02-3537. Notice of Amended Final Determination and Notice of Countervailing Duty Order: Low Enriched Uranium From France

AGENCY:

Import Administration, International Trade Administration, Department of Commerce

ACTION:

Notice of amended final determination and notice of countervailing duty order: Low enriched uranium from France.

EFFECTIVE DATE:

February 13, 2002.

FOR FURTHER INFORMATION CONTACT:

Michael Grossman at [phone] or Richard Herring at [phone], Office of AD/CVD Enforcement VI, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

The Applicable Statute and Regulations

Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act effective January 1, 1995 (the Act). In addition, unless otherwise indicated, all citations to the Department's regulations are to the current regulations codified at 19 CFR part 351 (2000).

Scope of Order

For purposes of this order, the product covered is all low enriched uranium (LEU). LEU is enriched uranium hexafluoride (UF₆) with a U²³⁵ product assay of less than 20 percent that has not been converted into another chemical form, such as UO₂, 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).

Certain merchandise is outside the scope of this order. Specifically, this order does not cover enriched uranium hexafluoride with a U²³⁵ assay of 20 percent or greater, also known as highly enriched uranium. In addition, fabricated LEU is not covered by the scope of this order. For purposes of this order, fabricated uranium is defined as enriched uranium dioxide (UO₂), whether or not contained in nuclear fuel rods or assemblies. Natural uranium concentrates (U₃ O₈) with a U²³⁵ concentration of no greater than 0.711 percent and natural uranium concentrates converted into uranium hexafluoride with a U²³⁵ concentration of no greater than 0.711 percent are not covered by the scope of this order.

Also excluded from this order is LEU owned by a foreign utility end-user and imported into the United States by or for such end-user solely for purposes of conversion by a U.S. fabricator into uranium dioxide (UO₂) and/or fabrication into fuel assemblies so long as the uranium dioxide and/or fuel assemblies deemed to incorporate such imported LEU (i) remain in the possession and control of the U.S. fabricator, the foreign end-user, or their designed transporter(s) while in U.S. customs territory, and (ii) are re-exported within eighteen (18) months of entry of the LEU for consumption by the end-user in a nuclear reactor outside the United States. Such entries must be accompanied by the certifications of the importer and end user.

The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 2844.20.0020. Subject merchandise may also enter under 2844.20.0030, 2844.20.0050, and 2844.40.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

Amended Final Determination

On December 21, 2001, counsel representing respondents (Eurodif S.A., Compagnie Generale de Matieres Nucleaires (COGEMA) and the Government of France (GOF)) alleged ministerial errors in the calculations of the Final Affirmative Countervailing Duty Determination: Low Enriched Uranium from France, 66 FR 65901 (December 21, 2001) (Final Determination). On December 26, petitioners (United States Enrichment Corporation, Inc. and its wholly-owned subsidiary, United States Enrichment Corporation, collectively USEC, and the Paper Allied-Industrial Chemical and Energy Workers International Union, AFL-CIO, CLC, Local 5-550 and Local 5-689, collectively PACE) alleged a ministerial error in the Final Determination. On December 31, 2001, respondents submitted comments regarding petitioners' allegations.

Respondents alleged that the Department miscalculated the ad valorem rate by erroneously multiplying its calculated price differential by the quantity of SWU EdF was entitled to receive, rather than the quantity delivered. Respondents argued that the Department should reduce its calculated benefit by the overstated portion of electricity payment that was never made by EdF.

Petitioners argued that the Department understated the amount of “part usine” (which together with “part energie” makes up the entire price pade by EdF to Eurodif) actually paid by EdF to Eurodif by erroneously dividing the total amount paid by EdF in 1999 for “part usine” by the amount of SWU actually delivered to EdF, as opposed to by the amount of SWU that EdF could have taken. Petitioners stated that to calculate the correct total amount per SWU paid by EdF, the Department could have added the total amount of “part usine” and “part energie” paid by EdF to Eurodif in 1999 and divided by the number of SWUs in the delivered LEU during 1999 or by calculating the amount per delivered SWU paid for the “usine” and “energie” and adding together those amounts. Respondents argued that petitioners' allegation is outside the scope of ministerial error corrections in that petitioners propose to have the Department alter an aspect of the calculation that is both substantive and intentional, not arithmetic or clerical and unintentional.

We agree with respondents that the Department erroneously multiplied the calculated price differential by the wrong SWU quantity; however, we disagree with the manner in which respondents proposed to amend the calculated benefit. The corrected benefit is the calculated price differential, unchanged from the Final Determination, multiplied by the quantity of SWUs delivered to EdF during the POI. We disagree with petitioners' ministerial error allegation, finding that the allegation is not one of “an error in addition, subtraction, or arithmetic function * * * [or] other similar type of unintentional error” as provided in 19 CFR 351.224(f).

These issues are addressed in further detail in the January 18, 2002 memorandum to Bernard Carreau, Deputy Assistant Secretary, AD/CVD Enforcement II, Import Administration, from Melissa G. Skinner, Director, Office of AD/CVD Enforcement VI. The public version of this memorandum is on file in Room B-099 in the Central Records Unit (CRU) of the Main Commerce Building.

As a result of our corrections, the estimated net countervailable subsidy rate attributable to Eurodif/COGEMA decreased from 13.21 percent ad valorem to 12.15 percent ad valorem. Due to the revision of the net subsidy rate for Eurodif/COGEMA, the all others rate has also changed. The all others net countervailable subsidy decreased from 13.21 percent ad valorem to 12.15 percent ad valorem.

Countervailing Duty Order

In accordance with section 705(d) of the Act, on December 21, 2001, the Department published its final determination in the countervailing duty investigation of low enriched uranium from France (66 FR 65901). On February 4, 2002, the International Trade Commission (ITC) notified the Department of its final determination, pursuant to section 705(b)(1)(A)(i) of the Act, that an industry in the United States suffered material injury as a result of subsidized imports of low enriched uranium from France.

Therefore, countervailing duties will be assessed on all unliquidated entries of low enriched uranium from France entered, or withdrawn from warehouse, for consumption on or after May 14, 2001, the date on which the Department published its preliminary affirmative countervailing duty determination in the Federal Register, and before September 11, 2001, the date the Department instructed the U.S. Customs Service to discontinue the suspension of liquidation in accordance with section 703(d) of the Act, and on all entries and withdrawals of subject merchandise made on or after the date of publication of this countervailing duty order in the Federal Register. Section 703(d) states that the suspension of liquidation pursuant to a preliminary determination may not remain in effect for more than four months. Therefore, entries of low enriched uranium made on or after September 11, 2001, and prior to the date of publication of this order in the Federal Register are not liable for the assessment of countervailing duties due to the Department's discontinuation, effective September 11, 2001, of the suspension of liquidation.

In accordance with section 706 of the Act, the Department will direct U.S. Customs officers to reinstitute the suspension of liquidation for low enriched uranium from France effective the date of publication of this notice in the Federal Register and to assess, upon further advice by the Department pursuant to section 706(a)(1) of the Act, countervailing duties for each entry of the subject merchandise in an amount based on the net countervailable subsidy rates for the subject merchandise.

On or after the date of publication of this notice in the Federal Register, U.S. Customs officers must require, at the same time as importers would normally deposit estimated duties on this merchandise, a cash deposit equal to the rates noted below. The All Others rate applies to all producers and exporters of low enriched uranium from France not specifically listed below. The cash deposit rates are as follows:

Producer/exporter: France	Cash deposit rate
Eurodif/COGEMA	12.15 percent ad valorem
All Others Rate	12.15 percent ad valorem

This notice constitutes the countervailing duty order with respect to low enriched uranium from France, pursuant to section 706(a) of the Act. Interested parties may contact the CRU, for copies of an updated list of countervailing duty order currently in effect.

This countervailing duty order and amended final determination are issued and published in accordance with sections 706(a) and 705 of the Act and 19 CFR 351.211 and 351.224.

Dated: February 6, 2002.

Bernard T. Carreau,

Acting Assistant Secretary for Import Administration.