(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

UNITED STATES v. EURODIF S. A. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FEDERAL CIRCUIT 

No. 07–1059. Argued November 4, 2008 —Decided January 26, 2009* 

Nuclear utilities generally procure their fuel, “low enriched uranium”

(LEU), through one of two types of contracts. Under an “enriched 

uranium product” (EUP) contract, the utility simply pays the enricher cash for LEU of a desired quantity and “assay,” i.e., its percentage of the isotope necessary for a nuclear reaction. The amount 

of energy required to enrich a quantity of “feed uranium” to a given 

assay is described in terms of an industry standard called a “separative work unit” (SWU). Under a “SWU contract,” the utility provides

a quantity of feed uranium and pays the enricher for the SWUs to

produce the required LEU quantity and assay. SWU contracts do not 

require that the required number of SWUs actually be applied to the

utility’s uranium. Because feed uranium is fungible and essentially

trades like a commodity, and because profitable operation of an enrichment plant requires the constant processing of feed uranium from 

the enricher’s undifferentiated stock, the LEU provided to a utility

under a SWU contract cannot be traced to the particular unenriched 

uranium the utility provided. 

 Petitioners (collectively, USEC), who run the only uranium enrichment factory in the United States, petitioned the Commerce Department (Department) for relief under the Tariff Act of 1930, which 

calls for “antidumping” duties on “foreign merchandise” sold in this

country at “less than its fair value,” 19 U. S. C. §1673, but does not

touch international sales of services. USEC alleged that LEU imported from European countries under both EUP and SWU contracts 

was being sold in the United States at less than fair value and was 

—————— 

*Together with No. 07–1078, USEC Inc. et al. v. Eurodif S. A. et al., 

also on certiorari to the same court. 
2 UNITED STATES v. EURODIF S. A. 

Syllabus 

materially harming domestic industry. In its final determination, the 

Department concluded that LEU from France, including LEU acquired under SWU contracts, was being sold here at less than fair

value. Among other things, the Department rejected the claim that 

such transactions were sales of enrichment services, as provided in

SWU contracts. The Court of International Trade (CIT) ultimately

reversed, noting the “legal fiction” expressed in SWU contracts that

the very feed uranium delivered by a utility to an enricher is enriched 

and then returned as LEU to the utility. Finding that the record did 

not support a determination that the enricher has any ownership 

rights, the CIT reasoned that the Department’s decision was unsupported by substantial evidence and not in accordance with law. The 

Federal Circuit affirmed, approaching the issues much as the CIT 

had. 

Held: The Department’s take on the transactions at issue as sales of

goods rather than services reflects a permissible interpretation and

application of §1673. Because §1677(1) gives this determination to

the Department in the first instance, the Department’s interpretation

governs in the absence of unambiguous statutory language to the 

contrary or an unreasonable resolution of ambiguous language. See, 

e.g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 

467 U. S. 837. Two threshold propositions must be accepted. First, 

the Department reasonably concluded that §1673 is not limited by its

terms to cash-only sales. If that were the case, any sale of a manufactured product could be exempted from the section’s operation by a 

contractual term stating part of the purchase price in terms of a

commodity. Second, since public law is not constrained by private 

fiction, see, e.g., Tcherepnin v. Knight, 389 U. S. 332, 336, the Department is not bound by the 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 the utility. Thus, the test of the 

Department’s position turns first on whether the statute clearly excludes a transaction involving mixed payment for LEU that may and 

almost certainly will be produced from uranium feed distinct from

what the utility provides. Although it is undisputed that §1673 applies to the sale of goods, not services, the section simply does not 

speak with the precision necessary to say definitively whether it applies to the LEU and the agreement giving the utility a right to get it. 

This is the very situation in which the Court looks to an authoritative

agency for a decision about a statute’s scope. Once the choice is 

made, the Court asks only whether the Department’s application of

the statute was reasonable. Where, as here, cash plus an untracked

fungible commodity are exchanged for a substantially transformed

version of the same commodity, the Department may reasonably 
Cite as: 555 U. S. ____ (2009) 3 

Syllabus 

treat the transaction as the sale of a good under §1673. Cf. Powder 

Co. v. Burkhardt, 97 U. S. 110, 116. The Department’s position is reinforced by practical reasons aimed at preserving antidumping duties’ effectiveness. It is undisputed that such duties apply to LEU

sold to a domestic utility by foreign enrichers under an EUP contract 

calling for a single cash price that is less than fair value. Such a 

transaction obviously opens the domestic enrichment industry to material injury, the very threat that §1673 was meant to counter. But 

the same injury will occur if a SWU contract is untouchable. Under a 

SWU contract, the domestic utility pays cash to a third party for unenriched uranium and provides this along with additional cash in exchange for LEU; any EUP contract could be structured as a SWU 

contract simply by splitting the transaction in two, one contract to 

buy unenriched uranium and another to enrich it. And the restructuring would not stop with uranium; contracts for many types of 

goods would be replaced by separate contracts for the goods and for

processing services, and antidumping duties would primarily chastise

the uncreative. The Department’s attempt to foreclose this absurd

result by treating such transactions as sales of goods is eminently 

reasonable. Pp. 9–16. 

506 F. 3d 1051, reversed and remanded. 

SOUTER, J., delivered the opinion for a unanimous Court. 
_________________ 

_________________ 

Cite as: 555 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 07–1059 and 07–1078 

UNITED STATES, PETITIONER 

07–1059 v. 

EURODIF S. A. ET AL. 

USEC INC., ET AL., PETITIONERS 

07–1078 v. 

EURODIF S. A. ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT 

[January 26, 2009] 

JUSTICE SOUTER delivered the opinion of the Court. 

Section 731 of the Tariff Act of 1930 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 cases 

test the application of this antidumping provision to imports of low enriched uranium (LEU), a highly processed 

derivative of natural uranium used as nuclear fuel, when 

domestic utilities contract to obtain LEU for cash plus

unenriched uranium delivered to a foreign enricher.

Although the parties’ contracts call these transactions

sales of uranium enrichment services, the Commerce 

Department treats them as sales of “foreign merchandise” 

subject to the antidumping provision. The issue is 

whether the Commerce Department’s way of seeing the 

transactions as sales of goods rather than services reflects 
2 UNITED STATES v. EURODIF S. A. 

Opinion of the Court 

a permissible interpretation and application of §1673. We 

hold that it does. 

I 

There are five steps in transforming elemental uranium 

into fuel rods for nuclear powerplants. After uranium ore 

is mined, it is milled into uranium concentrate called 

“yellowcake,” which is next converted into uranium 

hexafluoride gas or “feed uranium.” The fissionable isotope in unenriched feed uranium is then concentrated, 

producing LEU in pellet form, which is in turn made into 

uranium fuel rods. These cases are about the fourth step: 

enriching uranium feedstock into LEU. 

The uranium isotope needed for a nuclear reaction, U235, amounts only to .711 percent by weight of natural 

uranium. Uranium whose concentration or “assay,” of U235 has been enhanced to 20 percent or more is weaponsgrade, highly enriched uranium (HEU), whereas LEU has

a U-235 assay of 3 to 5 percent, making it useful as nuclear fuel. One way to produce LEU, and the method at 

issue in these cases, is gaseous diffusion,1 whereby gaseous feed uranium is pushed through a long series of filters,

separating the gas into two streams. The stream passing

through the filters (the “product stream”) gains a higher

concentration of the lighter U-235 isotope than the stream 

that is filtered out (the “tails”). Because the concentration 

reached at each individual filter is minor, the gas must be 

forced through hundreds or even thousands of filters, at

great expenditure of electricity, before the product stream

reaches the desired assay. The amount of energy required 

to enrich a quantity of feed uranium to a given assay is

measured in terms of an industry standard called a “separative work unit” or SWU (pronounced “swoo”). In prac­

—————— 

1LEU can also be produced through a centrifuge method or by backblending unenriched uranium with weapons-grade uranium. 
Cite as: 555 U. S. ____ (2009) 3 

Opinion of the Court 

tice, however, a given degree of enrichment will depend on

adjusting the quantities of two separate variables, feed 

uranium and electricity, in inverse 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 does not, “underfeeding” can use more SWUs to

squeeze extra U-235 from the tails. 

Nuclear utilities generally get LEU in one of two ways. 

Under an “enriched uranium product” or “EUP” contract, a

utility simply buys a desired quantity and assay of LEU 

for cash. Under a “SWU contract,” the utility provides a

quantity of feed uranium and pays the enricher for the 

SWUs to produce the quantity and assay of LEU called 

for.2 Despite their name, SWU contracts do not require

that the contractual number of SWUs actually be applied 

to the quantity of uranium provided, Notice of Final Determination of Sales at Less Than Fair Value: Low Enriched Uranium From France, 66 Fed. Reg. 65877, 65884

(2001) (hereinafter LEU from France); rather, the enricher

remains free to overfeed or underfeed so long as it delivers

the specified LEU. Moreover, because feed uranium is 

fungible, and “for all intents and purposes, trades like a 

commodity,” ibid., and because profitable operation of an

enrichment plant requires the constant processing of feed

uranium from the enricher’s undifferentiated stock, the 

LEU provided to a utility under a SWU contract cannot be 

traced to the particular unenriched uranium the utility

provided.

Petitioners, USEC Inc. and its subsidiary, United States 

Enrichment Corporation, (USEC collectively) run the only 

—————— 

2Many SWU contracts give the utility the option of providing a comparable quantity of uranium concentrate in lieu of the specified feed

uranium. App. 13, 83, 268–69 (Sealed). 
4 UNITED STATES v. EURODIF S. A. 

Opinion of the Court 

uranium enrichment factory in the United States,3 which 

was built by the United States 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 Department for relief under §731 of the Tariff 

Act, alleging that LEU imported from France and other 

European countries under both EUP and SWU contracts

was being sold in the United States at less than fair value 

and was materially harming domestic industry. Notice of 

Initiation of Antidumping Duty Investigations: Low Enriched Uranium From France, Germany, the Netherlands, 

and the United Kingdom, 66 Fed. Reg. 1080 (2001). 

Section 731 of the Tariff Act of 1930, 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 harm to domestic manufacturing from foreign

goods sold at an unfair price: 

“If— 

“(1) the administering authority [the Secretary of

Commerce] determines that a class or kind of foreign merchandise is being, or is likely to be, sold in 

the United States at less than its fair value, and 

“(2) the [United States International Trade] Commission determines that— 

“(A) an industry in the United States— 

“(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 

—————— 

3There are only five major uranium enrichers in the world, a scarcity

that illustrates the “huge financial investment in facilities and a 

technically skilled work force” necessary to support the enrichment 

process. LEU from France, 66 Fed. Reg. 65884. 
Cite as: 555 U. S. ____ (2009) 5 

Opinion of the Court 

that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation, 

“then there shall be imposed upon such merchandise

an antidumping duty, in addition to any other duty 

imposed, in an amount equal to the amount by which

the normal value exceeds the export price (or the constructed export price) for the merchandise. . . .” 

See also §1677(1) (designating the Secretary of Commerce 

as the “‘administering authority’”); §1677(2) (explaining 

that the term “‘Commission’” refers to the United States 

International Trade Commission).

The Tariff Act’s antidumping provision derives from

similar terms in the Anti-Dumping Act, 1921, 42 Stat. 11,

which were adopted to “protec[t] our industries and labor 

against a now common species of commercial warfare of 

dumping goods on our markets at less than cost or home 

value if necessary until our industries are destroyed . . . .” 

H. R. Rep. No. 1, 67th Cong., 1st Sess., p. 23 (1921). 

Following the USEC charges, the Commerce Department opened an investigation into the practices of respondents, a French 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 LEU 

(Eurodif collectively). Eurodif conceded that EUP contracts were for the sale of LEU, but argued that SWU

contracts involved only the sale of uranium enrichment

services, and were therefore outside the scope of §1673. 

LEU From France, 66 Fed. Reg. 65882–65883.

In its final determination, the Commerce Department

concluded that LEU from France, including LEU acquired 

under SWU contracts, was being sold, or likely to be sold, 

in the United States at less than fair value.4 Id., at 65878. 

—————— 

4The Commerce Department concluded in a separate determination 
6 UNITED STATES v. EURODIF S. A. 

Opinion of the Court 

In deciding that SWU contracts are for a sale of LEU, not 

enrichment services, the Department 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 “the 

essential character” of LEU, id., at 65884. Second, “enrichers not only have complete control over the enrichment

process, but in fact control the level of usage of the natural

uranium provided.” Ibid. Third, the utilities themselves 

take no part in the manufacture of LEU and are the sole 

purchasers of the product. Ibid. 

The Commerce Department also rejected the argument

that LEU transferred pursuant to SWU contracts should 

not be considered “sold” in light of a “tolling” regulation 

then (but no longer) in effect. Ibid. The regulation stated

that a “toller,” a subcontractor who sells processing services in, or material for incorporation into, subject merchandise, would not be considered a manufacturer or 

producer “where the toller or subcontractor does not acquire ownership, and does not control the relevant sale, of 

the subject merchandise.” 19 CFR §351.401(h) (2000)

(withdrawn in Import Administration, Withdrawal of

Regulations Governing the Treatment of Subcontractors, 

(“Tolling” Operations), 73 Fed. Reg. 16517 (2008) (hereinafter Tolling Operations)). This regulation, the Commerce

Department explained, was intended to apply in situations

where a good is first sold by a manufacturer and then

resold by an exporter or reseller. LEU from France, 66 

Fed. Reg. 65880. The regulation provides that in such a 

situation the second sale should be used to calculate the 

—————— 

that LEU from the United Kingdom, Germany, and the Netherlands 

was not being sold, or likely to be sold, at less than fair value. Notice of 

Final Determinations of Sales at Not Less Than Fair Value: Low 

Enriched Uranium from the United Kingdom, Germany and the Netherlands, id., at 65886. 
Cite as: 555 U. S. ____ (2009) 7 

Opinion of the Court 

U. S. price and normal value of the manufactured good;

however, the Commerce Department concluded, the regulation was not meant to preclude antidumping duties 

where a manufacturer makes the only relevant sale that

can be used to establish U. S. price and normal value. 

Ibid.; id., at 65884–65885. 

Finally, the Commerce Department reasoned that language in SWU contracts speaking of the transactions as

the sale of enrichment services could not control, lest 

deferring to the parties’ characterizations allow them to

“convert trade in goods into trade in so-called ‘manufacturing services,’ . . . thereby exposing industries to injury by 

unfair trade practices without the remedy of the [antidumping] laws.” Id., at 65881. In economic reality, the

Commerce Department said, “the contracts designated as

SWU contracts are functionally equivalent to those designated as EUP transactions.” Id., at 65885.5 

Eurodif challenged the Department’s determination

before the Court of International Trade (CIT), which remanded for “a more persuasive explanation” of the tolling 

regulation. USEC Inc. v. United States, 259 F. Supp. 2d 

1310, 1326 (2003). On remand, the Commerce Department repeated that the tolling regulation governed which 

price should be used to calculate antidumping duties, not 

whether imports are subject to the antidumping provision

in the first instance. Final Remand Determination, USEC 

Inc. and United States Enrichment Corporation v. United 

States (June 23, 2003), App. G to Pet. for Cert. 211a (hereinafter Final Remand Determination). The Department 

further explained its conclusion that SWU contracts lead

to transfers of LEU for consideration. The contracts and 

—————— 

5 In February 2002, the International Trade Commission found that

imports of LEU from France materially injured the enrichment industry in the United States, allowing the imposition of antidumping duties. 

U. S. Int’l Trade Comm’n, Low Enriched Uranium from France, Germany, the Netherlands, and the United Kingdom (Pub. No. 3486). 
8 UNITED STATES v. EURODIF S. A. 

Opinion of the Court 

other evidence in the record convinced the Department

that “enrichers own, and hold title to, all the LEU they 

produce,” id., at 217a, a conclusion grounded on findings

that “enrichers hold inventories of uranium from various 

sources, including uranium owned by the enricher itself, 

and produce LEU without relying solely upon the input

from a particular customer.” Id., at 221a. Finally, the

Department emphasized that the enrichers “have complete control over the enrichment process and control the 

amount of uranium and energy actually used in producing 

the LEU.” Id., at 231a. 

The CIT was unconvinced and reversed, relying on what

it candidly recognized as a “legal fiction” expressed in 

SWU contracts, “that the very feed uranium delivered by a

utility to an enricher is enriched and then returned as

LEU to the utility.” USEC Inc. v. United States, 281 

F. Supp. 2d 1334, 1339 (2003). The CIT reasoned, because 

“nothing in the record support[ed] a determination that 

the enricher has any ownership rights,” the Commerce 

Department’s determination was “unsupported by substantial evidence and not in accordance with law.” Id., at 

1340. 

USEC challenged this conclusion in an interlocutory 

appeal to the Court of Appeals for the Federal Circuit, 

which affirmed. Eurodif S. A. v. United States, 411 F. 3d 

1355 (2005) (Eurodif I). The court approached the issues

much as the CIT had, with the observation that “the SWU 

contracts in this case do not evidence any intention by the 

parties to vest the enrichers with ownership rights in the

delivered unenriched uranium or the finished LEU.” Id., 

at 1362. It recalled that in a previous case, Florida Power 

& Light Co. v. United States, 307 F. 3d 1364 (CA Fed. 

2002), it had accepted the Government’s position that 

SWU contracts were for services, not for “‘disposal of 

personal property,’” and so were outside the cause of 

action provided by the Contract Disputes Act of 1978, 41 
Cite as: 555 U. S. ____ (2009) 9 

Opinion of the Court 

U. S. C. §601 et seq. Eurodif I, supra, at 1363, and n. 3 

(quoting Florida Power & Light Co., supra, at 1373).

While the court conceded that SWU agreements “do ‘not

fall neatly’ either into the category of contracts for services 

or the category of contracts for the sale of goods,” 411

F. 3d, at 1364 (quoting Florida Power & Light Co., supra, 

at 1373–1374), it still concluded that “even under the

deferential standard of review that we apply in this case, 

we choose not to ignore our previous holdings.” Eurodif I, 

supra, at 1363. 

Shortly after this decision, we held in National Cable & 

Telecommunications Assn. v. Brand X Internet Services, 

545 U. S. 967, 982–983 (2005), that a court’s choice of one

reasonable reading of an ambiguous statute does not

preclude an implementing agency from later adopting a 

different reasonable interpretation. On rehearing, the

Federal Circuit responded to National Cable & Telecommunications Association by explaining that it had not

rejected the Commerce Department’s position because it

conflicted with the prior interpretive choice that carried

the day in Florida Power & Light. Eurodif S. A. v. United 

States, 423 F. 3d 1275, 1277–1278 (2005) (Eurodif II). The 

Circuit, rather, saw no statutory uncertainty to be resolved: “the antidumping duty statute unambiguously 

applies to the sale of goods and not services” and “it is 

clear that [SWU] contracts are contracts for services and

not goods.” Id., at 1278. After final judgment was entered, Eurodif S. A. v. United States, 506 F. 3d 1051, 1053 

(CA Fed. 2007) (Eurodif III), we granted certiorari 553

U. S. ___ (2008), to consider whether transactions under 

SWU contracts may be subjected to antidumping duties 

under the Tariff Act. We now reverse. 

II 

The issue is not whether, for purposes of 19 U. S. C. 

§1673, the better view is that a SWU contract is one for 
10 UNITED STATES v. EURODIF S. A. 

Opinion of the Court 

the sale of services, not goods. The statute gives this

determination to the Department of Commerce in the first

instance, §1677(1), and when the Department exercises 

this authority in the course of adjudication, its interpretation governs in the absence of unambiguous statutory 

language to the contrary or unreasonable resolution of 

language that is ambiguous.6 United States v. Mead 

Corp., 533 U. S. 218, 229–230 (2001) (citing Chevron 

U. S. A. Inc. v. Natural Resources Defense Council, Inc., 

467 U. S. 837 (1984)). This is so even after a change in

regulatory treatment, which “is not a basis for declining to 

analyze the agency’s interpretation under the Chevron 

framework.” National Cable & Telecommunications Assn., 

545 U. S., at 981. “‘[T]he whole point of Chevron is to 

leave the discretion provided by the ambiguities of a statute with the implementing agency.’” Ibid. (quoting Smiley 

v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 

(1996)).7 

In approaching the Department’s position on the appli­

—————— 

6The specific factual findings on which an agency relies in applying 

its interpretation are conclusive unless unsupported by substantial 

evidence. 5 U. S. C. §706(2)(E). 7Respondents’ assertion that the Commerce Department’s prior tolling regulation is inconsistent with its position in these cases is therefore beside the point. For the reasons given by the Department in its

remand determination, we are not convinced that the tolling regulation 

precludes viewing SWU transactions as the sale of LEU; but even if it 

did, it has since been withdrawn, Tolling Operations, 73 Fed. Reg. 

16517, and cannot now constrain the Commerce Department’s interpretive authority under Chevron. National Cable & Telecommunications 

Assn., 545 U. S., at 981 (“Unexplained inconsistency is, at most, a

reason for holding an interpretation to be an arbitrary and capricious

change from agency practice under the Administrative Procedure Act”).

Likewise, even if the position taken by the Department of Energy in 

Florida Power & Light Co. v. United States, 307 F. 3d 1364 (CA Fed.

2002), was inconsistent with the Government’s position here, it would

not speak to the deference owed the Commerce Department under 

Chevron. 
Cite as: 555 U. S. ____ (2009) 11 

Opinion of the Court 

cation of §1673, two threshold propositions must be taken 

as given. First, we think the Department reasonably

concluded that §1673 is not limited by its terms to cashonly sales. Otherwise, any sale of a manufactured product 

could be exempted from the operation of §1673 by a contractual term stating part of the purchase price in terms of

a commodity.8 

Second, in applying §1673, the Commerce Department is

not bound by the “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 the 

utility.” USEC, 281 F. Supp. 2d, at 1339. The parties are

free to contract as they wish, and they may genuinely

regard SWU agreements as contracts for the sale of enrichment services. But, whatever the significance of such

a term in a contract dispute, cf. Florida Power & Light 

Co., 307 F. 3d 1364, it is well settled that in reading 

regulatory and taxation statutes, “form should be disregarded for substance and the emphasis should be on economic reality.” Tcherepnin v. Knight, 389 U. S. 332, 336 

(1967). See also Frank Lyon Co. v. United States, 435 

U. S. 561, 573 (1978) (“‘In the field of taxation, administrators of the laws, and the courts, are concerned with 

substance and realities, and formal written documents are 

—————— 

8Respondents argue that, after determining that SWU contracts 

involved the sale of LEU, the Commerce Department employed an

impermissible methodology by constructing the normal value of the 

LEU based on the combined costs to Eurodif of obtaining feed uranium 

and enrichment. Brief for Respondent Eurodif S. A. et al. 48–50. These 

calculations, respondents argue, “were a charade, underscoring that the 

antidumping laws cannot be applied to these SWU contracts.” Id., at 

48. To the degree respondents’ argument is that antidumping duties 

may never be applied to mixed cash-commodity sales, it is doomed by

implausibility. If respondents are contending that the Commerce

Department’s dumping determination improperly assessed the normal 

value of LEU, they are raising an issue well outside the scope of our

grant of certiorari. 
12 UNITED STATES v. EURODIF S. A. 

Opinion of the Court 

not rigidly binding’” (quoting Helvering v. F. & R. Lazarus 

& Co., 308 U. S. 252, 255 (1939))). Surrender to private

contractual terms is especially uncalled for in dealing with 

international tariffs, as Congress saw when it amended 

the Tariff Act to say that the sale of foreign merchandise

includes “the entering into of any leasing arrangement 

regarding the merchandise that is equivalent to the sale of 

the merchandise.” Trade and Tariff Act of 1984, 

§602(b)(2), 98 Stat. 3024, 19 U. S C. §1673. 

Since public law is not constrained by private fiction,

the test of the Department’s position turns first on

whether the statute clearly excludes a transaction involving mixed payment for LEU that may and almost certainly

will be produced from uranium feed distinct from what the 

utility provides. No one disputes that §1673 applies to the 

sale of goods, not services, LEU From France, 66 Fed. Reg. 

65882–65883. Nor do we think anyone would deny that

the exchange of cash combined with a commodity for a 

product that uses that very commodity as a constituent 

material is sometimes a sale of services and sometimes a 

sale of goods, the distinction being clear at the extremes.

A customer who comes to a laundry with cash and dirty 

shirts is clearly purchasing cleaning services, not clean

shirts. And a customer who provides cash and sand to a

manufacturer of generic silicon processors is clearly 

buying computer chips rather than sand enhancement 

services. 

But the line blurs when the facts get more complicated,

and SWU contracts exemplify a class of transactions that 

the Federal Circuit recognized does “‘not fall neatly’ either 

into the category of contracts for services or the category of

contracts for the sale of goods.” Eurodif I, 411 F. 3d, at 

1364 (quoting Florida Power & Light Co., supra, at 1373– 

1374). The agreement is not like the laundry ticket, which

says that the same shirts are supposed to come back, just 

minus the dirt around the collar. And it is not on all fours 
Cite as: 555 U. S. ____ (2009) 13 

Opinion of the Court 

with the agreement of the chip buyer and the manufacturer, in which it is inescapable that the silicon processors

delivered are a separate good from the sand provided. 

Section 1673 simply does not speak with the precision

necessary to say definitively whether it applies to the LEU

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 decision about the statute’s scope, 

which is defined in cases at the statutory margin by the

agency’s application of it, and once the choice is made we

ask only whether the Department’s application was reasonable. As to that, the Commerce Department relied on 

two related characteristics of these transactions in deciding SWU contracts should be treated as a sale of LEU. It 

stressed that the utility in a SWU contract provides cash 

plus a fungible commodity that is not tracked after its

delivery to the enricher, in exchange for a product owned 

by the enricher.9 And it recognized that the enrichment 

—————— 

9Eurodif argues that the Commerce Department erred in concluding

that enrichers own LEU prior to its delivery under a SWU contract. 

Id., at 36–37. While the precise form of this argument is unclear, it

fails under any reading. Respondents seem to mean that the Commerce Department’s interpretation of §1673 is impermissible as being

inconsistent with the formal terms of SWU contracts, an argument we

rejected above. The argument could also be read to suggest that the

Commerce Department lacked substantial evidence to conclude that, 

contractual formalities aside, enrichers in fact own the LEU provided

under SWU contracts prior to its delivery. But the evidence in the 

record not only supports the Department’s conclusion, it compels it. It 

is undisputed that the LEU delivered under a SWU contract is not

actually derived from the feed uranium provided as consideration; as

CIT observed, the notion that the same feed uranium delivered by a

utility to an enricher is enriched and then returned as LEU to the

utility is “a legal fiction.” USEC Inc. v. United States, 281 F. Supp. 2d 

1334, 1339 (2003). Moreover, the enricher is free to vary the amount of

feed uranium used to produce an order of LEU, either stockpiling feed

uranium or supplementing its stores from other sources. Finally, the 

SWU contracts at issue provide that the utility retains title to the feed

uranium until delivery of the LEU, at which point it obtains title in the 
14 UNITED STATES v. EURODIF S. A. 

Opinion of the Court 

process results in a substantial transformation of the

unenriched uranium. 

The combination of these characteristics reasonably

captures a common understanding of the sale of a good. 

Because an individual’s shirts are not fungible, they are

tracked during the cleaning process and returned to the 

same customer who brought them in; there are no good 

reasons to treat them as owned for a time by the laundry, 

and no one does. And without any transfer of ownership, 

the salient feature of the transaction is the cleaning of the

shirt, a service. Conversely, where a constituent material

is untracked and fungible, ownership is usually seen as 

transferred, and the transaction is less likely to be a sale 

of 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 paper, olives 

into oil, grapes into wine, wheat into flour, if the

product of the identical articles delivered is to be returned to the original owner in a new form, it is said 

to be a bailment, and the title never vests in the 

manufacturer. If, on the other hand, the manufacturer is not bound to return the same wheat or flour 

or paper, but may deliver any other of equal value, it 

is said to be a sale or a loan, and the title to the thing

delivered vests in the manufacturer.” Powder Co. v. 

Burkhardt, 97 U. S. 110, 116 (1878).10 

And when the manufacturer is not only free to return 

—————— 

LEU. In light of this process, some entity must own the LEU prior to

delivery and obtain title to the feed uranium after delivery, absent

some modern analog to the abhorrent possibility of an abeyance of

seizen; the enricher is the only serious candidate. 10Common law definitions do not necessarily control the meaning of 

terms in modern trade laws; we merely mean to show the long pedigree

of the distinction relied upon by the Commerce Department. 
Cite as: 555 U. S. ____ (2009) 15 

Opinion of the Court 

different material, but also substantially transforms the 

material it uses, it is even more likely that the object of 

the transaction will be seen as a new product, not work on 

enduring material of primary interest to the buyer. After 

all, what makes the hypothetical exchange of sand 

for silicon processors so obviously a sale of goods is the 

extreme transformation brought about by the chip 

manufacturer. 

These are good analytical grounds to show that SWU 

transactions are reasonably placed within the ambit of 

sale of goods, and the Department’s reliance on them is 

reinforced by practical reasons aimed at preserving the

effectiveness of antidumping duties. There is no dispute

that LEU sold 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 sale price in cash for the feed uranium 

and enrichment components represented by LEU. If 

foreign enrichers set this price below the fair value of 

LEU, the domestic enrichment industry is obviously open 

to material injury, the very threat the antidumping statute was meant to counter, see H. R. Rep. No. 1, at 23. But 

the same injury would occur if a SWU contract were untouchable. Under a SWU contract, the domestic utility 

pays cash to a third party for unenriched uranium and 

provides this along with additional cash in exchange for 

LEU; any EUP contract could be structured as a SWU

contract simply by splitting the transaction in two, one 

contract to buy unenriched uranium and another to enrich 

it.11 And the restructuring would not stop with uranium; 

—————— 

11This would be particularly easy in these cases, since COGEMA, 

Eurodif’s parent company, “is a major world supplier of natural uranium for the production of LEU.” Final Remand Determination, App. G 

to Pet. for Cert. 221a, n. 38. In fact, many SWU contracts provide that

if a utility fails to deliver feed uranium, the enricher will substitute

feed uranium of its own, which may then be purchased from the en­
16 UNITED STATES v. EURODIF S. A. 

Opinion of the Court 

contracts for imported pasta would be replaced by separate contracts for wheat and wheat processing services, 

sweater imports would give way to separate contracts for 

wool and knitting services, and antidumping duties would 

primarily chastise the uncreative.12 The Commerce Department’s attempt to foreclose this absurd result by 

treating SWU transactions as sales of goods is eminently 

reasonable. 

III 

Where a domestic buyer’s cash and an untracked, fungible commodity are exchanged with a foreign contractor for

a substantially transformed version of the same commodity, the Commerce Department may reasonably treat the 

transaction as the sale of a good under §1673. We therefore reverse the judgment of the Federal Circuit and remand the cases for further proceedings consistent with

this opinion. 

It is so ordered. 

—————— 

richer. App. 13–14, 185–186, 537 (Sealed). 12Eurodif suggests the Commerce Department could combat such 

circumvention of antidumping duties by taxing domestic downstream

sales of such products. Brief for Respondent Eurodif S. A. et al. 53–54.

But this ignores the substantial number of manufactured goods that 

are not resold. More fundamentally, this argument fails to explain why 

the Commerce Department should be required to chase after downstream resellers when the first sale has the same economic substance.