Save Domestic Oil, Inc. v. U.S., Slip Op. 00-120.
| Decision Date | 19 September 2000 |
| Docket Number | Slip Op. 00-120.,Court No. 99-09-00558. |
| Citation | 116 F.Supp.2d 1324 |
| Parties | SAVE DOMESTIC OIL, INC., Plaintiff, v. UNITED STATES, Defendant, and API Ad Hoc Free Trade Committee et alia, Intervenor-Defendants. |
| Court | U.S. Court of International Trade |
Wiley, Rein & Fielding (Charles Owen Verrill, Jr. and Timothy C. Brightbill), Washington, DC, for the plaintiff.
David W. Ogden, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (A. David Lafer and Lucius B. Lau); and Office of Chief Counsel for Import Administration, U.S. Department of Commerce (Robert J. Heilferty), Washington, DC, for the defendant, of counsel.
Dewey Ballantine LLP (Harry L. Clark, Michael H. Stein, Bradford L. Ward and John W. Bohn), Washington, DC, for intervenor-defendant API Ad Hoc Free Trade Committee.
White & Case (Carolyn B. Lamm, Adams C. Lee and David L. Elmont), Washington, DC, for intervenor-defendant Saudi Arabian Oil Company.
Shearman & Sterling (Thomas B. Wilner, Jeffrey M. Winton and Jeronimo Gomez del Campo), Washington, DC, for intervenor-defendants Petroleos de Venezuela, S.A. and Citgo Petroleum Corporation.
O'Melveny & Myers LLP (Gary N. Horlick and Michael A. Meyer), Washington, DC, for intervenor-defendants Petróleos Mexicanos, P.M.I. Comercio Internacional S.A. de C.V., and Pemex Exploración y Producción.
King & Spalding (Joseph W. Dorn and Duane W. Layton), Washington, DC, for intervenor-defendant Texaco Inc.
Barnes, Richardson & Colburn (Robert E. Burke, Brian F. Walsh and Robert F. Seely), Chicago, IL, for intervenor-defendant BP Amoco.
This case arises from the filing a year ago with the International Trade Administration, U.S. Department of Commerce ("ITA") and the U.S. International Trade Commission ("ITC") of a nine-volume Petition for the Imposition of Antidumping and Countervailing Duties on certain crude petroleum oil products from Iraq, México, Saudi Arabia and Venezuela. The petitioner was stated to be an incorporated consortium of independent domestic crude petroleum oil producers, Save Domestic Oil, Inc. ("SDO"), the individual members of which were named Apache Corporation (Houston, Tex.), Arrow Oil & Gas, Inc. (Norman, Okla.), BOGO Energy Corp. (Oklahoma City, Okla.), Continental Resources, Inc. (Enid, Okla.), Crescent Exploration (Oklahoma City), Farrar Oil Company (Mt.Vernon, Ill.), Houghton Oil & Gas, Inc. (Midland, Tex.), Keener Oil & Gas Company (Tulsa, Okla.), Phoenix Production Co. (Cody, Wyo.), Pickrell Drilling Co., Inc. (Great Bend, Kan.), Royal Drilling & Producing, Inc. (Crossville, Ill.), and Tilley Oil & Gas, Inc. (Enid). The petition requested that the ITA and ITC
undertake a "regional industry" analysis in determining industry support, market penetration and injury to the domestic crude petroleum oil industry caused by subject imports[,] ... defin[ing] th[e] regional market to include, generally, the District of Columbia and the 43 contiguous States (and the U.S. Outer Continental Shelf in the Gulf of Mexico), exclusive of Washington, Oregon California, Arizona, and Nevada.1
Some 40 days later, while finding the petitioner to be an "interested party" within the meaning of 19 U.S.C. § 1677(9) and that it had made "an adequate regional-industry claim for initiation purposes", the ITA did not accept the petition on the ground that it "did not have the required industry support". Dismissal of Antidumping and Countervailing Duty Petitions: Certain Crude Petroleum Oil Products From Irag, Mexico, Saudi Arabia, and Venezuela, 64 Fed.Reg. 44,480 (Aug. 16, 1999). Whereupon this case commenced, seeking judicial review and reversal of this determination.
Public information of the Department of Commerce2 shows over one thousand one hundred petitions to have been filed with the ITA since enactment of the Trade Agreements Act of 1979, yet apparently only one was subjected to the kind of threshold agency rejection at issue herein. See Carbon Steel Plate From Belgium and the Federal Republic of Germany; Rescission of Notice Announcing Initiation of Antidumping Investigations and Dismissal of Petition, 49 Fed.Reg. 3,503 (Jan. 27, 1984) (). In fact, only 17 other petitions are reported as having been summarily dismissed by the ITA over the last 20 years. Ten of them were found not to allege a basis upon which antidumping or countervailing duties could be imposed.3 Another three petitions were dismissed because there had been no or de minimis imports of the subject merchandise in the years immediately preceding their respective filings.4 And four were found not to have been presented by an interested party.5
Be then all those other, apparently facially-acceptable petitions as they were, from the beginning the Trade Agreements Act has contemplated ITA dismissal of petitions deemed not in compliance with the threshold standards set by Congress. As amended by the Uruguay Round Agreements Act ("URAA"), Pub.L. No. 103-465, 108 Stat. 4809 (Dec. 8, 1994), (and by the Miscellaneous Trade and Technical Corrections Act of 1996, Pub.L. No. 104-295, 110 Stat. 3514 (Oct. 11, 1996)), the statute governing procedures for initiating herein an antidumping-duty investigation provided, in part, as follows:
(b) Initiation by petition
(1) Petition requirements
An antidumping proceeding shall be initiated whenever an interested party described in subparagraph (C),(D),(E),(F), or (G) of section 1677(9) of this title files a petition with the [ITA], on behalf of an industry, which alleges the elements necessary for the imposition of the duty imposed by section 1673 of this title, and which is accompanied by information reasonably available to the petitioner supporting those allegations. The petition may be amended at such time, and upon such conditions, as the [ITA] and the [ITC] may permit.
* * * * * *
(3) Action with respect to petitions
Upon receipt of a petition filed under paragraph (1), the [ITA] shall notify the government of any exporting country named in the petition by delivering a public version of the petition to an appropriate representative of such country.
The [ITA] shall not accept any unsolicited oral or written communication from any person other than an interested party described in section 1677(9)(C),(D),(E),(F), or (G) of this title before the [ITA] makes its decision whether to initiate an investigation, except as provided in subsection (c)(4)(D) of this section, and except for inquiries regarding the status of the [ITA]'s consideration of the petition.
* * * * * *
(c) Petition determination
Except as provided in subparagraph (B), within 20 days after the date on which a petition is filed under subsection (b) of this section, the [ITA] shall —
alleges the elements necessary for the imposition of a duty under section 1673 of this title and contains information reasonably available to the petitioner supporting the allegations, and
In any case in which the [ITA] is required to poll or otherwise determine support for the petition by the industry under paragraph (4)(D), the [ITA] may, in exceptional circumstances, apply subparagraph (A) by substituting "a maximum of 40 days" for "20 days".
* * * * * *
If the determinations under clauses (i) and (ii) of paragraph (1)(A) are affirmative, the [ITA] shall initiate an investigation to determine whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value.
If the determination under clause (i) or (ii) of paragraph (1)(A) is negative, the [ITA] shall dismiss the petition, terminate the proceeding, and notify the petitioner in writing of the reasons for the determination.
(4) Determination of industry support
For purposes of this subsection, the [ITA] shall determine that the petition has been filed by or on behalf of the industry, if —
(i) the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and
(ii) the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition.
In determining industry support under subparagraph (A), the [ITA] shall disregard the position of domestic producers who oppose the petition[] if such producers are related to foreign producers, as defined in section 1677(4)(B)(ii) of this title, unless such domestic producers demonstrate that their interests as domestic producers would be adversely affected by the imposition of an antidumping duty order.
The [ITA] may disregard the position of domestic producers of a domestic like product who are importers of the subject merchandise.
If the petition alleges the industry is a regional industry, the [ITA] shall determine whether the petition has been filed by or on behalf of the industry by applying subparagraph (A) on the basis of production in the region.
If the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the...
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