Brother Indus. (USA), Inc. v. United States, 801 F.Supp. 751, 757 (Ct. Int'l Trade 1992). Commerce interpreted having a “stake” as requiring that a company “perform some important or substantial manufacturing operation.” Remand Determination at 14 (internal quotations and citations omitted). There is no basis to conclude that Commerce’s interpretation in this context is unreasonable or not in accordance with law. 12a Appendix A Further, determining the export price of a good and determining whether a petition has enough support for an investigation to be initiated are two different tasks that were delegated to Commerce for different purposes. Thus, using the tolling regulation in one context but not using it in another is a clearly insufficient basis upon which to conclude that Commerce’s action was not in accordance with law. B. The Characterization of Enrichment Contracts Under the statutory scheme adopted by Congress, the sale of goods (or “merchandise”) is covered by the antidumping duty statute. See 19 U.S.C. § 1673. The provision of services, however, is not covered by that statute. In a previous case dealing with SWU contracts and the Contract Disputes Act (“CDA”), we agreed with the government’s argument that an SWU contract for the enrichment of uran‘um is a service contract and, thus, not covered by the CDA. See Fla. Power & Light Co. v. United States, 307 F.3d 1364 (Fed.Cir.2002). The parties dispute the relevance of Florida Power to this case. On appeal, the government and USEC submit that Commerce’s finding that SWU contracts are contracts for the sale of goods is supported by substantial evidence and in accordance with law and that the Court of International Trade’s holding to the contrary should be reversed. They rely on three principal contentions. l3a Appendix A First, they argue that this court’s precedents in NTN Bearing Corp. of Am. v. United States, 368 F.3d 1369 (Fed.Cir.2004), AK Steel Corp. v. United States, 226 F.3d 1361 (Fed.Cir.2000), and NSK Ltd. v. United States, 115 F.3d 965 (Fed.Cir.1997) support their argument that the SWU contracts in question were sales of merchandise and not arrangements for services. They point to this court’s construction of the word “sold” in NSK as supporting the view that a sale requires “both a transfer of ownership to an unrelated party and consideration.” See NSK, 115 F.3d at 975. They also cite to our opinions in AK Steel and NTN as supporting this construction. According to the government and USEC, this straightforward interpretation should cover the SWU contracts because those contracts involved a transfer of title to LEU from the enricher to the utilities upon sampling and weighing of the LEU and consideration paid by the utilities to the enrichers. Second, the government and USEC assert that Commerce’s characterization of the SWU contracts as contracts for the sale of goods is in keeping with the general purpose of the antidumping statute, which they articulate as “provid{ing] domestic producers protection from all dumped imports.” Third, the government and USEC point to the deferential standard of review under which we review Commerce determinations as precluding a reversal of Commerce’s determination on this issue. They argue that because Commerce’s determination that SWU contracts are contracts for the sale of goods is, in their eyes, l4a Appendix A supported by substantial evidence and in accordance with law, we should affirm it. It is on these grounds, according to the appellants, that Florida Power is inapposite to this case. Because Florida Power dealt with a contractual dispute under the CDA and not an antidumping investigation, it is not, in their view, applicable here. Moreover, they argue that Florida Power stands for the proposition that “SWU contracts [fall] into neither [the category of sales of goods nor the category of contracts for services].” As support, they point to language in our opinion in Florida Power that indicates that an SWU contract “does not fall neatly into” either side of the goods-services divide. See Fla. Power, 307 F.3d at 1373. The government and USEC consider this language sufficient to support Commerce’s determination given the deferential standard of review to be applied in this case. The Court of International Trade rejected Commerce’s determination that the SWU contracts in this case were contracts for the sale of goods and not services, resting its decision on the fact that the enrichers never obtained ownership of either the feed (unenriched) uranium during enrichment or the final LEU product. USEC II, 281 F.Supp.2d at 1339. Furthermore, according to the court, the SWU contracts between the utilities and the enrichers demonstrated “an intention to establish a continuous chain of ownership in the utility while maintaining the enricher’s ability to cover its obligations under the contract should it encounter difficulties in producing or providing LEU for lSa Appendix A a customer.” Jd. The court also found that “nothing in the evidentiary record supports a determination that the enricher has any ownership rights [under the SWU contracts].” Jd. at 1340. Agreeing with the Court of International Trade, we reject Commerce’s determination that the SWU contracts in this case are contracts for the sale of goods. In reviewing the contracts in this case, it is clear that ownership of either the unenriched uranium or the LEU is not meant to be vested in the enricher during the relevant time periods that the uranium is being enriched. While it is correct that a utility may not receive the LEU that was enriched from the exact unenriched uranium that it delivered to the enricher, it is nevertheless true that up until the sampling and weighing of the LEU before delivery, the utility retains title to the quantity of unenriched uranium that is supplies to the enricher. The utility’s title to that uranium is only extinguished upon the receipt of title in the LEU for which it contracted. Therefore, the SWU contracts in this case do not evidence any intention by the parties to vest the enrichers with ownership rights in the delivered unenriched uranium or the finished LEU. As a result, the “transfer of ownership” required for a sale under NS&K is not present here. As previously noted, we explicitly dealt with whether or not SWU contracts were contracts for services or goods in Florida Power (albeit in the context of a CDA claim and not in the context of an antidumping investigation). In that case, the government argued that l6a Appendix A SWU contracts were contracts for services and not goods. There, the government pointed out in its briefs that the SWU contracts in that case consistently referred to “enrichment services” and that the “fundamental purpose” of those contracts was “the provision of enrichment services.” The government further declared that the utilities’ argument in that case that the SWU contracts arranged for the sale of goods because title passed between utilities and enrichers “rest[ed] on [a] technicality.” * The relevant SWU contract terms in that case are identical to the contract terms in this case. Indeed, the government successfully defeated the CDA claim of the utilities in Florida Power solely on the ground that the SWU contract in that case was a contract for services and not for goods. And while Florida Power is not binding precedent for this case because of the different statutory scheme involved, we find its reasoning and its conclusion persuasive. 2. The title argument that “rest[ed] on [a] technicality” in that case is strikingly similar to the title argument that the government advances in this case. There, the government argued that despite the temporary transfer of title of uranium from the utility to the enricher, the fact that the utilities were entitled to claim any leftover material from uranium enrichment (also known as “tails”) showed that the SWU contract was a contract for services. Here, the utilities were likewise contractually entitled to reclaim the uranium “tails” and title to the quantity of unenriched uranium transferred by the utility only passed to the enricher once the utilities received title to the LEU from the enrichers. 17a Appendix A In addition, while itis true that we stated that SWU contracts “[do] not fall neatly into either [a sale of goods or a contract for services],” our opinion definitively held that the SWU contract in that case was a contract for the provision of services. Fla. Power, 307 F.3d at 1373.° Holdings of this court are no less decisive because they may have been difficult to develop. Indeed, our characterization of the SWU contract in Florida Power, however we may have arrived at it, created the sole basis for denying the utilities in that case relief under the CDA. And even under the deferential standard of review that we apply in this case, we choose not to ignore our previous holdings, particularly where the circumstances in a previous case are nearly identical to the case at hand. 3. In regards to the contracts between utilities and the government for enrichment of uranium, we stated in Florida Power: It seems clear that if the government purchased natural uranium directly from a third party, enriched the uranium, and sold it to the customer utilities, the contracts would be for the disposal of personal property and would be covered by the CDA. It seems equally clear that if the government simply enriched each utility’s uranium for a fee, it would be providing a service, not disposing of personal property. In light of the evidence that DOF used feed material from other customers, and sometimes its own feed material, to fulfill a particular enriched customer’s order of enriched uranium, this case does not fall neatly into either the above categories, but it is closer to the latter. The nature of the contractual pricing scheme, in particular, persuades us that the transaction is properly characterized as a service rather than a sale. 307 F.3d at 1373. 18a Appendix A Moreover, while the statutory schemes involved in Florida Power and those involved in this case are different, they do not change the essential nature of the transaction involved in this case. Even though the government is correct in arguing that the general purpose of the antidumping statute is not the same as the general purpose of the CDA, it is incorrect in asserting that this dissimilarity of purposes is sufficient to compel a different result in this case. A contract for services of the kind that we discuss here entails a certain set of obligations on the part of contracting parties that do not change with the statutory scheme. Thus, unless Congress specifically gave guidance in the statutory text that certain contracts normally considered service contracts should be considered contracts for the sale of goods in the antidumping context, the different overall purposes of the CDA and antidumping statute are insufficient to alter our analysis here. And nothing in the text of the antidumping statute or its legislative history evidences such a Congressional intent to re-characterize contracts like the SWU contracts at issue in this case for the purposes of antidumping investigations by Commerce. The persuasive power of Florida Power might be mitigated if the government were capable of showing that the contract in that case differed in relevant part from the contracts in this case. No such showing has been made. In Florida Power, we held that an SWU contract was not a contract for “the procurement of property” under the CDA. 307 F.3d at 1373-74. Though we did say that SWU contracts do “not fall neatly” either into the 19a Appendix A category of contracts for services or the category of contracts for the sale of goods, we found that “the nature of the contractual pricing scheme. . . persuade[d] us that the [SWU] transaction is properly characterized as a service rather than a sale.” Jd. The pricing scheme in the Florida Power SWU contracts is the same as the pricing scheme in the contracts at issue in this case. In both cases, utilities bought separative work units from enrichers. In both cases, they delivered unenriched uranium and monetary compensation to enrichers in return for enrichment services. In both cases, there were similar title and transfer provisions. And in both cases, © the contracts explicitly contemplated the rendering of “enrichment services.” We therefore conclude that the SWU contracts at issue in this case were contracts for the provision of services and not for the sale of goods. Accordingly, we find that the LEU produced as a result of those contracts is not subject to the antidumping statute and hold that Commerce’s contentions to the contrary are not in accordance with law. C. EdF, Eurodif and Countervailable Subsidies In order to be subject to a countervailing cuty (or subsidy) investigation, an arm of a foreign government must make a “financial contribution” to a manufacturer that can take one of four forms: (i) the direct transfer of funds, such as grants, loans, and equity infusions, or the 20a Appendix A potential direct transfer of funds or liabilities, such as loan guarantees, (ii) foregoing or not collecting revenue that is otherwise due, such as granting tax credits or deductions from taxable income, (iii) providing goods or services, other than general infrastructure, or (iv) purchasing goods. 19 U.S.C. § 1677(5)(D) (2000). A public entity can provide a subsidy if it provides goods or services to a manufacturer for less than adequate remuneration or if it buys goods from the manufacturer for more than adequate remuneration. 19 U.S.C. § 1677(5)(E). The statute does not contemplate the purchase of services for more than adequate remuneration to be a subsidy. The government and USEC assert that EdF, a partially public French utility, entered into a uranium enrichment contract with Eurodif that paid Eurodif more than adequate remuneration. In their view, the contract was also for the sale of goods (instead of services) and thus covered by 19 U.S.C. § 1677(5)(E). In the alternative, they argue that the contract between EdF and Eurodif provided more than adequate remuneration to one step (enrichment) in the manufacture of a good (LEU in this case) and was thus covered by § 1677(5). As a result, the transaction between EdF and Eurodif was subject to a countervailing duty investigation. 2la Appendix A The Court of International Trade rejected the government’s principal theory but agreed with its alternative theory. The court found that “Commerce’s distinction between manufacturing processes that lead to the production of subject merchandise and other services that do not produce tangible goods is consistent with the language and purpose of the countervailing duty statute.” USEC II, 281 F.\Supp.2d at 1350. The court further elaborated that this theory was in keeping with the statutory language “because it preserves a real distinction between ‘goods’ and ‘services.”” Jd. We must disagree. Section 1677(5) is clear as to what constitutes a subsidy—and the purchase of a service by a foreign public entity, however related to the manufacture of a good, is not contemplated in the statute as being a subsidy.‘ While the provision of services by a government entity to another entity for less than adequate compensation may be considered a subsidy, the plain language of § 1677(5) does | not allow for the purchase of services by a government entity from another entity to be considered a subsidy. Thus, to the extent that the government argues that Commerce is owed deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842-48, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we reject that argument because we find that the plain meaning of the statute is unambiguous. 4. Section 1677(5)(B) defines a subsidy as including the case in which an authority “provides a financial contribution ...toa person and a benefit is thereby conferred.” Section 1677(5)(D), quoted supra, defines “financial contribution.” 22a Appendix A Furthermore, § 1677(5)(D)(iii) clearly shows that Congress was aware of the distinction between contracts for services and contracts for goods. Aware of the distinction, Congress could have easily included the purchase of services by public entities in the statutory definition of a subsidy. Because it did not, we must assume that the omission was intentional. See Clay v. United States, 537 U.S. 522, 528, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (“When Congress includes particular language in one section of a statute but omits it in another section of the same Act, we have recognized, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotations and citations omitted)). While the Court of International Trade, the government and USEC are correct that the purpose of the subsidy statute is to defeat unfair competitive advantage, that purpose cannot exceed the metes and bounds of the subsidy statute as established by its text. See Negonsott v. Samuels, 507 U.S. 99, 105, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) (“{A court’s] task is to give effect to the will of Congress, and where it has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.” (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982))). Given that we have already concluded that the SWU contracts in this case were contracts for the provision of services and not for the sale of goods, we hold that 19 U.S.C. § 1677(5) is inapplicable in this case. Accordingly, Commerce’s determination to the contrary is not in accordance with law. 23a Appendix A D. Commerce’s Tolling Regulation and Its Determination of Export Price Because our holdings regarding the previous three issues obviate the need for us to reach the issue of whether Commerce properly employed its tolling regulation in its determination of export price, we decline to do so. CONCLUSION For the reasons stated above, we hold that: (1) Commerce’s determination that USEC’s petition had sufficient industry support to trigger an antidumping and countervailing subsidy investigation was in accordance with law; (2) Commerce’s finding that the SWU' contracts in this case were contracts for the sale of goods was neither supported by substantial evidence nor ir »ecordance with law; and (3) Commerce’s application of 19 U.S.C. § 1677 to the SWU transaction between EdF and Eurodif was not in accordance with law. Therefore, we affirm the Court of International Trade’s decision regarding Commerce’s industry support determination. We likewise affirm the court’s finding that the SWU contracts in this case were contracts for services and not for goods or merchandise. We reverse the court’s holding that EdF’s SWU contract with Eurodif made the LEU produced by Eurodif subject to the countervailing subsidy statute. AFFIRMED-IN-PART and REVERSED-IN-PART 24a APPENDIX B — OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT DECIDED SEPTEMBER 9, 2005 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT Nos. 04-1209, 04-1210 EURODIF S.A., COMPAGNIE GENERALE DES MATIERES NUCLEAIRES, and COGEMA, INC., Plaintiffs-Appellants, and AD HOC UTILITIES GROUP Plaintiff-Appellant, V. UNITED STATES, Defendant-Cross Appellant, and USEC INC. and UNITED STATES ENRICHMENT CORPORATION, Defendants-Cross Appellants. September 9, 2005, Decided JUDGES Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit Judges. OPINION BY: PROST 25a Appendix B OPINION ON PETITION FOR REHEARING PROST, Circuit Judge. ORDER More than three months after we decided this case, the Supreme Court issued its opinion in Natzonal Cable & Telecommunications Ass'n v. Brand X Internet Services, _ U.S. __, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). In letters disclosing National Cable as a supplemental authority pursuant to Federal Circuit Rule 28(j), the United States, USEC, Inc. and the United States Enrichment Corporation (collectively, “Petitioners”) contend that the Supreme Court’s reasoning in National Cable strongly supports arguments presented in their petitions for rehearing. We grant the petitions for rehearing by the panel for the limited purpose of addressing the applicability of National Cable to this case. In all other respects, we reaffirm our earlier opinion and judgment. See Eurodif S.A. v. United States, 411 F.3d 1355 (Fed.Cir.2005). I In National Cable the Supreme Court heard an appeal from the Ninth Circuit in a case involving the proper regulatory classification of broadband cable Internet service under the Communications Act of 1934, 48 Stat. 1064, as amended by the Telecommunications Act of 1996, 110 Stat. 56. See 125 S.Ct. at 2696. The Ninth Circuit had vacated a ruling by the Federal Communications Commission (“FCC”) to the extent the 26a Appendix B FCC’s ruling concluded that cable modem service was not “telecommunications service” under the Communications Act. Jd. at 2698. “Rather than analyzing the permissibility of that construction under the deferential framework of Chevron, . . . the Court of Appeals grounded its holding in the stare decisis effect of AT&T Corp. v. Portland. .. .” Id. (citations omitted). The Supreme Court reversed and remanded. It held that “[{a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Jd. at 2700. It similarly stated that “[b]efore a judicial construction of a statute, whether contained in a precedent or not, may trump an agency’s, the court must hold that the statute unambiguously requires the court’s construction.” Jd. at 2702. The Supreme Court explained that Chevron set forth a two-step process to evaluate whether an agency’s interpretation of a statute is lawful. At step one we determine “whether the statute’s plain terms ‘directly addres[s] the precise question at issue.’ ” Jd. (quoting Chevron U.S.A. Inc. v. Netural Res. Def. Council, Inc., 467 U.S. 837, 848, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). If we determine that the statute is ambiguous on the precise question at issue, “we defer at step two to the agency’s interpretation so long as the construction is ‘a reasonable policy choice for the agency to make.’ ” Jd. (quoting Chevron, 467 U.S. at 845, 104 S.Ct. 2778). On the other hand, if we determine that the statute is unambiguous on the precise question at issue, we do not defer to the agency’s se eee” h | a ae er owe lc ll 27a Appendix B interpretation, regardless of whether that interpretation is grounded in a reasonable policy choice. See id. II Petitioners argue that the holding of National Cable strongly supports their contention that we erroneously relied upon Florida Power & Light v. United States, 307 F.3d 1364 (Fed.Cir.2002), to conclude that the Department of Commerce’s (“Commerce’s”) finding, that the separative work units (“SWU”) contracts at issue in this case were contracts for the sale of goods and therefore subject to the antidumping duty statute, is not in accordance with law. In particular, the United States argues that we have not held, either in Florida Power or here, “that the antidumping ‘statute unambiguously requires’ that the term ‘sold’ excludes the acquisition of imported merchandise in exchange for raw materials and cash.” Similarly, USEC, Inc. and the United States Enrichment Corporation (collectively, “USEC”) contend that we “erroneously relied upon the earlier determination of this Court in Florida Power & Light Co. v. United States so as to fail to give appropriate deference to the Commerce Department’s conclusion that the import transactions [here] involved a sale of merchandise under the antidumping law.” {il As a preliminary matter, Petitioners are incorrect to the extent they imply that we found ourselves bound by Florida Power in this case under the doctrine of stare decisis. To the contrary, we specifically stated that “ Florida Power is not binding precedent for this case” but that it is “persuasive” authority. Ewrodif, 411 F.3d 28a Appendix B at 1363; cf National Cable, 125 S.Ct. at 2701 (noting that the Ninth Circuit held that a prior judicial construction of a statute categorically controls an agency’s contrary construction).’ On the other hand, Petitioners are correct to the extent they point out that in Florida Power we did not expressly hold that the antidumping duty statute “unambiguously” applies to contracts for the sale of goods only and “unambiguously” does not apply to the contracts at issue in this case in particular. And although in our opinion in this case we did expressly hold that the countervailing duty statute unambiguously does not allow for the purchase of services to be considered a subsidy, Eurodif, 411 F.3d at 1365, as in Florida Power we did not expressly state that the antidumping duty statute unambiguously applies to contracts for the sale of goods only and unambiguously does not apply to the contracts at issue in this case in particular. We now clarify by stating expressly that the antidumping duty statute unambiguously applies to the sale of goods and not services. In our opinion, we stated that “(ujnder the statutory scheme adopted by Congress, the sale of goods (or ‘merchandise’) is covered by the 1. In this regard, we rejected the argument that we should ignore the analysis and reasoning of Florida Power because that case involved a different statutory scheme. We chose not to ignore Florida Power, but instead to recognize its persuasive power, because the nearly identical circumstances in that case were those surrounding SWU contracts. See Eurodif, 411 F3d at 1363. Appendix B antidumping duty statute” but that the “provision of services, however, is not. .. .” Ewrodif, 411 F.3d at 1361. While we did not use the term “unambiguous,” we clearly foreclosed any argument that § 1673 is ambiguous on the precise question of whether the antidumping duty statute encompasses contracts for services. It undoubtedly does not. Commerce’s characterization of the SWU contracts at issue in this case would contradict, we conclude, the statute’s unambiguous meaning because it is clear that those contracts are contracts for services and not goods. While Petitioners concede that a sale of goods requires a transfer of ownership, see United States’ Petition for Rehearing at 9 (citing NSK Ltd. v. United States, 115 F.3d 965 (Fed.Cir.1997)) and USEC’s Petition for Rehearing at 2 (same), they do not recognize the critical importance of the indisputable fact that, pursuant to the contracts at issue in this case, enrichers never obtain ownership of either the feed (unenriched) uranium during enrichment or the final low enriched uranium (“LEU”) product. Nevertheless, the inescapable conclusion flowing from this circumstance is that the enrichers do not “sell” LEU to utilities pursuant to the SWU contracts at issue in this case. As we stated in our opinion: In reviewing the contracts in this case, it is clear that ownership of either the unenriched uranium or the LEU is not meant to be vested in the enricher during the relevant 30a Appendix B time periods that the uranium is being enriched. While it is correct that a utility may not receive the LEU that was enriched from the exact unenriched uranium that it delivered to the enricher, it is nevertheless true that up until the sampling and weighing of the LEU before delivery, the utility retains title to the quantity of unenriched uranium that is supplie[d] to the enricher. The utility’s title to that uranium is only extinguished upon the receipt of title in the LEU for which it contracted. Therefore, the SWU contracts in this case do not evidence any intention by the parties to vest the enrichers with ownership rights in the delivered unenriched uranium or the finished LEU. As a result, the “transfer of ownership” required for a sale [of goods] is not present here. Eurodif, 411 F-3d at 1362. We adhere to that analysis today, noting that the complete absence of a transfer of ownership over LEU requires that we reject Commerce’s application of the antidumping duty statute to the SWU contracts. IV This Order constitutes the panel’s action in response to the petitions for rehearing. We conclude that our analysis in this case is consistent with the Supreme Court’s holding in National Cable, and we reaffirm our decision that Commerce’s finding that the SWU contracts were contracts for the sale of goods and therefore subject to the antidumping duty statute was not in accordance with law. 3la APPENDIX C — OPINION AND JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT DECIDED SEPTEMBER 21, 2007 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 2007-1005, -1006 EURODIF S.A., COMPAGNIE GENERALE DES MATIERES NUCLEAIRES, and COGEMA, INC., Plaintiffs-Appellees, and AD HOC UTILITIES GROUP Plaintiff-Appellee, Vv. UNITED STATES, Defendant-Appellant, and USEC INC. and UNITED STATES ENRICHMENT CORPORATION, Defendants-Appellants. DECIDED: September 21, 2007 Before MICHEL, Chief Judge, LOURIE, Circuit Judge, and ROBERTSON, District Judge.* _--— * Honorable James Robertson, District Judge, United States District Court for the District of Columbia, sitting by designation. 32a Appendix C ROBERTSON, District Judge. In this dispute about the correct application of the antidumping statute, 19 U.S.C. § 1673, to enriched uranium feedstock, appellants United States, USEC Inc., and United States Enrichment Corp. (the latter two collectively referred to as “USEC”) appeal from a judgment of the United States Court of International Trade. Hurodif S.A. v. United States, 442 F.Supp.2d 1367 (Ct. Int’l] Trade 2006). In 2005, we issued two interlocutory opinions in the same case, Hurodif 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”). Because the issues appellants raise in the instant appeal concern only the application of those decisions to future entries of low enriched uranium, we dismiss the appeal as unripe. I. BACKGROUND In Furodif] and Eurodif 11, we found that separate work unit (“SWU”) contracts for the enrichment of uranium were contracts for services, rather than for the sale of goods, and that the low enriched uranium (“LEU”) produced under those contracts was therefore not subject to the antidumping statute. Hurodif J, 411 F:3d at 1364; Furodif IT, 423 F.3d at 1278. Following those decisions, the Court of International Trade issued a remand order, instructing the Department of Commerce (“Commerce”) to revise its final determination and order, and to “explain how its final determination and order on remand has eliminated all SWU transactions” in 33a Appendix C accordance with our decisions. Eurodif S.A. v. United States, 414 F.Supp.2d 1263 (Ct. Int’] Trade 2006) (“Hurodif III”). Acting pursuant to that order, Commerce excluded LEU covered by SWU contracts from its recalculation of the duty margin, Final Results of Redetermination Pursuant to Court Remand, Kurodif S.A. v. United States (Mar. 3, 2006), but it did not modify the scope of the antidumping duty order to exclude future imports of LEU covered by SWU contracts. Plaintiffs-Appellees Eurodif S.A., Cogema, and Cogema, Inc. (collectively referred to herein as “Eurodif”) supported Commerce’s action, as far as it went, but they also asked the Court of International Trade to require Commerce to amend the scope order so that it would expressly exclude LEU covered by SWU contracts. Defendant-Appellant USEC supported Commerce’s decision not to amend the scope order, but asserted that it was error for Commerce to exclude all LEU imported pursuant to SWU contracts from its recalculation without investigating the facts behind each contract to determine whether the transaction was a sale of services, as stated in the contract, or was in fact a sale of goods. The Court of International Trade agreed with Eurodif. It found that our opinions in Kurodif / and Eurodif I] took into account the factual circumstances operating behind the individual contracts in this case and therefore that Commerce was correct to exclude all LEU covered by those SWU contracts from its recalculation. 34a Appendix C Eurodif S.A. v. United States, 431 F.Supp.2d 1351, 1354 (Ct. Int’] Trade 2006) (“Eurodif 7V”). Furthermore, the Court of International Trade concluded that our previous opinions required Commerce to rewrite the scope of the antidumping duty order, and it remanded the case to Commerce once again with instructions to amend the order to exclude all LEU covered by SWU contracts from the “class or kind of merchandise” covered by the order. /d. at 1355 (citing 19 U.S.C. § 1673e(a)(2)). On this second remand, Commerce redefined the scope of the antidumping order to exclude any entry of LEU that is accompanied by a certification claiming that the entry is made pursuant to a SWU contract. The Court of International Trade sustained, Ewrodif S.A. v. United States, 442 F.Supp.2d 1367 (Ct. Int’] Trade 2006) (“Eurodif V”), and this appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). Il. DISCUSSION In Eurodif] and Eurodif I], we found that the SWU contracts at issue “in this case” were contracts for the sale of services that were not subject to the antidumping statute. See Furodif 1, 411 F.3d at 1362, 1364. We did not address how Commerce should determine whether future entries of LEU are made pursuant to SWU contracts. The contentions of the government and USEC on this appeal are directed to future entries. They argue that Commerce should be permitted to suspend liquidation of future LEU imports until it determines— transaction-by-transaction and by administrative review—whether the SWU contract exception applies. 35a Appendix C USEC additionally argues that the scope amendment and certification should be modified now to make it clear that future LEU imports will not be outside the scope of the antidumping law if the unenriched uranium is either (a) obtained from an affiliate of the enricher or (b) delivered to the enricher after entry. Neither the procedural question presented here (scope review vs. administrative review) nor the substantive questions relating to affiliation of the enricher are ripe for decision. The doctrine of ripeness is designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). It is drawn “both from Article ITI limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction, but, even in a case raising only prudential concerns, the question of ripeness may be considered on a court’s own motion.” Nat'l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (citing Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (citations omitted)). “ 36a Appendix C Administrative Review vs. Scope Determination The Court of International Trade found that an administrative review is not the “proper forum to address whether merchandise is within the scope of an order,” and that Commerce’s own regulations authorize a different mechanism for this purpose: a “scope determination.” Furodif IV, 431 F.Supp.2d at 1356. At the request of any interested party, Commerce may “initiate an inquiry” as to whether merchandise is within the scope of an antidumping duty order. /d. (citing 19 C.F.R. § 351.225(b)). If the Secretary determines that the product in question is included within the scope of the order, he may instruct Customs to suspend liquidation for each unliquidated entry, effective as of the date the scope inquiry was initiated. 19 C.F-R. § 351.225(1)(2). That determination is reviewable by the Court of International Trade. 28 U.S.C. § 1581(c). Appellants argue that this scope determination process is inadequate, because, as a practical matter, an entry of LEU under review will be liquidated before Commerce can complete its determination. They assert that determining whether a particular transaction is entitled to the SWU-contract exception requires a careful analysis of the contract itself and an opportunity to investigate the manner of its execution. The administrative review process would permit Commerce to suspend liquidation while such an assessment takes place, but the scope determination process permits Commerce to suspend liquidation only after the Secretary has issued a preliminary scope ruling. USEC 37a Appendix C notes that liquidation typically occurs ten months after entry, but Commerce’s previous assessments of LEU contracts have taken seventeen to eighteen months.' As a result, appellants argue, the scope determination process will not be completed before the entry under review has been liquidated, mooting the review. This dispute is about what may or may not happen with the next LEU case—a case about which we have no facts. Our decisions in Furodif J and Eurodif II did not resolve the procedural! problem that USEC and the government have presented here, but we decline to attempt a resolution on this record. We have held that SWU contracts are contracts for services and that the LEU in this case entered under SWU contracts. Whether the next con [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0068%3A02. Public record. Not legal advice.