# Save Domestic Oil, Inc. v. United States

> United States Court of International Trade · December 17, 2002 · 240 F. Supp. 2d 1342

URL: https://www.frixlaw.com/law-library/cases/819002

## Case

- **Full name:** SAVE DOMESTIC OIL, INC., Plaintiff, v. UNITED STATES, 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
- **Court:** United States Court of International Trade
- **Decided:** December 17, 2002
- **Citations:** 240 F. Supp. 2d 1342; 26 Ct. Int'l Trade 1380; 26 C.I.T. 1380; 24 I.T.R.D. (BNA) 2247; 2002 Ct. Intl. Trade LEXIS 149
- **Precedential status:** Published
- **Opinion:** Opinion by Pogue
- **Judges:** Pogue
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/819002

## Opinion text

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.
Court No. 99-09-00558 Page 9

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);
Court No. 99-09-00558 Page 15

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).
Court No. 99-09-00558 Page 17

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
Court No. 99-09-00558 Page 18

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/819002. Public record. Not legal advice.