It's all about Chevron

As Larry Friedman (Barnes/Richardson, Chicago) points out on his Customs Law blog, referring to Monday's SCOTUS decision in U.S. v. Eurodif S.A., No. 07-1059.  He spotted a news article, "NTI: Global Security Newswire - U.S. Uranium Enrichment Firm Wins Supreme Court Ruling".  From the article:

The key question centered around whether nuclear utility contracts to buy low-enriched uranium constituted a purchase of "goods" or "services." U.S. law allows for placing tariffs on "foreign merchandise" sold in the United States for "less than fair value," but does not permit such sanctions on the sale of services, ...

Complicating the situation is the nature of many uranium enrichment contracts, which can call for the utilities to provide natural uranium, purchased from a third party, to the enricher for processing. Ownership of the natural uranium is not clearly defined, however, as the enricher is free to use supplies on hand to produce the contracted low-enriched uranium.

Souter's opinion sought to emphasize the uncertainty of the situation.

"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 chips rather than sand enhancement services," he wrote. "But the line blurs when the facts get more complicated."

"This is the very situation in which we look to an authoritative agency for a decision about the statute's scope ... and once the choice is made we ask only whether the department's application was reasonable," he continued.

Furthermore, allowing uranium enrichment to be considered a service would create a loophole that manufacturers in many industries would exploit, Souter wrote.

"The restructuring would not stop with uranium," he stated. "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."

To me at first glance it appears to be a straightforward reinforcing of Chevron deference, but I will enjoy seeing Mr. Friedman's promised analysis.  EMM