Nos. 07-1059, 07-1078

UNITED STATES OF AMERICA; USEC INC.; andUNITED STATES ENRICHMENT CORPORATION,

Petitioners,

V.

EURODIF S.A.; COMPAGNIE GENERALEDES MATIERES NUCLEAIRES; COGEMA, INC.; and

THE AD HOC UTILITIES GROUP,

Respondents.

ON PETITION FOR WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF IN OPPOSITION

Nancy A. FischerCounsel of RecordStephan E. BeckerDavid J. CynamonJoshua D. FitzhughPILLSBURY WINTHROP SHAW PITTMAN LLP

2300 N Street, NWWashington, DC 20037(202) 663-8000

Counsel for Respondentthe Ad Hoc Utilities Group Dated: March 21, 2008

THE LEX GROUPpC , 1750 K Street N.W. ¯ Suite 475 ¯ Washington, DC 20006(202) 955-0001 ~ (800) 815-3791 ¯ Fax: (202) 955-0022 ~www.thelexgroupdc.com

QUESTION PRESENTED

Whether the court of appeals was correct inholding that under the plain language of theantidumping statute, 19 U.S.C. § 1673, contracts forthe sale of uranium enrichment services are notsales of merchandise, and therefore that sales ofenrichment services under those contracts are notsubject to the statute.

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RULE 29.6 STATEMENT

Pursuant to Supreme Court Rule 29.6, themembers of the Ad Hoc Utilities Group (hereinafter"AHUG") joining in this Brief in Opposition list theirrespective parent companies and nonwholly ownedsubsidiaries as follows:

The parent company of respondentDominion Energy Kewaunee, Inc. isDominion Resources, Inc. DominionEnergy Kewaunee, Inc. has nononwho]!ly owned subsidiaries.

The parent company of respondentDominic.n Nuclear Connecticut, Inc. isDominic.n Resources, Inc. DominionNuclear Connecticut, Inc. has nononwholly owned subsidiaries.

The parent company of respondentDuke Energy Carolinas, LLC is DukeEnergy Corporation. Duke EnergyCarolinas, LLC has no nonwhollyowned s~ubsidiaries.

The parent company of respondentEntergy Services, Inc. is EntergyCorpora~Lion. Entergy Services, Inc. hasno nonwholly owned subsidiaries.

o Respondent Exelon Corporation has noparent and three nonwholly ownedsubsidiaries: Sithe Energies, Inc.,Corned, and PECO.

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o The parent company of respondentFlorida Power & Light Company is FPLGroup, Inc. Florida Power & LightCompany has no nonwholly ownedsubsidiaries.

o Respondent Nebraska Public PowerDistrict has no parent or nonwhollyowned subsidiaries. It is a politicalsubdivision of the State of Nebraska.

o The parent company of respondent PPLSusquehanna, LLC is PPL Corporation.PPL Susquehanna, LLC hasfournonwholly owned subsidiaries:PPLElectric Utilities Corporation, PPLEnergy Supply LLC, PPL MontanaLLC, and PPL Transition BondCompany LLC.

The parent company of respondentProgress Energy Carolinas, Inc.,formerly known as Carolina Power &Light Company, is Progress Energy,Inc. Progress Energy Carolinas, Inc.has no nonwholly owned subsidiaries.

10. The parent company of respondentProgress Energy. Florida, Inc., formerlyknown as Florida Power Corporation, isProgress Energy, Inc. Progress EnergyFlorida, Inc. has no nonwholly ownedsubsidiaries.

11. The parent company of respondentSouthern California Edison Company isEdison International. SouthernCalifornia Edison Company has threenonwholly owned subsidiaries: EdisonMission Energy (issuing equity or debtsecurities through EdisonMissionEnergy Funding Corp., MidwestGeneration LLC, Midwest FinanceCorp., and EdisonMission HoldingsCo.), I~’,dison Capital (through itsfinancing subsidiary Edison FundingCo.), and SCE Funding LLC.

12. The parent company of respondentSouthern Nuclear Operating Company,Inc. is the Southern Company.Southern Nuclear Operating Company,Inc. has no nonwholly ownedsubsidiaries.

13. The pa:cent company of respondentUnion Electric Company, d/b/aAmerenUE, is Ameren Corporation.Union ]Electric Company has threenonwholly owned subsidiaries: CentralIllinois t~ublic Service Company d]b/aAmerenCIPS, Central Illinois LightCompany d/b/a AmerenCILCO, andIllinois Power Company d]b/aAmerenIP.

14. The parent company of respondentVirginia Electric & Power Company isDominio~a Resources, Inc. Virginia

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Electric & Power Company has nononwholly owned subsidiaries.

15. The parent company of respondent WolfCreek Nuclear Operating Corporation isWestar Energy, Inc. Wolf CreekNuclear Operating Corporation has onenonwholly owned subsidiary, GreatPlains Energy, Inc.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ..........................................i

RULE 29.6 STATEMENT .........................................ii

TABLE OF CONTENTS ............................................vi

TABLE OF AUTHORITIES ...................................viii

STATEMENT OF THE CASE ....................................1

A. The Enrichment Of Uranium IsAn Intermediate ManufacturingProcess In The Production OfNuclear Fuel Assemblies .......................3

B. The Antidumping Law ..........................7

C. The Proceedings Below .......................10

ARGUMENT .............................................................15

A. This Case Involves Only ARoutine Application Of TheChevron Standard OfDeference .............................................15

B. The Facts Of This Case AreNarrow .And Unique ............................21

vii

Co The Petitioners’Characterizations Of "ForeignPolicy" And "NationalSecurity" Interests AreFactually Incorrect AndInapposite ............................................23

CONCLUSION ..........................................................30

viii

TABLE OF AUTHORITIES

Page(s)

CASES

Barseback Kraft AB v. United States,36 Fed. C1. 69:[ (1996) ......................................6

Centerior Service Co. v. United States,No. 95-103C,1997 U.S. Claims LEXIS 323(Dec. 17, 199711 ..................................................5

Chevron U.S.A.v. Nc,~tural Resources DefenseCouncil,

467 U.S. 837 (1984) ................................passim

Eurodif S.A. v. United States,411 F.3d 1355 (Fed. Cir. 2005) ..............passim

Eurodif S.A. v. United States,423 F.3d 1275 (Fed. Cir. 2005) ..........13, 15, 17

Eurod~S.A.v. Uniad Sta~s,431F. Supp. 2d 1351(Ct. Int’l Trade2006) ......................................14

Eurodif S.A. v. United States,506 F.3d 1051 (Fed. Cir. 2007) ......................15

Florida Power & Light Co. v. United States,307 F.3d 1364 (Fed. Cir. 2002) ...... 6, 12, 13, 18

ix

National Cable & Telecommunications Assoc.v. Brand X Internet Services,

545 U.S. 967 (2005) ................................passim

NSK Ltd. v. United States,115 F.3d 965 (Fed. Cir. 1997) ..................12, 16

Taiwan Semiconductor Manufacturing Co. v.United States,

143 F. Supp. 2d 958(Ct. Int’l Trade 2001) ............................9, 20, 22

USEC Inc. v. United States,259 F. Supp. 2d 1310(Ct. Int’l Trade 2003) .......................5, 6, 11, 21

USEC Inc. v. United States,281 F. Supp. 2d 1334(Ct. Int’l Trade 2003) .....................................12

PENDING CASES

Ad Hoc Utilities Group v. United States,No. 06-00229(Ct. Int’l Trade appeal docketedJuly 6, 2006) ..................................................26

Nukem v. United States,No. 06-00298(Ct. Int’l Trade appeal docketedSept. 6, 2006) ..................................................26

X

Ad Hoc Utilities Group v. United States,No. 06-00300(Ct. Int’l Trade appeal docketedSept. 6, 2006) ..................................................26

STATUTES AND CODES

19 C.F.R. § 351.401(h) (2007) .....................................9

19 U.S.C. § 1673 ..........................................................8

19 U.S.C. § 1677a ..................................................8, 22

19 U.S.C. § 1677b ........................................................8

19 U.S.C. § 1677f-1 .....................................................8

19 U.S.C. § 2114b(5) .................................................18

28 U.S.C. § 1292(d)(1) ...............................................12

42 U.S.C. § 2297h-10 ..................................................7

INTERNATIONAL AGREEMENT

Agreement Between the Government of theUnited Statesof America and theGovernment ofthe RussianFederationConcerning theDisposition of HighlyEnriched Uranium Extracted from NuclearWeapons, U.S.-Russ., Feb. 18, 1993, StateDep’t No. 93-59, 1993 WL 152921 .......... 24, 25, 26, 27

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ADMINISTRATIVE PROCEEDINGS

Certain Pasta from Italy,63 Fed. Reg. 53,641(Dep’t of Commerce Oct. 6, 1998)(prelim. results of new shipperantidumping duty admin, review) .................22

Certain Forged Stainless Steel Flanges fromIndia,

58 Fed. Reg. 68,853(Dep’t of Commerce Dec. 29, 1993)(notice of final determination of salesat less than fair value) ...................................22

DOE Uranium Enrichment Program,51 Fed. Reg. 11,811(Dep’t of Energy Apr. 7, 1986)(request for expression of interest forparticipation) ....................................................6

Dynamic Random Access MemorySemiconductors of One Megabit and Above("DRAMs") From Taiwan,

64 Fed. Reg. 56,308(Dep’t of Commerce Oct. 19, 1999)(notice of final determination of salesat less than fair value) ...............................9, 22

Final Results of Low Enriched Uranium fromFrance Remand Redetermination (Mar. 3, 2006)(final results of redetermination) .............................14

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Final Results of Low .Enriched Uranium fromFrance Remand Redetermination (June 19,2006) (final results of redetermination) ...................14

Low Enriched Uranium From France,66 Fed. Reg. 65,877(Dep’t of Commerce Dec. 21, 2001)(notice of final determination of salesat less than fair value) ................... 7, 10, 11, 19

Low Enriched Uranium from FranceRemand Redetermination (June 23, 2003)(final results of redetermination) ............................11

Low Enriched Uranium from the UnitedKingdom, Germany and the Netherlands,

66 Fed. Reg. 65,886(Dep’t of Commerce Dec. 21, 2001)(notice of final determinations of salesat not less than fair value) ...............................6

Stainless Steel Wire Rod from Sweden,63 Fed. Reg. 40,449(Dep’t of Commerce July 29, 1998)(notice of final determination of salesat less than fair value) ...................................22

Uranium from Russia, USITC Pub. 3872,Inv. No. 731-TA-539-,C (Second Review)(Aug. 2006) ................................................................26

XlII

MISCELLANEOUS

Communication from the United States to theCouncil on Trade in Services,

S/CSS/W.24 (Dec. 18, 2000) ...........................18

DOE Press Release, DOE Announces Policy forManaging Excess Uranium Inventory (Mar. 10,2008) ..........................................................................27

Ux Consulting, Ux Current and Historical PriceIndicators ....................................................................4

Blank Page

Respondent the Ad Hoc Utilities Group("AHUG") is comprised of fifteen domestic utilitiesthat represent the majority of commercial nuclearpower generation in the United States.1 AHUGrespectfully submits this brief in opposition to thepetitions for certiorari submitted by the UnitedStates ("Government") and USEC Inc. and theUnited States Enrichment Corporation (collectively,"USEC").2

STATEMENT OF THE CASE

This case involves an administrativeproceeding under the provisions of the Tariff Act of1930. Those provisions authorize the Government toimpose offsetting customs duties ("antidumpingduties") when the Department of Commerce("Commerce") finds, among other conditions, thatimports of foreign merchandise are being sold at alower price in the United States than they are soldin the home country market of the foreign produceror exporter.

The members of the Ad Hoc Utilities Group areDominion Energy Kewaunee, Inc.; DominionNuclearConnecticut, Inc.; Duke Energy Carolinas, LLC;EntergyServices, Inc.; Exelon Corporation; Florida Power& LightCompany; Nebraska Public Power District; PPL Susquehanna,LLC; Progress Energy Carolinas, Inc.; Progress Energy Florida,Inc.; Southern California Edison Company; Southern NuclearOperating Company; Union Electric Company (d/b/aAmerenUE); Virginia Electric & Power Company; and WolfCreek Nuclear Operating Corporation.

The Government’s and USEC’s petitions arerespectively referenced hereinafter as "Gov’t Pet." (Gov’t App.)and "USEC Pet." (USEC App.).

2

The antidump:[ng proceeding at issue involvedimports of low enriched uranium ("LEU") fromEurodif S.A. ("Eurodif’) of France. Commerceevaluated purchases by American electric utilitycompanies of a foreign manufacturing service - theenrichment of the utilities’ uranium for ultimate usein commercial nuclear reactors - and deemed themto be purchases of merchandise, LEU. On appeal,the Court of Appeals for the Federal Circuitconcluded that the contracts at issue were for thesale of services, not LEU, and that the antidumpingstatute unambiguously did not apply to sales ofservices.

Neither the Government nor USEC raise anyissues worthy of Supreme Court review. Specifically,the decision of the Federal Circuit challenged by thePetitioners involves a routine application of thestandard of deference established by Chevron U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 487U.S. 837 (1984). The Federal Circuit has not decidedan important question of law not previously settledby this Court’s decisions on the review of agencydecisions, or with which relevant decisions of theCourt are in conflict. Moreover, the dispute arises inthe context of the highly complex and uniquemarketplace for nuclear fuel manufacturing services.The fact specific nature of the issues in this caseraise no issues of general application and noneworthy of certiorari review by this Court.Accordingly, the instant petitions should be denied.

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Ao The Enrichment Of Uranium Is AnIntermediate Manufacturing Process InThe Production Of Nuclear FuelAssemblies

Utilities use fuel rod assemblies containingenriched uranium in nuclear reactors as part of aprocess in which water is heated to produce steam,which in turn passes through turbines to generateelectricity.

Typically, utilities arrange for the productionof their own nuclear fuel rod assemblies throughmultiple contracts for manufacturing services. Theutility generally begins the nuclear fuel productionprocess by purchasing a quantity of milled uraniumore. It then contracts with a conversion serviceprovider to chemically transform the ore intogaseous uranium hexafluoride (UF~), commonlyreferred to as uranium "feedstock." Next, the utilityseparately contracts with an enrichment serviceprovider to enrich the UF6 in the fissionable isotopeU235 to a level specified by the utility. As a final step,the utility contracts with a fabrication serviceprovider to chemically transform the enricheduranium hexafluoride into an oxide (UO2), press theoxide into pellets, encapsulate the pellets in tubes,and bundle the tubes into fuel assemblies forinsertion in the utility’s nuclear reactors. The utilityretains ownership of the uranium in all of its

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chemical forms throughout these stages of nuclearfuel production.~

All mined uranium originally contains 0.711percent of fissionable isotope U2~5. Enrichment is theprocess by which the heavier isotopes of uranium areseparated from the ]lighter isotopes to increase thepercentage of U2~5 in a portion of the uranium.Enrichment results in a quantity of enricheduranium and a waste stream of depleted uranium,known as "tails." This process involves a trade-offbetween the amount of uranium feedstock used andthe amount of energy expended (the energy isreferred to as Separative Work Units, or "SWU’).The same quantity o:f LEU enriched to the same Uisotope level (or "assay") can be produced by usingeither less uranium feedstock and more SWU (toseparate more U2~5 from the "tails" portion of theuranium), or more uranium feedstock.and less SWU.When purchasing enrichment services, utilitiesdeliver uranium feedstock to the enricher, specifythe required level of enrichment, and pay for theservice of enriching that uranium to the desired

a See Low EnrichecI Uranium From France, 66 Fed: Reg.65,877, 65,879 (Dep’t of’ Commerce Dec. 21, 2001) (notice offinal determination of sales at less than fair value) (hereinafterLow.Enriched Uranium from France Final AD Determination)(Gov’t App. 230a-231a).

level, based on the amount of SWU expended by theenricher.4

Because the amount of uranium feedstockprovided and the level of enrichment required variesfrom transaction to transaction, two utilitiespurchasing the same amount of SWU may have verydifferent quantities of LEU delivered to them afterthe enrichment processing service is completed.Similarly, deliveries by enrichers of the samequantity of LEU to two utilities may reflect the useof different quantities of uranium feedstock andenrichment services.5

Under enrichment services contracts theutilities retain ownership of the uranium feedstockthey provide to the enrichers. Thus, the enrichers do

4 During the antidumplng proceeding at issue, the

enrichment process represented approximately 65 percent ofthe value of LEU. USEC Inc. v. United States, 259 F. Supp. 2d

1310, 1325 (Ct. Int’l Trade 2003) ¢’USEC ~r’) (Gov’t App. 205a).The price of milled uramum ore has since increased byapproximately 800 percent (from under $8 per pound in 2000 to$73 in 2008) and now represents a greater portion of the LEU’svalue. Ux Consulting, Ux Current and Historical PriceIndicators, available at http://www.uxc.com/review/uxc_g_price.html.

Alternatively, a utility sometimes purchases completedLEU through a contract for "enriched uranium product"("EUP"), which it subsequently arranges to be fabricated intonuclear fuel assemblies. Under an EUP contract, the utilitypays the seller a price that reflects all elements of the LEU’svalue, including the milled uranium, the conversion services,and the enrichment services. USEC I, 259 F. Supp. 2d at 1314-15 (Gov’t App. 182a-185a). The application of theantidumping law to EUP transactions is not at issue in thisproceeding.

6

not report that feedstock as an asset on their books,and have no legal obligation to pay property, sales,or income taxes on it.. The enrichers do not know thecost of the uranium feedstock that the utilitiesprovide, and such values can vary considerably,because utilities purchase uranium concentratesunder long-term con~;racts from a variety of sourcesin different countries at different prices. USEC I,259 F. Supp. 2d at ].314-15 (Gov’t App. 182a-185a).The courts have consistently viewed enrichmentservices contracts as contracts for services, in avariety of legal contexts.6

This method of contracting separately forenrichment services was originally established bythe U.S. Governme~.t. The existing 104 operatingnuclear plants in the United States were ordered inthe 1960s and 1970s. At the time the utilitiesentered into contracts for the construction of theirnuclear reactors, they were required to signcontracts for uranium enrichment services with theU.S. Government. USEC I, 259 F. Supp. 2d at 1316(Gov’t App. 186a). During that period there was no

6 See, e.g., Florida Power & Light Co. v. United States,307 F.3d 1364 (Fed. Cir. 2002) (applying the Contract DisputesAct); Centerior Service Co. v. United States, Nol 95-103C, 1997U.S. Claims LEXIS 323, at "19 (Dec. 17, 1997) (applying theUniform Commercial Code); Barseback Kraft AB v. UnitedStates, 36 Fed. C1. 691, 705 (1996) (applying the UniformCommercial Code); see’ also DOE Uranium EnrichmentProgram, 51 Fed. Reg. 11,811, 11,812 (Dep’t of Energy Apr. 7,1986) (request for expression of interest for participation)(describing enrichment as "an arrangement whereby uraniumsupplied by a customer is enriched in uranium-235 content byDOE and then returned to that customer" and stating that such"[s]ervices are provided under contracts which are generallysigned with publicly or privately owned utilities.").

7

alternative source of enrichment services. Later, theU.S. Government lifted its own monopoly andallowed foreign entities to provide enrichmentservices to utilities, and eventually privatized itsown enrichment operation, which became USEC. 42U.S.C. § 2297h-10. Two years after it was privatizedin 1998, USEC initiated antidumping proceedingsagainst imports of LEU from its two maincompetitors, who have facilities in four Europeancountries. The appeal at issue arises from theproceeding against Eurodif.~

B. The Antidumping Law

The antidumping statute authorizesCommerce to impose antidumping duties if it"determines that a class or kind of merchandise isbeing, or is likely to be, sold in the United States atless than fair value [and such sales cause material

USEC simultaneously initiated countervailing dutyproceedings against the same imports of LEU, which were thesubject of separate court appeals. (Countervailing dutyproceedings involve investigations of whether foreigngovernments are providing subsidies that benefit exports.) Inthe countervailing duty proceeding involving Eurodifs exportsfrom France, the Federal Circuit also held that an enrichmentcontract was a purchase of a service and not of a good. EurodifS.A.v. United States, 411 F.3d 1355, 1364-65 (Fed. Cir. 2005)("EurodifI") (Gov’t App. 24a-27a). The Government and USECdid not seek certiorari review of that decision, and thecountervailing duty order consequently was revoked. Theantidumping investigation of the other European enricher,Urenco, resulted in a determination of no dumping. LowEnriched Uranium from the United Kingdom, Germany and theNetherlands, 66 Fed. Reg. 65,886, 65,888 (Dep’t of CommerceDec. 21, 2001) (notice of final determinations of sales at not lessthan fair value).

8

injury or threat thereo~]." 19 U.S.C. § 1673 (2000)(emphasis added). In general, merchandise isdeemed sold at less than fair value if its price in theUnited States is less than its price in the exporter’shome country market;.

The purpose of the antidumping law is toallow special customs duties to be imposed to offsetprice discrimination by particular sellers in thecountry subject to an antidumping investigation,based on an examination of actual sales. The lawprovides detailed rules on how transactions are to beanalyzed and compa:red, including how adjustmentsare made to account for differences in thecircumstances of sales - e.g., differences intransportation costs, whether a transaction reflects aquantity discount, whether sales are made at thewholesale or retail level, etc. 19 U.S.C. §§ 1677a -1677b (2000). Accordingly, the law requires aspecific examination of each sale of merchandise tosupport a determination that sales are being madeat less than fair value, and separate antidumpingduty rates are calculated for each foreign producerand exporter that participates in the proceeding. 19U.S.C. § 1677f-1 (2000). Generalized assumptionsabout transactions m~e not permitted.

Transactions in contract manufacturingservices such as uranium enrichment are notunusual, and Commerce previously developedpolicies for applying the antidumping statute tocontract manufactu~ing. In recognition that theantidumping statute applies only to sales ofmerchandise and not to sales of services, Commerceissued a regulation distinguishing between sales of

9

merchandise, which are relevant in an antidumpinganalysis, and sales of manufacturing servicesassociated with such merchandise, which are not.The regulation provides in pertinent part that"[Commerce] will not consider a toller orsubcontractor to be a manufacturer or producerwhere the roller or subcontractor does not acquireownership, and does not control the relevant sale, ofthe subject merchandise or foreign like product." 19C.F.R. § 351.401(h) (2007).s Except for uraniumenrichment services, Commerce has relied uponSection 351.401(h) to establish a consistent practice- confirmed by the courts - of finding thatcontracting for manufacturing services does notconstitute a relevant sale of the resultingmerchandise. See, e.g., Taiwan SemiconductorManufacturing Co., Ltd. v. United States, 143 F.Supp. 2d 958, 966 (Ct. Int’l Trade 2001)("Commerce’s use of ’relevant sale’ ... furtherscongressional intent for Commerce to determinewhether subject merchandise is being, or is likely tobe, sold in the United States at less than its fairvalue.’).9 On that basis, Commerce previously hasheld that sales of contract manufacturing servicescannot be the basis of a determination of sales ofmerchandise at less than fair value.

s "Toll producers" are entities that produce merchandise

for other parties through contract manufacturing servicearrangements.

See also Dynamic Random Access MemorySemiconductors of One Megabit and Above ("DRAMs") FromTaiwan, 64 Fed. Reg. 56,308, 56,318 (Dep’t of Commerce Oct.19, 1999) (notice of final determination of sales at less than fairvalue) (treating sales of Taiwanese contract manufacturingservice provider as services, not sales of merchandise).

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C. The Proceedings Below

At the request of USEC, in December 2000Commerce initiated antidumping and countervailingduty investigations o:[ imports of LEU from France,Germany, the United Kingdom and the Netherlands.It published its :final determination in theantidumping proceeding involving France onDecember 21, 2001. Low Enriched Uranium fromFrance Final AD Determination, 66 Fed. Reg. at65,877 (Gov’t App. 220a-262a). Commerce’sdetermination that t~’,urodif had made sales at lessthan fair value was based primarily on sales ofenrichment services.

The question whether enrichment contractsshould be considered ~sales of services or of goods wasthoroughly briefed during the administrativeproceedings. In its initial determination, Commercestated that "[w]hile we recognize that the provisionof uranium feedstock may not be a payment-in-kindin the formal sense under these contracts, wemaintain that the arrangement between buyer andseller in a SWU contract nonetheless is dedicated tothe delivery of LEU, and critical to the trade inLEU." Id. at 65,884-.65,885 (Gov’t App. 254a-255a).Moreover, it was uncontested that the utilities didnot sell the LEU produced from their feedstock.Nonetheless, Comme~..,ce concluded that "[i]t does notmatter whether the producer/exporter [Eurodif] soldsubject merchandise as subject merchandise, orwhether the producer/exporter sold some input ormanufacturing process that produced subjectmerchandise, as long as the result of theproducer/exporter’s activities is subject merchandise

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entering the commerce of the United States." Id. at65,885 (Gov’t App. 232a, 254a-255a).

The Court of International Trade ("CIT")disagreed. It examined the enrichment contractsand concluded they were sales of services, not LEU.The CIT went on to hold that it could not reconcileCommerce’s conclusions with a number of prior casesin which Commerce itself had determined thattransactions in manufacturing services were notsales of subject merchandise. Specifically, the CITnoted that Commerce had previously recognized that"where the price paid for subject merchandise doesnot include the entire value of such merchandise, butinstead only that portion of the value added by theservices performed, there is no cognizable sale underthe antidumping duty law." USEC I, 259 F. Supp.2d at 1325 (Gov’t App. 205a-206a). The CITremanded the case to Commerce for reconsideration.Id. at 1331 (Gov’t App. 219a).

In its remand determination, Commercereaffirmed its prior conclusions, asserting that "theenrichers make the only relevant sales that can beused for purposes of establishing U.S. price andnormal value." Low Enriched Uranium from FranceRemand Redetermination (June 23, 2003) at 52(USEC App. 211a). On appeal, the CIT againrejected Commerce’s approach, stating that:

Commerce’s duty is to investigate"sales" at less than fair value. Theagency’s assertion that the enrichers’transactions with the utilities are theonly transactions that could be such

12

sales, without :more, does not establishthat there is an evidentiary or legalbasis to conclude that thosetransactions constitute sales forpurposes of our antidumping statutes.

USEC Inc. v. United States, 281 F. Supp. 2d 1334,1340 (Ct. Int’l Trade 2003) (Gov’t App. 45a-46a).The parties thereafter obtained an order from theCIT permitting an interlocutory appeal, pursuant to28 U.S.C. § 1292(d)(1), on the issues relating toCommerce’s proposed treatment of contracts formanufacturing services as contracts for the sale ofmerchandise.

The Federal Circuit affirmed the CIT’sconclusion that enriclSment services transactions arenot sales of goods. EurodifI, 411 F.3d 1355 (Gov’tApp. 8a-28a). It agreed that the enrichmentcontracts "do not evidence any intention by theparties to vest the enrichers with ownership rightsin the delivered unenriched uranium or the finishedLEU." Id. at 1362 (Gov’t App. 20a). The FederalCircuit concluded ~Lhat enrichment transactionstherefore were not "sales" of merchandise under theantidumping law, because "the ’transfer ofownership’ required for a sale under [NSK Ltd. v.United States, 115 F.3d 965 (Fed. Cir. 1997)] is notpresent here." Ido (Gov’t App. 20a). The court alsoobserved that in a recent case arising under theContracts Disputes Act, Florida Power & Light Co.v. United States, 307 F.3d 1364 (Fed. Cir. 2002), ithad agreed with the Government’s position thaturanium enrichment contracts were sales of services.The Federal Circuit found the reasoning in that

13

decision persuasive regarding the nature of thecontracts, although it noted that "Florida Power isnot binding precedent for this case." EurodifI, 411F.3d at 1663-64 (Gov’t App. 21a, 23a-24a).1°

The Government and USEC sought rehearingand rehearing en banc, and brought to the attentionof the Federal Circuit this Court’s decision inNational Cable & Telecommunications Assoc. v.Brand X Internet Services, 545 U.S. 967 (2005). InBrand X, this Court held that "[a] court’s priorjudicial construction of a statute trumps an agencyconstruction otherwise entitled to Chevron deferenceonly if the prior court decision holds that itsconstruction follows from the unambiguous terms ofthe statute and thus leaves no room for agencydiscretion." Id. at 982.

The Federal Circuit denied rehearing en banc,and granted rehearing for the limited purpose ofaddressing the application of Brand X. In itsrehearing decision, the Federal Circuit emphasizedthat it had not relied on Florida Power as bindingprecedent. To confirm its decision complied withBrand X, the Federal Circuit clarified that "theantidumping duty statute unambiguously applies tothe sale of goods and not services." Eurodif S.A.v.United States, 423 F.3d 1275, 1278 (Fed. Cir. 2005)CEurodifH") (Gov’t App. 33a). The Federal Circuitfurther noted its original decision’s holding that the

10 The Government itself argued to the Federal Circuitthat Florida Power was relevant and supported Commerce’sdetermination because in Florida Power the Federal Circuithad stated that its decision on the nature of the enrichmentcontracts was a difficult one. Gov’t Petl at 15.

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provision of services clearly was not covered by theantidumping law, and affirmed its conclusion that"Commerce’s characterization of the SWU contractsat issue in this case would contradict ... the statute’sunambiguous meaning because it is clear that thosecontracts are contracts for services and not goods."Id. (Gov’t App. 33a).

On remand, Commerce removed theenrichment transactions from its calculations, butinitially resisted excluding LEU imported pursuantto enrichment services transactions from theantidumping order. Final Results of Low EnrichedUranium from France Remand Redetermination(Mar. 3, 2006) at 4-5 (USEC App. 323a-325a). Onappeal, the CIT held that because such LEU is neversold, Commerce was required to exclude suchimports from the scope of the antidumping order.EurodifS.A.v. United States, 431 F. Supp. 2d 1351,1354-57 (Ct. Int’l Trade 2006) (USEC App. 327a-339a). In the subsequent remand determination,Commerce modified the scope of the antidumpingorder accordingly, and issued a form by whichEurodif and the utilities could certify that specificimports met the conditions for exclusion. FinalResults of Low Enriched Uranium from FranceRemand Redetermination (June 19, 2006) at 1(USEC App. 341a).

After the CIT affirmed the remand results,the Government and USEC appealed to the FederalCircuit the limited question of whether Commerceshould be required to exclude imports underenrichment contracts immediately or only afterCommerce conducted further factual analysis. The~

15

Federal Circuit dismissed the appeal as unripe.Eurodif S.A, v. United States, 506 F.3d 1051 (Fed.Cir. 2007) (Gov’t App. 2a). The Petitioners thensought review in this Court of the Federal Circuit’sdecision in the interlocutory appeal issued in 2005.

ARGUMENT

Ao This Case Involves Only A RoutineApplication Of The Chevron Standard OfDeference

The Federal Circuit held that theantidumping statute unambiguously applies to thesale of goods and not to sales of services. EurodifH,423 F.3d at 1278 (Gov’t App. 33a). That holdingsatisfies the threshold test of Chevron and Brand X.Having found no ambiguity, the Federal Circuitapplied the plain meaning of the statute and nodeference was due Commerce. Even if the FederalCircuit had erred - and it did not - this case does notraise any issue of administrative law not previouslyaddressed by this Court.

Faced with the Federal Circuit’s clear holding,the Petitioners attempt to divert attention from theactual substance of the Federal Circuit’s ruling andthe applicable precedents. Both Petitioners arguethat the meaning of "sold" is .ambiguous, and cite tocases arising under different and irrelevantregulatory regimes in support of an argument thatCommerce should be given broad discretion ininterpreting that word. Gov’t Pet. at 18; USEC Pet.at 21. Neither mentions that, as discussed below,the Federal Circuit previously and correctly applied

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Chevron in interpreting precisely that same word,nor that the Federal Circuit relied on that priordecision in making its holding in this case.

Specifically, in NSK Ltd. v. United States, 115F.3d 965 (Fed. Cir. 1997), Commerce treated as"sales" free samples t~ven by a foreign manufacturerto some of its U.S. customers, thereby placingsquarely at issue the meaning of the word "sold" insection 1673. In NSK the Government argued, as itdoes here, that not deferring to Commerce’sinterpretation woulcl create a loophole in theantidumping law. Id. at 972. As part of a detailedanalysis, the Federal Circuit held that "Congressintended to give the term its ordinary meaning .... "Id. at 974. It also stated that "contrary to theGovernment’s suggestion, we do not believe that theterm ’sale’ should be given any special meaningunder the antidumping laws." Id.. The FederalCircuit concluded "[t]he terms of the statutoryprovisions are clear on their faces and we see noreason to depart from the ordinary meaning of theterm ’sold’ or ’sale’. We thus need not reach thesecond prong of the Chevron analysis." Id. at 975.

In the instant case, the Federal Circuitexpressly relied on NSK for its principal holding, asfollows:

[T]he SWU contracts in this case donot evidence any intention by theparties to vest the enrichers withownership rights in the deliveredunenriched uranium or the finishedLEU. As a result, the "transfer of

17

ownership" required for a sale underNSK is not present here.

Eurodif I, 411 F.3d at 1362 (Gov’t App. 20a).Because the holding in NSK was based on a findingthat the statute was unambiguous, the requirementsof Brand X were satisfied. Accordingly, there was norequirement for the Federal Circuit to defer toCommerce’s interpretation of "sold" under the secondprong of Chevron.

In its decision on rehearing, the FederalCircuit further reinforced its holding by stating asfollows:

We now clarify by stating expresslythat the antidumping duty statuteunambiguously applies to the sale ofgoods and not services. In our opinion,we stated that "under the statutoryscheme adopted by Congress, the saleof goods (or ’merchandise’) is coveredby the antidumping duty statute" butthat the "provision of services,however, is not .... " Eurodif I, 411F.3d at 1361. While we did not usethe term "unambiguous", we clearlyforeclosed any argument that § 1673 isambiguous on the precise question ofwhether the antidumping duty statuteencompasses contracts for services. Itundoubtedly does not.

EurodifH, 423 F. 3d at 1278 (Gov’t App. 33a).

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USEC’s complaint that the Federal Circuitimproperly relied o:a Florida Power contrary toBrand X is misplaced, because the Federal Circuitexpressly stated that "Florida Power is not bindingprecedent for this case." EurodifI, 411 F.3d at 1363(Gov’t App. 21a). Recognizing that Florida Powerdid not arise under the antidumping statute, theFederal Circuit found Florida Power instructive onthe nature of the contracts because it involvedcontracts for uranium enrichment services, andbecause in Florida Power the Government itself hadargued successfully that the contracts were forservices. Id. at 1363-64 (Gov’t App. 21a-24a). BrandX is not implicated by the Federal Circuit’s referenceto Florida Power.

Crucially, both the Government and USECnow acknowledge t:hat the antidumping statuteapplies only to the sale of goods. Gov’t Pet. at 3;USEC Pet. at 5.11 In an effort to evade thatlimitation, however, they rely. on an individualcontract provision taken out of context to allege that

USEC argues that a completely separate statuteapplying to a differe:at subject - international tradenegotiations - should be interpreted to override the plainmeaning of "services" a~_d limit it to activities not involvingmanufacturing. USEC Pet. at 28. However, the statute citedby USEC, 19 U.S.C. § 2114b(5), is not part of the antidumpingstatute. Moreover, the U.S. Government itself has included"services incidental te manufacturing" (such as themanufacture of nuclear fuel on a fee or contract basis) withinthe scope of the negotiations on energy services in the WorldTrade Organization’s Ger~eral Agreement on Trade in Services.See Communication from the United States to the Council onTrade in Services, S/CSS/W/24 (Dec. 18, 2000) available athttp:/ /docsonline.wto.org/DDFDocuments/t/S/CSS/W24.doc.

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the provision of uranium feedstock for enrichment isa type of barter or payment-in-kind transaction.Gov’t Pet. at 22-23; USEC Pet. at 26.12 Contrary tothe Government’s assertion that the utilities do notown the LEU until it is delivered to them, Gov’t Pet.at 21, the contracts make clear that the utilities aredeemed to receive back their own uranium, and thaturanium is never owned by the enricher. Eurodif I,411 F.3d at 1362 (Gov’t App. 20a) ("In reviewing thecontracts in this case, it is clear that ownership ofeither the unenriched uranium or the LEU is notmeant to the vested in the enricher during therelevant time periods that the uranium is beingenriched."). Indeed, both the CIT and the FederalCircuit rejected Commerce’s strained view of thecontracts, finding that they are clearly purchases ofenrichment and not LEU. For that reason, thePetitioners now ask this Court to analyze thePetitioners’ hypotheses about the nature of specificcontract provisions, and to construe whether it is

The characterization of enrichment services contractsas barter transactions was contradicted not only by the plainterms of the contracts, but also by the fact that the enrichersnever know the value of the uranium feedstock provided by theutilities. For that reason, Commerce was forced to invent aprice for the LEU in its determination. It stated that "[i]nassigning a specific monetary value to the natural uraniumcomponent, we estimated the market value," and "[riot SWUcontracts, when comparing [prices of LEU], we valued naturaluranium using exactly the same value for both sides of theequation." Low Enriched Uranium from France Final ADDetermination, 66 Fed. Reg. at 65,885 (Gov’t App. 257a). Thus,in making its dumping calculations, Commerce relied onfictional values for the uranium contained in the LEU, appliedan equation that cancelled out the uranium values entirely,and based its price comparisons on the sales of enrichmentservices.

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significant that uranium feedstock is a fungibleinput. These are not issues of broad legal or factualapplication. They are specific to the nuclear fuelindustry, and not appropriate for review by thisCourt.

The Petitioners seek to avoid the fundamentalpoint that because e~richment contracts involve onlythe purchase of a manufacturing service and not theenriched uranium as a whole, there can be no "saleof merchandise" withinthe meaning of theantidumping statute. As discussed above,Commerce has consistently viewed transactions inmanufacturing services as not involving a sale ofgoods subject to the antidumping statute.13 In thiscase, Commerce is attempting to create a uniqueexception to its own regulations, and theantidumping statute itself, to treat enrichmentservices as sales of LEU. However, Commerce maynot create new restrictions on transactions inmanufacturing services without statutoryauthorization from Congress.14 For the Federal

For example, in Taiwan Semiconductor, 143 F. Supp.2d at 966, the CIT affirmed Commerce’s determination that thesale of manufacturing services is not a sale of the goods beingmanufactured. Commerce’s regulation on contractmanufacturing, as applied in that case and others, derives fromthe statutory requirement that a finding of dumping be basedon sales of merchandise - the same requirement the Petitionersnow seek to evade.

The Government; acknowledges that an effort iscurrently being made to enact special legislation targetingenrichment services transactions. Gov’t Pet. at 26 n.4. Thateffort reflects a recognition that the antidumping statute doesnot reach manufacturing services such as uranium enrichment.

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Circuit to reject Commerce’s attempt to do so in thiscase is entirely consistent with the standard ofreview provided by this Court under Chevron andBrand X.

Bo The Facts Of This Case Are Narrow AndUnique

As discussed above, the manner in whichnuclear reactor assemblies are made and purchasedis unique, in that the imports of LEU are not soldbut rather are consumed by the utilities thatarranged for their production. The Petitioners’argument that this unique situation creates a"loophole" in the antidumping statute is whollyunfounded, for two reasons.

First, there has never been an allegation thatthe utilities restructured their contracts to evade theantidumping law. The method of contractingseparately for enrichment services was originallymandated by the U.S. Government in the 1960s,almost 40 years before the antidumping proceedingwas initiated. The CIT specifically addressed thisissue, finding that "[t]he contract here is not simplya restructured purchase contract." USEC I, 258 F.Supp. 2d at 1322 n.12 (Gov’t App. 198a).

Second, the examples given by theGovernment and amicus curiae Committee toSupport U.S. Trade Laws ("Committee") of productsthat could be contract-manufactured abroad for salein the United States - such as steel, lumber, pasta,

22

textiles, and semiconductors15 - are all readilycaptured under the existing statute and regulations,which are left undisturbed by the decision of theFederal Circuit in this case. Indeed, in the TaiwanSemiconductor case discussed above, sales of theimported semiconductors by the U.S. importer (asopposed to sales of :manufacturing services by theTaiwanese service provider to the U.S. importer)were included in the scope of the proceeding.Moreover, Commerce has previously applied itsdoctrine that sales of manUfacturing services are notsales of merchandise in cases involving steel andpasta, as well as in another case involvingsemiconductors.1~ The ultimate sales of thoseproducts in the United States were in each casewithin the scope of tb.e antidumping statute, becausethe merchandise was actually sold.17

15 Gov’t Pet. at 25; Committee Br. at 7-10.

Certain Forged Stainless Steel Flanges from India, 58Fed. Reg. 68,853 (Dep’t cf Commerce Dec. 29, 1993) (notice offinal determination of sales at less than fair value); StainlessSteel Wire Rod from Sweden, 63 Fed. Reg. 40,449 (Dep’t ofCommerce July 29, 1998) (notice of final determination of salesat less than fair value); Certain Pasta from Italy, 63 Fed. Reg.53,641 (Dep’t of Commerce Oct. 6, 1998) (prelim. results of newshipper antidumping duty admin, review), aff’d, Certain Pastafrom Italy, 64 Fed. Reg. 853 (Dep’t of Commerce Jan. 6, 1999)(final results of new shipper antidumping duty admin, review);DRAMS from Taiwan, 64 Fed. Reg. 56,308.

The antidumping statute also contains provisions toensure that sales of imported products can be captured whenthe merchandise is incorporated into other products before it issold in the United States. 19 U.S.C. 1677a(e).

23

Under the existing law - unaffected by theFederal Circuit’s decision - if a broker were to sellimported LEU for which it had contractedproduction, that sale would be subject to theantidumping statute. But that is not the situation atissue here, and neither the Petitioners nor theCommittee has identified another industry in whichU.S. companies arrange for foreign contractproduction of merchandise that they consumethemselves. That is not the situation for foreign-made steel products, lumber, pasta, textiles orsemiconductors, all of which are sold afterimportation into the United States.

In sum, while the Petitioners argue that theEurodif decisions must be overturned to prevent aloophole in the antidumping law, no such loopholeexists. In every other case identified by thePetitioners, the imported goods are subject to theantidumping law because those goods are eventuallysold. The Petitioners simply seek to twist a statuteof general applicability out of shape in order toachieve a specific result tailored to the facts of oneparticular - and unique - industry. Such a results-driven application of the law is not a legitimate basisfor legal interpretation, and certainly not sufficientjustification for the granting of certiorari.

Co The Petitioners’ Characterizations Of"Foreign Policy" And "National Security"Interests Are Factually Incorrect AndInapposite

The Petitioners argue that there are severalnon-legal policy reasons why the Court should grant

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certiorari, primarily claiming that the FederalCircuit’s decision threatens national security, U.S.energy policy, and the financial well-being of apublicly held compa~.Ly, USEC. Gov’t Pet. at 25-32;USEC Pet. at 32-37. Those policy arguments are allbased on the projected effect of this case on adifferent case: an anl;idumping proceeding involvingimports of uranium from Russia.

An import restriction imposed under theantidumping statute in the Russian uraniumproceeding prohibits utilities from purchasingenrichment services directly from the Russianenricher. Meanwhile, USEC serves as the U.S."executive agent" of’ Russian enrichment servicesprovided under t~Le Agreement Between theGovernment of the United States of America and theGovernment of the Russian Federation Concerningthe Disposition of Highly Enriched UraniumExtracted from Nuclear Weapons, U.S.-Russ., Feb.18, 1993, State Dep’t No. 93-59, 1993 WL 152921(hereinafter "HEU Agreement"). The HEUAgreement is a government-to-governmentarrangement under which Russia has committed tosell the enrichment services associated with LEUthat has been "down,blended" from weapons-gradeuranium. USEC has. been given the exclusive rightto resell the enrichment services supplied by Russiaunder the HEU Agreement as the U.S. "executive

25

agent" (i.e, broker) for the HEU Agreement.isAccording to the Petitioners, using the antidumpingstatute to prevent the utilities from contractingdirectly with the Russian enricher preserves "marketconditions" that encourage Russia to comply with itsobligations under the HEU Agreement.

The Petitioners’ policy argument presumes,without providing any evidentiary support, thatthere is a significant risk that Russia will abandonits treaty obligations under the HEU Agreement.They also allege that Russia is capable of sellingsubstantial additional amounts of commercialenrichment services to the United States, but that

Although the Petitioners appear to suggest otherwise,USEC is not the only company capable of serving as the brokerof Russian enrichment services provided under the HEUAgreement. In 1999 USEC announced it was consideringwithdrawing from that role. When other companies - includingmembers of AHUG - proposed to take over or supplementUSEC’s role as the executive agent, USEC opposed thoseproposals and reclaimed the position for itself. Accordingly, itsrole as the executive agent is voluntary.

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specific issue is contested and currently is sub judicein the CIT.19

Regardless, the U.S. utilities continue to fullysupport the HEU Agreement, which could not existabsent the utilities~,’ purchases of the Russianenrichment services provided to them throughUSEC. Nonetheless, when the HEU Agreementexpires in 2013, there will be a significant shortfallin the available supply of enrichment :services, andutilities must have access to sufficient supplies toensure the continued, reliable operation of domesticnuclear plants. No full replacement for theenrichment services currently obtained under theHEU Agreement has been identified.

The Government also claims that it relies onUSEC "to supply enriched uranium for a variety ofmilitary purposes," and that USEC "is the sole

Ad Hoc Utilities Group v. United States, No. 06-00229(Ct. Int’l Trade appeal docketed July 6, 2006) (appealingCommerce determination); Ad Hoc Utilities Group v. UnitedStates, No. 06-00300 (Ct. Int’l Trade appeal docketed Sept. 6,2006) (appealing IrLternational Trade Commissiondetermination); Nukem v. United States, No. 06-00298 (Ct. Int’lTrade appeal docketed Sept. 6, 2006) (appealing InternationalTrade Commission determination). In the proceedingsinvolving Russia - which are not part of the record of this caseand not before the Com:t - there is evidence that Russia’senrichment capacity is al:zeady substantially occupied and thatin any event, U.S. utilities are already largely committed underlong term purchase contracts that extend beyond the expirationof the HEU Agreement. Uranium from Russia, USITC Pub.3872, Inv. No. 731-TA-539-C (Second Review)(Aug. 2006) at42, 44 (Comm. Lane, dissenting) ~nd II-18, available at http://www.usitc, gov! trade_ remedy/731 ad 701_cvd/investigations/index_opinions/index.htm#2006.

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supplier of the LEU used to fuel the government-owned nuclear reactors that produce tritium," whichis used in nuclear weapons. The Governmentfurther asserts that USEC supplies enricheduranium for the space program and for submarinesand aircraft carriers. Gov’t Pet. at 30. However,although the Government is silent on the issue,USEC acknowledges that it does not own theenrichment facility at Paducah. USEC Pet. at 6.Rather, USEC leases the facility from theGovernment, which operated it for many years (untilUSEC was privatized in 1998) and is able to do soagain.

Moreover, the Department of Energy ("DOE")itself has indicated that it has a major surplus ofweapons-grade uranium. On March 12, 2008, DOEissued a press release addressing "the managementof [its] excess uranium inventory." DOE stated thatit "has a significant inventory of... uranium that isexcess to U.S. defense needs." DOE also explainedthat, because the costs of maintaining the inventoryare high, it plans to dispose of excess uraniumthrough commercial or other transfers, while still"maintain[ing] sufficient uranium inventories at alltimes to meet the current and reasonably foreseeableneeds .,,20

It therefore appears unlikely that thefinancial performance of USEC could have anyrelationship to U.S. national security. Even if it did,the Petitioners’ suggestion that the antidumping

20 DOE Press Release, DOE Announces Policy for

Managing Excess Uranium Inventory, (Mar. 10, 2008),available at http://www.energy.gov/news/6069.htm.

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statute should be manipulated to assist USEC - aprivate company -- in raising capital in thecommercial markets is certainly not a validjustification for certiorari. It is within the power ofthe U.S. Congress to enact legislation grantingUSEC a financial su.bsidy, but that is not a subjectwithin the scope or intent of the antidumpingstatute.

With regard to energy policy, the Petitioners’assertion that allowing utilities to purchase Russianenrichment services without going through USECwould increase dependence on foreign energy sourcesis questionable. USEC itself has for many yearschosen to commit most of its own output ofenrichment service~,~ to contracts with foreignutilities, while delivering Russian services to U.S.utilities as a broker. The real threat to U.S. energypolicy arises from the increasing costs now faced byutilities resulting from limited supplies of thecomponents and services needed to produce nuclearfuel, and the potential impact of those limitedsupplies on current plans for construction of theadditional nuclear reactors needed to supplyAmerica’s steeply growing energy needs. In anyevent, these are the type of policy disputes that thisCourt is ill-equipped to resolve.

In addition, iL should be noted that USECsoon will not be the only source of enrichmentservices in the United States. The construction ofanother U,S. enrichment facility by LouisianaEnergy Services ("IRES") is underway, and it isexpected to be operational in 2009. Reflecting thehigh demand for and limited supply of worldwide

29

enrichment services capacity, the entire enrichmentoutput of the LES facility for its first ten years ofoperation is already committed under contracts withutilities. Other new enrichment facilities are in theplanning stages. Utilities will continue to purchasesignificant amounts of enrichment services from U.S.sources, including USEC, under long term contracts.

Perhaps most important, the antidumpingstatute is an instrument of trade policy with generalapplication to all industries, and not a tool for theimplementation of national security or energypolicies. There is simply nothing in the Tariff Act of1930 indicating that Congress intended it to beinterpreted in a special manner for purchases ofuranium enrichment services. The policy concernsraised by Petitioners are not within the purview ofthe antidumping law, and do not provide a validbasis for seeking certiorari to this Court.

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CONCLUSION

For the foregoing reasons, the petition for awrit of certiorari shonld be denied.

Respectfully submitted,

Nancy A. FischerCounsel of RecordStephan E. BeckerDavid J. CynamonJoshua D. FitzhughPILLSBURY WINTHROP SHAW

PITTM~ LLP2300 N Street, NWWashington, DC 20037(202) 663-8000

Counsel for the Ad Hoc Utilities Group

March 21, 2008