BOOMERANG TUBE LLC, TMK IPSCO, ENERGEX TUBE, A DIVISION OF JMC STEEL GROUP, WELDED TUBE USA INC., UNITED STATES STEEL CORPORATION, Plaintiffs-Appellants
UNITED STATES, JUBAIL ENERGY SERVICES COMPANY, DUFERCO SA, Defendants-Appellees
from the United States Court of International Trade in Nos.
1:14-cv-00196-TCS, 1:14-cv-00201-TCS, Chief Judge Timothy C.
Brian Schagrin, Schagrin Associates, Washington, DC, argued
for plaintiffs-appellants Boomerang Tube LLC, TMK IPSCO,
Energex Tube, Welded Tube USA Inc. Also represented by John
W. Bohn, Christopher Cloutier, Paul Wright Jameson, Jordan
Jonathan Gordon Cooper, Quinn Emanuel Ur-quhart &
Sullivan, LLP, Washington, DC, argued for plaintiff-appellant
United States Steel Corporation. Also represented by Debbie
Leilani Shon, Jon David Corey, Kelsey Rule, Philip Charles
Bond, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellee United States. Also represented by
Benjamin C. Mizer, Jeanne E. Davidson, Claudia Burke; Heather
Noel Doherty, United States Department of Commerce,
Noonan, Arent Fox, LLP, Washington, DC, argued for
defendants-appellees Jubail Energy Services Company, Duferco
SA. Also represented by John M. Gurley, Diana Dimitriuc
Reyna, Hughes, and Stoll, Circuit Judges.
Tube LLC and United States Steel Corporation appeal a
decision from the U.S. Court of International Trade, which
affirmed the U.S. Department of Commerce's final
determination in an antidumping investigation. The parties
failed to exhaust their arguments before Commerce, and the
Trade Court abused its discretion in waiving the exhaustion
requirement in this case. Therefore, we vacate and remand.
Investigation and Preliminary Determination
29, 2013, Commerce initiated an investigation into whether
oil country tubular goods ("OCTGs") from Saudi
Arabia and other countries imported into the United States
from July 1, 2012 through June 20, 2013 were sold for less
than fair value-i.e., dumped. OCTGs are a
family of seamless rolled steel products consisting of drill
pipes, casing, and tubing used in connection with oil and gas
production. Commerce selected Duferco SA, the largest of
fourteen known Saudi Arabian OCTGs exporters, to serve as the
sole mandatory respondent in the investigation. Duferco is
the exporter of record for OC-TGs produced by Jubail Energy
Services Company ("JESCO").
August 2013, the Trade Commission preliminarily determined
that there is a reasonable indication that a U.S. domestic
industry was materially injured by reason of sales in the
United States of OCTGs from Saudi Arabia at less than fair
value. In February 2014, Commerce issued its
preliminary determination that OCTGs from Saudi Arabia were
being, or were likely to be, sold in the United States at
less than fair value. Commerce preliminarily calculated an
anti-dumping duty margin of 2.92 percent ad
preliminary determination, in accordance with 19 C.F.R.
§ 351.401(f), Commerce sua sponte determined to
treat Duferco SA and three of its affiliates as a single
entity ("Duferco entity") because it found a
significant potential for manipulation of price or
production. After collapsing the Duferco affiliates into a
single entity, Commerce further determined that Duferco is
affiliated with JESCO, the producer of the subject OCTGs
imported into the United States. This affiliation was based
on the fact that the Duferco entity owns ten percent of
JESCO. JESCO was not included in the Duferco entity, nor were
several other Duferco SA affiliates. J.A. 6628-29 & n.26.
participated in the antidumping duty investigation as a
voluntary respondent. Early in the investigation, Commerce
asked JESCO to submit data regarding its third-country sales
of OCTGs for potential use in calculating normal value. JESCO
responded by providing data of sales made in Colombia to an
unaffiliated customer and an affiliated distributor.
calculating normal value, Commerce concluded that JESCO had
no viable home market sales, because its home market sales
either failed the arm's length test or were made below
cost of production. Commerce determined to construct normal
value under 19 U.S.C. § 1677b(e)(2)(B)(iii), which
provides for using "any other reasonable method."
Commerce calculated a profit value for JESCO's
constructed value ("CV") using the profit figures
in the public ...