Slip Op. 02-150
United States Court of International Trade
SAVE DOMESTIC OIL, INC.,
Plaintiff,
v. Before: Pogue, Judge
UNITED STATES, Court No. 99-09-00558
Defendant,
and
API AD HOC FREE TRADE COMMITTEE;
SAUDI ARABIAN OIL COMPANY;
PETROLEOS DE VENEZUELA, S.A. AND
CITGO PETROLEUM CORPORATION;
PETROLEOS MEXICANOS, P.M.I. COMERCIO
INTERNACIONAL S.A. DE C.V., AND
PEMEX EXPLORACION Y PRODUCCION;
CHEVRON CORPORATION; EXXON
CORPORATION; MOBIL CORPORATION;
SHELL OIL COMPANY; TEXACO INC.; AND
BP AMOCO,
Defendants-Intervenors.
[Agency reconsideration pursuant to court remand sustained.]
Decided: December 17, 2002
Wiley Rein & Fielding LLP (Charles Owen Verrill, Jr., Timothy C.
Brightbill)for Plaintiff Save Domestic Oil, Inc.
Robert D. McCallum, Jr., Assistant Attorney General, David M.
Cohen, Director, A. David Lafer, Senior Trial Counsel, Lucius B.
Lau, Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Robert J. Heilferty, Senior Attorney, Office
of the Chief Counsel for Import Administration, U.S. Department of
Commerce, Of Counsel, for Defendant United States.
Court No. 99-09-00558 Page 2
Dewey Ballantine LLP (Harry Clark, John W. Bohn)for Defendant-
Intervenor API Ad Hoc Free Trade Committee.
Shearman & Sterling (Thomas B. Wilner, Jeffrey M. Winton, Perry S.
Bechky, Jeronimo Gomez del Campo) for Defendants-Intervenors
Petroleos de Venezuela, S.A. and CITGO Petroleum Corporation.
White & Case LLP (Carolyn B. Lamm, Adams C. Lee, Frank J.
Schweitzer)for Defendant-Intervenor Saudi Arabian Oil Company.
OPINION
Pogue, Judge: On September 19, 2000, in Save Domestic Oil, Inc. v.
United States, 24 CIT __, 116 F. Supp. 2d 1324 (2000) (“SDO I”),
this Court ordered the Department of Commerce (“Commerce”) to
reconsider its determination in Certain Crude Petroleum Oil
Products from Iraq, Mexico, Saudi Arabia, and Venezuela, 64 Fed.
Reg. 44,480 (Dep’t Commerce Aug. 16, 1999) (dismissal of
antidumping and countervailing duty petitions) (“Dismissal
Determination”).1 The Dismissal Determination found that the
antidumping and countervailing duty petitions filed by Save
Domestic Oil, Inc. lacked sufficient industry support for
initiation of antidumping and countervailing duty investigations.
The Court now reviews Commerce’s Administrative Determination
Pursuant to Court Instructions: Antidumping and Countervailing Duty
Petitions on Certain Crude Petroleum Oil Products from Iraq,
Mexico, Saudi Arabia, and Venezuela (Aug. 7, 2001) (“Remand
1
Familiarity with the Court’s earlier opinion is presumed.
Court No. 99-09-00558 Page 3
Determination”).2 Jurisdiction lies under 28 U.S.C. § 1581(c)
(2000).
Standard of Review
Commerce’s Remand Determination must be sustained unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(A). This
deferential standard requires only that Commerce “articulate a
satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’” Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983) (quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962)).
Discussion
I. Interested-Party Status of the Independent Petroleum
Association of America (“IPAA”)
During Commerce’s original inquiry, the IPAA expressed support
for the antidumping and countervailing duty petitions. Commerce
2
Plaintiff challenges only two aspects of Commerce’s Remand
Determination. See Comments of Save Domestic Oil, Inc. on
Department of Commerce Remand Determination Dated August 7, 2001
at 3, 15 (“SDO Remand Comments”). However, we also review the
agency decision in order to verify compliance with the Court’s
instructions in SDO I. This Court has “inherent power to
determine the effect of its judgments,” as well as to enforce
them. United States v. Hanover Ins. Co., 82 F.3d 1052, 1054
(Fed. Cir. 1996); Ammex, Inc. v. United States, 26 CIT __, __,
193 F. Supp. 2d 1325, 1328-29 (2002).
Court No. 99-09-00558 Page 4
disregarded the IPAA’s support, however, after concluding that the
association did not qualify as an interested party because it had
failed to demonstrate that a majority of its members were regional
crude oil producers. See Dep’t of Commerce Mem. from Judith Wey
Rudman to Richard Moreland, The Status of the Independent Petroleum
Association of America as an Interested Party (Aug. 9, 1999), P.R.
Doc. AD-251 (Venezuela).3 The agency stated that
in order to be an interested party, one must be a member
of the industry on behalf of which relief is being sought
. . . . Thus, if only regional producers are members of
the regional industry, only producers within the region
qualify as interested parties. Moreover, if only
regional producers qualify as interested parties, then
only an association of which a majority of members are
regional producers may qualify as an interested party.
Id. at 2-3; see also 19 U.S.C. §§ 1671a(c)(4)(C), 1673a(c)(4)(C)
(indicating that in the case of regional industries, Commerce shall
calculate industry support “on the basis of production in the
region.”); 19 U.S.C. § 1677(9)(E) (defining an “interested party”
as “a trade or business association a majority of whose members
manufacture, produce, or wholesale a domestic like product in the
United States”).
3
Citations to the administrative record include references
to public documents from the original inquiry (“P.R. Doc.”);
proprietary documents from the original inquiry (“Prop. Doc.”);
public documents from the remand inquiry (“P.R. Rem. Doc.”); and
proprietary documents from the remand inquiry (“Prop. Rem.
Doc.”). Citations to documents from the original inquiry also
include either “AD” or “CVD” and the name of one of the four
subject countries, indicating the administrative record in which
the document is found.
Court No. 99-09-00558 Page 5
The Court approved Commerce’s analysis in SDO I, stating that
Commerce had “properly required IPAA to prove the necessary
connection to the regional domestic like product.” 24 CIT at __,
116 F. Supp. 2d at 1339. The Court also noted, however, that IPAA
“may still be able to establish on remand that its members are
regional producers.” Id.
In its Remand Determination, Commerce re-evaluated the IPAA’s
interested party status using the same analysis and additional
data. Commerce noted that
[b]ecause the petitioner requested relief on behalf of a
regional domestic industry, only an association for which
a majority of its members are regional producers may
qualify as an interested party. To satisfy this
requirement, no less than 50 percent of the association’s
members must qualify as interested parties, i.e.,
regional crude-oil producers.
Remand Determ. at 5. In order to assess whether IPAA met this
requirement, Commerce compared a listing of all IPAA members that
are producers of crude oil with a list obtained from the Energy
Information Administration (“EIA”) of all regional crude oil
producers. Where an IPAA member’s name did not appear in the EIA
list but a similar name did appear there, Commerce gave the IPAA
the benefit of the doubt and counted that IPAA member as a regional
oil producer. See Remand Determ. at 5-6; Dep’t of Commerce Mem.
from Oil Team to Richard W. Moreland, Crude Oil from Four
Countries: Counting the Support of an Association (Aug. 7, 2001),
Prop. Rem. Doc. 3 (“IPAA Mem.”). Despite this conservative
Court No. 99-09-00558 Page 6
approach, the comparison indicated that regional producers of crude
oil do not form a majority of the IPAA’s members, and therefore the
IPAA did not qualify as an interested party.4 Remand Determ. at 6;
IPAA Mem. at 3. As Commerce has articulated a “rational
connection between the facts found and the choice made,” Motor
Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal citations omitted),
the Court finds Commerce’s determination that IPAA is not an
interested party to be in accordance with law.
II. Accounting for the Views of Labor
Where an antidumping or countervailing duty petition “does
not establish support of domestic producers or workers accounting
for more than 50 percent of the total production of the domestic
like product,” Commerce is directed to
(i) poll the industry or rely on other information in
order to determine if there is support for the
petition as required by sub-paragraph (A), or
(ii) if there is a large number of producers in the
industry, [Commerce] may determine industry support
for the petition by using any statistically valid
sampling method to poll the industry.
19 U.S.C. §§ 1671a(c)(4)(D), 1673a(c)(4)(D). When Commerce
conducts such an industry poll, 19 C.F.R. § 351.203(e)(5) provides
that the agency “will include unions, groups of workers, and trade
4
Commerce noted, however, that it would count the support
of IPAA members “in cases where an individual member that
produced crude oil in the region either expressed an opinion on
its own behalf or belonged to another association that qualified
as an interested party.” Remand Determ. at 6.
Court No. 99-09-00558 Page 7
or business associations.”
In the initial inquiry preceding the Dismissal Determination,
Commerce conducted a poll of the regional domestic oil industry to
assess support for the Save Domestic Oil petitions, surveying each
of the 410 largest producers in the region and 401 of the remaining
producers in the region. See Dep’t of Commerce Mem. from Industry
Support Team to Richard W. Moreland, Calculation of Industry-
Support Percentages at 2 (Aug. 9, 1999), P.R. Doc. AD-245
(Venezuela). Commerce did not, however, include workers’ groups or
unions in the poll.
Commerce received comments on the petition from the Paper,
Allied Industrial, Chemical & Energy Workers International Union,
AFL-CIO, CLC (“PACE”),5 and the agency concluded that PACE was an
interested party with respect to six companies at which the union
represented workers employed in crude oil production in the region.
See, e.g., Dep’t of Commerce Mem. from Oil Team to Richard W.
Moreland, Remand on Dismissal of Petitions for the Imposition of
Antidumping and Countervailing Duties on Crude Oil from Iraq,
Mexico, Saudi Arabia, and Venezuela: Counting the Support of Labor
at 2-3 (Aug. 7, 2001), Prop. Rem. Doc. 1 (“Labor Mem.”). However,
due to the lack of production information for these six firms,
Commerce was initially unable to determine what portion of the
5
PACE was the only labor union or group of workers to
submit comments concerning the petitions. See Remand Determ. at
7.
Court No. 99-09-00558 Page 8
industry the firms represented.6 Id. Consequently, Commerce did
not count the union’s support for the petition. Id. With respect
to four companies involved in transporting crude oil to refinery
and shipping facilities, rather than in crude oil production,
Commerce determined that PACE was not an interested party. Id.
Commerce did not otherwise attempt to ascertain the views of
workers on Save Domestic Oil’s petitions.
In SDO I, the Court noted that Commerce is required to account
for the views of labor when assessing support for an antidumping or
countervailing duty petition.7 The Court stated that although
Commerce had polled the industry in accordance with 19 U.S.C. §§
1671a(c)(4)(D) and 1673a(c)(4)(D) in order to assess support for
the petitions, it had not “made any attempt to poll production
workers at those particular firms, nor did it otherwise determine
where labor stands vis-à-vis SDO’s petition.” SDO I, 24 CIT at __,
116 F. Supp. 2d at 1340. The Court further stated, “given that
6
Title 19 U.S.C. §§ 1671a(c)(4)(A) and 1673a(c)(4)(A)
express the requirements for industry support in terms of
percentages of production of the domestic like product.
Production information is therefore required in order to assign
the appropriate weight to the support or opposition of an
interested party.
7
The Court stated that “[i]n enacting [the Uruguay Round
Agreements Act], Congress also clearly indicated its intent that
‘labor have equal voice with management in supporting or opposing
the initiation of an investigation.’” SDO I, 24 CIT at __, 116 F.
Supp. 2d at 1339 (internal citations omitted). The Court also
noted the requirement of 19 C.F.R. § 351.203(e)(5) that
Commerce’s poll of an industry “will include unions, groups of
workers, and trade or business associations.” Id. at 1340.
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statute and the clear intent of Congress in enacting URAA, this
court concludes that it was not in accordance with law for the
agency to have failed to account at all for the views of labor in
this case.” SDO I, 24 CIT at __, 116 F. Supp. 2d at 1341.
In its Remand Determination, Commerce concluded that “due to
the extraordinarily large number of crude-oil production workers in
the United States, it would not be feasible to conduct a poll of
these workers.” Labor Mem. at 4. No party to the present action
challenges this conclusion. Instead of conducting a poll, the
agency sought to account for the views of labor by evaluating the
comments from PACE. Commerce found that PACE represented
approximately 320,000 workers in the United States and Canada,
including 32,000 workers employed in the oil industry. Id. The
agency concluded that “PACE is the principal labor union in the
U.S. oil industry,” and noted that “[t]here is no record evidence
of any other union in the crude-oil industry.” Remand Determ. at
7; see also Labor Mem. at 4 (“[I]t is evident that, while PACE may
not be the only union representing oil workers (although there is
no record evidence that there are other such unions), PACE is the
principal vehicle for organized labor in the U.S. oil industry.”).
Commerce also indicated that among the 339,000 crude-oil industry
workers in the United States, approximately four percent, or 13,560
Court No. 99-09-00558 Page 10
workers, were union members or covered by union contracts.8 Labor
Mem. at 4.
In evaluating PACE’s comments, the agency first re-examined
whether PACE was an interested party with respect to its
representation of pipeline workers. Commerce inquired whether the
pipeline companies are “included in the ‘industry engaged in the
production in the United States of’ crude petroleum oil.” Labor
Mem. at 5. Commerce found that the pipeline companies engaged in
transportation of petroleum products, not in the production of
crude oil products. Id. at 6 (“[T]hese pipeline companies and the
workers employed therein are part of a separate industry that
solely services the crude-oil industry.”). Therefore, Commerce
declined to count the views of PACE with respect to the four
pipeline companies at which it represents workers. Id. No party
challenges this determination.
Next, in order to account for PACE’s support for the
petitions, Commerce requested production data from the six
companies in the region at which PACE represents crude oil
production workers. See Remand Determ. at 8; Labor Mem. at 7-12.
Five of these companies submitted data in response to the request,
and Commerce relied on other record evidence concerning the sixth
company. Id. Production at companies which had expressed no
8
It does not appear that the agency definitively ascertained
that these 13,560 union workers were represented by PACE.
Court No. 99-09-00558 Page 11
opinion on the petitions was counted in support of the petition,
while production at companies which had expressed opposition to the
petition was neutralized, i.e., the union’s support was considered
offset by the company’s opposition. See Remand Determ. at 8-9;
Labor Mem. at 10-12; see also 19 C.F.R. § 351.203(e)(3).
Commerce’s efforts to count the support of PACE rectify its
earlier “fail[ure] to account at all for the views of labor.” SDO
I, 24 CIT at __, 116 F. Supp. 2d at 1341.9 The agency has complied
with the Court’s instructions in SDO I, and therefore we uphold
this aspect of the Remand Determination.
III. Lease Condensate
In the original inquiry, Commerce declined to reach the
question of whether lease condensate was included in the scope of
the petitions after concluding that in any case, the petitions
lacked the requisite industry support.10 Dismissal Determ., 64 Fed.
9
As no party challenges the adequacy of Commerce’s efforts
to account for the views of workers in the Remand Determination,
we do not reach the issue of Commerce’s compliance with the
requirement of its own regulations that “[i]n conducting a poll
of the industry . . . [Commerce] will include unions, groups of
workers, and trade or business associations.” 19 C.F.R.
351.203(e)(5).
10
As Commerce did not conduct an investigation, the agency
did not promulgate a scope definition. Rather, in both the
Dismissal and Remand Determinations, Commerce adopted the scope
delineated by the express language of the petitions. See
Dismissal Determ., 64 Fed. Reg. 44,480-81; Remand Determ. at 10.
In the Dismissal Determination, the agency concluded that refined
products could not be included within the scope, but declined to
Court No. 99-09-00558 Page 12
Reg. at 44,480, 44,482. In SDO I, the Court noted that depending
on whether lease condensate were included in or excluded from the
crude oil product of different companies, Commerce could be
required to adjust the production data relied upon in calculating
industry support.11 See 24 CIT at __, 116 F. Supp. 2d at 1342. The
Court concluded, “[g]iven that this case must be remanded for
reconsideration by the agency, decision of this issue may become
necessary.” Id.
In the Remand Determination, Commerce concluded that “lease
condensate is included in the scope of the petitions and the
subject merchandise.” Remand Determ. at 12. In order to make its
determination, Commerce looked first to the language of the
petitions, which state that the subject merchandise is “all crude
petroleum oils and oils obtained from bituminous minerals testing
at, above or below 25 degrees A.P.I.,12 as defined in the 1999
reach the question of whether lease condensate was included. 64
Fed. Reg. 44,481. This question has been addressed in the Remand
Determination.
11
The Court stated, “[f]or example, if, as SDO contends,
lease condensates are not found in its members’ domestic product,
but prove to be a part of the product obtained domestically by
Committee companies, then that part may have to be discounted in
the opposition of those producers to the petition.” SDO I, 24
CIT at __, 116 F. Supp. 2d at 1342.
12
A.P.I. refers to the American Petroleum Institute. A.P.I.
gravity “measures the weight of crude oil.” Dep’t of Commerce
Mem. from Oil Team to Richard W. Moreland, Lease Condensate at 2
& n.6 (Aug. 7, 2001), P.R. Rem. Doc. 21 (“Lease Condensate
Mem.”).
Court No. 99-09-00558 Page 13
Harmonized Tariff Schedule of the United States (“HTSUS”),
subheadings 2709.00.10 and 2709.00.20.” Petition for the
Imposition of Antidumping and Countervailing Duties, vol. 1 at 8
(June 29, 1999), P.R. Doc. AD-2 (Venezuela); Remand Determ. at 10.
As noted in the Remand Determination, “nothing in the petitioner’s
scope language, as it exists, explicitly excludes lease condensate
nor did the petitioner ever revise its proposed scope language so
as to exclude lease condensate.” Remand Determ. at 10-11. The
language of the petitions supports this analysis.
Second, Commerce asserted that once lease condensate and crude
oil are commingled, it is “not possible to separately identify
crude oil and lease condensate entering under the HTS[US] numbers
stated in the scope of the petitions.” Remand Determ. at 11. The
United States Customs Service “does not attempt to separately
measure that part of the commingled crude oil that is lease
condensate,” and therefore “any attempt to exclude lease condensate
from the scope of the petitions would be unadministrable.” Id.;
Lease Condensate Mem. at 9; Dep’t of Commerce Mem. to File from Oil
Team, Conversation with U.S. Customs Regarding Lease Condensate
(Nov. 17, 2000) P.R. Rem. Doc. 12 (stating that the Customs Service
makes “no effort to measure the amount of lease condensate
commingled with crude oil.”). Plaintiff asserts that the
percentage of lease condensate in a mixture may be ascertained
through “simulated distillation or actual distillation.” Letter
Court No. 99-09-00558 Page 14
from Wiley, Rein & Fielding to William Daley, Response to Commerce
Department’s July 15, 1999 Letter Requesting Clarification at 6
(July 22, 1999) Prop. Doc. CVD-84 (Venezuela) (“Petitioner’s July
22, 1999 Response”); see also SDO Remand Comments at 18. However,
Plaintiff points to no further evidence concerning the distillation
test. Consequently, based on the record on this issue, Commerce’s
assertion that an “attempt to exclude lease condensate . . . would
be unadministrable” is reasonable.
Finally, Commerce evaluated the evidence of record. The
evidence indicates that both lease condensate and crude oil are
mixtures of hydrocarbons. Crude oil consists of a mixture of
hydrocarbons with an A.P.I. gravity range of 12 to 45 degrees, and
exists as a liquid in underground reservoirs. Lease condensate
consists of a mixture of hydrocarbons with an A.P.I. gravity range
of 45 to 60 degrees, and exists as a gas in underground reservoirs,
condensing into a liquid at atmospheric pressures. See Lease
Condensate Mem. at 1-2 & n.1 (citing Chi U. Ikoku, Natural Gas
Reservoir Engineering 54-55 (1984)); Petitioner’s July 22, 1999
Response at 3-4, Att. I-1 at 3, 5; SDO Remand Comments at 20-21.
Crude oil and lease condensate are extracted together from wells
and are often commingled. See Letter from Shearman & Sterling to
William Daley, Sec. of Commerce at 4 (July 20, 1999), P.R. Doc. AD-
45 (Venezuela); Letter from Dewey Ballantine, LLP to William Daley,
Sec. of Commerce at 6 (Aug. 6, 1999), P.R. Doc. AD-224 (Venezuela);
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Lease Condensate Mem. at 1-2, 8-9; Remand Determ. at 11; see also
William L. Leffler, Petroleum Refining for the Non-Technical Person
144-47 (2d ed. 1985) (cited in the Lease Condensate Mem.).13 When
commingled with crude oil, lease condensate is imported under the
two HTSUS subheadings named in the petitions, 2709.00.10 and
2709.00.20.14 See Remand Determ. at 11; Lease Condensate Mem. at
9 & n.47 (citing Dep’t of Commerce Mem. to File from Oil Team,
Conversation with U.S. Customs Regarding Lease Condensate (Nov. 17,
2000) P.R. Doc. 12.). A “basic industry definition” of crude oil,
promulgated by the EIA, includes lease condensate. Remand Determ.
at 11-12; see also Lease Condensate Mem. at 9 & n.49 (quoting EIA,
1 Petroleum Supply Annual 1998 167, DOE/EIA-0340(98)/1 (June 1999);
EIA, U.S. Crude Oil, Natural Gas, and Natural Gas Liquids Reserves
1998 Annual Report 151, DOE/EIA-0216(98) (Dec. 1999); Howard R.
Williams & Charles J. Meyers, Manual of Oil and Gas Terms 195 (10th
ed. 1997)). Thus, the record contains evidence supporting
Commerce’s determination that lease condensate is part of the
13
The citation in the Lease Condensate Memorandum is
“Petroleum Refining for the Non-Technical Person, Leffler (2d ed.
1979), at 144.” Lease Condensate Mem. at 2 n.2. The second
edition of this book was published in 1985, and the page citation
in the Lease Condensate Memorandum corresponds to the pagination
of the 1985 edition. Consequently, the Court has relied on the
1985 edition in this opinion.
14
Commerce also noted that when lease condensate is imported
separately and not commingled with other crude oil, it enters the
United States under heading 2710.00.45.10 HTSUS (condensate
derived wholly from natural gas). See Lease Condensate Mem. at 5
n.24.
Court No. 99-09-00558 Page 16
subject merchandise.
Commerce found that because lease condensate is included
within the subject merchandise, it also forms part of the domestic
like product. Remand Determ. at 12 (“[W]e find that a product that
is included in the subject merchandise is clearly within the
domestic like product. There has been no argument that lease
condensate produced in the domestic market is not ‘like’ the lease
condensate produced in a foreign market.”). The agency further
stated that even if lease condensate were not included in the
subject merchandise, Commerce “would still find that it is a part
of the domestic like product based on a like-product analysis.”
Id. Relying on the International Trade Commission’s six like-
product criteria,15 Commerce concluded, first, that “there is no
clear dividing line between crude oil and lease condensate;”
rather, “crude oil is a spectrum, with gravities of crude oil at
different points on the spectrum having different mixes of
hydrocarbon compounds. Lease condensate is merely at the lighter
end of this spectrum.” Remand Determ. at 13; see also Letter from
Dewey Ballantine, LLP to William Daley, Sec. of Commerce at 6, 8-9
(Aug. 6, 1999), P.R. Doc. AD-224; 1 Thomas O. Allen & Alan P.
15
These criteria are (1) physical characteristics and uses;
(2) interchangeability; (3) channels of distribution; (4) common
manufacturing facilities; (5) customer or producer perceptions;
and, where appropriate (6) price. See Remand Determ. at 13; NEC
Corp. v. Dep’t of Commerce, 22 CIT 1108, 1110, 36 F. Supp. 2d
380, 383 (1998).
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Roberts, Production Operations: Well Completions, Workover, and
Stimulation 43-44 (2d ed. 1982) (cited in the Lease Condensate
Mem.); Leffler, supra, Petroleum Refining for the Non-Technical
Person 6, 144-45. Commerce also found that “lease condensate is
used in the production of many of the same end-products as very
light crude oil and, to this extent, it is interchangeable with
crude oil.” Remand Determ. at 13; see also Lease Condensate Mem.
at 12 ¶ 2. This conclusion may be inferred from record evidence
indicating that a primary determinant of the end uses of any
particular hydrocarbon mixture is its weight or API gravity: thus,
compounds of similar weight or API gravities may be
interchangeable. See Letter from Dewey Ballantine, LLP to William
Daley, Sec. of Commerce at 9 (Aug. 6, 1999), P.R. Doc. AD-224
(“Refineries expect, take delivery of, and process ‘crude oil’ that
consists of heavier and lighter components, including condensates.
. . . [T]he expectation of the ultimate purchaser is a crude stream
with a consistent relative gravity . . . Condensates within crude
oil are processed by refineries to produce a range of products, the
range dependent upon the relative proportions of lighter and
heavier components.”); Leffler, supra, Petroleum Refining for the
Non-Technical Person 4-9, 15 fig.3-3, 23 (indicating that
hydrocarbon mixtures of different weights have different end uses).
Additionally, Commerce found that lease condensate and crude
oil may be similarly extracted, refined, and transported, and that
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the commercial use for both crude oil and lease condensate is to
refine it into various products. Remand Determ. at 13-14; Lease
Condensate Mem. at 13 ¶¶ 4-5; Leffler, supra, at 147 (“The market
for most of the oil patch production is refineries. . . . [M]ost of
it moves in pipelines to the refinery centers. It has often been
convenient and efficient to use the crude oil as a carrier for not
only the condensate, but the natural gasoline and butane as
well.”). The agency also found that “the scale of the price
difference between heavy crude oil and light crude oil is typically
the same as the [scale of the] price difference between light crude
oil and lease condensate.” Remand Determ. at 14; Lease Condensate
Mem. at 14 n.62 (citing 1997 import data showing average per-barrel
prices of $15.00 for heavy crude oil, $19.00 for light crude oil,
and $21.00 for lease condensate).
Finally, Commerce found that lease condensate is treated as
part of crude oil in the normal course of business and in the
domestic production data of the parties to the action. Remand
Determ. at 14; see also Lease Condensate Mem. at 13 ¶ 5 & n.61
(stating that examination of public Securities and Exchange
Commission filings indicates that producers include lease
condensate production in their reported production figures, and
also that producers included lease condensate in their responses to
Commerce’s production survey). As there was no record evidence
that all companies did not treat lease condensate alike, Commerce
Court No. 99-09-00558 Page 19
did not adjust the figures used to assess industry support for the
petitions.
Plaintiff asserts that lease condensate is outside the scope
of the petitions and that it is not part of the domestic like
product. See SDO Remand Comments at 16, 20. Plaintiff claims that
when construing the scope of the petitions, Commerce must be guided
by Plaintiff’s intent, which was to exclude lease condensate from
the petitions’ scope. Id. at 16.
Commerce, however, has “inherent authority to define and
clarify” the scope of an investigation. See San Francisco Candle
Co., Inc. v. United States, 26 CIT __, __, 206 F. Supp. 2d 1304,
1309 (2002) (citing Koyo Seiko Co., Ltd. v. United States, 17 CIT
1076, 1078, 834 F. Supp. 1401, 1403 (1993), aff’d, 31 F.3d 1177
(Fed. Cir. 1994)); see also Kern-Liebers USA, Inc. v. United
States, 19 CIT 393, 396, 881 F. Supp. 618, 621 (1995) (internal
citations omitted). While Commerce is guided by the intent of the
petition in exercising its discretion to define and clarify the
scope of an investigation, see Minebea Co., Ltd. v. United States,
16 CIT 20, 22, 782 F. Supp. 117, 120 (1992), aff’d, 984 F.2d 1178
(Fed. Cir. 1993), the agency relies primarily on the language of
the petition in order to ascertain the petitioner’s intent and
define the scope. See 19 C.F.R. § 351.202(b)(5) (requiring the
petition to contain “[a] detailed description of the subject
merchandise that defines the requested scope of the investigation,
Court No. 99-09-00558 Page 20
including the technical characteristics and uses of the
merchandise”); SKF USA, Inc. v. United States, 15 CIT 152, 156, 762
F. Supp. 344, 348 (1991) (“When a question arises as to whether a
particular product is within the scope of an investigation, the ITA
first must determine whether the petition covers that product. If
the petition is ambiguous, Commerce then examines additional
documentary evidence.”); Mitsubishi Elec. Corp. v. United States,
12 CIT 1025, 1047, 700 F. Supp. 538, 555 (1988), aff’d, 898 F.2d
1577, 1582 (Fed. Cir. 1990) (“The ITA has the authority to define
and/or clarify what constitutes the subject merchandise to be
investigated as set forth in the petition containing the intent of
petitioner expressed in as specific and definite terms,
descriptions, and language as reasonably expected of petitioner.”).
Ultimately, “[t]he responsibility to determine the proper scope of
the investigation and of the antidumping order . . . is that of the
Administration, not of the complainant before the agency.”
Mitsubishi Elec. Corp. v. United States, 898 F.2d 1577, 1582 (Fed.
Cir. 1990).
In addition to its argument, noted earlier, that it is
possible to determine the presence and amount of lease condensate
in a blend of commingled crude oil and lease condensate, see SDO
Remand Comments at 18, Plaintiff advances a number of factual
arguments in support of its claims that lease condensate is neither
within the scope of the petitions nor a part of the domestic like
Court No. 99-09-00558 Page 21
product. Plaintiff asserts, inter alia, that refiners “object to
the blending of condensates with crude oil, because lease
condensates force down refiners’ posted prices,” id.; that
production figures for lease condensate are reported separately by
producers, id. at 19; and that lease condensate, which condenses
naturally into a liquid as a result of pressure changes, is not
recovered from bituminous minerals in the same manner as crude oil,
which exists as a liquid. Id. at 15-16, 19; see also Lease
Condensate Mem. at 1-2, 11 & n.55. Finally, Plaintiff points out
that the New York Mercantile Exchange excludes lease condensates
from its definition of crude petroleum.16 See SDO Remand Comments
at 17 (citing MERC Rule 200.02). Commerce considered Plaintiff’s
arguments during the investigation. See Lease Condensate Mem. at
10-11.
It is long established that the possibility of drawing two
inconsistent conclusions from the same evidence does not mean that
the agency’s finding is unsupported by substantial evidence. See
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
Furthermore, this Court “may not substitute its judgment for that
of the [agency] when the choice is ‘between two fairly conflicting
16
The Mercantile Exchange rule appears to define crude oil
for the purpose of a particular type of contract. The definition
stated in the rule does not appear to be a general industry
definition. See SDO Remand Comments at 17 (quoting MERC Rule
200.02 as defining “Crude Oil as used herein” and “[f]or purposes
of this contract.”).
Court No. 99-09-00558 Page 22
views, even though the court would justifiably have made a
different choice had the matter been before it de novo.’” Timken
Co. v. United States, 26 CIT __, __, 201 F. Supp. 2d 1316, 1319-20
(2002) (quoting Am. Spring Wire Corp. v. United States, 8 CIT 20,
22, 590 F. Supp. 1273, 1276 (1984)). In this case, record evidence
supports Commerce’s conclusions and its decision to include lease
condensates in the subject merchandise and the domestic like
product. See supra text at pp. 12-18. As Commerce’s decision is
supported by substantial evidence on the record, the Court cannot
find that the agency’s decision is arbitrary, capricious, or an
abuse of discretion.
IV. Treatment of Domestic Producers Alleged to be Related to
Foreign Producers
Title 19 U.S.C. §§ 1671a(c)(4)(B)(i) and 1673a(c)(4)(B)(i)
state that “the administering authority shall disregard the
position of domestic producers who oppose the petition, if such
producers are related to foreign producers . . . unless such
domestic producers demonstrate that their interests as domestic
producers would be adversely affected by the imposition of a
[countervailing duty or antidumping duty] order.”
In its original inquiry, Commerce concluded that because the
antidumping or countervailing duty orders would adversely affect
the opposing parties in their capacities as domestic producers, it
would include them in the definition of the domestic industry and
Court No. 99-09-00558 Page 23
count their opposition to the petitions.17 See Dismissal Determ.,
64 Fed. Reg. at 44,482. In so doing, Commerce omitted to make the
threshold determination required by the statute: whether the
opposing parties were in fact related to foreign producers of the
subject merchandise, as the petitioner alleged. See 19 U.S.C. §§
1671a(c)(4)(B)(i), 1673a(c)(4)(B)(i).
In SDO I, the Court noted that whether parties are related for
the purpose of the statute depends on whether there exists a
controlling relationship. SDO I, 24 CIT at __, 116 F. Supp. 2d at
1333 (citing 19 U.S.C. § 1677(4)(B)(ii)). The Court concluded that
Commerce had erred in proceeding to evaluate whether the
antidumping and countervailing duty orders would adversely affect
domestic producers without first finding controlling relationships
between the domestic producers and the foreign producers implicated
in the petition. Id. at 1333-34.
In its Remand Determination, Commerce declined to investigate
this issue further on the ground that the Court had examined the
record in SDO I and found that, “while the record reflected
relationships in certain instances,” the record evidence did not
17
The parties opposing the petitions consisted of twenty
domestic producers that submitted letters of opposition to
Commerce, and other companies whose opposition to the petitions
was discovered through the poll conducted by Commerce. See
Dismissal Determ., 64 Fed. Reg. at 44,481-82. Commerce focused
its analysis on the API Ad Hoc Free Trade Committee because “it
is composed of the largest U.S. producers in opposition to the
petitions and because its treatment is dispositive of the
industry support issue.” Id. at 44,482.
Court No. 99-09-00558 Page 24
establish controlling relationships between the foreign and
domestic producers. Remand Determ. at 15-16 (citing SDO I, 24 CIT
at __, 116 F. Supp. 2d at 1333-34). We agree that absent evidence
of controlling relationships that would qualify parties as
“related,” Commerce was not required to further assess whether
antidumping or countervailing duty orders would adversely affect
the opposing firms in their capacities as domestic producers. Id.;
see also 19 U.S.C. §§ 1671a(c)(4)(B)(i), 1673a(c)(4)(B)(i); 19
U.S.C. § 1677(4)(B)(ii).
V. Treatment of Opposing Domestic Producers That Import the
Subject Merchandise
Title 19 U.S.C. §§ 1671a(c)(4)(B)(ii) and 1673a(c)(4)(B)(ii)
provide that Commerce “may disregard the position of domestic
producers of a domestic like product who are importers of the
subject merchandise.” In its original inquiry, Commerce decided to
count the opposition of the members of the API Ad Hoc Free Trade
Committee on the grounds that “the Committee and other opposing
companies have demonstrated that their interests as domestic
producers would be adversely affected by the imposition of an
antidumping or countervailing duty order.” Dismissal Determ., 64
Fed. Reg. at 44,482. In arriving at this decision, Commerce
considered the Committee members collectively, rather than
individually.
In SDO I, the Court indicated that Commerce must assess each
Court No. 99-09-00558 Page 25
member company individually, and could include a company in the
definition of the domestic industry only where the company had a
“common stake” with the petitioners in the investigation. See SDO
I, 24 CIT at __, 116 F. Supp. 2d at 1335-39. The Court stated that
whether a firm may “have its opposition to a petition for
imposition of antidumping or countervailing duties counted
necessarily entails ITA consideration of that firm’s level of
imports and resultant dependency thereon. For the agency not to
have administered its test on an individual basis was an abuse of
its discretion.” SDO I, 24 CIT at __, 116 F. Supp. 2d at 1339.
The Court also noted that “Commerce will not apply a bright line
test to determine whether a producer who is an importer of the
subject merchandise . . . should be excluded from the domestic
industry. Instead, it will look to relevant factors, such as
percentage of ownership or volume of imports.” SDO I, 24 CIT at
__, 116 F. Supp. 2d at 1337 (quoting the Statement of
Administrative Action, Pub. L. No. 103-465 (1994)).18
In its Remand Determination, Commerce concluded that due to
the prevalence of importing in the domestic crude oil industry, “it
18
The Statement of Administrative Action, Pub. L. No. 103-
465 (1994), reprinted in 1994 U.S.C.C.A.N. 4040 (“SAA”),
accompanying the U.S. implementing legislation for the Uruguay
Round Agreements, is “an authoritative expression by the United
States concerning the interpretation and application of the
Uruguay Round Agreements and this Act in any judicial proceeding
in which a question arises concerning such interpretation or
application.” 19 U.S.C. § 3512(d).
Court No. 99-09-00558 Page 26
is inappropriate to disregard the opposition of importers without
regard to factors other than the relative level of imports.”
Remand Determ. at 21-22. The agency noted that “the United States
as a whole imports 56 percent of its crude-oil consumption needs,”
and “[t]he region identified in the crude-oil petitions” imports
sixty-five percent of its crude-oil needs. Id. at 20-21. Commerce
also noted that “regional imports of oil are 184 percent of
regional oil production.” Id. at 21.
Thus, in order to assess whether a company had a “common
stake” with the petitioner, Commerce (1) established four benchmark
levels of imports for gauging import dependency,19 and (2) looked
to volume of production and production-related factors including
the number of workers employed, the number of new oil wells
drilled, the number of wells in operation, and oil field-related
capital expenditures. Remand Determ. at 18-19, 22. Commerce
evaluated each API Ad Hoc Free Trade Committee member’s stake as a
producer in the domestic industry by compiling data on each
company’s level of imports from Iraq, Mexico, Saudi Arabia, and
Venezuela, and on each company’s domestic production, as measured
by the factors above. Id. The agency then balanced each company’s
level of import dependency against its stake in the domestic
19
The four levels of import dependency are (1) no imports of
subject merchandise, (2) imports of up to fifty percent of
production, (3) imports between fifty and one hundred percent of
production, and (4) imports greater than one hundred percent of
production. Remand Determ. at 22.
Court No. 99-09-00558 Page 27
industry to determine “whether, despite the import dependency, they
have a common stake that justifies counting the company’s
opposition to the petition.” Id. at 18, 22-23.
Plaintiff contends that Commerce erred by departing from the
procedures used in Frozen Concentrated Orange Juice from Brazil, 52
Fed. Reg. 8,324 (Dep’t Commerce 1987) (final determ. of sales at
less than fair value) (“FCOJ”) and upheld by this court in
Citrosuco Paulista, S.A. v. United States, 12 CIT 1196, 704 F.
Supp. 1075 (1988). See SDO Remand Comments at 3-5. In FCOJ,
Commerce disregarded the opposition of domestic producers that
imported more than fifty percent of their total production from the
subject country. 52 Fed. Reg. at 8,326. Plaintiff claims that
Commerce should have applied the fifty percent rule of FCOJ, and,
pointing to three subsequent determinations, asserts that Commerce
has consistently discounted the opposition of domestic producers
that also import the subject merchandise. See SDO Remand Comments
at 3-5; see also Citric Acid and Sodium Citrate from the People’s
Republic of China, 65 Fed. Reg. 1,588 (Dep’t Commerce 2000)
(initiation of antidumping investigation); Live Cattle from Canada
and Mexico, 63 Fed. Reg. 71,886 (Dep’t Commerce 1998) (initiation
of antidumping investigations); Ball Bearings and Parts Thereof
from Thailand, 61 Fed. Reg. 20,799 (Dep’t Commerce 1996) (final
results of changed circumstances review and revocation of
countervailing duty order). Plaintiff asserts that Commerce’s
Court No. 99-09-00558 Page 28
decision not to apply the fifty-percent rule of FCOJ and to include
producers that import higher percentages of their total production
is an unjustified departure from the agency’s prior practice. See
SDO Remand Comments at 4-5, 8-15.
As noted by this Court in Citrosuco Paulista, “Congress
entrusted Commerce with discretion to administer the international
trade laws.” 12 CIT at 1206, 704 F. Supp. at 1086. The language
of the relevant statute plainly leaves to Commerce’s discretion the
decision whether to exclude producers that are also importers from
the domestic industry. See 19 U.S.C. §§ 1671a(c)(4)(B)(ii),
1673a(c)(4)(B)(ii). As noted above, the SAA provides that
“Commerce will not apply a bright line test to determine whether a
producer who is an importer of the subject merchandise . . . should
be excluded from the domestic industry. Instead, it will look to
relevant factors, such as percentage of ownership or volume of
imports.” SAA, Pub. L. No. 103-465 at 858.
Commerce distinguished its earlier decision in FCOJ from the
instant case on the basis of the relative dependency of the two
industries on imports. In FCOJ, the agency noted that “significant
levels of imports are . . . normal,” and for that reason permitted
imports up to fifty percent of production. 52 Fed. Reg. at 8,326.
In the instant case, after noting that imports in the crude oil
industry form an even more critical portion of the industry’s
supply, Commerce permitted the inclusion of producers that import
Court No. 99-09-00558 Page 29
more than fifty percent of their total production from the subject
countries.
Given the extremely high level of import dependency in the
regional crude oil industry, Commerce could reasonably conclude
that limiting the definition of domestic producers to those
companies that import no more than fifty percent of their
production would result in an excessively limited definition of the
domestic industry that would fail to account for the variety of
positions and views among producers. Commerce’s use of import
dependency benchmarks and consideration of other factors (such as
the number of workers employed, the number of new oil wells
drilled, the number of wells in operation, and oil field-related
capital expenditures) to measure a company’s stake in the domestic
industry represents an effort to adequately account for the
particular characteristics of the regional domestic crude oil
industry.
Although Commerce has previously disregarded the opposition of
importers, the earlier determinations do not establish a prior
practice requiring Commerce to disregard the opposition of
importers in all cases, or even in cases in which imports
constitute more than fifty percent of production. Rather, the
determinations to which Plaintiff directs the Court indicate that
Commerce’s decisions to exclude domestic producers that are also
importers have been based on the particular circumstances of the
Court No. 99-09-00558 Page 30
industries involved. For example, Plaintiff directs the Court’s
attention to Live Cattle from Canada and Mexico, in which Commerce
disregarded the opposition of the Texas Cattle Feeders Association
(“TCFA”) because approximately half of the TCFA’s members were
importers or handlers of Mexican cattle. See Live Cattle from
Canada and Mexico, 63 Fed. Reg. 71,886 (Dep’t Commerce
1998)(initiation of antidumping investigations); Dep’t of Commerce
Mem. from Susan Kuhbach and Gary Taverman to Richard W. Moreland,
Petitions on Live Cattle from Canada and Mexico: Determination of
Industry Support at 19 (Dec. 22, 1998) (“Live Cattle Mem.”). The
record evidence demonstrated that “approximately 85 percent of the
live cattle imported from Mexico [were] destined for Texas feedlots
or backgrounder operations;” that “approximately 100 of the 200
members of the TCFA handle[d] or [fed] Mexican cattle;” and that
“Mexican imports account[ed] for a significant percentage of the
cattle inventory of individual members of TCFA.” Live Cattle Mem.
at 19. Although Plaintiff states that this decision involved
“producers who imported only 10-15 percent of their inventory,” SDO
Remand Comments at 4, the 10-15 percent figure, obtained from a
newspaper article, applies to only one producer. See Live Cattle
Mem. at 19 n.39. The actual percentage of TCFA members’ inventory
accounted for by imports is unclear. See id. at 19.
Live Cattle may be distinguished from the instant case because
the Mexican cattle imports at issue constituted only a small
Court No. 99-09-00558 Page 31
percentage of the domestic industry’s total inventory, and the TCFA
constituted only a small portion of the domestic industry. See,
e.g., Live Cattle Mem. at App. 10, 12. Consequently, the exclusion
of the importers from the domestic industry in Live Cattle did not
result in the exclusion of a large proportion of producers. In the
instant case, by contrast, the industry in question demonstrates
extensive import dependency. See Remand Determ. at 20-21
(indicating that the region imports 65 percent of its consumption
needs, and that “regional oil imports are 184 percent of regional
production”). Domestic producers that are also importers of the
subject merchandise account for a larger proportion of both the
total domestic production and the opposition to the petitions.
See, e.g., Remand Determ. at Annex I, II (describing the production
and import levels of the domestic producers that also import crude
oil from the subject countries); id. at 39 (indicating which
companies’ opposition was disregarded with respect to each subject
country); Dep’t of Commerce Mem. from Oil Team to Laurie Parkhill,
Crude Oil from Four Countries: Recalculation of Industry Support
(Aug. 7, 2001), Prop. Rem. Doc. 2 (indicating, for each of the 410
companies surveyed by Commerce, the companies’ production levels
and their support or opposition for the petitions with respect to
each subject country). Consequently, excluding domestic producers
that are also importers results in the exclusion of a greater
proportion of the domestic industry than in Live Cattle. Such a
Court No. 99-09-00558 Page 32
pattern of exclusion may distort the results of Commerce’s
investigation of industry support. Moreover, here, Commerce did
not focus only on import dependency, but also analyzed other
factors in order to evaluate industry participants’ stakes in the
domestic industry. Therefore, Commerce’s decision to include the
opposition of some domestic producers that are also importers was
reasonable under the particular facts and circumstances of this
case.20 As noted above, such case-by-case determinations are in
20
Plaintiff also points to Citric Acid and Sodium Citrate
from the People’s Republic of China, 65 Fed. Reg. 1,588 (Dep’t
Commerce 2000) (initiation of antidumping investigation), in
which Commerce disregarded the opposition of one company that was
“a major purchaser and user of domestic and imported citric acid
and sodium citrate.” 65 Fed. Reg. at 1,589. However, this
determination contains no details of the company’s import
dependence; moreover, Commerce acknowledged that even if this
company’s opposition were considered, the petition had the
support of more than fifty percent of the domestic industry.
Finally, Plaintiff points to Ball Bearings and Parts Thereof
from Thailand, 61 Fed. Reg. 20,799 (Dep’t Commerce 1996) (final
results of changed circumstances review and revocation of
countervailing duty order). In this case, Commerce disregarded
the opposition of companies that were related to foreign
producers of the subject merchandise. Commerce stated in the
determination that
The Objecting Parties have made it clear that their
interest in this order is neither aligned with that of
the petitioner nor made in their capacity as domestic
producers. Thus, the Objecting Parties cannot be said to
have a common “stake” with the petitioner in the relief
provided by the order. As such, we do not consider the
Objecting Parties to be domestic producers for the
purposes of section 782(h)(2) of the Act or section
355.25(d)(1)(i) of our regulations.
61 Fed. Reg. at 20,801. Thus, the basis for the exclusion was
not import dependency. Commerce did not consider whether the
objecting companies were also importers of the subject
Court No. 99-09-00558 Page 33
accordance with the statute and the SAA. Commerce may adapt its
views and practices to the particular circumstances of the case at
hand, so long as the agency’s decisions are explained and supported
by substantial evidence on the record. See, e.g., Motor Vehicles
Mfrs. Ass’n, 463 U.S. at 42-43; Asociacion Colombiana de
Exportadores de Flores v. United States, 22 CIT 173, 184-85, 6 F.
Supp. 2d 865, 879-80 (1998) ("Commerce has the flexibility to
change its position providing that it explain the basis for its
change and providing that the explanation is in accordance with law
and supported by substantial evidence."). Here, Commerce’s
reliance on other factors to find a sufficient stake in the
domestic industry is within the scope of the exercise of reasonable
discretion.
Finally, even if prior determinations were interpreted to
establish a consistent prior practice of excluding importers from
the domestic industry, Commerce has provided sufficient reasoning
to justify its departure from that practice. Commerce has
indicated that its decision to include producers that import more
than fifty percent of their production was based on the particular
significance of imports in the regional domestic industry. See
Remand Determ. at 20-23. The agency compiled and analyzed data on
the relevant characteristics of the domestic crude oil industry and
merchandise.
Court No. 99-09-00558 Page 34
on the individual companies, balancing each company’s level of
import dependency against its stake in the domestic industry to
determine which producers had a “common stake” with petitioners.
See Remand Determ. at 18. In so doing, Commerce complied with the
Court’s instructions in SDO I to consider each company’s
circumstances individually prior to including it in or excluding it
from the domestic industry, and to eschew a bright line test in
favor of “look[ing] to relevant factors, such as percentage of
ownership or volume of imports.” SDO I, 24 CIT at __, 116 F. Supp.
2d at 1337 (internal citations omitted).
The record here demonstrates that Commerce has “articulate[d]
a rational connection between the facts found and the choice made.”
Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. Accordingly, this Court
cannot find that Commerce’s process or decision was arbitrary,
capricious, or an abuse of discretion.
VI. Comments of Secretary Evans
Plaintiff alleges that Commerce’s dismissal of its petitions
was predetermined due to the opposition to the petitions of
Secretary of Commerce Donald Evans. See SDO Remand Comments at 2.
While such an allegation is troubling, neither the allegation nor
evidence to support it are found in the record. Absent an attempt
to obtain discovery or otherwise establish an appropriate record,
the allegation is not properly before the Court in its review of
Court No. 99-09-00558 Page 35
the Remand Determination, and cannot be considered. See, e.g.,
Alloy Piping Prods., Inc. v. United States, 26 CIT __, __, 201 F.
Supp. 2d 1267, 1279 (2002) (stating that judicial review is
“limited to the evidence contained in the administrative record”)
(citing Kerr-McGee Chem. Corp. v. United States, 21 CIT 11, 18-19,
955 F. Supp. 1466, 1472 (1997)); Koyo Seiko Co., Ltd. v. United
States, 21 CIT 146, 158 & n.9, 955 F. Supp. 1532, 1544 & n.9 (1997)
(“The Court’s review of a final determination is limited to a
review of the administrative record.”).
Conclusion
For the reasons stated above, Commerce’s Remand Determination
in Save Domestic Oil, Inc. v. United States, 24 CIT __, 116 F.
Supp. 2d 1324 (2000), is affirmed in its entirety.
_________________________
Donald C. Pogue
Judge
Dated: December 17, 2002
New York, New York
Slip Op. 02-150
United States Court of International Trade
SAVE DOMESTIC OIL, INC.,
Plaintiff,
v.
UNITED STATES,
Defendant,
Before: Pogue, Judge
and
Court No. 99-09-00558
API AD HOC FREE TRADE COMMITTEE;
SAUDI ARABIAN OIL COMPANY;
PETROLEOS DE VENEZUELA, S.A. AND
CITGO PETROLEUM CORPORATION;
PETROLEOS MEXICANOS, P.M.I. COMERCIO
INTERNACIONAL S.A. DE C.V., AND
PEMEX EXPLORACION Y PRODUCCION;
CHEVRON CORPORATION; EXXON
CORPORATION; MOBIL CORPORATION;
SHELL OIL COMPANY; TEXACO INC.; AND
BP AMOCO,
Defendants-Intervenors.
Judgment
This action has been duly submitted for decision, and this
Court, after due deliberation, has rendered a decision herein;
now, in conformity with that decision, it is hereby
ORDERED that the Department of Commerce’s Administrative
Determination Pursuant to Court Instructions: Antidumping and
Countervailing Duty Petitions on Certain Crude Petroleum Oil
Products from Iraq, Mexico, Saudi Arabia, and Venezuela (Aug. 7,
2001) is sustained in its entirety.
________________________
Donald C. Pogue
Judge
Dated: December 17, 2002
New York, New York