Preliminary Results of Countervailing Duty Administrative Reviews: Low Enriched Uranium from Germany, the Netherlands, and the United Kingdom

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of preliminary results of countervailing duty administrative reviews.

SUMMARY:

The Department of Commerce (the Department) is conducting administrative reviews of the countervailing duty (CVD) orders on low enriched uranium from Germany, the Netherlands, and the United Kingdom for the period May 14, 2001, through December 31, 2002. For information on the net subsidy for the reviewed companies, please see the Preliminary Results of Reviews section of this notice. Interested parties are invited to comment on these preliminary results. (See the “Public Comment” section of this notice).

EFFECTIVE DATE:

February 5, 2004.

FOR FURTHER INFORMATION CONTACT:

Robert Copyak (Germany) at 202-482-2209, Tipten Troidl (the Netherlands) at 202-482-1767, or Darla Brown (United Kingdom) at 202-482-2849, Office of AD/CVD Enforcement VI, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

On February 13, 2002, the Department published in the Federal Register the CVD orders on low enriched uranium from Germany, the Netherlands, and the United Kingdom. See Notice of Amended Final Determinations and Notice of Countervailing Duty Orders: Low Enriched Uranium from Germany, the Netherlands and the United Kingdom, 67 FR 6688 (February 13, 2002) (Amended Final). On February 3, 2003, the Department published a notice of opportunity to request an administrative review of these CVD orders. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 68 FR 5272 (February 3, 2003). On February 5, 2003, we received a timely request for review from the Government of the United Kingdom (UKG). On February 27, 2003, we received a timely request for review from Urenco Ltd. (Urenco), the producer and exporter of subject merchandise. We note that this request covered all subject merchandise produced by Urenco in Germany, the Netherlands, and the United Kingdom. On February 28, 2003, we received a timely request for review from petitioners. On March 18, 2003, the Department initiated administrative reviews of the CVD orders on low enriched uranium from Germany, the Netherlands, and the United Kingdom. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 68 FR 14394 (March 25, 2003).

On April 4, 2003, petitioners submitted new subsidy allegations, covering the following alleged programs: the UKG's sale of an uranium enrichment plant to Urenco Capenhurst Limited (UCL) for less than adequate remuneration, the UKG's decommissioning of UCL's centrifuge plants for less than adequate remuneration, and the UKG's provision of insurance for less than adequate remuneration. On September 16, 2003, the Department declined to initiate investigations of petitioners' allegations. For additional information, see the September 16, 2003, New Subsidy Allegations memorandum to Melissa G. Skinner, Director, Office of AD/CVD Enforcement VI, from Darla Brown, Case Analyst, on file in the Central Records Unit, Room B-099 of the Main Commerce Building (CRU).

On April 21, 2003, the Department issued a questionnaire to the UKG and UCL, Urenco's producer of subject merchandise in the United Kingdom. On April 29, 2003, the Department issued a questionnaire to the Government of the Netherlands (GON) and Urenco Nederland BV (UNL), Urenco's producer of subject merchandise in the Netherlands. On April 30, 2003, the Department issued a questionnaire to the Government of Germany (GOG) and Urenco Deutschland GmbH (UD), Urenco's producer of subject merchandise in Germany.

We received questionnaire responses from the UKG and UCL on May 28, 2003, from the GON and Urenco Nederland on June 5, 2003, from UD on June 6, 2003, and from the GOG on June 10, 2003. The Department issued a supplemental questionnaire to UCL on October 14, 2003; UCL submitted its response on October 28, 2003.

On October 23, 2003, we issued an extension of the due date for these preliminary results from October 31, 2003, to January 29, 2004. See Low Enriched Uranium from France, Germany, the Netherlands, and the United Kingdom: Extension of Preliminary Results of Countervailing Duty Administrative Reviews, 68 FR 60643 (October 23, 2003) (Extension Notice). We conducted verification of UCL in Marlow, United Kingdom on December 3 through December 4, 2003.

In accordance with 19 CFR 351.213(b), these reviews cover only those producers or exporters for which a review was specifically requested. The companies subject to these reviews are Urenco, UD, UNL, and UCL. These reviews cover five programs.

Scope of Reviews

For purposes of these reviews, the product covered is all low enriched uranium (LEU). LEU is enriched uranium hexafluoride (UF₆) with a U²³⁵ product assay of less than 20 percent that has not been converted into another chemical form, such as UO₂, or fabricated into nuclear fuel assemblies, regardless of the means by which the LEU is produced (including LEU produced through the down-blending of highly enriched uranium).

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

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

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

Period of Review

The period of review (POR) for these administrative reviews is May 14, 2001, through December 31, 2002.

International Consortium

In our Notice of Final Affirmative Countervailing Duty Determinations: Low Enriched Uranium from Germany, the Netherlands, and the United Kingdom, 66 FR 65903 (December 21, 2001) (LEU Final) and accompanying Issues and Decision Memorandum: Final Affirmative Countervailing Duty Determinations: Low Enriched Uranium from Germany, the Netherlands, and the United Kingdom—Calendar Year 1999 (LEU Decision Memo) at Comment 2: International Consortium Provision, we found that the Urenco Group operates as an international consortium within the meaning of section 701(d) of the Tariff Act of 1930, as amended (the Act). No new information or evidence of changed circumstances has been presented since the LEU Final which would persuade us to reconsider this conclusion. Therefore, we continue to find that the Urenco Group of companies constitutes an international consortium. Accordingly, we have continued to cumulate all countervailable subsidies received by the member companies from the GOG, the GON, and the UKG, pursuant to section 701(d) of the Act.

Subsidies Valuation Information

Allocation Period

Under section 351.524(d)(2) of the Department's regulations, we will presume the allocation period for non-recurring subsidies to be the average useful life (AUL) of renewable physical assets for the industry concerned, as listed in the Internal Revenue Service's (IRS) 1977 Class Life Asset Depreciation Range System (IRS Tables), as updated by the Department of the Treasury. The presumption will apply unless a party claims and establishes that these tables do not reasonably reflect the AUL of the renewable physical assets for the company or industry under investigation, and the party can establish that the difference between the company-specific or country-wide AUL for the industry under investigation is significant. In this instance, however, the IRS Tables do not provide a specific asset guideline class for the uranium enrichment industry.

In the LEU Final, we derived an AUL of 10 years for the Urenco Group (see LEU Decision Memorandum at Comment 3: Average Useful Life). The AUL issue is currently subject to litigation related to the investigation. In these reviews, we continue to apply the 10-year AUL that was calculated in the LEU Final.

Benchmarks for Loans and Discount Rate

In accordance with section 351.524(d)(3)(i)(A) of the Department's regulations, we used, where available, discount rates that were based on the cost of long-term, fixed-rate financing for commercial loans received by the Urenco Group companies. Where the Urenco Group companies had no comparable commercial loans, we used national average interest rates as provided by the companies' corresponding government as specified by section 351.505(a)(3)(ii) of the Department's regulations.

Calculation of Ad Valorem Rates

In the LEU Final, we calculated the ad valorem subsidy rates using the following formula:

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Where:

A = Ad Valorem Program Rate.

B = Subsidy Benefit (in U.S. Dollars).

C = Urenco Group's Sales of Subject Merchandise to the United States during the Calendar Year (in Euros).

D = Urenco Group's Total Sales during the Calendar Year (in Euros).

E = Urenco Group Sales that Entered the U.S. during the Calendar Year (in U.S. Dollars).

We continue to apply this formula to calculate the ad valorem subsidy rates in these preliminary results.

Programs Preliminarily Determined To Confer Subsidies From the Government of Germany

1. Enrichment Technology Research and Development Program

In the LEU Final, we determined that, under this program, the GOG promoted the research and development (R&D) of uranium enrichment technologies. The Federal Ministry for Research and Technology provided Uranitisotopentrennungsgeselleschaft mbH (Uranit) (the privately-held German arm of the Urenco Group) a series of grant disbursements for the funding of R&D projects. The funds were provided to encourage continuous improvements of centrifuge technologies and to fund the research of lasers and other advanced technologies. The grant disbursements under this program were made during the years 1980 through 1993.

Assistance under this program was provided for in two agreements and two sets of guidelines: the “Financing Agreement,” the “Operating Agreement,” the “Terms and Conditions for Allocations on a Cost Basis to Companies in Industry for Research and Development Projects” (BKFT75), and the “Auxiliary Terms and Conditions for Grants on a Cost Basis from the Federal Ministry for Research and Development to Companies in Industry for Research and Development Projects” (NKFT88), respectively. According to Article 4, section 6, of the “Financing Agreement,” the funds provided to Uranit under this agreement had contingent repayment obligations. The funds were repayable within five years of disbursement, contingent upon the company's earnings. If the funds were not repaid within five years, then the repayment obligation lapsed. The funds provided under the “Operating Agreement” were not repayable. Uranit also received funds for laser R&D pursuant to the terms and conditions of the BKFT75 and NKFT88.

In the LEU Final, we determined that the assistance provided under this program constitutes countervailable subsidies within the meaning of section 771(5) of the Act. Specifically, we found that the grant disbursements constitute a financial contribution and confer a benefit, as described in sections 771(5)(B) and 771(5)(D)(i) of the Act. We further found that this program is specific under section 771(5A)(D)(i) of the Act because the provision of assistance under this program was limited to one company. In addition, we found that the program provided non-recurring benefits under section 351.524(c)(2) of the Department's regulations because the assistance was made pursuant to specific government agreements and was not provided under a program that would provide assistance on an ongoing basis from year to year. See LEU Decision Memo at the “Enrichment Technology Research and Development Program” section. No new information or evidence of changed circumstances has been presented to warrant reconsideration of this determination; therefore, for these preliminary results, we continue to determine that this program is countervailable.

We also determined in the LEU Final that no portion of any of the disbursements received by Uranit was repaid. We determined that the disbursements provided under the “Financing Agreement” were countervailable under 19 CFR 351.505(d)(2) as grants because they constituted waivers of contingent liabilities. We determined that the disbursement made in 1985 conferred a benefit during the POI because the year contingent payment obligation lapsed, 1990, fell within the ten-year allocation period. With regard to the subsidies provided for laser R&D, we determined that the disbursements made between 1990 and 1993 under the NKFT88 were countervailable under 19 CFR 351.504 beginning in the year of receipt because the repayment provisions of the NKFT88 were not applicable for the grants ATT 22279/1, ATT 2279 A/2, ATT 2279/2, and ATT 2281/3. Id. We also determined that, as a result of applying the 0.5 percent test, in accordance with 19 CFR 351.524(b)(2), laser grants ATT 2279 A/2 and ATT 2281 /3 were expensed in the year of receipt. Id. No new information or evidence of changed circumstances has been presented to warrant reconsideration of these determinations.

We calculated the benefits received under this program during the POR, pursuant to 19 CFR 351.505(d)(2) (our contingent liability methodology) with regard to the 1985 disbursement made under the Financing Agreement, and, pursuant to 19 CFR 351.504 (our standard grant methodology) with regard to the laser R&D grant disbursements made under the NKFT88 in 1990 or later, and allocated both of them over 10 years. See the allocation period discussion in the “Subsidies Valuation Information” section, above. We used as our discount rates the long-term corporate bond rates in Germany because the grants were denominated in Deutschmarks.

We preliminarily determine that grant disbursements made under this program prior to 1992, including the 1985 disbursement made under the “Financing Agreement,” no longer provide a benefit during the POR. We also preliminarily determine that only the grant disbursements made in 1992 and 1993 continue to provide benefits during the POR.

To calculate the benefit from this program, for each calendar year of the POR, we summed the benefits that remained as a result of the application of our allocation methodology. We then calculated an ad valorem rate for each calendar year of the POR using the methodology described in the “Calculation of Ad Valorem Rates” section, above. We note that because the benefits were provided for the promotion of R&D, we have used as the denominator the company's sales of subject merchandise as well as the sales of those products that were manufactured using the same technology that benefitted from the R&D subsidies. See LEU Decision Memo at Comment 14: Sales Denominator of the Urenco Group. On this basis, we preliminarily determine the net countervailable subsidy to be 0.03 percent ad valorem for 2001 and 0.00 percent ad valorem for 2002.

2. Forgiveness of Centrifuge Enrichment Capacity Subsidies

In accordance with the “Risk Sharing Agreement” (RSA) and the “Profit Sharing Agreement” (PSA) signed between the GOG and Uranit, the GOG agreed to provide funds to UD to support the promotion of an uranium enrichment industry. These two agreements were signed on July 18, 1975, and the GOG provided a total of DM 338.3 million from 1975 to 1993 to Uranit in support of the Treaty of Almelo's goal of creating and promoting the enrichment industry. Under the terms of the agreements, repayment of the funds was conditional and based upon the financial performance of the company. However, in no case was the amount of the total repayments to exceed twice the amount of the funds provided to UD by the GOG.

In 1987, Uranit signed a new agreement with the GOG. This “Adjustment Agreement” stipulated that Uranit would repay GOG for the DM 333.8 million in centrifuge capacity assistance and an additional agreed-upon DM 31.7 million which was not related to the centrifuge subsidies. Prior to the 1993 merger of the Urenco Group, the GOG and Uranit negotiated a basis to terminate the repayment obligations of the RSA and the PSA. Based upon these negotiations, a “Termination Agreement” was signed on July 13, 1993, and amended on October 27, 1993. Prior to the Termination Agreement, Uranit had made repayments totaling DM 5.6 million. Under the terms of the Termination Agreement, Uranit was to pay the GOG DM 101.1 million, thus terminating the repayment obligations stipulated in the Adjustment Agreement. Uranit made this DM 101.1 million payment on July 1, 1994.

In the LEU Final, we determined this program to be countervailable. We found that assistance provided under this program to Uranit was specific under section 771(5A)(D)(i) of the Act because the program was limited to one company. In addition, we determined that a financial contribution was provided under section 771(5)(D)(i) of the Act. We also determined that a benefit was provided to the company, within the meaning of section 771(5)(E) of the Act to the extent that the repayments made to the GOG were less than the amount of assistance provided to the company under this program. See LEU Decision Memo at the “Forgiveness of Centrifuge Enrichment Capacity Subsidies” section. No new information or evidence of changed circumstances has been presented to warrant reconsideration of this determination; therefore, for these preliminary results, we continue to determine that this program is countervailable.

In the LEU Final, we determined that this program provided a grant under 19 CFR 351.505(d)(2) because there was a waiver of a contingent liability. We determined the adjusted grant amount to be equal to the difference between the original amount of centrifuge subsidies (DM 338.3 million) and the total amount of repayment attributable to those centrifuge subsidies (DM 97.556 million), which we calculated to be DM 240.744 million. We also determined that the first year of allocation was 1993, the year in which the repayment obligation stipulated in the Adjustment Agreement was waived. No new information or evidence of changed circumstances has been presented to warrant reconsideration of this determination.

To determine the benefit conferred by this program during the POR, we applied the Department's standard grant methodology and allocated the adjusted grant amount of DM 240.744 million over 10 years. See the allocation period discussion under the “Subsidies Valuation Information” section, above. We used as the discount rate the long-term corporate bond rate in Germany for 1993. We then calculated an ad valorem rate for each calendar year of the POR using the methodology described in the “Calculation of Ad Valorem Rates” section above. We note that because this subsidy was provided for the promotion of uranium enrichment, we have used as the denominator sales from enrichment activities only. For further explanation, see LEU Decision Memo at Comment 14: Sales Denominator of the Urenco Group. On this basis, we preliminarily determine the net countervailable subsidy to be 1.63 percent ad valorem for 2001 and 1.40 percent ad valorem for 2002.

Program Preliminarily Determined Not To Confer a Benefit From the Government of Germany

1. Investment Allowance Act

In the LEU Final, we determined that, from 1982 through 1990, the GOG provided countervailable grants to UD and Uranit under the Investment Allowance Act for the enrichment plant in Gronau and for the R&D facility in Julich. We found this program to be specific under section 771(5A)(D)(iv) of the Act because grants provided under this program are limited to companies located in designated regions within Germany. We determined that a financial contribution was provided by this program under section 771(5)(D)(i) of the Act and that a benefit was provided within the meaning of section 771(5)(E) of the Act in the amount of grant disbursements received under this program. We determined that this program provided non-recurring benefits under 19 CFR 351.524(c)(2) of the Department's regulations because the assistance was tied to the capital assets of the companies and was not provided on an ongoing basis from year to year. See LEU Decision Memo at the “Investment Allowance Act” section and Comment 15: Investment Allowance Act. No new information or evidence of changed circumstances has been presented to warrant reconsideration of this determination; therefore, for these preliminary results, we continue to determine that this program is countervailable.

As explained above in the allocation period section of the “Subsidies Valuation Information,” we are using 10 years as the time period for allocating non-recurring benefits. Because the grant disbursements under this program were made between 1982 and 1990, the 10-year allocation period for each grant disbursement expired prior to the POR. Therefore, we preliminarily determine that each of these grants has been fully allocated prior to the POR, and, therefore, no benefit was received under this program during the POR.

Programs Preliminarily Determined To Be Not Used From the Government of the Netherlands

1. Wet Investeringsrekening Law (WIR)

In the LEU Final, we found that the WIR program was not used. In the instant administrative reviews, we asked UNL if it received or used benefits under this program during the POR. UNL responded that it did not apply for, use, or receive benefits from the WIR program during the POR. Furthermore, UNL reported that the WIR program ended in 1988 and investment credits could only be claimed through the 1989 tax year. Therefore, we preliminarily find that the WIR was not used during the POR.

2. Regional Investment Premium

In the Amended Final, we found that, after correcting for a ministerial error in the LEU Final, the subsidy from the Regional Investment Program (IPR) was less than 0.5 percent of the Urenco Group's combined sales and, in accordance with 19 CFR 351.524(b)(2), was allocable to the year of receipt (1985). As a result of this revision, the net subsidy for this program decreased from 0.03 percent ad valorem to 0.00 percent ad valorem. See Amended Final, 67 FR 6688. Moreover, in the instant reviews, UNL reported that it did not apply for nor did it use the IPR program during the POR. Therefore, we preliminarily determine that UNL did not use the IPR program during the POR.

Verification

In accordance with section 782(i) of the Act, we conducted verification of UCL in Marlow, United Kingdom on December 3 through December 4, 2003.

Preliminary Results of Reviews

In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for the Urenco Group Ltd., the only producer/exporter subject to these administrative reviews, for calendar years 2001 and 2002. We preliminarily determine that the total estimated net countervailable subsidy rate is 1.66 percent ad valorem for 2001 and 1.40 percent ad valorem for 2002.

If the final results of these reviews remain the same as these preliminary results, the Department intends to instruct the U.S. Customs and Border Protection (CBP), within 15 days of publication of the final results of these reviews, to liquidate shipments of low enriched uranium by Urenco from Germany, the Netherlands, and the United Kingdom entered, or withdrawn from warehouse, for consumption from May 14, 2001, through September 11, 2001, at 1.66 percent ad valorem and from February 13, 2002, through December 31, 2002, at 1.40 percent ad valorem of the f.o.b. invoice price. The Department also intends to instruct the CBP to collect cash deposits of estimated countervailing duties at 1.40 percent ad valorem of the f.o.b. invoice price on all shipments of the subject merchandise from the reviewed entity, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of these reviews. In addition, for the periods May 14, 2001, through September 11, 2001, and February 13, 2002, through December 31, 2002, the assessment rates applicable to all non-reviewed companies covered by this order are the cash deposit rates in effect at the time of entry.

Because the Uruguay Round Agreements Act (URAA) replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named. See 19 CFR 351.213(b). Pursuant to 19 CFR 351.212(c), for all companies for which a review was not requested, duties must be assessed at the cash deposit rate, and cash deposits must continue to be collected, at the rate previously ordered. As such, the countervailing duty cash deposit rate applicable to a company can no longer change, except pursuant to a request for a review of that company. See Federal-Mogul Corporation and The Torrington Company v. United States, 822 F. Supp. 782 (CIT 1993), and Floral Trade Council v. United States, 822 F. Supp. 766 (CIT 1993) (interpreting 19 CFR 353.22(e), the old antidumping regulation on automatic assessment, which is identical to the current regulation, 19 CFR 351.212(c)(ii)(2)). Therefore, the cash deposit rates for all companies except those covered by these reviews will be unchanged by the results of these reviews.

We will instruct the CBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order will be the rate for that company established in the most recently completed administrative proceeding. See Notice of Amended Final Determinations and Notice of Countervailing Duty Orders: Low Enriched Uranium from Germany, the Netherlands and the United Kingdom, 67 FR 6688 (February 13, 2002). These cash deposit rates shall apply to all non-reviewed companies until a review of a company assigned these rates is requested.

Public Comment

Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless otherwise indicated by the Department, case briefs must be submitted within 30 days after the publication of these preliminary results. Rebuttal briefs, which are limited to arguments raised in case briefs, must be submitted no later than five days after the time limit for filing case briefs, unless otherwise specified by the Department. Parties who submit argument in this proceeding are requested to submit with the argument: (1) A statement of the issue, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs are requested to provide the Department copies of the public version on disk. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs.

Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department will publish the final results of these administrative reviews, including the results of its analysis of issues raised in any case or rebuttal brief or at a hearing.

These administrative reviews are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.