did enter an appearance to object to the proposed decision, Shell USA raised few factual concerns and failed to adhere to critical administrative procedures.
In its statement of objections, plaintiff did not adequately specify certain findings of fact which it now wishes to contest, nor did it set forth alternative findings as required by 10 C.F.R. § 205.62 (1979). The 26-page Statement of Objections chiefly attacked OHA's legal authority to act as contemplated. Agency findings regarding peculiarities of the Puerto Rican petroleum industry were not seriously challenged. In particular, there is no indication of protest or opposition to the official notice taken of the precarious state of the Puerto Rican refining industry, notably Corco, based on prior agency experience. The noticing of such facts, which relates only to the form of relief contemplated, was entirely proper in view of Shell USA's full opportunity for rebuttal. See generally NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 348-49, 73 S. Ct. 287, 289-90, 97 L. Ed. 377 (1953); Safeway Stores, Inc. v. FTC, 366 F.2d 795, 803 (9th Cir. 1966). That plaintiff chose not to identify contrary evidence or otherwise specifically preserve its factual objections at the administrative level precludes their being subsequently entertained on judicial review. D.C. Transit System, Inc. v. Washington Metropolitan Area Transit Commission, 466 F.2d 394, 413-14 (D.C.Cir.), cert. denied, 409 U.S. 1086, 93 S. Ct. 688, 34 L. Ed. 2d 673 (1972). See also City of Vanceburg v. FERC, 571 F.2d 630, 642 (D.C.Cir.1977), cert. denied, 439 U.S. 818, 99 S. Ct. 79, 58 L. Ed. 2d 108 (1978); Glaziers Local No. 558 v. NLRB, 408 F.2d 197, 203 (D.C.Cir.1969).
The simultaneous failure to move for an evidentiary proceeding or for additional discovery is likewise fatal. By ignoring its opportunity to supplement DOE's factual findings on this and other issues, Shell USA failed to exhaust administrative remedies. 10 C.F.R. §§ 205.64(b), 205.66(a) (1979). There is no suggestion that plaintiff was unfamiliar with the applicable regulations. Its decision not to inquire further through administrative channels effectively waives any right to such additional discovery here.
What remains is plaintiffs' challenge, on substantial evidence grounds, to the findings that Shell P.R. experienced a gross inequity, and tha the inequity was primarily attributable to DOE's regulatory program. Reviewing the record in light of the applicable deferential standard, the Court concludes that both findings are indeed supported by substantial evidence. Briefly, there is ample evidence in the record that Shell P.R. was in severe economic distress in early 1979. It was forced to pay Corco abnormally high prices for its gasoline (e.g., R. 853, 862). Its resale price was measurably higher than that charged by its chief competitor, Esso, as well as others (e.g., R. 859, 975-78). Without the benefit of averaging, Shell P.R. could recover its costs only in island markets. Attempts to do so by increasing prices led to substantial losses in market share (e.g., 855, 860). The alternative was to absorb increased costs and accept virtual elimination of profitability. To allow this situation to continue indefinitely jeopardized its dealers' ability to stay in business (e.g., R. 861-62).
Similarly, the record sufficiently supports OHA findings as to causation. Refiner regulations required Shell P.R.'s principal competitors to roll in their prices with those of their mainland parents. Despite plaintiffs' suggestions to the contrary, the principal competitors all testified that they did in fact roll in their Puerto Rican costs (e.g., R. 250-51 (Texaco), 728 (Gulf), 915, 956 (Exxon)). Shell P.R.'s status as a reseller places it in a distinctly unfavorable position. Its lack of direct or indirect access to lower cost gasoline from the United States leaves it vulnerable to soaring and unpredictable prices on the world crude market (e.g., R. 736, 857-58, 862).
Shell USA has failed to establish any ground for relief.
For the reasons set forth above, plaintiffs' motion for summary judgment is denied, defendants' motions for summary judgment are granted, and the case is dismissed. All pending discovery motions ae therefore moot.