                          Slip Op. 03-170

          United States Court of International Trade



USEC INC. and UNITED STATES     Before:     Pogue, Wallach, and
ENRICHMENT CORPORATION,                     Eaton, Judges
                 Plaintiffs,    Court No. 02-00112; and Court
                                Nos. 02-00113, 02-00114 and
           v.                   Consol. Court Nos. 02-00219; 02-
                                00221, 02-00227, 02-00229, and
UNITED STATES,                  02-00233
                 Defendant.




[Motions for permission for interlocutory appeal pursuant to 28
U.S.C. § 1292(d) granted.]

                                          Decided: December 22, 2003

Fried, Frank, Harris, Shriver & Jacobson (David E. Birenbaum, Jay
R. Kraemer, Mark Fajfar) for Plaintiffs and Defendant-Intervenors
Urenco Limited, Urenco Deutschland GmbH, Urenco Nederland B.V.,
Urenco (Capenhurst) Ltd., and Urenco, Inc.; Weil, Gotshal & Manges,
LLP (Stuart M. Rosen, Gregory Husisian, Jennifer J. Rhodes) for
Plaintiffs and Defendant-Intervenors Eurodif S.A., COGEMA, and
COGEMA, Inc.

Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, Jeanne E. Davidson, Deputy Director, Stephen C. Tosini,
Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, David R. Mason, Senior Attorney, Office of
Chief Counsel for Import Administration, U.S. Department of
Commerce, Of Counsel, for Defendant United States.

Steptoe & Johnson LLP (Sheldon E. Hochberg, Richard O. Cunningham,
Eric C. Emerson) for Defendant-Intervenors and Plaintiffs USEC Inc.
and United States Enrichment Corporation.

Shaw Pittman LLP (Stephan E. Becker, Nancy A. Fischer, Sanjay J.
Mullick, Joshua D. Fitzhugh) for Plaintiff-Intervenors Ad Hoc
Utilities Group.
Court No. 02-00112, 113, 114;                                         Page 2
Consol. Court Nos. 02-00219, 221, 227, 229, and 233


                              Opinion and Order

      Pogue, Judge: In two prior opinions, this Court decided four

issues that critically affect the future of this litigation.              The

parties now seek permission for an immediate interlocutory appeal

of the Court’s decisions.       See 28 U.S.C. § 1292(d) (2000).     For the

following reasons, we will grant the parties’ requests.



                                 Background

      The Court’s two prior opinions in this matter arose from

fifteen   actions,    consolidated     under   nine1   court   numbers,   all

challenging    aspects   of    the   final   affirmative   antidumping    and

countervailing duty determinations of the Department of Commerce

(“the Department” or “Commerce”) with regard to low enriched

uranium (“low enriched uranium” or “LEU”) from France, Germany, the

Netherlands, and the United Kingdom2 or the related final injury


1
 Only eight of those court numbers are contained in the heading
of this order. Court Nos. 02-00220 and 02-00236, consolidated as
Court No. 02-00220, involve specific issues which await
resolution of the “general” issues presented here for
certification. See Scheduling Order (Aug. 2, 2002); see also
infra n.3.
2
 The determinations challenged in the original actions were Low
Enriched Uranium from France, 67 Fed. Reg. 6,680 (Dep’t Commerce
Feb. 13, 2002) (notice of amended final determination of sales at
less than fair value and antidumping duty order); Low Enriched
Uranium from France, 66 Fed. Reg. 65,877 (Dep’t Commerce Dec. 21,
2001) (notice of final determination of sales at less than fair
value) (“LEU from France”); Low Enriched Uranium from France, 67
Fed. Reg. 6,689 (Dep’t Commerce Feb. 13, 2002) (notice of amended
Court No. 02-00112, 113, 114;                               Page 3
Consol. Court Nos. 02-00219, 221, 227, 229, and 233

determination of the International Trade Commission (“ITC”).3 This

Court remanded aspects of the Department’s determinations in USEC

Inc. v. United States, 27 CIT __, 259 F. Supp. 2d 1310 (2003)

(“USEC I”).4     In USEC Inc. v. United States, 27 CIT __, 281 F.

Supp. 2d 1334 (2003) (“USEC II”), the Court reviewed the remand

results, affirming-in-part and reversing-in-part the Department’s

remand determination.5


final determination and notice of countervailing duty order); Low
Enriched Uranium from France, 66 Fed. Reg. 65,901 (Dep’t Commerce
Dec. 21, 2001) (notice of final affirmative countervailing duty
determination); Low Enriched Uranium from Germany, the
Netherlands, and the United Kingdom, 67 Fed. Reg. 6,688 (Dep’t
Commerce Feb. 13, 2002) (notice of amended final determinations
and notice of countervailing duty orders); Low Enriched Uranium
from Germany, the Netherlands, and the United Kingdom, 66 Fed.
Reg. 65,903 (Dep’t Commerce Dec. 21, 2001) (notice of final
affirmative countervailing duty determinations).
3
 Low Enriched Uranium From France, Germany, the Netherlands, and
the United Kingdom, 67 Fed. Reg. 6,050 (ITC Feb. 8, 2002). The
parties’ challenges to the ITC’s determinations are consolidated
as Court No. 02-00220.
4
 In the Court’s original Scheduling Order for this matter, we
decided, and the parties agreed, to address initially “general
issues” affecting the Department’s threshold determinations, to
be followed later by issues which are not general, such as
“challenges to the Department of Commerce’s calculation results
and methods.” Scheduling Order at 5 (Aug. 2, 2002). The cases
in which these “general issues” were before the Court were
assigned to the current panel. See USCIT R. 77(e)(2) (“An action
may be assigned to a three-judge panel . . . when the chief judge
finds that the action raises an issue . . . [that] has broad or
significant implications in the administration or interpretation
of the law.”). Familiarity with the Court’s prior opinions is
presumed.
5
 In reviewing the agency record in either an antidumping or
countervailing duty case, “the [C]ourt [of International Trade]
shall hold unlawful any determination, finding, or conclusion
Court No. 02-00112, 113, 114;                                       Page 4
Consol. Court Nos. 02-00219, 221, 227, 229, and 233


      No party requests a further remand of the general issues

decided by the Court in USEC I and USEC II.           Rather, the parties

now seek a statement pursuant to 28 U.S.C. § 1292(d) permitting

immediate appeal.6


found . . . to be unsupported by substantial evidence on the
record, or otherwise not in accordance with law.” 19 U.S.C. §
1516a(b)(1)(B)(i) (emphasis added). See also 28 U.S.C. § 1585
(“The Court of International Trade shall possess all the powers
in law and equity of, or as conferred by statute upon, a district
court of the United States.”). Under these statutes, this Court
has both the authority and the duty to make this final
determination after remand. To hold otherwise would be both
inconsistent with the statute and destructive of the need for
finality in litigation before the Court. Cf. Nippon Steel Corp.
v. Int’l Trade Comm’n, 345 F.3d 1379 (Fed. Cir. 2003) (holding
that the CIT abused its discretion by "interposing its own
[factual] determinations" rather than remanding to the ITC for
further fact-finding, where fact-finding was committed to the
agency by statute).

6
 In their motions, the parties do not entirely agree on the
proposed statement of the issues for appeal. The United States
states the issue as:

      Whether the United States Department of Commerce’s
      determination that the foreign enricher is the appropriate
      respondent, in antidumping duty proceedings, for determining
      export price and constructed export price of Low Enriched
      Uranium imported pursuant to enrichment transactions is
      supported by substantial evidence and otherwise in
      accordance with law.

Def.’s Mot. Stat. Pursuant to 28 U.S.C. § 1292(d)(1) at 3.

     Plaintiffs and Defendant-Intervenors EURODIF S.A.Compagnie
Generale Des Matieres Nucleaires and COGEMA, Inc. (collectively,
“COGEMA”), USEC Inc. and the United States Enrichment Corporation
(collectively, “USEC”), and Intervenor the Ad Hoc Utilities Group
(“AHUG”) state the issues as the Court’s decisions on the general
issues regarding:
Court No. 02-00112, 113, 114;                                Page 5
Consol. Court Nos. 02-00219, 221, 227, 229, and 233


      Jurisdiction lies under 28 U.S.C. § 1581(c) (2000) and 19

U.S.C. § 1516a(a)(2)(B)(i) (2000).



                                 The Issues

      In USEC I and USEC II, the Court determined that the key

general issues decided by the Department in this matter involved

the initial applicability of the Department’s “tolling” regulation,




      1. The Department of Commerce’s determination that the
      antidumping duty petitions and the countervailing duty
      petitions leading to the contested determinations were filed
      on behalf of the U.S. low enriched uranium (“LEU”) industry;
      2. The Department of Commerce’s determination that the
      antidumping duty law is applicable to LEU delivered pursuant
      to enrichment transactions; and
      3. The Department of Commerce’s determination that the
      countervailing duty law is applicable to LEU delivered
      pursuant to enrichment transactions, and that a
      countervailable subsidy determination can be based on
      finding that prices paid pursuant to enrichment transactions
      have been for more than adequate remuneration.

COGEMA’s, USEC’s, and AHUG’s Mot. Issuance Interlocutory Order at
2.

     We attempt to resolve this disagreement by stating our view
of the issues decided by the Court. See infra pp. 5-6.

     In addition, the government’s “Motion for a Statement
Pursuant to 28 U.S.C. § 1292(d)(1)” contains a proposed order
certifying a question for appeal. Def.’s Mot. Stat. Pursuant to
28 U.S.C. § 1292(d)(1). Conversely, the government, in replying
to COGEMA’s, USEC’s, and AHUG’s Motion also “request[s] that the
Court decline to certify any issues for interlocutory appeal.”
Def.’s Resp. to Pl.’s Mot. Issuance Interlocutory Order at 3.
The government’s filings do not explain this discrepancy.
Court No. 02-00112, 113, 114;                                           Page 6
Consol. Court Nos. 02-00219, 221, 227, 229, and 233


19 C.F.R. § 351.401(h).7         Specifically, the Court decided the

following four issues:

      1. On the record here, the Department’s decision that the

enrichment    of   uranium   feedstock    pursuant    to   “SWU”8   contracts

constitutes a sale, rather than a subcontracting (or “tolling”)

arrangement, is unsupported by substantial evidence;

      2. On the record here, the Department’s decision not to apply

its tolling regulation to determine whether the Intervenors (the

“utilities,” also the “Ad Hoc Utilities Group” or “AHUG”), rather

than the “enrichers,” should be designated as producers of LEU is

not in accordance with law;

      3. On the record here, the Department’s reasons for declining

to apply the tolling regulation in the context of its industry

support determination, and thus, its application of a different

definition of “producer” from that used in establishing export or

constructed export price are reasonable and therefore in accordance


7
 Title 19 C.F.R. § 351.401(h) states that Commerce “will not
consider a toller or subcontractor to be a manufacturer or
producer where the toller or subcontractor does not acquire
ownership, and does not control the relevant sale, of the subject
merchandise or foreign like product.” 19 C.F.R. § 351.401(h).
8
 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. USEC I, 27 CIT at __, 259 F. Supp.
2d at 1314; LEU from France, 66 Fed. Reg. at 65,884. Under a
SWU contract, a utility purchases separative work units and
delivers a quantity of feed uranium to the enricher. USEC I, 27
CIT at __, 259 F. Supp. 2d 1310, 1314.
Court No. 02-00112, 113, 114;                                          Page 7
Consol. Court Nos. 02-00219, 221, 227, 229, and 233


with law; and

      4. On the record here, the Department’s interpretation that

the statutory countervailing duty provisions reach subsidies that

help to defray the costs of manufacturing imports of LEU is

reasonable, and accordingly, the Department’s determination that

the purchase of enrichment for more than adequate remuneration may

constitute a countervailable subsidy is in accordance with law.

      We now consider the parties’ motions.



                                 Discussion

      Title 28 U.S.C. § 1292(d) permits interlocutory appeals, but

only where “a controlling question of law is involved with respect

to which there is a substantial ground for difference of opinion

and [where] an immediate appeal . . . may materially advance the

ultimate termination of the litigation.”              Id.   The instant case

meets each part of this statutory three-prong test.

      First,    general   issues    one   and   two    involve   controlling

questions of law because, absent further remand, these two issues

effectively terminate the country-specific antidumping cases at

issue here.    Conversely, the decisions on general issues three and

four involve controlling questions of law because those decisions

permit cases to proceed that would otherwise have been remanded or

concluded.     Moreover, further proceedings in this Court will not

moot these issues, and an incorrect disposition of these issues
Court No. 02-00112, 113, 114;                                          Page 8
Consol. Court Nos. 02-00219, 221, 227, 229, and 233


will require reversal of a final judgment based thereon.             See 16

Charles Alan Wright et al., Federal Practice and Procedure § 3930,

at 423-24 (2d ed. 1996) (“There is no doubt that a question is

‘controlling’ if its incorrect disposition would require reversal

of a final judgment . . . .”).

      Second, this is a case of first impression, in an area where

the   law   is   complex,   and   there    is   undeniably   a   substantial

difference of opinion on each question.

      Third, an immediate appeal may materially advance the ultimate

termination of this litigation.           The four issues decided by the

Court define the scope and effect of the remaining questions which

may be raised in the underlying fifteen actions, and which remain

to be considered. Consequently, the Court’s decision on these four

issues sets the course for any further proceedings.               Absent an

immediate appeal, the parties and this Court will spend substantial

resources and time on the remaining proceedings before a final

appealable judgment can be made.          On the other hand, an immediate

appeal will significantly expedite proceedings by clarifying the

course of the proceedings and enabling the parties and the Court to

allocate resources efficiently.        Accordingly, the Court finds that

the three-prong test set forth in 28 U.S.C. § 1292(d) is satisfied

here.
Court No. 02-00112, 113, 114;                                Page 9
Consol. Court Nos. 02-00219, 221, 227, 229, and 233


                                 Conclusion

      In the circumstances present here, an immediate interlocutory

appeal will best serve the interests of all parties and of the

judiciary.     Therefore, the Court will certify, for intermediate

interlocutory appeal, the Court’s decision on the four general

issues decided in USEC I and USEC II.

     THEREFORE, this action having been duly submitted for
decision, and the Court, after due deliberation having rendered a
decision upon the issues identified, and no party having sought
further remand of the Court’s decision, and the Court having
determined that these issues involve controlling questions of law
with respect to which there is a substantial ground for
difference of opinion and that an immediate appeal from this
Court’s decision may materially advance the ultimate termination
of this litigation; now, in conformity with that decision, it is
hereby

      ORDERED that

     1. On the record here, the Department’s decision that the
enrichment of uranium feedstock pursuant to SWU contracts
constitutes a sale, rather than a subcontracting (or “tolling”)
arrangement, is unsupported by substantial evidence;
     2. On the record here, the Department’s decision not to
apply its tolling regulation to determine whether the intervenors
(the “utilities,” also the “Ad Hoc Utilities Group” or “AHUG”),
rather than the “enrichers,” should be designated as producers of
LEU is not in accordance with law;
     3. On the record here, the Department’s reasons for
declining to apply the tolling regulation in the context of its
industry support determination, and thus, its application of a
different definition of “producer” from that used in establishing
export or constructed export price are reasonable and therefore
in accordance with law; and
     4. On the record here, the Department’s interpretation that
the statutory countervailing duty provisions reach subsidies that
help to defray the costs of manufacturing imports of LEU is
reasonable, and, accordingly, the Department’s determination that
the purchase of enrichment for more than adequate remuneration
may constitute a countervailable subsidy is in accordance with
law; and it is further
Court No. 02-00112, 113, 114;                                  Page 10
Consol. Court Nos. 02-00219, 221, 227, 229, and 233


     ORDERED that the Court finds, pursuant to 28 U.S.C. §
1292(d), that the Court’s decision on the four issues stated
above involve controlling questions of law with respect to which
there is a substantial ground for difference of opinion and that
an immediate appeal from the Court’s decision may materially
advance the ultimate termination of this litigation; and it is
further

     ORDERED that 28 U.S.C. § 1292(d) hereby permits appeal of
these issues.


                                    ________________________
                                         Donald C. Pogue
                                              Judge


                                    ________________________
                                         Evan J. Wallach
                                              Judge


                                    ________________________
                                         Richard K. Eaton
                                              Judge
Dated:      December 22, 2003
            New York, New York
