1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r
. Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s 

### UNITE D STATE S v . E U RODIF S. A. ET AL



### . CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 07–1 05 9. Ar g u ed November4, 2008 —Dec ided Jan u a r y26, 2009 * Nuclear utiliti e s generally p r ocure th eir fuel, “low enriched uranium”

(LEU), through one of two types of cont ra ct s
. Under a n“ e nriched uranium prod uct” (EUP) contract, the ut ility si mply pays the en

richerca s hfo r LEU of ad e s i red q u a n t i ty a n d “ a s s a y,” i.e., its per

centage of the isotope necessary fo ra n u c learr e ac tion

. Th e amou n t of energy required to enri ch a quan tityof “feed ur anium” to a giv e n ass a yis desc r ibed inter m s o f anin du str ystan dar dc a lle d a “ s epar a tive work unit” (SWU). Under a “S WU contract,” the ut ility provides a qu an tityof feed u r an iu m an d pa ys the enriche rfor the SWUs to produce the re quired LEU quantity a n d a s s a y. SWU cont ra ct s do not
r e qu ir e th at t h e r e qu ir ednumber of SW Us actua lly be applie d to the utility’s uranium. Because feed ur anium is fungible an d essenti a lly tr ades like a c o mmodity , a n d bec a use profitable operation of an en

richm e ntpla n treq u ires t h e cons t a ntprocessing of feed u r anium from the enricher’s undifferentiated stoc k, the LEU provide dto a util ity under aS WU contra ct ca n n o t b etra c ed to the pa rticula rune nric hed uranium the utility provided. Petitioners (collectively, US EC), who run the onl yuranium en

richm e ntfa ct ory in t h e Unit ed S t ates, pe ti tioned the Co mmer c eDe

partment (De p artment) for relief und er the Tariff Act of 193 0, wh ic h
c a lls for“anti d umping” duties on “f or eig nmer c h andise” sold in this
c o u n t ryat “le ss th an its f a i rv a lu e,” 19 U

. S. C. §1673, bu t does n o t touch interna t ional s a les of serv ices. USEC al leged that LEU im

port ed fromEuropea nco unt ries under b o t hEUP a n d S WU cont ra ct s was being sold in the Unite dState s at le ss than fair value and was

——————

* Tog e th erwith No. 07 –10 78, USEC Inc. et al. v. Euro dif S. A. et al.,
a l s oon cert ior a ri t ot h e s a me cou r t

.2 UNITED STAT ES v. EURODIF S

. A. Sy llabu s materia lly harming domestic industry

. In i t s final de termination, the Department concluded that LEU from F r ance, incl uding LEU ac

q u ired under S WU cont ra cts , wa s b e ing sold here a tl e ss than fair value. Among other things, the De pa rt m e ntrej e ct ed t h e cla i m t h at s u ch t r a n s a ct ions were s a les of enrichm e nts e rvices , a s provided in S WU cont ra ct s
. The Courtof Int e rna t iona l Tra d e (CIT) ult i m a t e ly
revers ed, not i ng t h e“ l ega lfict ion” expres s e d in S WU cont ra ct s t h a t the very feed uranium de livered by a utility to anenri cher is enriched and then returned as LEU t othe ut ility. Finding that the reco rd did nots u pporta det e rm ina t ion t h a tt h e en richer ha s a n y owners hip
r i gh ts, the CIT r e asoned that the D e par tmen t ’ s dec i sio nw a s un su p port ed b ys u bs t a nt ia l evidence a n d notina ccorda n ce w i t hla w. The Federa l Circu ita ffirm ed, a pproa chingt h e is s u es m u ch a s t h e CIT ha d. Held: The Depar tment’ s t a ke on the tr a n sac t ion s at i ssu e as s a le s of

goods rather than servic es reflec ts a per m issi ble inter p r e tation an d applic a t ionof §1673. Bec a u s e §1677( 1) giv e s th is deter m in ationto the Depar tment in the fir s t i n stanc e , the Depar tment’ s inter p r e tatio n gover n s in the ab s e nce of una mb iguous s t atutory la ngua ge to th e cont ra ryora nun rea s onab l e res o lut i on of ambiguous language

. See, e.g
. , Ch evro n U. S. A

. In c. v. Natural Reso urc es Def e ns e Council, Inc

. , 467 U. S. 83 7. Two th r e sh old pr oposition s mu st be ac c e pted. Fir s t, the Depar tme nt r e asonab ly c o nc luded that §16 7 3 is not l i mitedbyi t s ter m s to c a sh -on l ysales. If th at w e r eth e c a se, an ysale of a man u factured prod uct could be exempted from the section’s operation by a cont ra ct ua l t e rms t a t ing partof t h e p u r c h a s e price int e rm s of a commodity. S e cond, s i nce pub lic la w is not cons tra i ned b ypriva t e fiction, see, e. g., Tc he re pn i nv. Kni ght , 389 U. S. 332, 336, th e De

pa rt m e ntis n o tb o und b ythe lega l fict ion crea t ed b ySWU cont ra ct s that the very feed uran ium d e livered by a utility to an enriche ris en

riched and then returned as LEU to the ut ility. Thus, the testof the Depar tment’ s position tur n s fir s t on whether the statute clearly ex

cludes a transaction involvi n g mi x e d payment forLEU that mayand almos tcertai nly will be pr oduced from uranium feed dist inct from what the utili ty provides. Althoughit is u n d ispu ted t h at §16 73 ap plies to the sale of goods, not se rvices, th e section simply does not speak wi th th e precision necessary to s a ydefinitively w h ether it a p plies to the LE U and the agreement giving the utility a right to get it. This is the very situat ion in which the Cour t looks to an author itativ e ag en c y fora dec i sionabou ta st atu t e’s scope. Once the choice is made, the Co ur t asks onlywhetherthe Depar tment’ s applic a t ion of the statute was reasonable. Where, a s here, ca s hplus a nunt ra cked fungible com m odity are exchanged forasubstanti a llytr ansfor med
v e r s ion of the same c o m m o dity , the Depar tment m a yr e asonably3 Cite as: 55 5 U

. S. ____ (2009) Sy llabu s tr eat th e tr an sac t ionas th e sale of a g o o du n d er§1673

. Cf. Powder Co. v. Burk ha rdt , 97 U. S. 110, 11 6. Th e Depar tmen t ’ s positioni s r e in for c e d byprac tic a l r e ason s ai me d at preserving antidumping du

ties’ effectiveness. I ti s undispu ted thatsuc hduties applyto L E U
s o ld t o adom e s t ic ut ilit y b y foreign enri ch ers under a nEUP cont ra ct calling for a single cash pri c e that is les s than fair value. Such a transaction obviously opens the dome st ic enrichm e ntind u s t ry t om a t e ria linj u ry, th e ver yt h rea tt h a t§16 73 was meant to c o unter

. But the same injur ywill occur if a SWU contra ct is untouchab le. Under a SWU contract, the dome stic utility p a ys ca sh to a third p a rty for un

enriched uranium and prov ides this along with additional cash in ex

cha n ge fo r L E U; a n y EUP cont ra ctcoul d b es t ruct ured a s a S W U cont ra cts i m p ly b ys p litt i ng t h e t r a n s a ct ion in t w o, on e cont ra ctto b u y unen r iche d ura n iuma n d a n ot her t oenrich it

. And t h e res t ruc turing would not s t op with ura n iu m ; co nt ra ct s for ma ny t y pes of goods would be repla c ed b y s e pa ra t e cont ra ct s for t h e g oods a n d for pr oc essin gserv ic es, an d antidumping duties wo uld prima r ily chastise the uncreative. The Department’s a ttem p t to for e c l ose this ab sur d
r e sult bytr ea tingsuc htr ansac t io ns as sales of goods is eminently
r e ason able. Pp. 9–16. 506 F. 3d 10 51 , r e v e r s ed an d r e man d ed.

S OUTER , J ., del ivered the opi n ion forauna nimous Court._________________

_________________ 1 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s
. 

# SUPREME CO URT O FTHE UNI TED STATES

Nos. 07– 10 59 an d 07– 107 8 

### UNITED STATES, PETITIONER 07–1059 v. EUR ODIF S. A. ET AL



### .
USEC INC. , ET AL 

### ., PETITIONERS 07–1078 v. EUR ODIF S. A. ET AL



### . ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE FEDERAL CIRC UI T [Jan u a r y26, 2009] 

### J USTICE 

### S OUTER

### delivered the opinion of the C o urt. Section 731 of the Tariff Act of 193 0 calls for “antidumping” duties on “foreign merchandise” sold in the United States at “less than its fair value,” 19 U. S. C. §1673, but does not touch international sales of services. These cas e s test the application of this antid umping provision to imports of low enriched uranium (LEU), a highly proces sed derivative o f natural u r anium used as nuclear fuel, whe n domestic u t ilities cont ract to obtain LEU for cash pl us unenriched uranium delivered to a foreign enricher. Although the parties’ contracts call these transaction s sales of uranium enrichment services, the Commerce Departmen t treats them as sales of “foreign merchandise” subject to the antidumping provision. The issue is whether th e Commerce Departm ent’s way of seeing the transaction s as sa les of goods rather than services reflects2 UNITED STAT ES v. EURODIF S

. A. Opinion of theCourt 

### a permissible interpretation and a pplication of §1673. W e hold that it does. I There are five steps in transforming elemental uranium into fuel rods for nucle ar po werplants. After uranium ore is mined, it is milled into uranium concentrate calle d “yellowcake , ” which i s next co nverted in to uranium hexafluoride gas or “feed uranium.” The fiss ionable isotope in unenriched feed uranium is then concentrate d, producing LEU in pellet form, wh ich is in turn made into uranium fuel rods. Th ese cases ar e about the fourth step: enriching uranium feedstock into LEU.The uranium isotope needed for a nuclear reaction, U235, amou nts only to .711 percent by weight of natural uranium. Uranium whose concen tration or “assay,” of U235 has b e en enhancedto 20 percent or more is weaponsgrade, high ly enriched uranium (HEU), whereas LEU has a U-235 assay of 3 to 5 percent, making it useful as n u clear fuel. One way to produce LEU, and the method at issue in these cases, i s gaseous diffusion, 1 

### whereby gaseous feed ur anium is pu shed through a long ser i es of filters , separating the gas into two streams. The st ream passing through th e filters (the “product stream”) ga ins a higher concentrati on of the lighter U-23 5 isotope th an the stream that is filtered out (the “tails”). Because the c o ncentration reached at each individual filter i s minor, th e gas must be forced thro ugh hundreds or even thousands of filters, a t great expen d iture of electricity, be fore the product strea m reaches the desired ass a y. The amount of energy required to enrich aquantity o f feed uran ium to a gi ven assay i s measured in terms of an industry standard called a “sep arative wor kunit” or S W U (pronounced “swo o”). In pra c ­

——————

1 LEU c a nalso be pr odu c ed th r o ugha c e n t r i fu g emeth od orby bac kb l ending une n r iched ura n iu m with wea p ons - gra d e ura n ium.3 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### tice, however, a given degree of enrichment will depend on adjusting the quantities of two s e parate va riables, feed uranium and electrici ty, in inver s e proportions. Thus, if the electric rate is stable but the value of feed uranium falls, an enricher may produce LEU by “overfeeding,” subjecting a greater quantity of feed uranium to fewer SWUs, and when the value of feed uranium goes up and electricity d oes not, “underfeeding” can use mo re SWUs t o squeeze ext r a U-235 from the tails. Nuclear uti lities gener a lly get LEU in one of two ways. Under an “e nriched ura n ium product” or “EU P ” contrac t , a utility simply buys adesired quantity and as say of LEU for cash. Under a“S WU contra ct,” the util ity p r ovides a quantity of feed uranium and pa ys the enricher for th e SWUs to produce the quantity a n d assay of LEU called for. 2 

### Despite their na me, SWU c o ntracts do not requir e that the contractual n u mber of SWUs actually be applied to the quantity of uran ium provided, Notice of Final Determination of Sales a tLess Than Fair Value: Low Enriched Ura n ium From France, 66 Fed. Reg. 65877, 658 84 (2001) (hereinafter LEU from France); rather, the enrich e r remains free to overfee dor under feed so long as it delivers the specifie d LEU. Moreover , because feed uranium is fungible, and “for all intents and purposes, trades like a commodity,” ibid., and because profitable operation of a n enrichment plant requires the constant processing of feed uranium from the enri cher’s undifferentiated stock, th e LEU provided to a utili ty under a SWU contract cannot be traced to t h e particular unenriched uranium the utility provided. Petitioners, US EC Inc. and its sub s idiary, Uni t ed Sta t es EnrichmentCorporation, (USE C c o llectively) run the only

——————

2 Many SWU contracts give th e utilit y the option of provi d ing a compar able qu an t i tyof u r an iu m c o n c en tr ate in lieu of th e specifiedfee d
u r an iu m. App. 13, 83, 268– 6 9 (Sealed).4 UNITED STAT ES v. EURODIF S

. A. Opinion of theCourt 

### uranium enrichment fa ctoryin the United Sta t es, 3

### which was built b ythe Uni t ed Sta t es Government in the 1950s and run by various federal agencies until it was leased to USEC in 1998. In December 2000, USEC petitioned the Commerce Departmen t for relief under §731 of the Tariff Act, alleging that LEU imported from Fran ce and other European c o untries under both E U P and S W U contra cts was being sold in the United State s at less than fair value and was materially harming domestic industry. Notice of Initiation of Antidumping Duty I n vestigations: Low Enriched Uranium From France, Germany, the Netherlands, and the United Kingdo m, 66 Fed. Reg. 1080 (2001). Section 731 of the Tariff Act of 193 0, as added by §101 of the Trade Agreements Act of 1979, 93 Stat. 144, as amended, 19 U. S. C. § 1673, provides a two-step process to address ha rm to domestic manufacturing from foreign goods sold a tan unfair price: “If— “(1) the administering authority [the Secretary ofCommerce] determines that a class or kind of foreign merchandise is b e ing, or is likely to be, sold in the United States at less than its fair value, and“(2) the [United States International Trade] Commission det e rmines tha t— “(A) an in dustry in th e United St ates— “(i) is materially injured, or “(ii) is threatened with material injury, or “(B) the establishment of an industry in the United States is materially retarded, by reason of imports of

——————

3 There are onl yfive major u r anium en rich ers in t h e world, as c a rcit y that illu strat e s the “hugefinancia l investment in facilitie s and a technically skilled work force” nece ssary to support the enri chment process. LEU from France , 66 Fed. Reg

. 65884.5 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### that merchandise or b yreason of sales (o r the lik elihood of sales) of that merchandise for importation, “then there shall be imposed upon such merchandise an antidumping duty, in addition to any ot her duty imposed, inan amount equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise. . . . ” See also §1 677(1) (designating the Secretary of Commerce as the “ ‘administering authority’ ”); §1677(2) (explainin g that the te rm “ ‘Commission’ ” refers to the U n ited Sta t es International Trade Commission). The Tariff Act’s anti d umping provision derives from similar terms in the Anti-Dumpin gAct, 1921, 42 Stat. 11 , which were adopted to “protec[ t] o u r industries and labor against a n o w common species of commercial warfare of dumping goods on our markets a t less than cost or home value if nec e ssary until our industries are destroyed . . . .” H. R. Rep. No. 1, 67th Cong., 1st Sess., p. 23 ( 1921). Following the USEC charges, th e Commerce Department opened an investigation into the practices of respon

dents, a Fr ench enricher, Eurodif, S. A., its owner, Compagnie Général des Matières Nucléaires (now AREVA NC), its U. S. subsidiary, COGEMA (now AREVA NC, Inc.), and United States utilities that consume L E U (Eurodif collectively). Eurodif conceded that EUP contracts were for the sale of LEU, but argue dthat SW U contracts i n volved only the sale of uranium enrichment services, and were therefore outside the scope of §167 3. LEU From France, 66 Fed. Reg. 65882–65883. In its final determination, the C o mmerce Department concluded that LEU from France, including LEU acquire d under SWU contracts, was being s o ld, or likely to be sold, in the Unit ed States at less than f a ir value. 4 

### Id. , at 65878

.

——————

4 The Com m e rce Depa rt m e nt concluded in as e pa ra t edeterm ina t ion6 UNITED STAT ES v. EURODIF S

. A. Opinion of theCourt 

### In deciding that SWU c o ntracts a r e for a sale of LEU, not enrichment services, the Depart ment stressed several features of the transactions. First, because the enrichment process accounts for approximately 60 percent of the value of LEU and works a “substantial transformation” on uranium feedstock, id. , at 65881, enrichment creates “th e essential character” o f LEU, id. , at 65884. Second, “enrichers not only have c o mplete control over th e enrichment process, but in fact control the level of usage of the natural uranium provided.” Ibid. Third, the utilities themselve s take no part in the ma nufacture of LEU and are the sole purchasers of the product. Ibid. The Commerce Depart ment also r ejected the argument that LEU transferred pursuant to SWU contracts should not be considered “sold” in light of a “tolling” regulation then (but n o longer) in effect. Ibid. The regulation stated that a “toller,” a subc ontractor who sells processing services in, ormaterial f o r incorpor ation into, subject mer

chandise, would not be consid ered a manufacturer or producer “ w here the toller or subcontractordoes not acquire ownership, and does not control the relevant sale, of the subject merchandise.” 19 CFR §351.401(h) (2000) (withdra wnin Import Administ ration, Withdrawal of Regulations Governingthe Treatment of Subcontractor s , (“Tolling” Operations), 73 Fed. Reg. 16517 (2008) (herei nafter Tollin g Operations)). This regulation, the Commerce Departmen t explained, was intended to apply in situation s where a good is f i rst sold by a manufacturer and then resold by a nexporter or reseller. LE U fro m France, 66 Fed. Reg. 6 5880. The regulation provides th at in such a situation th e second sa le sh ould b e used to c a lculate the

—————— that L E U fr o mthe Uni t edKing do m, Ger m an y , an d t h e Neth er lan d s was not being sold, or likely to be sold, at less than fair value. Notice o f Final Determ inations of S a les atNot Less Than F a ir Va lue: Low Enriched Ura n iumfrom the United King dom, Ger m anyand the Netherlands, id., at 6588 6.7 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### U. S. price and normal value of the manufactured good; however, th e Commerce Depa rtment concluded, the regulation was not mean t to preclude antidumping duti es where a manufacturer makes the only relevant sale that can be used to establish U. S. price and n o rmal value. Ibid.; id., at 65884–65885. Finally, the Commerce Departme n t reasoned that language in SWU contra cts speaking of the transactions as the sale of enrichment services could not control, lest deferring t o the parti es’ charac t e rizations allow them to “convert tra d e in goods into trade in so-called ‘manufacturing services ,’ . . . there b y exposingindustries to injuryby unfair trad e practices without t h e remedy of the [antidumping] l a ws.” Id. , at 65881. In economic reality, the Commerce Departmen t said, “the contracts designated as SWU cont r a cts are fu nctionallyequivalent to those designated as EUP transactions.” Id. , at 65885. 5 

### Eurodif challenged t h e Depart ment’s determination before the Court of In ternational Trade (CI T), which remanded for “a more persuasive explanation” of the tollin g regulation. USEC Inc. v. United Sta t es , 259 F. Supp. 2 d 1310, 1326(2003). O nremand, the Commerce Department repeated that the tolling regulation governed whi c h price should be used t o calculate antidumping duties, not whether imports are subject to the antidumping provision in the first instance. Final Remand Determin ation, USEC Inc. and United States Enrichment Corporation v. Unit ed States (Jun e 23, 2003), App. G to Pet. for Cert. 211a (hereinafter Final Remand Determination). The Departme n t further ex p l ained its conclusion that SWUc o ntracts lea d to transfers of LEU for consid eration. The contracts and

——————

5 InFebr u a r y 200 2, th e In te r n ation a l Tr a d e Comm iss i o nfou n dth at im port s of LEU fromFra n c em a t e ria lly inj u red t h een richm e ntindu s try in the Unit ed St ate s , al lo wing th e impo sition of anti d u mping duties. U. S. Int’ l Tr ade Comm’ n, Low EnrichedUra n iumfro m France, Ge rman y , th e Neth er lan d s, an d th e Un ited Kin g dom (Pu b

. No. 3486).8 UNITED STAT ES v. EURODIF S

. A. Opinion of theCourt 

### other evidence in the reco rd convinced the Departmen t that “enrichers own, and hold title to, all the LEU th ey produce,” id. , at 217a, a conclusion grounded on findings that “enrichers hold inventories of uranium from va rious sources, including ura n ium owned by the e n richer itself, and produce LEU without relying solely upon the input from a particular cust omer.” Id. , at 221a. Finally, the Departmen t emphasized that th e enrichers “have complete control over the enrich ment process and control the amount of uranium and energy actually used in producing the LEU.” Id. , at 231a. The CIT was unconvinced and reve rsed, relying on wha t it candidlyrecognizedas a “leg al fiction” expressed in SWU contracts, “that the very feed uranium delivered b ya utility to an enricher is enriched and then returned as LEU to the utility.” USEC Inc

. v. UnitedSta t es , 2 81 F. Supp. 2d 1334, 1339(2003). Th e CIT reasoned, becaus e “nothing in the record support[ed] a determination that the enricher has any ownership rights,” the Commerce Departmen t’s determi nation was “unsupported by substantial evidence and not in accordance with law.” Id. , at 1340. USEC chal lenged this conc lusionin an int e rlocutory appeal to the Court of Appeals for the Federal Circuit , which affirmed. Euro dif S. A. v. UnitedStates , 411 F. 3 d 1355 (2005) (Eurodif I)

. The court approache dthe issues much as th e CIT had, with the observation that “the S W U contracts inthis case d o not evidence any int e ntion by the parties to v e st the enrichers with ownership rights in th e delivered unenriched uranium or the finished LEU. ” Id. , at 1362. It recalled that in a previ o us case, Florida Power & Ligh t Co

. v. UnitedSta t es , 30 7 F. 3d 1364 (CA Fe d. 2002), it had accepte dthe Government’s position that SWU cont r a cts were fo r services, not for “ ‘disposal of personal property,’ ” and so were outside the cause of action provided by the Contract Disputes Act of 1978, 419 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### U. S. C. §601 et seq. Eurodif I , supra , at 13 63, and n. 3 (quoting Fl orida Power & Li ght Co. , supr a , at 1373 ). While the court conced ed that SW U agreements “do ‘not fall neatly’ either into the cate goryof contract s for services or the category of con tracts for t h e sale of goods,” 411 F. 3d, at 1364 (quoting Florida Power & Li gh t Co. , supra , at 1373–1374), it still concluded that “even under the deferential standard of review tha twe apply in this case, we choose not to ignore our previous holdings.” Eurodif I , supra , at 13 63. Shortly afte r this decision, we held in National Cable & Tele communications A ssn. v. Bra nd X Inter n et Servi c e s , 545 U. S. 9 67, 982–983 (2005), th at a court’s choice of one reasonable reading of an ambiguous statute does not preclude an impleme n ting agency from later adopting a different reasonable interpreta ti on. On rehearing, the Federal Circuit responded to Nati onal Cable & Tele com munication s Associ ati o n by explaining that it had not rejected th e Commerc e Departm ent’s position because it conflicted with the pr ior interp re tive choice that ca rrie d the day in Florida Po wer & Li gh t. Eu rodif S. A. v. Un ited Sta t es , 423 F. 3d 1275, 1277–1278 (2005) (Eurodif II)

. The Circuit, ra t h er, saw n o statutoryuncertaint yto be resolved: “th e antidumping du ty statute u nambiguously applies to the sale of goods and not services” and “it is clear that [ S WU] contr a cts are contracts for services and not goods.” Id. , at 12 78

. After final judgm e nt was en

tered, Euro dif S. A. v. United Sta t es , 506 F. 3 d1051, 1053 (CA Fed. 2 007) (Euro d if III) , we granted certiorari 553 U. S. ___ ( 2008), to c o nsider whether transactions under SWU contracts may be subje cted to antidumping duti es under the Tariff Act. We now reverse. II The issue i s not whether, for purposes of 1 9 U. S. C. §1673, the better view is that a SWU contract is one f o r10 UNITED STAT ES v. EURODIF S

. A. Opinion of theCourt 

### the sale of services, not goods. The statute gives this determination to the Departmen t of Commerce in the first instance, §1677(1), and when the Departm ent exercises this authority in the co urse of adju dication, its interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is am biguous. 6 

### United S t a t esv. Me ad Corp. , 533 U. S. 218, 229–230 (2001) (citing Chev r o n U. S. A. Inc. v. Natura l Resources Defens e Co uncil, Inc. , 467 U. S. 837 (1984)). This is so even after a change i n regulatory t r eatment, which “i s not a basis for declining to analyze the agency’s interpretati on under the Chevron framework

. ” National Cable & Tel ecommunic a tions Assn

. , 545 U. S., at 981. “ ‘[T]he whole point of C h evronis to leave the di scretion provided by the ambiguiti e s of a statute with the implemen ting agency.’ ” Ibid. (quoting Smiley
v. Citibank(South Dakota), N. A. , 517 U. S. 735, 74 2 (1996)). 7 

### In approaching the Department’s position on the appli­

——————

6 The specific factual findings on wh ich an agency relies in applying its inter p r e ta tion ar e c o nclusiv e unles s uns upported b ys u b s ta ntia l
ev iden c e
. 5 U. S. C. §706(2)( E ).

7 Respondents’ asser t ion thatthe Com m er c eDepar tment’ s pr iortolling regulation is inconsisten twith i t s posi tioninth ese c a ses i s th er efore b e s i de t h e point

. For the rea s ons giv e n bythe Depar tment in i t s remand determination, we are not co nvi n ced that the to lling regulation precludes vie w ing SWU transactions as the sale of LEU; but even if it did, it has si nce been withdrawn, Tolli ng Operations, 73 Fed. Re g. 1 6 5 1 7 , a n d cannotnow co ns t r a i n t h e Comm erce Depa rt m e nt ’s int e rpretive authority under Ch evro n. National Cable & Tele c o mmunication s Ass n ., 545 U. S., at 981 (“ Un ex plain e d in c o n s isten c yi s , at most, a
r e asonforh o l d in ganin terpr e tationto b eanarbitr ar yan d c a pr ic iou s c h an g efr om ag en cypr ac tic eu n d er the Administr a tiv ePr oc edur e Ac t”). Likewise, even if the positi on take n by the Department of Energy in Florida Power & Light Co. v. Unit ed Stat es , 307 F. 3d 136 4 (CA Fed. 2002), was incons is tent withthe Gover n ment’s pos i tion here, it would not speakto the defer e nc e owed the Co mmer c eDepa r tment under Chevron

.11 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### cation of §1673, two th reshold propositions m u st be take n as given. First, we thin k the Department reasonablyconcluded that §1673 is not limited by its terms to cashonly sales. Otherwise, any sale of a manufactured product could be exempted fro m the operation of §1673 by a co ntractual ter m stating part of the purchase price in terms of a commodity. 8 

### Second, in applying §1673, the Commerce Depa rtment is not bound b ythe “legal fiction[created by SWU contracts ] that the very feed uranium delivered by a utility to an enricher is enriched and then returned as LEU to t h e utility.” USE C, 281 F. Supp. 2d, at 1339. The parties are free to contract as th ey wish, and they may genuinely regard SW U agreements as contracts for th e sale of enrichment services. But, what ever the significance of suc h a term in a contract dispute, cf . Florida Power & Ligh t Co. , 307 F. 3d 1364, it is well s e ttled that in readin g regulatory and taxa tion statutes, “form sho u ld be disregarded for substance and the emphasis shoul dbe on economic reality.” Tche re pninv. Knight , 389 U. S. 332, 33 6 (1967). Se e also Frank Lyon Co. v. Unit ed St at es , 4 35 U. S. 561, 573 (1978) (“ ‘In the field of taxation, administrators of t h e laws, and the cou rts, are concerned wi th substance and realities, and formal written documents are

——————

8 Res p ondent s a r gue t h a t , a f t e r det e rm ining t h a tS W U cont ra ct s involved the sale of L E U, the Commer c e Department employed an imper m is sib l e methodologybyc o nstr ucti ng the no rmal value of the LEU based onthe combinedcosts to Eurodif of obtainin g feed uranium
a n d enrichm e nt

. Brief for Res p ondent Eurodif S

. A. et al. 48–50. Thes e ca lcula t ions , res p ondents a r gue, “wer e a ch ar ade, u n d er sc or ingthat the antidumpingl a ws c a nnot be applied to th ese SWU c o nt r a c t s.” Id. , at 48. To the d e gree respondents’ argu ment is that anti dumpingduties maynev e rbe applied to mi x e d c a sh-c ommoditys a les, it is doo m ed b y implaus ibi lity. If respond e nts are contending that the Commerce Depar tment’ s dumpingdeter m ination imp r operly assessed the normal value of LEU, they are raising an issue well outside the scope of o u r gra n tof cert iora ri.12 UNITED STAT ES v. EURODIF S

. A. Opinion of theCourt 

### not rigidly binding’ ” (q uoting Helv ering v. F. & R. Lazarus & Co. , 308 U. S. 252, 255 (1939))). Surrender to private contractual terms is especiallyuncalled for in dealing with international tariffs, a s Congress saw when it amended the Tariff Act to say that the sale of foreignmerchandise includes “the entering into of an y leasing a rrangement regarding the merchandise that is equivalent t o the sa le of the merch andise.” Trade and Tariff Act of 198 4, §602(b)(2), 98 Stat. 302 4, 19 U. S C. §1673. Since public law is no t constrain ed by private fiction, the test of the Dep a rtment’s position turns first o n whether th e statute clearly excludes a transaction involving mixed p a yment for LEU that may and al most certai n ly will be produced from uranium feed distinct from what the utility provi d es. No on e disputes t hat §1673 a p plies to the sale of good s, not services, LEU From France, 66 Fed. Reg. 65882–65883. Nor do we think a n yone would deny tha t the exchange of cash combined with a com m odity for a product tha tuses that very commodity as a constituent material is sometimes a sale of s e rvices and sometimes a sale of good s, the disti n ction bein g clear at the extremes. A customer who comes to a laundry with cas hand dirty shirts is clearly purch asing cleaning services, not clean shirts. And a customer who provides cash and sand to a manufacturer of generic siliconprocessors is clearly buying co mputer chi p s rather than sand enhancement services. But the lin e blurs when the facts get more co mplicated, and SWU c o ntracts ex emplify a class of transactions that the Federal Circuit recognized does “ ‘not fall neatly’ either into the cat e gory of contracts for se rvices or th e categoryof contracts for the sale of goods.” Eurodif I, 411 F. 3d, at 1364 (quoting Florida Power & Li ght Co. , su pra , at 1373– 1374). The agreement is not like th e laundry ticket, which says that the same sh irts are supposed to come back, just minus the dirt around the collar. And it is not on all fours13 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt

### with the agreement of the chip buyer and the manufacturer, in which it is inescapable that the silicon processors delivered a r e a separ a te goodfrom the sa nd provided. Section 1673 simply does not s p eak with the precision necessary to say definitively whet her it applies to the LE U and the agreement that gives the utility a right to get it.This is the very situation in which we look to an authoritative agency for a decisi on ab out the statute’s scope, which is de fined in cases at the statutory ma rgin by the agency’s application of it, and once the choice is made we ask only whether the Departmen t’s applicati o n was reasonable. As to that, the Commer ce Departm ent relied on two relatedcharac teristics of thes e transactio n s in deciding SWU contracts should be treat ed as a sale of LEU. It stressed that the utility in a SW U contract pr ovides cash plus a fun gible commodity that is not tracked after its delivery to the enricher, in exchange for a p r oduct own e d by the enricher. 9 

### And it recognized that the enrichment

——————

9 Eurodif a r gu e s t h a tt h e Com m e rce Depa rt m e nterred i nco ncludin g t h a tenrichers own LEU prior t oit s deliv ery unde raSWU cont ra ct

. Id. , at 36–37. Wh ile th e pr ec ise for mof th is ar g u ment is u n c lear , i t fails undera n yr e ading

. Respondents seem to meanthat the Co mmer c eDepar tment’ s inter p r e tation of §1 6 73 i s imper m i ssi ble a s bein g incons is t e ntwit ht h e form a lt e rm s of S W U cont ra ct s , a na r gum e ntw e r ejec t ed abov e
. Th e ar g u men tc o u l d also be r e ad to su g g e st th at th e Commer c eDepar tment l a c k ed subs tanti a lev idenc eto c o nc lude that, cont ra ct ua l form a lit ies as ide, enric h ers in fact own the LEU provided under S WU c o nt ra ct s prior t oit s delivery. Butt h e e v idence in t h e record notonl ys u pport s t h e Depa rt m e nt ’s conclus i on, itcom p els it

. It is undisputedthat the LE U delivered under a SWU contract is no t actually derived from the f eed uran ium provided as consideration; as CIT observed, the notion that the same f eed uranium delivered by a utility to an enriche ris enriched and then returned as LEU to the utility i s “ ale gal fiction.” U SEC Inc. v. United Stat es , 281 F. Su pp. 2d 133 4, 133 9 (20 03). M o r eov er, th e enr i c h e r is free to vary the amount of feed uranium used to produ c e an or der of LEU, ei ther stockpiling feed uranium or supplementing its stor es fr o moth e rsou r ces. Fin a lly , t h e SWU contracts at i ssue provide that the utility retains title to the fee d uranium until delivery of th e LEU, at which point itobt a ins title in the14 UNITED STAT ES v. EURODIF S

. A. Opinion of theCourt 

### process results in a substantial transformation of th e unenriched uranium. The combination of these characteristics reasonably captures a common un derstanding of the sal eof a good. Because an individual’s shirts are not fungib le, they are trac k ed du ring the cleaning process and returned to the same customer who brought the m in; there are no good reasons to t r eat them as owned for a time by the laundry, and no one does. And without an y transfer o f ownership, the salient feature of the transaction is the cleaning of the shirt, a service. Conv ersely, where a constituent material is untracked and fun g ible, ownership is usually seen as transferred, and the transaction is less likelyto be a saleof services, as the Court explained years ago in distinguishing a common-law bailment from a sale: “[W]here logs are delivered to be sawed into boards, or leather to be made into shoes, rags into pap e r, olives into oil, grapes into wine, wheat into flour, if the product of the identical articles de livered is to be returned to the original owner in a new form, it is said to be a bailment, and the title never ves t s in the manufacturer. If, on the other h and, the m anufacturer is notbound to r e turn the same wheat or flour or paper, b u t may deliver any oth e r of equal value, it is said to be a sale or a loan, and the title to the thing delivered vests in the manufacturer.” Po wder Co. v. Burkhard t , 97 U. S. 110, 116 (1878). 10 

### And when the manufacturer is not only free to return

—————— LEU. In light of this pr oc ess, some entitymust own the LEU pr iorto deliv er yand obtain tit l e to the f eed u r an iu m afterde liv er y , absen t some moder nanalog to th e abhor r e nt p o ssi bili ty of an abeyance of seizen; the enricher is th e o n ly serious candidate.

10 Common law definitions do not nec e ssar ilyc o ntr o l the meaningof ter m s in mode r ntr ade laws; we mer e lymean to show the longpedig r ee of the distinc t i o n r e lied upon bythe Commer c e Depar tment.15 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt 

### different m a terial, but also substantially tra nsforms th e material it uses, it is even more lik ely that the object of the transaction will b e seen as a n e w product, not work on enduring m a terial of primary inte rest to the buyer. Af ter all, what makes the hypotheti c al exchan ge of sand for silicon processors so obviousl y a sale of goods is the extreme transformation brought about by the chi p manufacturer. These are good analytical grounds to show that SWU transaction s are reasonably placed within the ambit of sale of goods, and the Departme n t’s reliance on them is reinforced by practi cal reason s aimed at preserving the effectiveness of antidumping duti es. There is no dispute that LEU s o ld under an EUP contract at less than fair value must be subjected to antidumping duties under §1673, there being a clear sale of goods when a domestic utility pays a single s a l e price in ca sh for the feed uranium and enrichment components represented by LEU. If foreign enrichers set this price below the fair value of LEU, the domestic enr i chment in dustry is obviously op en to material injury, the very threa tthe antidumping statute was meant to coun ter, see H. R. Rep. No. 1, at 23. But the same injury would occur if aSWU cont ract were u n touchable. Under a SWU contract, the domestic utility pays cash to a third party fo r u n enriched uranium and provides this along with additional cash in exchange for LEU; any EUP contr a ct could b e structu red as a SW U contract si mply by sp litting the transactionin two, one contract to buy unenriched uranium and another to enrich it. 11 

### And the restructuri ng wo uld not stop with uranium;

——————

11 This would b eparticularly easyinth ese c a ses, sin c e CO G E MA , Eurodif’s pa rentcom p a n y, “i s am a j o r world s u pplier of na t u ra l ura

nium for the production of L E U.” Fina l Rema nd Determina t ion, App. G t oPet

. for Cert . 2 2 1 a , n. 38

. In fa ct , m a n yS WU cont ract s provide t h a t if a util ity fai l s to deliver feed ur anium, the enricherwill subs titut e feed uranium of its own, which ma y then be purchased from the en­16 UNITED STAT ES v. EURODIF S

. A. Opinion of theCourt 

### contracts for imported pasta wo ul d be replaced by separate contra cts for wheat and wheat processing services, sweater imports wouldgive wa y t o separate contracts fo r wool and knitting services, and antidumping duties would primarily chastise the uncreative. 12 

### The Co mmerce Department’s attempt t o forecl os e this absu r d result by treating SWU transactions as sales of goods is eminent l y reasonable. IIIWhere a domestic buyer’s cash and an untracked, fungible commodi ty are exchanged with a foreign contractor fo r a substantially transfo rmed versio n of the sa me commodity, the Commerce Departmen t may reasonably treat the transactionas the sale of a good under §1673. We therefore reverse the judgment of the Federal Circuit andremand the cases for further pro c eedings consistent with this opinion

. It is so orde red.

—————— r i c h er. App. 1 3–1 4, 185 –1 86 , 537 (Sealed).

12 Eurodif s u gg es t s t h e Comm erce Depa rt m e ntcould com b ats u ch
c i r c u mv ention of antidump i n gduties by tax i ngdomest icdownstr e am sale s of su c h pr odu c ts. Br i e f forRespon den tEu r o dif S. A. et al. 53–5 4. But this ignores the subst a ntial numb e rof ma nufa c tured goods that
a r e notres o ld. More f unda m ent a lly, this ar g u ment fails to ex plain why the Commer c e Depar tmentshould be r e quir ed to c h a s e af terdowns t rea mres e llers whent h e fi rs ts a lehas th e same economic substance.