Legal Case Summary

. The three judge panel was deciding an interlocutor appeal of four certified questions. And the question, I'd issue this, Dermain here, is the question as to whether a swoon contract provides for the sale of goods or the criminal services. The court held under certain criteria based on the contract on the record of that investigation that the contracts, in those cases, were substantially identical to the contracts that the court considered in Florida, like the power, and that therefore there was a religious services and not subject to the anti-dumbing law. We accept that. For purposes of this appeal, we fully accept that hold it. The issue is we do not read anything in this court's decision to mandate how commerce is to administer the anti-dumbing law. Well, the court below held, I think, that Congress has already made the decision and that a scope review or a scope inquiry is a possible way to test whether a future shipment of uranium would fit under the decisions of finding no duties applicable. So, you have to address the statute. You can't get by by simply arguing about the details of the contracts in those cases. Your honor. With all due respect to the court of Asia-Tray, the use of the scope inquiry is utterly futile in this context. Well, you say that over and over in your brief is not at all clear to me that it's true. As I understand it, you have a year before liquidation to begin with and it can be extended further by the Secretary of Commerce in certain exigent circumstances. So, why it would be futile? If there's some reason to suspect that a particular shipment represented to have been under a service contract, actually wasn't a service contract, there's a lie that it actually was a goods contract, a normal sale of a physical item, then you have a year before the liquidation has to occur. And even if the year passes and you haven't been able to finish showing the fraud, the fraud statute has no limitation period. So, I don't see how the government is left in a position where it's futile if they're being ripped off. It doesn't look futile at all to me

. Your honor, because the scope inquiry will be initiated following the entry of the following entry. That the scope inquiry will be applied respectively will not be able to suspend the actual entry being liquidated. You already have a year, do you not? But it won't be suspended, Your Honor. It won't need to be suspended. It won't be able to capture, it will not capture the prior entry. It will only be a specific determination regarding an entry that will not be subject to the scope inquiry. It will not be subject to suspension into the plain language of the regulation. It is forward looking. The suspension cannot occur until honor after the date of initiation of the scope inquiry. The scope inquiry will be initiated as there are deep admits and it's brief, but will be initiated after the entry. The only way you can get suspension of entries at the time of entry is through an administrative review. And we read nothing in this course decision to suggest an administrative review will be concluded using the certification process. And hoes by the fundamental trick allows the imported to basically opt out of the whole entire anti-dumping law. Commerce, customs, rather, is this court recognizing that everything is not responsible for scope, the administration of scope inquiries, scope determinations, commerce, customs, customs law, would be subject to entirely different standards. Furthermore, this is a complex issue involving legal facts, legal application of facts. I'm just trying to understand the portion of your argument that says it would be futile. It would never work

. It couldn't work. I'm not with you yet. I don't see why it couldn't ever work. Because we're doing it in scope inquiries, we're supposed to make generalized application. Is this product within or without the scope in future entries? Well, no, but this product is within or without the scope. We're talking about a case by case analysis of an entry. Is this contract actually a smooth contract? Did the transactions actually reflect the performance of the contract actually occur? This is a fact specific inquiry. Do you have a fact? I understand it's fact specific, but I don't understand why it would be futile. Because entry acts will occur on the general scope. Commerce initiates a scope in pretty much. It decides the entry acts as, say, without the scope. It can't suspend entry acts because the entry has not been suspended. It can only be suspended at the time of entry if commerce has administrative reviews. As this court repeatedly observed, administrative reviews are retrospective. A scope entry is not retrospective. The regulation clearly provides that the suspension occurs at the date of initiation, which means that it's already too late. The scope inquiry will never be able to capture that fire entry back

. So we have a scope inquiry. Let me ask you a hypothetical. I'm not getting any progress here. I'm not getting any traction. If I enter a ship load of uranium that's been enriched in France, and I'm the employer, and I tell customs or commerce or other agents of the government, this was produced under a service contract. Here's the contract. You can see yourself. Clause 407 makes it clear that it was for service, not good. Now, so far, what's the problem for the government? The problem is that the party has actually followed the terms of that provision. I'll give a thing about this with the street judge. If the contract says that I'm buying the service of enrichment for a million dollars a pound, what more is there to determine? What about if it reality? They didn't follow the terms of the contract and they had an ultimate transaction. Why do you care? I suppose they only paid half that much. What does that matter to the government? If it reality pursues to the court's three judge, the decision, the lack of decision, if the fact title did transfer, if it could back the worth, it did sale. Well, that sounds like a case of outright fraud. That the contract that's for services wasn't the real deal. The real deal was a secret deal for the sale of physical items. Then the fraud statute would apply

. It may not be fraud. How could it not be fraud? If I import it and I tell the government it's a service contract, here's the contract, but that's not the contract we actually followed. The contract we actually followed, not being disclosed to the government, later turns out to be a contract for goods. I don't see how there can be any conclusion except that it's fraud. It's probably criminal fraud as well as civil frauds that the government is not without remedy. These are complex arrangements that they made good faith believe that there wasn't a sale. But once Congress really has a discretion to decide, as once they look at the facts, then they may well be services, but they may be spend deviation such that the wid women are transferred a title. So this Court's three just opinion looked at the contracts on the record and the investigation and simply made an analogy to the contracts that were issued in the Royal Lighting Power. We cannot speculate as to what future transactions in the Royal Lighting Power, but a future contract may look substantially different from the Royal Lighting Power. But Congress needs to have a mechanism to examine that. Congress is in charge of administering the Dump a lot of making scope determinations as this Court of the NIRISM is here to see you my time. I guess we have next Mr. Huckberg. Yes, please, the Court of Lactoreserve too, that's my time for a great use. I will ultimately address the question you've raised for the government, but let me tell you about the two issues that we're raising on P.O. Contrary to the concerns of our opponents, we're not trying to undermine or reopen the three judge-panman decision

. We're trying to get clarified with regard to two factual situations that we believe that present render the imports not sales of services but sales of goods. The first is whether or not the natural uranium component, the raw materials, were sold to the U.S. utility purchaser by the affiliate of the in-ranger and the French in-ranger. The scope amendment that Congress adopted in second remand determination made clear that if the rich sell- Where did that uranium come from? From the utility? If it were sold by an affiliate of the foreign-richery, it would have come from the mines of the in-ranger of the affiliate. That is maybe another country. So it never came from the affiliate? We're arguing that if the affiliate sold to the utility of the natural uranium, indeed there's some reason to think there might even be integrated authors so that they would combine the two in some way. In that circumstance, that is not what the Federal Circuit Panel conceived of as a sale of services. It didn't address that issue when we were asking the court to clarify that if in fact there is that kind of integrated tributary of the utility. If the utility sends uranium on enriched uranium to the in-ranger and who enriches it and sends it back, the in-ranger has performed a service. That is what the word help is. That's the prior case. Now you've got the affiliate thrown in and you're arguing a sale between the affiliate and the enricher. No, sale between the affiliate and the utility. The affiliate of the enricher's are part of the wine parties. They negotiate a combined arrangement that says to the U.S

. utility, we'll sell you the natural uranium. So you're saying the affiliate sells to the U.S. utility? And where does the uranium come from before it got to the affiliate? No, what party? Did it come from the utility? Yeah, nothing. The affiliate, whatever. Where did the affiliate get it from? It was a wine. Is it a company that mines uranium? In other words, it never came from the utility. It never came from the utility. No, it's never in the physical possession of utility. But we agree that if the utility goes to a third party of source for the uranium and it's caused that uranium to the enricher, then under the patent was decision, that's a sale of service. Mr. Akbar, this is a hypothetical case. It's not the facts of this case. There are no facts in this case that show the affiliate. What is happening now is if you reject the government's appeal, then the scope exception that Congress adopted will apply to all future reports. And what we're saying is, before, since that would be the governing rule for all future reports, that Congress ought to have the discretion, if in fact, in a future import, there was a negotiated deal where there was an interlinked transaction. Are you asking for an advisory opinion then? That's my question

. That's a good excuse me. Are you asking for an advisory opinion? No, we're asking you to interpret the Federal Circuit panel's decision as applied to the scope exemption that the Congress Department came up with pursuant to the second meeting. For the purpose of future cases, if they arise. Well, it's trying to define the meaning of what the Federal Circuit said was a sale of services, for instance, in our second concern, the second concern we have. What if the utility never delivers uranium to the enricher? The contract says it should, it never does. The fiction that the enricher is performing a service on the customer's raw materials is evaporating. It's not even a fiction because, in fact, if the natural uranium isn't delivered until after the LW is produced and imported, there is no possible fiction. I think the enricher was performing a service on the service. I understand that Mr. Hockerbolt, but just to follow up on Judge Laurie's question, what... But those facts don't exist in this case. What you're arguing is that this should be set up so that it doesn't happen in the future. We're concerned that the scope exclusion, which was adopted by Commerce in its remand determination after the CIT rejected, that Ms. McCarthy was saying, should be adopted. That they're defining what is outside the scope of the dumping water and dumping water

. And we're saying they shouldn't exclude the kinds of transactions where there might be in only sales of uranium and enrichment. But if you and the... if you're client and the government both say they're not resisting the result in this specific case, where exactly is our jurisdiction to hear this appeal about what ought to be? You are now reviewing the order, the scope exception, scope exclusion, that Commerce developed, pursuing to the remand that the Court set back to the CIT. Ms. Court sent back to the CIT and said, you've got to exclude sales pursuant to service transactions. So Commerce had a struggle with what is the sale pursuant to a service transaction that meets the Court's criteria. And we believe the two issues we have raised are consistent with the Court's criteria and should be reflected in the scope exclusion that the Commerce Department adopted. If it doesn't, then there will be... there may be no ability for the Commerce Department in a future-intimid transaction to be able to say, no, wait a second, that's not within the scope exclusion. And so that's why you're raising that issue. Let me just say, lowly, I'd like to reserve..

. I have a lot of offers to say that for a moment. Thanks, sir. Thank you, Mr. Rosen. I think we're hearing next from you. Thank you, Your Honours. May it please the Court. This is the fourth time that the school-in-port issue has come before this Court. And this Court has properly determined that school-in-ports are outside the Canterbury-Veiling Duty Law as well as the dumping law. So we have a perfect record. We believe so, Your Honours. They're given that the dumping statute operates only with respect to subject merchandise, and that this Court has determined that school-in-ports are outside the scope of the law. Those imports are not subject merchandise. Mr. Rosen, I understand the government to be saying, well, that's fine if they're truly school-in-ports, but maybe there'll be some transactions in the future that wouldn't be legitimate SWU imports. Or there would be fraud, and we the government have to be able to investigate that and make that determination, and the only way we can do that is through an administrative review. If I might your honour, the SWU certification procedure that was established by the Commerce Department for this case was determined by the Department to be sufficient to enable customs to determine at the time of entry whether, in fact, there was a SWU import. It is a certification that is more rigorous than anything I have ever seen from the government. It requires a copy of the SWU order and the SWU contract. It requires a documentation of the amount of fee delivered by the utility, and that the utility has titled to the fee delivered. It requires the quantity of LAU, produced, pursuant to the SWU order, and that the production of the cost is... But the argument the government makes in its brief is what might be a lie. All those documents might be a lie, and we should be able to investigate and determine whether it's truthful or not. I have two responses to that. At least, number one, it would require the life of the import, but most importantly here, the certification requires the signature of the purchaser, the utility as well. So you've got another party on the hook, which is far different from virtually any certification. Does the certification require any kind of disclosure or any sort of... does it ask the questions that would permit a determination as to whether, in fact, the affiliate owned the uranium and another affiliate can be registered? The certification requires a statement by the importer and by the purchaser that the fee was owned by the utility, not by the affiliate. The fee that the utility.

. It is a certification that is more rigorous than anything I have ever seen from the government. It requires a copy of the SWU order and the SWU contract. It requires a documentation of the amount of fee delivered by the utility, and that the utility has titled to the fee delivered. It requires the quantity of LAU, produced, pursuant to the SWU order, and that the production of the cost is... But the argument the government makes in its brief is what might be a lie. All those documents might be a lie, and we should be able to investigate and determine whether it's truthful or not. I have two responses to that. At least, number one, it would require the life of the import, but most importantly here, the certification requires the signature of the purchaser, the utility as well. So you've got another party on the hook, which is far different from virtually any certification. Does the certification require any kind of disclosure or any sort of... does it ask the questions that would permit a determination as to whether, in fact, the affiliate owned the uranium and another affiliate can be registered? The certification requires a statement by the importer and by the purchaser that the fee was owned by the utility, not by the affiliate. The fee that the utility... That gets us into when it owns the fee and so forth, because there's a whole timing issue in this case that we haven't really talked about. The certification does not go into the original source of the fee, which is irrelevant under the urede decision. So an affiliate of the enricher could in fact have provided the uranium or title to the uranium to the utility. Absolutely. And that would, in your view, that would still be a smooth contract. Absolutely, for honor and even in this investigation from the outset of the investigation, our clients disclosed that in certain instances an affiliate had sold fee. They had to be paid to certain of its customers and commerce in analyzing the transactions, treating the transactions as smooth transactions. The original source of the fee is not relevant under the urede decision. Once the utility purchases the fee, it can use it in a particular enrichment transaction. It can sell it, it can swap it, it can hold it in inventory. It's not connected to the enrichment transaction. So if just for the sake of the argument, one company owns the uranium and is the enrichment and sells the uranium to the utility, sort of as a sale and lease back, you hold this while we're enriching it with the other hand, does the enrichment and then sells it back. That's a valid smooth contract under the anti-dumping law in your view. I'd have to go through the facts a little more closely, but it sounds like that was a linked transaction where the fee was being sold for the particular enrichment transaction. And therefore it would be a sale of goods and not services. That could be a sale of goods and in fact during the investigation there was a contract where both the fee and the enrichment and the swoos were provided by our clients

.. That gets us into when it owns the fee and so forth, because there's a whole timing issue in this case that we haven't really talked about. The certification does not go into the original source of the fee, which is irrelevant under the urede decision. So an affiliate of the enricher could in fact have provided the uranium or title to the uranium to the utility. Absolutely. And that would, in your view, that would still be a smooth contract. Absolutely, for honor and even in this investigation from the outset of the investigation, our clients disclosed that in certain instances an affiliate had sold fee. They had to be paid to certain of its customers and commerce in analyzing the transactions, treating the transactions as smooth transactions. The original source of the fee is not relevant under the urede decision. Once the utility purchases the fee, it can use it in a particular enrichment transaction. It can sell it, it can swap it, it can hold it in inventory. It's not connected to the enrichment transaction. So if just for the sake of the argument, one company owns the uranium and is the enrichment and sells the uranium to the utility, sort of as a sale and lease back, you hold this while we're enriching it with the other hand, does the enrichment and then sells it back. That's a valid smooth contract under the anti-dumping law in your view. I'd have to go through the facts a little more closely, but it sounds like that was a linked transaction where the fee was being sold for the particular enrichment transaction. And therefore it would be a sale of goods and not services. That could be a sale of goods and in fact during the investigation there was a contract where both the fee and the enrichment and the swoos were provided by our clients. And that was treated as the sale of L.E.U., not the sale of swoos because they were related. And how does customers sort out the difference between a linked transaction and not linked transaction at the border? In the documentation the swoos contract is presented. Well first I would say that commerce itself regarded the prior ownership of the fee as irrelevant. Commerce rejected USEX requests that an additional requirement be drafted upon the exclusion to focus on the original source of the fee. But the certification documents required that the contract be performed in accordance with its terms. And if any other fee was involved that that fee be disclosed to commerce. So it sounds like you're saying that the existing certification and other procedures already can discriminate between a legitimate work unit service versus a sale of uranium where tidal passives. I believe so, Your Honor. And I believe that that's exactly what commerce said. It said that the certification procedure it had devised was sufficient to enable customers to determine at the time of entry that this was in swoot transaction. Well, but Ms. McCarthy argues that what actually occurred might be different from what the contract called for and that commerce needs the time and mechanisms to look behind the surface of the transaction to be sure that the terms that set forth in the contract are what actually occurred. First of all, Your Honor, the swoot transaction is virtually completed at the time of entry. Unlike the typical scope exclusion situation where some future act is required to determine whether in fact the exclusion is appropriate

. And that was treated as the sale of L.E.U., not the sale of swoos because they were related. And how does customers sort out the difference between a linked transaction and not linked transaction at the border? In the documentation the swoos contract is presented. Well first I would say that commerce itself regarded the prior ownership of the fee as irrelevant. Commerce rejected USEX requests that an additional requirement be drafted upon the exclusion to focus on the original source of the fee. But the certification documents required that the contract be performed in accordance with its terms. And if any other fee was involved that that fee be disclosed to commerce. So it sounds like you're saying that the existing certification and other procedures already can discriminate between a legitimate work unit service versus a sale of uranium where tidal passives. I believe so, Your Honor. And I believe that that's exactly what commerce said. It said that the certification procedure it had devised was sufficient to enable customers to determine at the time of entry that this was in swoot transaction. Well, but Ms. McCarthy argues that what actually occurred might be different from what the contract called for and that commerce needs the time and mechanisms to look behind the surface of the transaction to be sure that the terms that set forth in the contract are what actually occurred. First of all, Your Honor, the swoot transaction is virtually completed at the time of entry. Unlike the typical scope exclusion situation where some future act is required to determine whether in fact the exclusion is appropriate. Indeed, in this case commerce, fashion and exclusion for imports of LAU for purposes of conversion and fabrication and re-export within 18 months. Those imports are not subjected to administrative review or suspension of liquidation. It's by no means certain that the import will be in fact fabricated or in fact re-exported within 18 months. There are a host of cases where an exclusion is based on future use weather and electronics, item, photographic paper, wire rods, polypide. I didn't understand her to be arguing about future events. I understood her to be suggesting something about past events that namely there was actually a sale of a physical object even though the papers that accompanied the entry said it was a service contract. Yes, Your Honor, and I think you put your finger on it where you have the certification of the importer as well as the utility that this is a swoot transaction. You would be looking at fraud in that circumstance. Yes, but she argues, if I understand it correctly, that unless an administrative review is permitted, there will be no practical way that commerce could look behind the certification papers to see if fraud was being committed in a way that could result in duties being imposed where fraud was in fact found. As you noted, that's what a scope proceeding could do. Commerce regulations indicate that those proceedings should take 120 days. The case is well before the normal one-year period for liquidation, which in any event can be extended. And if fraud or negligence is involved, the statutes allow the customs to reach back with respect to entries. There are also criminal penalties that are applicable here. Her argument seems to be dependent on the idea that certification isn't enough, fear and incentives aren't enough, that there also needs to be an opportunity to investigate whether the true facts correspond to the contract and the other certification documents. And our point, Your Honor, is why here, why here with respect to this fight we've been having for six and a half years, where this court has spoken clearly and definitively that swoon imports are outside the scope of the law? But she's not challenging that. She's saying legitimate swoon transactions don't get duties, but if they're if they're phony, they should be subject to verification

. Indeed, in this case commerce, fashion and exclusion for imports of LAU for purposes of conversion and fabrication and re-export within 18 months. Those imports are not subjected to administrative review or suspension of liquidation. It's by no means certain that the import will be in fact fabricated or in fact re-exported within 18 months. There are a host of cases where an exclusion is based on future use weather and electronics, item, photographic paper, wire rods, polypide. I didn't understand her to be arguing about future events. I understood her to be suggesting something about past events that namely there was actually a sale of a physical object even though the papers that accompanied the entry said it was a service contract. Yes, Your Honor, and I think you put your finger on it where you have the certification of the importer as well as the utility that this is a swoot transaction. You would be looking at fraud in that circumstance. Yes, but she argues, if I understand it correctly, that unless an administrative review is permitted, there will be no practical way that commerce could look behind the certification papers to see if fraud was being committed in a way that could result in duties being imposed where fraud was in fact found. As you noted, that's what a scope proceeding could do. Commerce regulations indicate that those proceedings should take 120 days. The case is well before the normal one-year period for liquidation, which in any event can be extended. And if fraud or negligence is involved, the statutes allow the customs to reach back with respect to entries. There are also criminal penalties that are applicable here. Her argument seems to be dependent on the idea that certification isn't enough, fear and incentives aren't enough, that there also needs to be an opportunity to investigate whether the true facts correspond to the contract and the other certification documents. And our point, Your Honor, is why here, why here with respect to this fight we've been having for six and a half years, where this court has spoken clearly and definitively that swoon imports are outside the scope of the law? But she's not challenging that. She's saying legitimate swoon transactions don't get duties, but if they're if they're phony, they should be subject to verification. And then if shown to be phony, there should be duties. We agree that phoning transactions should not be done. But she says she can't get there without the administrative review that the scope review won't suffice. But she is seeking a procedure in this case after all we've been through that differs from commerce's routine practice in a host of cases and in this case. And this in the face of decisions, which say that swoon imports are not subject to the law. All we are asking for is equal and non-discriminatory treatment. Compared to whom? Compared to commerce's routine application of the anti-ductic snatch in the electronics cases, photo paper cases, wire rod cases, in the polyline alcohol cases, in live swine cases. All of those cases operated with or without certifications and without conducting administrative reviews and requiring suspension of liquidation. That's all we want. All right. Thank you. Miss Fisher? Good morning, Your Honours. I would just like to address a couple of points. First, commerce must be required to treat this course as decisions is binding. And second, commerce cannot continue to be approved. The first proposition is not in doubt. You don't need to spend any time on that

. And then if shown to be phony, there should be duties. We agree that phoning transactions should not be done. But she says she can't get there without the administrative review that the scope review won't suffice. But she is seeking a procedure in this case after all we've been through that differs from commerce's routine practice in a host of cases and in this case. And this in the face of decisions, which say that swoon imports are not subject to the law. All we are asking for is equal and non-discriminatory treatment. Compared to whom? Compared to commerce's routine application of the anti-ductic snatch in the electronics cases, photo paper cases, wire rod cases, in the polyline alcohol cases, in live swine cases. All of those cases operated with or without certifications and without conducting administrative reviews and requiring suspension of liquidation. That's all we want. All right. Thank you. Miss Fisher? Good morning, Your Honours. I would just like to address a couple of points. First, commerce must be required to treat this course as decisions is binding. And second, commerce cannot continue to be approved. The first proposition is not in doubt. You don't need to spend any time on that. Well, while we surprised that below commerce has said repeatedly at the agency level and at the corner of the national trade, this course as an imperative is not binding on it. And we want to make sure that the court makes very clear to commerce that it cannot continue to flaunt this course decisions and must apply them in a circumstances where they are applicable. I don't understand what you're asking for. Some kind of advisory ruling that if a certain thing happens in the future that the law will be axed. No, just merely that this course decisions is started to size and must be applied by commerce. Well, that's already in the law. That isn't so because we would say it's so in this opinion. That's already in the law. I agree. And what is it you're asking us to do? You spend half your time on a non-issue. Okay. Your Honor, thank you. I will proceed the other claims that have been addressed by commerce that somehow that the parties would enter into sham transactions and try to evade the procedures set up for the certification. Certainly, there's a long history of the utilities contracting for enrichment services separately contracting for your union feet with various suppliers. There are multiple suppliers around the world. It's the utilities who decide what fee goes with what services contract and at what point in time. The kind of situations that the government and new sector raising are claimed to certain mention

. Well, while we surprised that below commerce has said repeatedly at the agency level and at the corner of the national trade, this course as an imperative is not binding on it. And we want to make sure that the court makes very clear to commerce that it cannot continue to flaunt this course decisions and must apply them in a circumstances where they are applicable. I don't understand what you're asking for. Some kind of advisory ruling that if a certain thing happens in the future that the law will be axed. No, just merely that this course decisions is started to size and must be applied by commerce. Well, that's already in the law. That isn't so because we would say it's so in this opinion. That's already in the law. I agree. And what is it you're asking us to do? You spend half your time on a non-issue. Okay. Your Honor, thank you. I will proceed the other claims that have been addressed by commerce that somehow that the parties would enter into sham transactions and try to evade the procedures set up for the certification. Certainly, there's a long history of the utilities contracting for enrichment services separately contracting for your union feet with various suppliers. There are multiple suppliers around the world. It's the utilities who decide what fee goes with what services contract and at what point in time. The kind of situations that the government and new sector raising are claimed to certain mention. There are certain venture procedures. This court and the court of international trade has dealt with certain mention cases and polyvinyl alcohol as a perfect example of parties. We structured the transactions to try to get around the scope of an order. In this case, commerce has remedies to deal with those kinds of situations. It does not require the burden of ongoing administrative reviews where the ongoing suspension of liquidation and the chilling effect on the utility's ability to enter into non-subject school contracts would be impaired on an ongoing basis. That's something that the court needs to take into account and the statute of course does not permit. Thank you. Oppose those restrictions. Thank you. Mr. McCarthy, you have some rebuttal time. Or if it's actually, yeah, you do. Thank you, Your Honor. These are very complicated transactions. They're not black and white. We're actually not talking about shant transactions. Our concern is a good faith belief in the part of the important and erroneous certification and good faith

. There are certain venture procedures. This court and the court of international trade has dealt with certain mention cases and polyvinyl alcohol as a perfect example of parties. We structured the transactions to try to get around the scope of an order. In this case, commerce has remedies to deal with those kinds of situations. It does not require the burden of ongoing administrative reviews where the ongoing suspension of liquidation and the chilling effect on the utility's ability to enter into non-subject school contracts would be impaired on an ongoing basis. That's something that the court needs to take into account and the statute of course does not permit. Thank you. Oppose those restrictions. Thank you. Mr. McCarthy, you have some rebuttal time. Or if it's actually, yeah, you do. Thank you, Your Honor. These are very complicated transactions. They're not black and white. We're actually not talking about shant transactions. Our concern is a good faith belief in the part of the important and erroneous certification and good faith. That would escape the application of the anti-pun of civil penalty statutes because we would have to show negligence, gross negligence, fraud, just even to recover the duties under 19 USC 1592D. We have to establish a violation of the statute. They could in good faith, consistent with the legislature of the moda, get an opinion by the attorney. This is a smooth contract. They in fact may be wrong. They may in fact, once Congress looks at the record, they may in fact, ban a transfer of ownership, consistent with this court's three court, three judge opinion. We're simply asking for some workable and ministerial mechanism by which we can ensure that there's not an import is opting out of the anti-dumbing law. Whatever decision Congress makes would be subject to administrative review and judicial review by the court of national trade or by this court if necessary. The certification procedure is subject to no review except for the extreme cases of fraud. Meanwhile, a lot of anti-dumbing duties are escaping payment. Thank you. Thank all four attorneys who take the appeal under advisement. You have a minute. You thought? I think you have one minute. Mr. Rosen's said to you, why is this case different from the other cases? Let me tell you why it's different. This is the first time that courts have held that how one structures a transaction affects whether or not the anti-dumbing law applies

. That would escape the application of the anti-pun of civil penalty statutes because we would have to show negligence, gross negligence, fraud, just even to recover the duties under 19 USC 1592D. We have to establish a violation of the statute. They could in good faith, consistent with the legislature of the moda, get an opinion by the attorney. This is a smooth contract. They in fact may be wrong. They may in fact, once Congress looks at the record, they may in fact, ban a transfer of ownership, consistent with this court's three court, three judge opinion. We're simply asking for some workable and ministerial mechanism by which we can ensure that there's not an import is opting out of the anti-dumbing law. Whatever decision Congress makes would be subject to administrative review and judicial review by the court of national trade or by this court if necessary. The certification procedure is subject to no review except for the extreme cases of fraud. Meanwhile, a lot of anti-dumbing duties are escaping payment. Thank you. Thank all four attorneys who take the appeal under advisement. You have a minute. You thought? I think you have one minute. Mr. Rosen's said to you, why is this case different from the other cases? Let me tell you why it's different. This is the first time that courts have held that how one structures a transaction affects whether or not the anti-dumbing law applies. That has very profound implications. Well, what's your point? This panel can't re-decide what the prior panel's held. Well, I agree with that. But with regard to what the government is arguing and what we have suggested as a need for a procedure to ensure that entries are liquidated before the Congress to pop in as a chance to review it. The issues of whether or not a transaction involves a service transaction under the panel's decision is a complicated one. It's not like all the other cases were in the question of the size of the import, whether shape of the import, the ultimate use of the import. Those issues can be determined by customs because they're easily factually determined questions. This case raises for the first time when you re-read the decision of the panel. You will appreciate what was the panel thinking about an outer limits of what's a service transaction here? And where is this become a goods transaction? And what we're saying is that is the kind of determination when you're applying specific transactions and specific imports. That commerce needs an opportunity to review. It's not a question of leaving that question. I think we have your point and your time has expired. We'll take the appeal under advice.

The next argument is in field number 07-1005 Eurodiff SA versus United States. Mr. Carthy, good morning. Welcome to you. Please proceed. Good morning. Thank you, Your Honor. May it please the court. This is a very narrow and very important appeal. Under the Supreme Court's decision of Vermont and the 435 US at 534, pursuant to the Supreme Court's language Congress, should enjoy a wide discretion. Mr. Carthy, I read the briefs very carefully. I don't find it at all helpful to have generalizations about broad discretion at the Commerce Department. The holding of the three judge panel of the trade court was that the statute governing administrative reviews can't apply in this case. So it's not a matter of discretion or options available to commerce, at least in the view of the decision we're reviewing. They said there was no option available because the language of the statute precluded it. So quoting broad generalizations out of Vermont Yankee, it doesn't respond to the rationale of the court below. Hello, respect your honor. The three judge panel was deciding an interlocutor appeal of four certified questions. And the question, I'd issue this, Dermain here, is the question as to whether a swoon contract provides for the sale of goods or the criminal services. The court held under certain criteria based on the contract on the record of that investigation that the contracts, in those cases, were substantially identical to the contracts that the court considered in Florida, like the power, and that therefore there was a religious services and not subject to the anti-dumbing law. We accept that. For purposes of this appeal, we fully accept that hold it. The issue is we do not read anything in this court's decision to mandate how commerce is to administer the anti-dumbing law. Well, the court below held, I think, that Congress has already made the decision and that a scope review or a scope inquiry is a possible way to test whether a future shipment of uranium would fit under the decisions of finding no duties applicable. So, you have to address the statute. You can't get by by simply arguing about the details of the contracts in those cases. Your honor. With all due respect to the court of Asia-Tray, the use of the scope inquiry is utterly futile in this context. Well, you say that over and over in your brief is not at all clear to me that it's true. As I understand it, you have a year before liquidation to begin with and it can be extended further by the Secretary of Commerce in certain exigent circumstances. So, why it would be futile? If there's some reason to suspect that a particular shipment represented to have been under a service contract, actually wasn't a service contract, there's a lie that it actually was a goods contract, a normal sale of a physical item, then you have a year before the liquidation has to occur. And even if the year passes and you haven't been able to finish showing the fraud, the fraud statute has no limitation period. So, I don't see how the government is left in a position where it's futile if they're being ripped off. It doesn't look futile at all to me. Your honor, because the scope inquiry will be initiated following the entry of the following entry. That the scope inquiry will be applied respectively will not be able to suspend the actual entry being liquidated. You already have a year, do you not? But it won't be suspended, Your Honor. It won't need to be suspended. It won't be able to capture, it will not capture the prior entry. It will only be a specific determination regarding an entry that will not be subject to the scope inquiry. It will not be subject to suspension into the plain language of the regulation. It is forward looking. The suspension cannot occur until honor after the date of initiation of the scope inquiry. The scope inquiry will be initiated as there are deep admits and it's brief, but will be initiated after the entry. The only way you can get suspension of entries at the time of entry is through an administrative review. And we read nothing in this course decision to suggest an administrative review will be concluded using the certification process. And hoes by the fundamental trick allows the imported to basically opt out of the whole entire anti-dumping law. Commerce, customs, rather, is this court recognizing that everything is not responsible for scope, the administration of scope inquiries, scope determinations, commerce, customs, customs law, would be subject to entirely different standards. Furthermore, this is a complex issue involving legal facts, legal application of facts. I'm just trying to understand the portion of your argument that says it would be futile. It would never work. It couldn't work. I'm not with you yet. I don't see why it couldn't ever work. Because we're doing it in scope inquiries, we're supposed to make generalized application. Is this product within or without the scope in future entries? Well, no, but this product is within or without the scope. We're talking about a case by case analysis of an entry. Is this contract actually a smooth contract? Did the transactions actually reflect the performance of the contract actually occur? This is a fact specific inquiry. Do you have a fact? I understand it's fact specific, but I don't understand why it would be futile. Because entry acts will occur on the general scope. Commerce initiates a scope in pretty much. It decides the entry acts as, say, without the scope. It can't suspend entry acts because the entry has not been suspended. It can only be suspended at the time of entry if commerce has administrative reviews. As this court repeatedly observed, administrative reviews are retrospective. A scope entry is not retrospective. The regulation clearly provides that the suspension occurs at the date of initiation, which means that it's already too late. The scope inquiry will never be able to capture that fire entry back. So we have a scope inquiry. Let me ask you a hypothetical. I'm not getting any progress here. I'm not getting any traction. If I enter a ship load of uranium that's been enriched in France, and I'm the employer, and I tell customs or commerce or other agents of the government, this was produced under a service contract. Here's the contract. You can see yourself. Clause 407 makes it clear that it was for service, not good. Now, so far, what's the problem for the government? The problem is that the party has actually followed the terms of that provision. I'll give a thing about this with the street judge. If the contract says that I'm buying the service of enrichment for a million dollars a pound, what more is there to determine? What about if it reality? They didn't follow the terms of the contract and they had an ultimate transaction. Why do you care? I suppose they only paid half that much. What does that matter to the government? If it reality pursues to the court's three judge, the decision, the lack of decision, if the fact title did transfer, if it could back the worth, it did sale. Well, that sounds like a case of outright fraud. That the contract that's for services wasn't the real deal. The real deal was a secret deal for the sale of physical items. Then the fraud statute would apply. It may not be fraud. How could it not be fraud? If I import it and I tell the government it's a service contract, here's the contract, but that's not the contract we actually followed. The contract we actually followed, not being disclosed to the government, later turns out to be a contract for goods. I don't see how there can be any conclusion except that it's fraud. It's probably criminal fraud as well as civil frauds that the government is not without remedy. These are complex arrangements that they made good faith believe that there wasn't a sale. But once Congress really has a discretion to decide, as once they look at the facts, then they may well be services, but they may be spend deviation such that the wid women are transferred a title. So this Court's three just opinion looked at the contracts on the record and the investigation and simply made an analogy to the contracts that were issued in the Royal Lighting Power. We cannot speculate as to what future transactions in the Royal Lighting Power, but a future contract may look substantially different from the Royal Lighting Power. But Congress needs to have a mechanism to examine that. Congress is in charge of administering the Dump a lot of making scope determinations as this Court of the NIRISM is here to see you my time. I guess we have next Mr. Huckberg. Yes, please, the Court of Lactoreserve too, that's my time for a great use. I will ultimately address the question you've raised for the government, but let me tell you about the two issues that we're raising on P.O. Contrary to the concerns of our opponents, we're not trying to undermine or reopen the three judge-panman decision. We're trying to get clarified with regard to two factual situations that we believe that present render the imports not sales of services but sales of goods. The first is whether or not the natural uranium component, the raw materials, were sold to the U.S. utility purchaser by the affiliate of the in-ranger and the French in-ranger. The scope amendment that Congress adopted in second remand determination made clear that if the rich sell- Where did that uranium come from? From the utility? If it were sold by an affiliate of the foreign-richery, it would have come from the mines of the in-ranger of the affiliate. That is maybe another country. So it never came from the affiliate? We're arguing that if the affiliate sold to the utility of the natural uranium, indeed there's some reason to think there might even be integrated authors so that they would combine the two in some way. In that circumstance, that is not what the Federal Circuit Panel conceived of as a sale of services. It didn't address that issue when we were asking the court to clarify that if in fact there is that kind of integrated tributary of the utility. If the utility sends uranium on enriched uranium to the in-ranger and who enriches it and sends it back, the in-ranger has performed a service. That is what the word help is. That's the prior case. Now you've got the affiliate thrown in and you're arguing a sale between the affiliate and the enricher. No, sale between the affiliate and the utility. The affiliate of the enricher's are part of the wine parties. They negotiate a combined arrangement that says to the U.S. utility, we'll sell you the natural uranium. So you're saying the affiliate sells to the U.S. utility? And where does the uranium come from before it got to the affiliate? No, what party? Did it come from the utility? Yeah, nothing. The affiliate, whatever. Where did the affiliate get it from? It was a wine. Is it a company that mines uranium? In other words, it never came from the utility. It never came from the utility. No, it's never in the physical possession of utility. But we agree that if the utility goes to a third party of source for the uranium and it's caused that uranium to the enricher, then under the patent was decision, that's a sale of service. Mr. Akbar, this is a hypothetical case. It's not the facts of this case. There are no facts in this case that show the affiliate. What is happening now is if you reject the government's appeal, then the scope exception that Congress adopted will apply to all future reports. And what we're saying is, before, since that would be the governing rule for all future reports, that Congress ought to have the discretion, if in fact, in a future import, there was a negotiated deal where there was an interlinked transaction. Are you asking for an advisory opinion then? That's my question. That's a good excuse me. Are you asking for an advisory opinion? No, we're asking you to interpret the Federal Circuit panel's decision as applied to the scope exemption that the Congress Department came up with pursuant to the second meeting. For the purpose of future cases, if they arise. Well, it's trying to define the meaning of what the Federal Circuit said was a sale of services, for instance, in our second concern, the second concern we have. What if the utility never delivers uranium to the enricher? The contract says it should, it never does. The fiction that the enricher is performing a service on the customer's raw materials is evaporating. It's not even a fiction because, in fact, if the natural uranium isn't delivered until after the LW is produced and imported, there is no possible fiction. I think the enricher was performing a service on the service. I understand that Mr. Hockerbolt, but just to follow up on Judge Laurie's question, what... But those facts don't exist in this case. What you're arguing is that this should be set up so that it doesn't happen in the future. We're concerned that the scope exclusion, which was adopted by Commerce in its remand determination after the CIT rejected, that Ms. McCarthy was saying, should be adopted. That they're defining what is outside the scope of the dumping water and dumping water. And we're saying they shouldn't exclude the kinds of transactions where there might be in only sales of uranium and enrichment. But if you and the... if you're client and the government both say they're not resisting the result in this specific case, where exactly is our jurisdiction to hear this appeal about what ought to be? You are now reviewing the order, the scope exception, scope exclusion, that Commerce developed, pursuing to the remand that the Court set back to the CIT. Ms. Court sent back to the CIT and said, you've got to exclude sales pursuant to service transactions. So Commerce had a struggle with what is the sale pursuant to a service transaction that meets the Court's criteria. And we believe the two issues we have raised are consistent with the Court's criteria and should be reflected in the scope exclusion that the Commerce Department adopted. If it doesn't, then there will be... there may be no ability for the Commerce Department in a future-intimid transaction to be able to say, no, wait a second, that's not within the scope exclusion. And so that's why you're raising that issue. Let me just say, lowly, I'd like to reserve... I have a lot of offers to say that for a moment. Thanks, sir. Thank you, Mr. Rosen. I think we're hearing next from you. Thank you, Your Honours. May it please the Court. This is the fourth time that the school-in-port issue has come before this Court. And this Court has properly determined that school-in-ports are outside the Canterbury-Veiling Duty Law as well as the dumping law. So we have a perfect record. We believe so, Your Honours. They're given that the dumping statute operates only with respect to subject merchandise, and that this Court has determined that school-in-ports are outside the scope of the law. Those imports are not subject merchandise. Mr. Rosen, I understand the government to be saying, well, that's fine if they're truly school-in-ports, but maybe there'll be some transactions in the future that wouldn't be legitimate SWU imports. Or there would be fraud, and we the government have to be able to investigate that and make that determination, and the only way we can do that is through an administrative review. If I might your honour, the SWU certification procedure that was established by the Commerce Department for this case was determined by the Department to be sufficient to enable customs to determine at the time of entry whether, in fact, there was a SWU import. It is a certification that is more rigorous than anything I have ever seen from the government. It requires a copy of the SWU order and the SWU contract. It requires a documentation of the amount of fee delivered by the utility, and that the utility has titled to the fee delivered. It requires the quantity of LAU, produced, pursuant to the SWU order, and that the production of the cost is... But the argument the government makes in its brief is what might be a lie. All those documents might be a lie, and we should be able to investigate and determine whether it's truthful or not. I have two responses to that. At least, number one, it would require the life of the import, but most importantly here, the certification requires the signature of the purchaser, the utility as well. So you've got another party on the hook, which is far different from virtually any certification. Does the certification require any kind of disclosure or any sort of... does it ask the questions that would permit a determination as to whether, in fact, the affiliate owned the uranium and another affiliate can be registered? The certification requires a statement by the importer and by the purchaser that the fee was owned by the utility, not by the affiliate. The fee that the utility... That gets us into when it owns the fee and so forth, because there's a whole timing issue in this case that we haven't really talked about. The certification does not go into the original source of the fee, which is irrelevant under the urede decision. So an affiliate of the enricher could in fact have provided the uranium or title to the uranium to the utility. Absolutely. And that would, in your view, that would still be a smooth contract. Absolutely, for honor and even in this investigation from the outset of the investigation, our clients disclosed that in certain instances an affiliate had sold fee. They had to be paid to certain of its customers and commerce in analyzing the transactions, treating the transactions as smooth transactions. The original source of the fee is not relevant under the urede decision. Once the utility purchases the fee, it can use it in a particular enrichment transaction. It can sell it, it can swap it, it can hold it in inventory. It's not connected to the enrichment transaction. So if just for the sake of the argument, one company owns the uranium and is the enrichment and sells the uranium to the utility, sort of as a sale and lease back, you hold this while we're enriching it with the other hand, does the enrichment and then sells it back. That's a valid smooth contract under the anti-dumping law in your view. I'd have to go through the facts a little more closely, but it sounds like that was a linked transaction where the fee was being sold for the particular enrichment transaction. And therefore it would be a sale of goods and not services. That could be a sale of goods and in fact during the investigation there was a contract where both the fee and the enrichment and the swoos were provided by our clients. And that was treated as the sale of L.E.U., not the sale of swoos because they were related. And how does customers sort out the difference between a linked transaction and not linked transaction at the border? In the documentation the swoos contract is presented. Well first I would say that commerce itself regarded the prior ownership of the fee as irrelevant. Commerce rejected USEX requests that an additional requirement be drafted upon the exclusion to focus on the original source of the fee. But the certification documents required that the contract be performed in accordance with its terms. And if any other fee was involved that that fee be disclosed to commerce. So it sounds like you're saying that the existing certification and other procedures already can discriminate between a legitimate work unit service versus a sale of uranium where tidal passives. I believe so, Your Honor. And I believe that that's exactly what commerce said. It said that the certification procedure it had devised was sufficient to enable customers to determine at the time of entry that this was in swoot transaction. Well, but Ms. McCarthy argues that what actually occurred might be different from what the contract called for and that commerce needs the time and mechanisms to look behind the surface of the transaction to be sure that the terms that set forth in the contract are what actually occurred. First of all, Your Honor, the swoot transaction is virtually completed at the time of entry. Unlike the typical scope exclusion situation where some future act is required to determine whether in fact the exclusion is appropriate. Indeed, in this case commerce, fashion and exclusion for imports of LAU for purposes of conversion and fabrication and re-export within 18 months. Those imports are not subjected to administrative review or suspension of liquidation. It's by no means certain that the import will be in fact fabricated or in fact re-exported within 18 months. There are a host of cases where an exclusion is based on future use weather and electronics, item, photographic paper, wire rods, polypide. I didn't understand her to be arguing about future events. I understood her to be suggesting something about past events that namely there was actually a sale of a physical object even though the papers that accompanied the entry said it was a service contract. Yes, Your Honor, and I think you put your finger on it where you have the certification of the importer as well as the utility that this is a swoot transaction. You would be looking at fraud in that circumstance. Yes, but she argues, if I understand it correctly, that unless an administrative review is permitted, there will be no practical way that commerce could look behind the certification papers to see if fraud was being committed in a way that could result in duties being imposed where fraud was in fact found. As you noted, that's what a scope proceeding could do. Commerce regulations indicate that those proceedings should take 120 days. The case is well before the normal one-year period for liquidation, which in any event can be extended. And if fraud or negligence is involved, the statutes allow the customs to reach back with respect to entries. There are also criminal penalties that are applicable here. Her argument seems to be dependent on the idea that certification isn't enough, fear and incentives aren't enough, that there also needs to be an opportunity to investigate whether the true facts correspond to the contract and the other certification documents. And our point, Your Honor, is why here, why here with respect to this fight we've been having for six and a half years, where this court has spoken clearly and definitively that swoon imports are outside the scope of the law? But she's not challenging that. She's saying legitimate swoon transactions don't get duties, but if they're if they're phony, they should be subject to verification. And then if shown to be phony, there should be duties. We agree that phoning transactions should not be done. But she says she can't get there without the administrative review that the scope review won't suffice. But she is seeking a procedure in this case after all we've been through that differs from commerce's routine practice in a host of cases and in this case. And this in the face of decisions, which say that swoon imports are not subject to the law. All we are asking for is equal and non-discriminatory treatment. Compared to whom? Compared to commerce's routine application of the anti-ductic snatch in the electronics cases, photo paper cases, wire rod cases, in the polyline alcohol cases, in live swine cases. All of those cases operated with or without certifications and without conducting administrative reviews and requiring suspension of liquidation. That's all we want. All right. Thank you. Miss Fisher? Good morning, Your Honours. I would just like to address a couple of points. First, commerce must be required to treat this course as decisions is binding. And second, commerce cannot continue to be approved. The first proposition is not in doubt. You don't need to spend any time on that. Well, while we surprised that below commerce has said repeatedly at the agency level and at the corner of the national trade, this course as an imperative is not binding on it. And we want to make sure that the court makes very clear to commerce that it cannot continue to flaunt this course decisions and must apply them in a circumstances where they are applicable. I don't understand what you're asking for. Some kind of advisory ruling that if a certain thing happens in the future that the law will be axed. No, just merely that this course decisions is started to size and must be applied by commerce. Well, that's already in the law. That isn't so because we would say it's so in this opinion. That's already in the law. I agree. And what is it you're asking us to do? You spend half your time on a non-issue. Okay. Your Honor, thank you. I will proceed the other claims that have been addressed by commerce that somehow that the parties would enter into sham transactions and try to evade the procedures set up for the certification. Certainly, there's a long history of the utilities contracting for enrichment services separately contracting for your union feet with various suppliers. There are multiple suppliers around the world. It's the utilities who decide what fee goes with what services contract and at what point in time. The kind of situations that the government and new sector raising are claimed to certain mention. There are certain venture procedures. This court and the court of international trade has dealt with certain mention cases and polyvinyl alcohol as a perfect example of parties. We structured the transactions to try to get around the scope of an order. In this case, commerce has remedies to deal with those kinds of situations. It does not require the burden of ongoing administrative reviews where the ongoing suspension of liquidation and the chilling effect on the utility's ability to enter into non-subject school contracts would be impaired on an ongoing basis. That's something that the court needs to take into account and the statute of course does not permit. Thank you. Oppose those restrictions. Thank you. Mr. McCarthy, you have some rebuttal time. Or if it's actually, yeah, you do. Thank you, Your Honor. These are very complicated transactions. They're not black and white. We're actually not talking about shant transactions. Our concern is a good faith belief in the part of the important and erroneous certification and good faith. That would escape the application of the anti-pun of civil penalty statutes because we would have to show negligence, gross negligence, fraud, just even to recover the duties under 19 USC 1592D. We have to establish a violation of the statute. They could in good faith, consistent with the legislature of the moda, get an opinion by the attorney. This is a smooth contract. They in fact may be wrong. They may in fact, once Congress looks at the record, they may in fact, ban a transfer of ownership, consistent with this court's three court, three judge opinion. We're simply asking for some workable and ministerial mechanism by which we can ensure that there's not an import is opting out of the anti-dumbing law. Whatever decision Congress makes would be subject to administrative review and judicial review by the court of national trade or by this court if necessary. The certification procedure is subject to no review except for the extreme cases of fraud. Meanwhile, a lot of anti-dumbing duties are escaping payment. Thank you. Thank all four attorneys who take the appeal under advisement. You have a minute. You thought? I think you have one minute. Mr. Rosen's said to you, why is this case different from the other cases? Let me tell you why it's different. This is the first time that courts have held that how one structures a transaction affects whether or not the anti-dumbing law applies. That has very profound implications. Well, what's your point? This panel can't re-decide what the prior panel's held. Well, I agree with that. But with regard to what the government is arguing and what we have suggested as a need for a procedure to ensure that entries are liquidated before the Congress to pop in as a chance to review it. The issues of whether or not a transaction involves a service transaction under the panel's decision is a complicated one. It's not like all the other cases were in the question of the size of the import, whether shape of the import, the ultimate use of the import. Those issues can be determined by customs because they're easily factually determined questions. This case raises for the first time when you re-read the decision of the panel. You will appreciate what was the panel thinking about an outer limits of what's a service transaction here? And where is this become a goods transaction? And what we're saying is that is the kind of determination when you're applying specific transactions and specific imports. That commerce needs an opportunity to review. It's not a question of leaving that question. I think we have your point and your time has expired. We'll take the appeal under advice