Usec, Inc. v. United StatesUsec, Inc. v. United States
I
Introduction
Plaintiffs USEC Inc. and its wholly owned subsidiary United States Enrichment Corporation (collectively “USEC”) challenge the final antidumping and countervailing duty determination of the United States Department of Commerce (“the Department” or “Commerce”) with regard to low enriched uranium (“LEU”) from Germany, the Netherlands, and the United Kingdom. This opinion considers anti-dumping issues, both general and country-specific.
The administrative determination under review is the final determination by Commerce of sales at not less than fair value (“LTFV”) with respect to LEU from Germany, the Netherlands, and the United Kingdom, covering the period of investigation (“POI”) from October 1, 1999 through September 30, 2000, set forth in Notice of Final Determinations of Sales at Not Less Than Fair Value: Low Enriched Uranium From the United Kingdom, Germany, and the Netherlands, 66 Fed.Reg. 65,886 (December 21, 2001) (“Final Determination ”).
This court exercises jurisdiction pursuant to 28 U.S.C. § 1581(c).
II
Background
This case comes before the court after consolidated decisions before a three-judge panel, the Court of Appeals for the Federal Circuit (“Federal Circuit”) and several remands to the Department of Commerce.
USEC v. United States,
On December 7, 2000, USEC petitioned Commerce to initiate an antidumping duty investigation on imports of LEU from Germany, the Netherlands, and the United Kingdom. In its Final Determination, Commerce calculated zero percent margins for Germany and the Netherlands and a de minimis margin for the United Kingdom. Final Determination, 66 Fed.Reg. at 65,888. The antidumping and countervailing duty determination covered all LEU. 1
Urenco Ltd. (“Urenco”), the Defendant-Intervenor in these cases, is a holding company located in the United Kingdom, which holds 100 percent of the stock in Urenco Deutschland GmbH (“UD”), located in Germany; Urenco (Capenhurst) Ltd. (“UCL”), located in the United Kingdom; Urenco Nederland B.V. (“UN”), located in the Netherlands; and Urenco Investments, Inc. Urenco Ltd. owns Urenco, Inc., a Delaware corporation that acts as Urenco Ltd.’s marketing arm and con
The parties’ challenges are now ripe for adjudication. 2 In the court’s original Scheduling Order, the three judge panel decided, and the parties agreed, to address initially “general issues” affecting the Department’s threshold determinations, to be followed later by case-specific issues, such as “challenges to the Department of Commerce’s calculation results and methods.” Scheduling Order at 6 (August 5, 2002). The threshold issues were decided by the three-judge panel and the Federal Circuit in USEC I, USEC II, Eurodif I, Eurodif II, Eurodif III, Eurodif IV and Eurodif V.
The Federal Circuit in both
Eurodif I
and
Eurodif II
held that the separative work unit (“SWU”) contracts for uranium enrichment there at issue were contracts for services and therefore not subject to the antidumping duty (“AD”) laws, and that 19 U.S.C. § 1673 unambiguously applies to sales of goods and not services.
3
Eurodif I,
Familiarity with the courts’ prior opinions is presumed.
Ill
Standard of Review
In reviewing Commerce’s antidumping duty determinations, the court must sustain any determination, finding, or conclusion unless it is unsupported by substantial evidence on the record or otherwise not in
When reviewing the Department’s construction of the antidumping statutes, the court first considers whether Congress has spoken directly to the question at issue.
Chevron U.S.A. v. Natural Res. Def. Council, Inc.,
To ascertain whether Congress has spoken on an issue, the court considers the plain text of the statute, canons of statutory construction, structure of the statute, and legislative history.
Timex V.I. v. United States,
IV
General Issues Analysis Pertaining To All Three Case Numbers
The first four issues discussed infra are common to each of USEC’s challenges with respect to LEU from Germany, the Netherlands, and the United Kingdom. Country-specific issues are discussed in Section V infra. Case number 02-00112 concerns LEU from the United Kingdom, 02-00113 LEU from Germany, and 02-00114 LEU from the Netherlands.
A
Commerce Made a “Fair Comparison” Between Urenco’s U.S. Export Price and Normal Value Based on Period of Investigation Sales Data
1
Parties’ Arguments
USEC argues that Commerce failed to make a “fair comparison” between Export Price (“EP”)
5
and Normal Value (“NV”)
6
USEC further argues that quantities of LEU “sold” during the POI under the contracts between Urenco and [Utility B] (a U.S. utility) constitute a distinct sale separate from its pre-POI obligation before the contract renegotiations. USEC’s Motion at 16-17. USEC also claims that when Urenco and its customers enter into a new or amended contract that includes new quantity commitments in addition to pre-existing commitments, the new quantity commitments constitute a ‘distinct sale’ as a matter of law. Id. at 15.
Defendant counters that “fair comparison” is not an additional requirement, as the term generally describes the calculations contemplated by the statute, and does not place an additional, independent requirement upon Commerce. Defendant’s Response in Opposition to the Motion for Judgment Upon the Agency Record Filed by USEC Inc. and United States Enrichment Corporation (“Defendant’s Response”) at 18, 20, 24. The Government also says that Commerce correctly used the new price terms in Urenco’s renegotiated contracts as the basis for calculating EP for all future deliveries by using Commerce’s regular date-of-sale methodology to effectuate a fair comparison. Id. at 9. Finally, Defendant argues that its normal methodology best reflected commercial reality. Id. at 18, 20, 24.
Defendant also argues that Commerce’s determination to apply the new contract terms for all deliveries made pursuant to the amended contracts best reflects the commercial reality of the contractual rene-gotiations, as opposed to USEC’s proposed methodology. Id. at 26. Defendant further claims that treatment of transactions after the contract renegotiations as a “distinct sale” is contrary to agency practice and precedent. Id. at 25.
Defendant argues that USEC incorrectly focuses on individual quantities, rather than entire contracts, in making its argument about a “fair comparison.”
Id.
at 30-31. Defendant further argues that Commerce’s determination to apply the new contract terms for all deliveries made pursuant to the amended contracts “reflects the reality,” as opposed to USEC’s proposed methodology.
Id.
at 26. Defendant notes that “specific changes in certain amendments introduced contractual terms that cannot be accounted for by USEC’s proposed methodology.”
Id.
at 27 (citing
Urenco’s arguments parallel those made by Commerce.
2
Discussion
a
The Department’s Chosen Date-of-Sale Methodology Is Supported By Substantial Evidence and In Accordance With Law
The date of sale is an issue because Urenco renegotiated its SWU contracts to two U.S. utility customers, [Utility B] and [Utility A] during the POI. USEC’s Motion at 11. USEC essentially argues that Commerce should have based its methodology only on LEU delivered pursuant to the renegotiated contract terms, and should not have considered quantities delivered prior to the renegotiations. Id.
The “fair comparison” requirement is found in 19 U.S.C. § 1677b(a), which provides that “[i]n determining under this title whether subject merchandise is being, or is likely to be, sold at less than fair value, a fair comparison shall be made between the export price [EP] or constructed export price [CEP] and normal value [NV].” (Emphasis added). The statute describes NY as the price “reasonably corresponding to the time of sale used to determine the [EP] or [CEP],” but does not specify the manner in which Commerce must determine the time of sale. 19 U.S.C. § 1677b(a)(l)(A). The Department’s date-of-sale regulation also provides that it:
[N]ormally will use the date of invoice ... [h]owever, the Secretary may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.
19 C.F.R. § 351.401(i).
In the preamble to this section, Commerce noted that due to the “unusual nature of longterm contracts ... date of invoice normally would not be an appropriate date of sale.... ” Antidumping Duties; Countervailing Duties, 62 Fed.Reg. 27,-296, 27,350 (May 19, 1997) (“Preamble to Final Rules”). Further, “[t]he date on which the material terms of sale are finally set would be the appropriate date of sale for such contracts.” Id. This has also been Commerce’s practice in other cases dealing with long-term contracts. See, e.g., Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Canada: Preliminary Results of Antidumping Duty Administrative Reviews and Recision of Reviews in Part, 65 Fed.Reg. 54,481, 54,-485 (September 8, 2000) (“For Dofasco’s sales made pursuant to long term contracts, we used date of contract as date of sale”); Final Affirmative Countervailing Duty Determination: Stainless Steel Sheet and Strip in Coils from the Republic of Korea, 64 Fed.Reg. 30,664, 30,679 (June 8, 1999).
Even if material terms of sale are not changed, Commerce maintains the authority to use a different date-of-sale methodology. Hornos
Electricos de Venez., S.A. v. United States,
Commerce has consistently held that a new date of sale is established for all future deliveries, governed by the amended terms, when parties renegotiate material terms of sale. See, e.g., Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan, 64 Fed.Reg. 55,243, 55,245 (October 12, 1999); Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cuh-to-Length Carbon Steel Plate from Canada, 64 Fed.Reg. 2173, 2178 (January 13, 1999) (“Canada”). Because these terms are material based on court and agency precedent, USEC’s argument fails.
The party seeking to establish a date of sale other than invoice date bears the burden of producing sufficient evidence demonstrating that “another date ... better reflects the date on which the exporter or producer establishes the material terms of sale.”
Viraj Group, Ltd. v. United States,
USEC cites Titanium Sponge from Japan, 54 Fed.Reg. 13,403 (April 1, 1989) (“Titanium”) in support of its argument that Commerce chose the wrong date of sale. Reply Brief of USEC Inc. and United States Enrichment Corporation (“USEC’s Reply”) at 4-5. In Titanium, a U.S. customer signed a minimum quantity contract and purchased amounts above that quantity at the contract price; Commerce determined the date of sale for the minimum quantity as the date the contract was signed, and for all amounts sold over the minimum quantity the date the delivery instructions were issued was designated the date of sale. Here, the issue is not a minimum quantity contract, but renegoti-ations of a contract. Titanium is accordingly distinguishable.
USEC also cites several cases in support of its argument that Commerce must reconsider its methodology on remand and adopt USEC’s proposed methodology. USEC’s Motion at 25-26 (citing
Budd Co. v. United States,
Specifically, USEC relies on the
Budd
cases for the proposition that for Commerce to effectuate a fair comparison, it must make a contemporaneous comparison of sales activity. USEC’s Motion at 10;
Budd I
concerned a review of the Department’s circumstances of sale adjustments to adjust the effect of currency discrepancies in a hyperinflationary economy.
8
The circumstance of sale adjustment enabled Commerce to “reconstruct a reference point whereby these values are being compared with the U.S. price at the same point in time.”
Budd I,
In
Budd I,
had Commerce not made a circumstance of sale adjustment within its discretion, it would have not made an accurate contemporaneous comparison. However, the court noted that the underlying Commerce determination in
Budd I
was “narrowly tailored to the facts” because of a unique circumstance
9
which does not exist in this case.
10
Budd I,
746 F.Supp.
Defendant contests USEC’s reliance on the
Viraj
line of cases for the broad proposition that a failure to explain why a methodology is a “fair comparison” is itself grounds for a remand. Defendant’s Response at 23. In
Viraj II,
the court remanded to Commerce to consider the most accurate methodology because a methodology may be “unreasonable in a given case when a more accurate methodology is available and has been used in similar cases.”
In this case, Commerce extensively analyzed USEC’s proposed methodology, concluding Commerce’s methodology “better reflected commercial reality.” Defendant’s Response at 24; Issues and Decision Memorandum from Bernard T. Car-rean, Deputy Assistant Sec’y for Import Administration, U.S. Dep’t of Commerce, to Faryar Shirzad, Assistant Sec’y for Import Administration, U.S. Dep’t of Commerce (December 13, 2001) (“Decision Memo ”) cmt. 11. That Commerce did analyze USEC’s methodology in detail distinguishes it from Viraj. Unlike Viraj, Commerce here made specific findings to support its determination that there was no reason to deviate from its normal methodology. 12
USEC contends that Commerce had “an obligation” to make a contemporaneous fair comparison by treating the renegotiated quantities as a distinct sale. USEC’s Reply at 5. USEC argues that because the price of LEU had steadily declined in the years prior to the POI, by combining the higher prices with the lower prices, Commerce’s “blending” skewed the calculations. However, the statute does not mandate that Commerce treat those quantities that way. 19 U.S.C. § 1677b(a). “Obviously it would be inappropriate for Commerce to have two different methodologies, one for when prices are rising, and another for when prices are falling, so as to maximize dumping margins.” Defendant’s
At verification, the Department found that the contracts had been renegotiated for a number of different reasons. Sales Verification Report at 5-6. Both in its Response and at oral argument, Commerce stated that it would be mere speculation on its part to assume the motivations of parties in contract negotiations. Transcript at 73. Further, Commerce confirmed during verification that Urenco did not view the [Utility A] contract as two separate sales, “one providing for delivery of [X% of Utility A’s] requirements at the ‘old’ price and the other providing for [a percentage] at the ‘new3 price.” Urenco’s Rule 56.2 Response Brief in Opposition to USEC’s Motion for Judgment upon the Agency Record Regarding Low Enriched Uranium from the United Kingdom (“Ur-enco’s Response”) at 29 (alteration in original); see Sales Verification Report at 7. Instead, “Urenco considered the blended price to cover one contract and one sale, i.e., their sale to [Utility A] and that [Utility A] only paid one price.” Id. This point is well supported by the evidence in the record.
Under the amended and restated contract between Urenco and [Utility A], “Ur-enco agreed to provide [certain different contract consideration] as well. The commercial reality is that Urenco and [Utility A] substantially renegotiated the terms of the pre-POI contract and emerged with a new, and very different, deal.” Urenco’s Response at 30 (emphasis in original).
USEC argues that these renegotiated terms in the new contract are mere form, and do not “really” govern future deliveries. USEC’s Motion at 18. Urenco responds that it renegotiated the terms of the pre-POI contract price in exchange for greater volume and less uncertainty, incorporating new terms in the already existing contract. Urenco’s Response at 30.
The Department’s decision to reject USEC’s “separate contract” theory was correct and Commerce’s methodology is supported by substantial evidence and is in accordance with law. For the purpose of determining Urenco’s EP, the “date of contract” accurately reflected the date on which Urenco established the material terms of sale better than the date of invoice. 19 C.F.R. § 351.401(f); Preamble to Final Rules, 62 Fed.Reg. at 27,350. USEC has identified no previous determination in which Commerce departed from its usual methodology to disregard quantities delivered pursuant to a pre-existing contract simply because it was renegotiated.
As Urenco correctly states, “USEC’s proposed methodology would actually require the Department to eschew the required reliance upon verifiable facts and records in favor of a convoluted and artificial mathematical analysis requiring substantial guess-work, speculation and assumption.” Urenco’s Response at 32. Commerce rightly concluded that USEC’s proposed methodology could not be accurately and consistently implemented. See Decision Memo at 22.
Based on the record evidence and longstanding methodology, Commerce properly determined that USEC’s proposed methodology skews the realities of long-term contracts and renegotiated terms. In the
Notice of Preliminary Determination of Sales at Less Than Fair Value: Low Enriched Uranium From the United Kingdom; Preliminary Determinations of Sales at Not Less Than Fair Value: Low
[W]e disagree that these new prices and the new quantities can always be viewed as sale separate from the existing contract. Rather, we find that the new prices and quantities are integrally related to the existing contract, which covers not just quantities and prices over extended periods but a host of other commercially relevant factors.... The fact that a new or amended contract may include new quantity commitments in addition to pre-existing quantity commitments does not mean that the new quantity can be viewed as a distinct sale.
Decision Memo at 21-22 cmt. 11. In its Decision Memo, Commerce described various factors besides price and quantity that entered into the negotiations. 13 Id.
Thus, Commerce’s decision to use a date of contract methodology, as opposed to its regulatory presumption in favor of date-of-invoice as date of sale in calculating EP was supported by substantial evidence in the record, agency precedent, and court precedent. Applying
Chevron
deference to Commerce’s chosen methodology, the court finds its decision to use the date of sale methodology based on the renegotiated contract date was reasonable. Because Commerce provided a rational explanation as to why the changes in the material terms in Urenco’s renegotiated contracts merited a deviation from its normal date-of-sale analysis, it made a “fair comparison” in accordance with the statute.
See Thai Pineapple,
b
Fair Comparison Is Not An Additional Statutory Requirement
Plaintiffs in two Federal Circuit cases made an argument identical to USEC’s concerning the alleged additional requirement of a fair comparison.
Corus Staal BV v. United States,
Urenco argues that
U.S. Steel Group v. United States, 25
CIT 1293, 1296 n. 7.
Urenco also argues that USEC incorrectly relies on
Ipsco, Inc. v. United States,
[Commerce’s] original methodology for calculating constructed value was a consistent and reasonable interpretation of section 1677b(e). The trial court therefore also erred in substituting ‘its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.’
IPSCO,
Commerce has achieved a fair comparison by complying with its own regulations. See 19 U.S.C. § 1677b(a). Because the substantial evidence in the record shows that Commerce complied with the statute, the Department’s fair comparison was in accordance with law.
B
Urenco’s U.S. Sales Were Properly Characterized By Commerce As Export Price Sales
1
Arguments
USEC argues that Commerce’s treatment of Urenco’s U.S. sales as EP sales, instead of undertaking a Constructed Export Price (“CEP”) analysis, is contrary to law and precedent as articulated in
AK Steel v. United States,
Urenco counters that the language was inserted into the contract in order to clarify that U.S. law would govern the contract because the contract was entered into outside the United States and most of the performance of the contract was in Europe. Urenco’s Response at 42. Defendant argues that the Department properly concluded that Urenco Ltd.’s U.S. sales were EP sales because the sales were contracted through Urenco Ltd., Urenco’s headquarters located in Marlow, U.K. Defendant’s Response at 32, 38.
2
Discussion
Commerce calculates dumping margins by comparing either EP or CEP with NY of subject merchandise. 19 U.S.C. § 1673, 1677a. In comparing EP, Commerce determines the price at which the subject merchandise is sold by a producer or exporter outside of the U.S. to an unaffiliated purchaser in the U.S. § 1677a(a). United States price is calculated using either an EP methodology or a CEP methodology, depending on whether subject merchandise is sold to an affiliated or unaffiliated purchaser in the United States.
14
§ 1677a. Normally, Commerce
In
AK Steel
the court held that use of the Department’s test to classify a sale as an EP sale conflicted with the plain language of the statute, where the sales contract was between a U.S. purchaser and a U.S. affiliate of the foreign producer/exporter.
AK Steel,
Urenco Ltd.’s records show that its sales were made outside of the U.S., and its questionnaire responses show that it controls its subsidiaries and affiliates and the selling procedures used. Defendant’s Response at 38. “Throughout the Sales Verification Report, Commerce found that all sales contracts involved the customer(s) and Urenco Ltd., not Urenco, Inc. Defendant’s Response at 40 (citing Sales Verification Report at 8, 9, 12).” Further, Commerce found that only Urenco Ltd. decided when to respond to Requests for Proposals in connection with obtaining new business. Id. (relying on Sales Verification Report at 6). A review of Urenco Ltd.’s “sales negotiation correspondence, contracts, invoices, shipping documents, records of payment and movement expenses” in the U.S. market show that the sales were tied to Urenco Ltd. Id. at 41 (relying on Sales Verification Report at 9). Commerce also confirmed that Urenco, Inc. sends contract proposals and defers to Urenco Ltd. for all business decisions involving sales. Id. (citing Sales Verification Report at 31). Urenco further explained that Urenco Ltd. “issues order confirmations, organizes enrichment, arranges for shipment and arranges for holding of product material at fabricators prior to book transfer to the customer. In contrast, Urenco, Inc. does not receive title to the imported LEU; nor does it perform the selling activities that would be indicative of CEP sales.” Urenco’s Response at 40.
At verification, Commerce analyzed Ur-enco Ltd.’s contracts and determined that the transactions were made with unaffiliated purchasers in the U.S., thereby supporting its decision to use EP instead of CEP. Urenco, Inc., the U.S. affiliate, was not a party to the contracts at issue. Defendant’s Response at 44 (citing
Anti-dumping Duties on Low Enriched Uranium From Germany: Response to Section A of the Department’s Questionnaire,
April 2, 2001)
(“UD Sect. A Response ”)
USEC argues, both in its initial brief and in its Reply, that Commerce determined where the contract was made and performed based solely on who made the sale, rather than where the sale was made. USEC’s Motion at 29; USEC’s Reply at 13. USEC provides no evidence that Commerce disregarded record evidence in its analysis; its arguments are merely unsupported assertions. There is substantial evidence, beyond merely the name Urenco Ltd., which supports Commerce’s determination that the contract was indeed made and enrichment performed outside of the United States. See Sales Verification Report at 31; UD Sect. A Response at A-27, Exhibit B-1, JA-2241.
USEC argues that
Pohang Iron & Steel Co. v. United States,
Because Commerce reasonably concluded that Urenco Ltd. in the United Kingdom was the contracting party, and that sales to U.S. customers were made by unaffiliated foreign producer/exporters, the AK Steel test is satisfied. 17 See, e.g., UD Sect. A Response at A-13. Therefore, Commerce’s decision to calculate Urenco Ltd.’s services using EP, instead of CEP, is supported by substantial evidence and in accordance with law.
Commerce’s Calculation of Urenco’s Normal Value is Supported By Substantial Evidence and in Accordance with Law
1
Commerce Properly Excluded Urenco Ltd.’s Losses Resulting From Futures Hedging Contracts in its Calculation of Normal Value Because They Were Not Related to Manufacturing the Subject Merchandise
USEC argues that Commerce incorrectly excluded certain futures contracts losses from its LTFV calculation of NV because Urenco did not provide evidence that these losses were not associated with its manufacturing activities. USEC’s Motion at 34-35. USEC claims that Commerce’s determination was speculative, because it assumed that such losses occurred outside the POI since they exceeded payments received in a particular one-month period, and because it assumed that the losses were associated with selling activities, as opposed to manufacturing. Id.
Defendant counters that Commerce properly excluded Urenco Ltd.’s losses resulting from futures hedging contracts in its calculations of manufacturing costs because they were not related to manufacturing the subject merchandise. Defendant’s Response at 51 (citing Decision Memo cmt. 17). Defendant cites ample evidence in the record which supports Commerce’s determination that such foreign exchange losses related to Urenco Ltd.’s general selling activities and sales contracts entered into outside the POI, and not to its production activity. 18
Urenco claims that two of the Department’s findings specifically support its determination that the LTFV margin calculation should not reflect losses on currency futures contracts. Urenco’s Response at 43. First, Urenco identifies the Department’s finding that it is “reasonable to conclude that Urenco’s hedging contracts, as well as the corresponding loss, are related to the activity being hedged, i.e., Urenco’s sales.” Urenco’s Response at 43-44 (citing Decision Memo at 32-33 (citing Urenco 2000 Annual Report at 17)). Second, it points to the Department’s conclusion that such losses were related to “[sales] contracts other than those entered into during the POI” based on evidence showing the amount of cash involved in Urenco’s futures contracts far exceeded the revenue from Urenco’s POI sales. Id.
There is no statute which speaks directly to adjustments reflecting currency hedging losses, and the statute concerning calculation of constructed value (“CV”) offers only general guidance.
See
19 U.S.C. § 1677b. Based on this general provision, Commerce determined that such losses were not related to production, which are the costs used to calculate CV.
See
19 U.S.C. § 1677b(e)(1);
19
see also Notice of
In the case of currency hedging, there is not necessarily a direct link to the specific activity generating the gains and losses. In contrast, foreign exchange gains and losses directly associated with cash transactions involving purchases or sales are easily traced to a company’s accounts payable and accounts receivable activity.
Defendant’s Response at 53. Commerce also reviewed Urenco’s Fiscal Year 2000 report, which indicated that its business is largely transacted in U.S. dollars, making Urenco continually exposed to that currency. Decision Memo cmt. 17; see also UD Sect. A Response at A-1, 47. Supporting that interpretation, Urenco’s currency hedging contract was for the sale of U.S. dollars. Id. In making its determination, Commerce analyzed Urenco’s contractual sales information and audited financial statements, ultimately finding that the currency hedging contracts were related to sales occurring outside the POI. Defendant’s Response at 53-54. Because the contracts were not directly tied to production activity, Commerce reasonably excluded them from the calculation of CV.
Commerce’s treatment of Urenco’s losses attributable to currency hedging contracts is supported by court and agency precedent.. The court and Commerce have previously rejected adjustments related to foreign currency hedging.
See, e.g., Thyssen Stahl AG v. United States,
Thus, Commerce’s conclusion that Uren-co’s foreign exchange losses were associated with sales transactions is supported by substantial evidence, and is in accordance with law.
2
Commerce’s Exclusion of the Cost of Urenco’s [Input] Contract Purchases Was Reasonable
USEC argues that Commerce departed from agency practice by excluding from its
The second argument put forth by USEC is that Urenco paid too much for its [input], and that therefore it could have also paid too little for [another form of processing by Supplier A]. 20 Id. at 47. Defendant counters that Commerce’s exclusion of the cost of Urenco’s [input] purchases from [Supplier A], a [Country A] supplier of LEU, was reasonable because the [input] acquired from [Supplier A] was segregated and was never sold in the United States. Defendant’s Response at 56; Transcript at 77. Defendant also disagrees with USEC’s argument that Commerce has broken with past practice. Commerce was consistent with past practice, Defendant argues, because the purchased [input] was not subject merchandise, but was purchased from a third country. See Defendant’s Response at 56, 59; Pasta, 65 Fed.Reg. at 7,356 cmt. 10. Defendant argues that Pasta stands for the proposition that Commerce’s practice is to either include the cost of merchandise from an unaffiliated supplier that cannot be separately identified in the weighted-average cost of manufacture, or to exclude such costs if the product “can be directly tied to specific sales by the respondent.” Defendant’s Response at 59.
Defendant further argues that Commerce based its determination on three findings, the first being that suppliers of [input] do not qualify as respondents in this proceeding, so their products were excluded from the analysis. Id. at 58 (citing Cost Calculation Memo at 4). Second, Commerce found that the nuclear industry keeps such tight control over the location of nuclear material that the products continued to be separately identifiable. Id. Third, it says, there was no evidence of unfair pricing. Id. at 59.
Urenco argued that the [input] purchased from [Supplier A] is sold after enrichment to facilities not located in the United States. Urenco’s Response at 45. At oral argument, Urenco acknowledged that a portion of the [Utility A] contract provides for the sale of low enriched uranium.
21
Transcript at 80. Urenco says that Commerce properly excluded [input] that Urenco acquired from an unaffiliated supplier and did
not
sell to customers in the United States because such contracts were not relevant to the cost of production calculation, precisely because the purchased product never reached the United States. Urenco’s Response at 45-46. Both Defen
Pursuant to statute, Commerce is required to exclude purchased product from the cost of manufacturing.
See
19 U.S.C. § 1677b(e)(1). The statute directs Commerce to calculate the costs of materials to
produce
the subject merchandise, not the
cost to purchase
it. This practice is supported by the Federal Circuit.
Thai Pineapple Pub. Co. v. United States,
As a result of
Eurodif
precedent, enrichment services SWU contracts are not included within the scope of the Final Determination. See
Eurodif I-Eurodif V.
The Federal Circuit’s decision in
Eurodif II
that the SWU contracts were contracts for services, and not goods, hinged on the court’s decision that title under the SWU contracts at issue never passed from the utility to the enricher at any point in the enrichment process.
Eurodif I,
Here, a portion of the contract with Utility A for the production and sale of LEU involved unenriehed uranium originally purchased by Urenco, after which title and ownership were transferred from Urenco to [Utility A], resulting in a sale of goods under
Eurodif I
and
Eurodif IT
s logic. Transcript at 80;
see Eurodif I,
Because the Remand Redetermination in the Eurodif line of cases did not directly pertain to the issues sub judice, Commerce’s modification of the scope of the Final Determination to exclude uranium enrichment contracts, as upheld by this court in Eurodif V, is not automatically binding here. 23 Since Commerce’s Final Determination is sustained in this case, it is unnecessary to apply the Eurodif precedent because no antidumping duty order is in place. Commerce made findings of zero and de minimis margins, no order was made; accordingly, no further action by this court or Commerce is necessary.
Plaintiff mistakenly argues that Uren-co’s failure to physically differentiate its purchased [input from its self-produced input for the U.S. utilities’] automatically
Additionally, in Pasta, Commerce did not impose a requirement of physical identity of the tangible product; it required that the respondent separately identify the product “for sales purposes” in order to track it. See Pasta, 65 Fed.Reg. at 7356. As USEC acknowledged in its Commerce Brief, Urenco does “track this [purchased input] on paper ... and segregate^] its own production from [the purchased input].” Urenco’s Response at 47 (citing USEC’s Commerce Case Brief at 107-08). LEU, by its nature, is not physically or tangibly identifiable.
USEC also argues that “Urenco paid too much to its unaffiliated supplier for [input], so that it could also pay too little for [another form of processing].” Urenco’s Response at 48 (citing USEC’s Motion at 47). At verification, Commerce confirmed Urenco’s documentation of the transactions, concluding: “the prices paid by Ur-enco for each of these services/products are based on terms specified in a long-term contract agreed to several years pri- or to the POI and between unaffiliated parties.” Decision Memo at 29 (citing Cost Calculation Memo at 4). The evidence Commerce evaluated at verification confirmed that the price Urenco paid for [input] from its unaffiliated supplier during the POI was set in a contract amendment [signed] prior to the POI. Urenco’s Response at 48 (citing Sales Verification Report Tab F, Exhibit 29). Therefore, Commerce concluded that “[w]e have found no evidence or incentive for the parties to have negotiated unfair prices for [the other form of processing] at the expense of [input] purchases.” Cost Calculation Memo at 4 (alteration in original). 25
3
The Department Correctly Calculated Urenco’s Constructed Value Profit Rate
USEC argues that Commerce miscalculated Ureneo’s Constructed Value (“CV”) profit rate by making inconsistent adjustments. USEC’s Motion at 49. Specifically! by allowing Urenco’s depreciation expenses, but by excluding its other cost items, USEC argues that Commerce understated Urenco’s CV profit rate. Id. “Commerce increased the depreciation expense contained in the cost of production for each Urenco subsidiary to reflect the fact that Urenco had understated the depreciation stemming from its purchases of capital assets from affiliated parties.” Id. Therefore, USEC argues, this issue must be remanded to Commerce for further explanation as to why Commerce failed to make parallel adjustments. Id. at 52.
Urenco responds that the Department correctly calculated the CV rate on a company-wide basis. 26 Urenco’s Response at 49. “In short, the Department accepted the obvious conclusion that if [Urenco Ltd.’s] total expenses had been higher, [Urenco Ltd.’s] company-wide profit would have been lower.” Id. at 50 (citing Decision Memo at 28). Urenco also argues that the Department properly included in the CV calculation all of the expenses included in the calculation of Urenco Ltd.’s cost of production, and USEC’s argument proposing the exclusion of such expenses is barred because it failed to raise this argument during the administrative proceedings. Id. at 51.
Defendant says that Commerce’s adjustment to Urenco’s cost of production by increasing its depreciation expenses on its capital assets (specifically, centrifuges), was in accordance with 19 U.S.C. § 1677b(e) and agency practice. 27 Defendant argues that USEC seeks a remand to Commerce to consider other adjustments not raised at the administrative level. Id. Therefore, it says, USEC has failed to exhaust its administrative remedies in its request for Commerce to make further adjustments to its CV profit calculation. Defendant’s Response at 66, 71.
Pursuant to statute, CV is calculated by combining the 1) cost of materials and fabrication; 2) sales, general, and administrative expenses and profit; and 3) costs for containers and coverings. 19 U.S.C.
“Commerce then increased the depreciation expense contained in the COP for each Urenco subsidiary to reflect the value of capital assets purchased from affiliated parties.” Id. at 68 (quoting Decision Memo at 28). Explaining its rationale for its increase, Commerce stated that
[t]he transfer price, however, did not include all ... costs or net financing expenses, both of which are a components (sic) of the cost of production. Therefore, for the final determination, we increased depreciation expenses associated with those fixed assets.
Id. (quoting Decision Memo at 28). Defendant further argues that because Commerce could not calculate Urenco’s NV using home market sales, it likewise could not rely on Urenco’s sales for the calculation of CV profit pursuant to 19 U.S.C. § 1677b(e)(2)(A). Id. at 69. Because actual data was unavailable, in accordance with section 1677b(e)(2)(B), Commerce looked to “actual amounts incurred and realized ... for selling, general, and administrative expenses ... in the same general category of products as the subject merchandise.” 19 U.S.C. 1677b(e)(2)(B). Thus, Commerce arrived at a “global profit” figure, derived from Urenco’s sales and divided it by a “global COP,” made up of all merchandise used in Urenco’s profit calculations. Defendant’s Response at 69. “The result was ... a percentage of profit, which it then applied to Urenco’s reported COP of subject merchandise ... [which] was then added to Urenco’s COP to determine Urenco’s CV.” Id.
In its Preliminary Determination, Commerce did not initially take into consideration Urenco’s depreciation expenses. See Preliminary Determination, 66 Fed. Reg. 36,748. Urenco argued that if Commerce imputes depreciation expenses on its capital assets (namely, centrifuges), Commerce should likewise reduce Uren-co’s subsidiaries’ profits with a depreciation offset, because the increase in costs would necessarily reduce profits. Defendant’s Response at 70. Commerce replied that it was not required to make such an offset, but found that it was reasonable. Id.; Decision Memo at 28.
USEC does not dispute any of Commerce’s depreciation offsets, but argues that Commerce should have made other adjustments to its CV profit calculation since it already made two. USEC’s Motion at 50-51. Defendant responds that USEC failed to raise this argument in its Comments on the
Preliminary Determination
before Commerce and is therefore barred from raising it here.
28
Defendant’s
Defendant’s “exhaustion of administrative remedies” argument need not be addressed.
29
Commerce has reasonably explained how and why it arrived at Urenco’s profit rate, with the increased depreciation adjustment, based on the evidence contained in the record. Commerce’s calculations and explanation are in conformity with 19 U.S.C. § 1677b(e) and (f). Even though Commerce’s interpretation of § 1677b(e) and (f) was not required, it was a permissible and reasonable construction of the statute.
See Chevron,
V
Country Specific Issues A Low Enriched Uranium From the United Kingdom, Court No. 02-00112
1
Commerce Properly Allocated a Proportion of Urenco’s Centrifuge Losses as Period Costs in its Calculation of Constructed Value
USEC argues that not including the entire amount of UCL’s centrifuge failure losses in Commerce’s cost of production calculation because they were deemed not to be within the POI, was incorrect and runs contrary to agency precedent. USEC’s Motion at 52-53. USEC also objects to Commerce’s treatment of such losses as period costs, because UCL reported these losses as “materials costs” and because the loss did not relate to the “company as a whole” since the equipment was used for other activities besides the production of LEU. Id. at 54; see 19 U.S.C. 1677b(f)(1)(A) (directing agencies to follow a producer/exporter’s accounting records when they are in accordance with generally accepted accounting principles (“GAAP”)). Therefore, USEC asks that the Final Determination be remanded to Commerce to include the full amount of UCL’s centrifuge losses as manufacturing costs. Id. at 55.
Additionally, USEC argues that Commerce “gave no rationale for departing from Urenco’s normal accounting treatment for this loss,” and that any arguments by Defendant or Urenco now “constitute[ ] post hoc rationalization by counsel.” USEC’s Reply at 25-26. In particular, USEC refers to Defendant’s argument in its Response that it applied its normal methodology of treating maintenance costs as manufacturing period costs, and that centrifuge replacement benefits production throughout the fiscal year. Id. at 26. Therefore, USEC claims, in the absence of an explanation, Commerce should have applied Urenco’s classification of the expense. 30 Id. at 27.
UCL listed the costs associated with its centrifuge failures as “materials costs applicable solely to production during the POI,” but Commerce characterized it as a period cost in the Final Determination, allocating it proportionately throughout the year incurred. Defendant’s Response at 75, 82 (citing Decision Memo cmt. 23). Commerce’s decision to allocate the cost commensurate to the portion that fell within the POI is consistent with agency practice and with the evidence provided by Urenco in the record. Id. at 76 (citing Decision Memo cmt. 23); see, e.g., Steel From Korea, 58 Fed.Reg. at 37,187 (stating that production assets, such as rollers and parts, “benefit production throughout the fiscal year” and are treated as period costs). Specifically, Commerce found that centrifuge failure is not “unusual in nature” or “infrequent in occurrence” and Urenco’s financial statements expensed the entire amount associated with loss. Decision Memo cmt. 23. Pursuant to statute, Commerce is directed to follow a respondent’s normal accounting methodology when it is consistent with accounting standards and is reasonable. 19 U.S.C. § 1677b(f)(l)(A). 31
Another reason for Commerce’s allocation of period costs, Defendant argues, is that they benefit production throughout the fiscal year, unlike material costs. Defendant’s Response at 77; see also Notice of Final Determination of Sales at Less Than Fair Value: Fresh Atlantic Salmon from Chile, 63 Fed.Reg. 31,411, 31,436 (June 9, 1998) (By spreading period costs proportionately over the POI, each product absorbs proportionate amount of period costs; period costs are more related to an accounting period and manufacturing costs are more related to a particular product).
Because UCL’s primary business and “the source of virtually all its revenue, is the enrichment of uranium using centrifuges,” it was reasonable for Commerce to attribute a proportionate amount of the losses over the POI.
32
Urenco’s Response
Additionally, USEC’s argument to include the entire cost of the replacement centrifuges would “unreasonably attribute replacement costs” to LEU sold outside the POI. Defendant’s Response at 82. Consistent with the rationale in Steel From Korea and section 1677b(f)(l)(A), centrifuges are a production asset' and costs of replacing them benefit production throughout the year; thus, Commerce’s treatment of Urenco’s centrifuge losses as period costs and allocating the cost of replacement centrifuges is supported by substantial evidence and is in accordance with law.
2
The Department Correctly Excluded Ur-enco’s Research and Development Costs from its CV Determination
USEC argues that Commerce miscalculated UCL’s research and development (“R & D”) rate by excluding costs associated with the New Products Division (“NPD”). USEC’s Motion at 55. USEC further argues that Commerce’s allegedly erroneous conclusion that such R & D projects generated revenue, led it to wrongly exclude these costs in its calculation of Urenco’s cost of production. Id. USEC claims that 19 U.S.C. § 1677b(f)(l)(B) requires Commerce to include a share of R & D expenses where a respondent incurs expenses on new products, therefore, Commerce understated Urenco’s cost of producing LEU by excluding non-recurring expenses rather than reflecting them in the calculation of cost of production. USEC’s Motion at 57; USEC’s Reply at 30.
At oral argument, USEC clarified its argument, stating that because there were “no discernible sales” from the NPD as per Commerce’s verification report, the only way for the NPD to be financed was internally, that is, through profit from Ur-enco’s uranium enrichment division. Transcript at 52. Because the R & D on new products had no sales, USEC added, its expenses should be attributable to general R & D. Id. at 54.
Defendant counters that Commerce’s determination to exclude R & D expenses
USEC cites previous final determinations made by the Department in support of its arguments; however, they support Defendant’s arguments under the particular facts of this case. Specifically, longstanding agency practice has been to include R & D expenses in its CV calculation only when the benefits of R & D could not be tied to a specific product or production activity. See Final Determination of Sales at Less Than Fair Value: Fresh Cut Roses From Colombia, 60 Fed.Reg. 6,980, 7,016 (February 6, 1995) (including R & D expenses in CV calculation after finding no conclusive evidence that the R & D related specifically to production). The underlying factual basis for that determination was directly contrary to the agency’s record in this case. Here, Commerce has found no evidence demonstrating any linkage between Urenco’s NPD activities and its LEU production.
Section 1677b(f)(l)(A) directs Commerce to calculate CV based on the records of the producer/exporter, when in accordance with GAAP of the exporting or producing country. Addressing USEC’s claim that the statute directs Commerce to include the R & D expenses, Urenco correctly explains, “[njothing in the language quoted from the Preamble to Proposed Rules indicates that the Department’s policy is to include in the cost of producing subject merchandise a company’s R & D costs unrelated to subject merchandise.” Uren-co’s Response at 57. In the Preamble to Proposed Rules, it states, “because of the fact-specific nature of determinations involving nonrecurring costs, the Department has not drafted any regulations to implement section 773(f)(1)(B) of the Act [19 U.S.C. § 1677b(f)(l)(B)].” Antidumping Duties; Countervailing Duties, 61 Fed.Reg. 7,308, 7,342 (February 27, 1996) (“Preamble to Proposed Rules ”); see also Preamble to Final Rules, 62 Fed.Reg. at 27,362. The subsection of the statute is a general provision, guiding Commerce to calculate costs “based on the records of the exporter or producer of the merchandise, if such records are kept in accordance with the [GAAP] of the exporting country....” 19 U.S.C. § 1677b(f)(1)(A). Subsection (B) only notes that “[c]osts shall be adjusted appropriately for these nonrecurring costs that benefit current or future production .... ” § 1677b(f)(l)(B). Section (f) contains more specific instructions on calculating sales at less than the cost of production and CV in sections (b) and (e), and is not the basis by which Commerce makes its calculations.
Upon review of Urenco’s records, Commerce found “that [Urenco Ltd.’s] New Products Division is dedicated to the development and production of two major products unrelated to the enrichment process,” and the work conducted there “provide no intrinsic benefits to Urenco’s enrichment activities.” Defendant’s Response at 85 (citing
Decision Memo
cmt. 19); Urenco’s Response at 54. USEC argues that R
&
D expenses may only be excluded from the CV calculation when the respondent is producing
and selling
the non-subject merchandise. The reasoning is that generation of revenues is the determinative factor in whether to include expenses in the CV calculation. USEC’s Motion at 57 (citing
Notice of Final Determination of Sales at Less
SRAMS is, however, distinguishable from the case at bar. In SRAMS, Commerce determined that because there was “significant cross-fertilization” between R & D work and the subject merchandise, all R & D expenses should be allocated over all products. SRAMS, 63 Fed.Reg. at 8,939. Here, USEC has not alleged, and the Department has not identified, any potential cross-fertilization between Uren-co’s NPD and its LEU enrichment.
The Department arrived at the same conclusion in
Dynamic Random Access Memory Semiconductors of One Megabit or Above From the Republic of Korea; Final Results of Antidumping Duty Administrative Review,
61 Fed.Reg. 20,216, 20,218 (May 6, 1996)
(“DRAMS”),
finding that R & D costs cannot be included in the CV calculation in the absence of “any record evidence of R & D cross-fertilization.”
Id.
(citing
Micron Tech. v. United States,
In
Micron Tech.,
the court rejected Commerce’s inclusion of R & D costs unrelated to the subject merchandise in its calculation of CV of the subject merchandise.
Micron Tech.,
Because the Department determined, based on the record, that UCL’s R & D associated with its NPD provided no “intrinsic benefits to Urenco’s enrichment activities,” its determination is supported by substantial evidence and is in accordance with law.
B
Low Enriched Uranium From Germany, Court No. 02-00113 34 Commerce Properly Accepted Urenco Deutsch-land’s Tails Disposal Costs Estimate
By failing to adjust Urenco Deutschland’s (“UD”) accrued expense for tails disposal, USEC argues that Commerce understated its cost of production
Defendant argues that UD’s valuation of disposal costs for depleted uranium tails was reasonable and Commerce’s use of these figures is supported by the record. Defendant’s Response at 75.
Germany’s GAAP require that producers of LEU include in their annual expenses, in the normal course of business, costs associated with tails disposal, even if the tails were not disposed. 19 U.S.C. § 1677b(f)(l)(A); Defendant’s Response at 76. UD estimated its costs because it kept its tails in a storage facility. Id. Its estimates were based on an official quote provided by [Supplier B, an unaffiliated third party]. Id. at 77 (relying on UD Supp. Sect. D Response at 16, Exhibit 8, at 10-11). Urenco disputes USEC’s assertion that Urenco’s accrual for the expenses of tails disposal is based only on “Urenco’s internal estimates,” rather, it argues it is based on “information from other sources, including cost proposals from unaffiliated third parties.” Urenco’s Response at 5; USEC’s Motion at 4. Commerce reviewed UD’s estimates at verification and found them to be reasonable estimations of disposal costs. See Memorandum from Ernest Z. Gziryan, Accountant, U.S. Dep’t of Commerce, to Neal M. Halper, Dir., Office of Accounting, U.S. Dep’t of Commerce, regarding Antidumping Duty Investigation of Low Enriched Uranium from Germany: Verification of the Cost of Production and Constructed Value Data submitted by [UD] (September 25, 2001) (“Germany Cost Verif. Report ”) at 16-18. Commerce based its determination on meetings with nuclear enrichment scientists, reviewing Urenco’s cost determination report, and by comparing UD’s 2000 tails estimate with the cost of sending tails for [another form of processing to Supplier A], its unaffihated supplier. Defendant’s Response at 78-79 (citing Germany Cost Verif. Report at 16-18, and UD Supp. Sect. D Response at 16-18, Exhibit 9, at 12).
Defendant agrees with USEC that the Department does not usually rely on estimates for its calculations. See Stainless Steel Wire Rod from Spain; Final Results of Antidumping Duty Administrative Review, 66 Fed.Reg. 10,988 cmt. 2 (February 21, 2001); Decision Memo cmt. 2. But, it says, here USEC fails to distinguish that UD’s figures were merely estimates of future disposal and costs of future expenditures, and it was not possible to provide a concrete price for disposal. Defendant’s Response at 82.
USEC also argues that Commerce erred by not choosing the higher [Supplier B] estimate for tails disposal. USEC’s Motion at 56. Commerce was aware of the higher tails disposal cost estimate from [Supplier B in Year A], however, Defendant argues that UD explained that it was not a formal quote received by UD, but priced as a “testing market” because [Supplier B] did not have the capacity in [Year A] to dispose of all of its tails as it did in [Year B]. Defendant’s Response at 80 (citing
UD Supp. Sect. D Response,
Exhibit 8, at 6);
Germany Cost Verif. Report
at 18. In its
Decision Memo
incorporated in the
Final Determination,
Commerce dismissed UD’s claims that adopting its own estimates would distort Commerce’s methodology, noting that “[w]e found no reason to believe that these assumptions repre
For the purpose of calculating CV, 19 U.S.C. § 1677b(f)(l)(A) states that costs shall normally be calculated on the basis of the records of the exporter or producer, when in accordance with GAAP. Id. Based upon the reasons explained above, and because UD’s accounting records are annually audited, Commerce found the difference between the [Supplier A] figure and UD’s estimate was minimal enough not to question the reasonableness of UD’s estimates. Germany Cost Verif. Report at 17. Therefore, Commerce properly determined that UD’s records satisfied the statute and were appropriate to use in its CV calculations. Decision Memo cmt. 16.
USEC further argues that UD understated its tails accrual by 6.9 percent, based on a comparison between UD’s tails disposal provision with the cost of [another form of processing] performed by [Supplier A, a Country A company], USEC’s Motion at 55. USEC also asserts that the Department “implicitly concluded” that [Supplier A’s] price was the “market rate.” Id. In its verification report, Commerce states that the Department made this comparison only “to assess the reasonable of UD’s year 2000 tails provision.” Germany Cost Verif. Report at 16. Urenco also says the price of [Supplier A’s other form of processing] was only for a limited quantity. UD Supp. Sect. D Response, Exhibit 8 at 9. Because Commerce investigated UD’s estimates at verification, and there is no evidence presented to support USEC’s claims of “manipulation,” USEC’s argument fails.
USEC also claims that because UD’s tails disposal costs were adjusted by Commerce, UNL’s costs should have likewise been changed. USEC’s Motion at 54. However, Urenco argues, and as Commerce noted at verification, “each company uses different cost assumptions for the final disposal of tails and different timing of future payments, which affects discounting of the charges to present value.... As such, it may not be appropriate to simply compare each Urenco company’s final disposal cost of tails.... ”
Germany Cost Verif. Report
at 17-18. Further, in Commerce’s
Decision Memo,
it stated that UNL’s situation was different “due to the fact that UNL’s tails provision is premised on certain services provided by an affiliated party.”
Decision Memo
at 30. UD’s tails provision, on the other hand, is premised on services provided by an
unaffiliated
party, thus accounting for a difference in estimates. According to 19 U.S.C. § 1677b(f)(2),
35
transactions between affili
USEC offers no evidence to support its assertions, aside from claiming Commerce “implicitly” makes its determinations. USEC’s entire argument is built on speculation, with a conspicuous absence of factual support. USEC even goes so far as to argue that “the fact that UD’s assumptions may be required ‘German government policy’ or German law is simply irrelevant.” USEC’s Reply at 27. In the absence of evidentiary support for USEC’s arguments, and in light of Commerce’s reasonable explanations, the Department’s treatment of the tails disposal cost was supported by substantial evidence and in accordance with law.
C
Low Enriched Uranium From The Netherlands, Court No. 02-00114
There are no country-specific issues in this case.
VI
Conclusion
All parties having agreed at oral argument that if the court sustains Commerce’s findings, all of the issues in these cases are decided. 36 Commerce’s Final Determination is sustained and USEC’s Motion for Judgment Upon the Agency Record is Denied.
ORDER AND JUDGMENT
This case having come before the court upon the Motion for Judgment Upon the Agency Record filed by USEC Inc. and United States Enrichment Corporation (collectively, “Plaintiffs’ Motion”); the court having reviewed all pleadings and papers on file herein, having heard oral argument by each party, and after due deliberation, having reached a decision herein; now, in conformity with said decision, it is hereby
ORDERED ADJUDGED AND DECREED that Plaintiffs’ Motion is DENIED, and it is further
ORDERED ADJUDGED AND DECREED that the decision of the U.S. Department of Commerce (“Commerce”) in Notice of Final Determinations of Sales at Not Less Than Fair Value: Low Enriched Uranium From the United Kingdom, Germany and the Netherlands, 66 Fed.Reg. 65,886 (December 21, 2001) is hereby SUSTAINED; and it is further
ORDERED that all parties shall review the court’s Opinion in this matter and notify the court in writing on or before Tuesday, May 15, 2007, whether any information contained in the Opinion is confidential, identify any such information, and request its deletion from the public version of the Opinion to be issued thereafter. The parties shall suggest alternative language for any portions they wish deleted. If a party determines that no information needs to be deleted, that party
Notes
. "LEU is enriched uranium hexafluoride (UF [0])with a U <235> product assay of less than 20 percent that has not been converted into another chemical form, such as UO ^], or fabricated into nuclear fuel assemblies, regardless of the means by which the LEU is produced (including LEU produced through the down-blending of highly enriched uranium).” Id. at 65,887.
. The arguments decided here were filed by the parties before the three-judge panel in 2002-2003, prior to the Federal Circuit decisions in the Eurodif line of cases. Separate issues were assigned to each participant in that panel after general issues were decided.
. A SWU contract is a contract for a "separative work unit,” a measurement of the amount of energy or effort required to separate a given quantity of feed uranium into LEU and depleted uranium at specified assays. In these SWU contracts, the enricher enriches the unenriched uranium and delivers LEU to the purchaser.
See, e.g., Eurodif I,
.Following the Eurodif line of cases, contracts for the sale of LEU would still be included within the ambit of the antidumping duty order. Urenco acknowledged at oral argument that a portion of the contract with [Utility A] involved a sale of LEU to a U.S. utility. Because Commerce found a de min-imis dumping margin for the United Kingdom, and a zero percent margin for Germany and the Netherlands, this fact does not affect the calculation of Urenco’s dumping margin.
. Section 1677a(a) defines Export Price as:
the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States____
. Normal Value is defined as:
[T]he price at which the foreign like product is first sold ... for consumption in the exporting country, in the usual commercial quantities and in the ordinary course oftrade and, to the extent practicable, at the same level of trade as the export price or constructed export price....
19 U.S.C. § 1677b(a)(l)(B).
. All citations to Parties' briefs refer to the briefs in court number 02-00112, unless otherwise specified.
. The progenitor litigation to the
Budd
cases which originally remanded to Commerce was
Borlem
S.A v.
United States,
. The unique circumstance present in
Budd I
was Brazil’s hyperinflationary currency.
Budd I,
.In
Budd II,
Plaintiff challenged the underlying reasoning of the same amended final determination, and the court once again denied Plaintiff’s claims.
Budd II,
773 F.Supp.
. The court asked Plaintiff whether there is evidence that "the Department has ever been called upon to malee the calculations USEC proposes.” Transcript of Oral Argument ("Transcript”) at 35. Plaintiff responded, "We don't believe the Department has ever been faced with these specific facts before.” Id.
. USEC acknowledged at oral argument that Urenco's contracts were not manipulative, but argued that Commerce's failure to address the issue leaves open the possibility in the future that manipulations can occur in other cases. Transcript at 14-15. Federal courts do not issue advisory opinions.
See Flast v. Cohen,
. Other factors Commerce considered included "1) utilities’ concerns for security of supply; 2) utilities’ concerns for a diversity of supply sources, 3) Urenco's desire to maintain long-term relationships with customers, 4) changes in utilities' fuel procurement practices, and 5) the existence of price review clauses in contracts.” Decision Memo at 22, cmt. 11 (citing Sales Verification Report at 5). Commerce also considered factors listed in the U.S. International Trade Commission’s Preliminary Determination, such as "discounts on pre-existing supply commitments, extended payment terms, the timing of the provision by the utilities of the converted uranium feedstock, and packaging and handling terms.” Id. (citing Low Enriched Uranium from France, Germany, the Netherlands, and the United Kingdom, Inv. 701-TA-409-412 (Preliminary) and 731-TA-909-912 (Preliminary), USITC Pub. 3388 (January 2001)).
. As noted above, the statute defines EP and CEP as follows:
(a) Export price
The term 'export price' means the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States....
(b) Constructed export price
The term 'constructed export price' means the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date ofimportation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter____
19 U.S.C. § 1677a(a)-(b).
. The AK Steel test involved a contract between a U.S. purchaser and a U.S. affiliate of the foreign producer/exporter. In contrast, this case involves a U.S. purchaser and a foreign producer/exporter, which clearly falls within the ambit of the statute.
. Choice of law clauses “protect the expectations of the parties ... regardless of where the case is brought for litigation.” The Law of Transnational Business Transactions § 4.20 (Ved P. Nanda & Ralph B. Lake, eds., 2002);
see Phillips Petroleum v. Shutts,
. The second factor in determining where the sale was made in the United States is whether title passes.
AK Steel,
. See, e.g., Decision Memo cmt. 17; UD Sect. A Response at A-l, A-47; Memorandum from Ernest Gziryan, Accountant, U.S. Dep’t of Commerce, to Neal Halper, Dir., Office of Accounting, U.S. Dep't of Commerce, regarding Cost of Production and Constructed Value Calculation Adjustments for the Final Determination — [for Urenco Ltd. and Urenco Deutsch-land] (December 13, 2001) ("Cost Calculation Memo ") at 4-5.
. 19 U.S.C. 1677b(e)(l) states, in pertinent part:
[T]he constructed value of imported merchandise shall be an amount equal to the sum of—
(1) the cost of materials and fabrication or other processing of any kind employed in producing the merchandise, during a period which would ordinarily permit the production of the merchandise in the ordinary course of business....
. [The other form of processing is a process rendered upon] depleted uranium after the original enrichment process. USEC's Motion at 5, 45-6.
. Applying the Eurodif precedent, this particular LEU would remain within the scope of the Final Determination.
. This court in
Eurodif TV
noted that Commerce did not address the issue of affiliated party feed purchase claims because it found that the remand instructions did not direct it open the record on this issue.
Eurodif IV,
. The Remand Redetermination disposed of consolidated case numbers 02-00119 and 02-00221.
. We are not dealing with widgets here, which can be physically marked and separated, but with LEU, which is in tracked in quantities under SWU contracts.
. Urenco also points out that:
USEC makes no allegation that the SWU price was above the market price at the time of this [contract amendment]. Rather,the sole foundation for USEC’s claim is an amendment signed during the POI. But the POI amendment did not alter the price set in the earlier amendment for deliveries in the POI; rather, it sets a [different contract term] for deliveries in [a later period],
Urenco’s Response at 49.
. Calculations were made based on Urenco Ltd.'s audited financial statements. Commerce determined the amount of profit by deducting total expenses in 2000 from total turnover in 2000. See Cost Calculation Memo, Attachment 6 (citing Urenco Ltd. Cost Verification Exhibit 11, p. 26, JA-9291).
. This is not disputed by USEC.
. Defendant additionally argues that it would be “unreasonable” for Commerce to
. Defendant’s exhaustion argument is without merit because Plaintiff was not in a position to argue for additional adjustments to the CV profit calculation at the administrative level. Because Commerce adjusted Urenco’s CV profit rate in the Final Determination, the only opportunity for Plaintiff to contest that adjustment was before this court.
. USEC argues in both of its briefs, concerning all other issues in this case, that Com
. Commerce shall normally calculate costs according to the following criteria:
[Biased on the records of the exporter or producer of the merchandise if such records are kept in accordance with the generally accepted accounting principles of the exporting country (or the producing country, where appropriate) and reasonably re-fleet the costs associated with the production and sale of the merchandise....
19 U.S.C. § 1677b(f)(l)(A).
. In Commerce’s
Decision Memo,
it held that Urenco’s centrifuge failure was not "unusual in nature” or "highly abnormal” because it is clearly related to the production of LEU since centrifuges are critical to the production of uranium.
Decision Memo
cmt. 23 (citing
Antidumping Duties on Low Enriched
. Urenco corroborated this statement at oral argument.
. All briefs and appendices containing the administrative record cited in this section were filed in case number 02-00113.
. 19 U.S.C. § 1677b(£)(2) states:
A transaction directly or indirectly between affiliated persons may be disregarded if, in the case of any element of value required to be considered, the amount representing that element does not fairly reflect the amount usually reflected in sales of merchandise under consideration in the market under consideration. If a transaction is disregarded under the preceding sentence and no other transactions are available for consideration, the determination of the amount shall be based on the information available as to what the amount would havebeen if the transaction had occurred between persons who are not affiliated.
. Transcript at 75, 77, 80, 81.