Chevron Standard Ltd. v. United States, Court No. 82-8-01175.

• Decision Date: 03 May 1983
• Docket Number: Court No. 82-8-01175.
• Citation: 5 CIT 174,563 F. Supp. 1381
• Parties: CHEVRON STANDARD LIMITED and Chevron Chemical Company, Plaintiffs, v. The UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

563 F. Supp. 1381

5 CIT 174

CHEVRON STANDARD LIMITED and Chevron Chemical Company, Plaintiffs, v. The UNITED STATES, Defendant.

Court No. 82-8-01175.

United States Court of International Trade.

May 3, 1983.

Donohue & Donohue, New York City (Joseph F. Donohue, William J. Phelan and George W. Thompson, New York City, on brief), for plaintiffs.

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C. (David M. Cohen, Director, Commercial Litigation Branch, and Francis J. Sailer, Washington, D.C., on brief), for defendant.

Memorandum Opinion and Order of Remand

BOE, Judge:

Pursuant to Rule 56.1(c) of the rules of this court, the plaintiffs move for review on the record of the determination of the International Trade Administration (ITA) to postpone action on the application of the plaintiffs to revoke a 1973 antidumping finding against plaintiffs. 47 Fed.Reg. 31911 (July 23, 1982). Plaintiffs contend that the ITA determination is unlawful because it is not supported by substantial evidence on the record, 19 U.S.C. § 1516a(b)(1)(B), and is arbitrary and capricious within the meaning of the Administrative Procedure Act and established precedent. See 5 U.S.C. § 706.

On December 17, 1973, the Department of Treasury issued a finding of dumping with respect to imports of sulphur from Canada. 38 Fed.Reg. 34655 (December 17, 1973). The finding included sulphur produced by the plaintiffs. In 1978, the plaintiffs applied to Treasury for exclusion from the finding on the ground that it had made no sales of sulphur at less than fair value for more than two years. After its review Treasury made a tentative determination to modify the 1973 dumping finding by revoking its applicability to five Canadian sulphur producers including the plaintiffs. 44 Fed.Reg. 8057 (February 8, 1979). However, Treasury took no final action on its proposed revocation.

After the administration of antidumping findings was transferred to the ITA by the Trade Agreements Act of 1979, the ITA conducted administrative review of the 1973 dumping finding pursuant to 19 U.S.C. § 1675. In its preliminary determination, the ITA found that the plaintiffs had made no sales of sulphur at less than fair value from May 1, 1977 through February 8, 1979 and that if the tentative findings were made final, the 1973 dumping finding would be revoked with respect to all of plaintiffs' unliquidated entries of sulphur entered after February 8, 1979. 46 Fed.Reg. 21214 (April 9, 1981).

In its final results of administrative review the ITA determined that "all sales were made at not less than fair value by Chevron Standard, Ltd. ... from May 1, 1977 through February 8, 1979." However, the ITA decided to postpone action on the plaintiffs' application to revoke the 1973 dumping finding. 47 Fed.Reg. 31911 (July 23, 1982). The ITA in explaining why action was being postponed as to the plaintiffs and the two other companies subject to the dumping finding states:

With regard to the applications for revocation by these three companies, the Department has decided to postpone action. All three companies are significant shareholder members in Cansulex, Ltd., an organization from which the Department has been unsuccessful in obtaining information concerning third-country sales. That information is necessary in order for the Department to review entries made by Mobil Oil Canada and Union Oil Company of Canada. In view of the fact that revocation actions are more discretionary in nature than are routine annual reviews, it is the Department's policy not to exclude any Cansulex member company from the finding until Cansulex complies with our longstanding requests for information, which we consider necessary to our administration of this particular antidumping finding or of the antidumping statute in general.

In sum, the government predicates its decision with respect to Chevron solely on the latter's business relationship with Cansulex and the refusal of Cansulex to disclose the information requested by ITA.

The record reveals that Chevron and 16 other companies are shareholders in Cansulex, a corporation incorporated under Canadian law. An officer of Chevron is one of eight members of the board of directors of Cansulex. The shares of the 16 producer members of Cansulex are based on the commitment percentages of sulphur supplied annually by each of the member producers to Cansulex.

Despite the government's strenuous contention that such a shareholder interest possessed by Chevron in Cansulex justifies the discretionary determination made by the ITA in its final results of administrative review, the court is of the opinion that the undisputed facts contained in the record neither support nor justify the decision of the ITA upon the grounds on which it is premised.

The information which the ITA desires to obtain from Cansulex relates solely to the sales of sulphur by two other independent corporate producers of sulphur who likewise are shareholders in the latter corporation. (Mobil Oil Canada and Union Oil of Canada). No information requested by ITA to be furnished by Cansulex relates in any manner to Chevron. The government acknowledges that with respect to the sulphur produced by it, Chevron has furnished all information desired as to its sales and that no reason exists to believe that such information in the future would not continue to be furnished, if requested.¹ The final results of administrative review by the ITA disclose that all sales by Chevron were made at not less than fair value from May 1, 1977 to February 8, 1979, and that the Treasury Department had previously concluded in its investigation that all sales of Chevron from January 1, 1976 through April 30, 1977, likewise had been made at not less than fair value. In view of the foregoing the ITA further determined that all entries made within the period of its investigation, May 1, 1977 — February 8, 1979, should be liquidated by Customs without regard to dumping duties. Nor was a deposit of antidumping duties to be required as provided by section 353.48(b) of the Commerce regulations.

The record...