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Boomerang Tube LLC v. United States

United States Court of Appeals, Federal Circuit

May 8, 2017

BOOMERANG TUBE LLC, TMK IPSCO, ENERGEX TUBE, A DIVISION OF JMC STEEL GROUP, WELDED TUBE USA INC., UNITED STATES STEEL CORPORATION, Plaintiffs-Appellants
v.
UNITED STATES, JUBAIL ENERGY SERVICES COMPANY, DUFERCO SA, Defendants-Appellees

         Appeals from the United States Court of International Trade in Nos. 1:14-cv-00196-TCS, 1:14-cv-00201-TCS, Chief Judge Timothy C. Stanceu.

          Roger 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 Charles Kahn.

          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 Sternhell.

          Emma 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, Washington, DC.

          Nancy Noonan, Arent Fox, LLP, Washington, DC, argued for defendants-appellees Jubail Energy Services Company, Duferco SA. Also represented by John M. Gurley, Diana Dimitriuc Quaia.

          Before Reyna, Hughes, and Stoll, Circuit Judges.

          Reyna, Circuit Judge.

         Boomerang 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.

         Background

         A. Investigation and Preliminary Determination

         On July 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.[1] 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").

         In 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.[2] 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 valorem.[3]

         In its 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.

         JESCO 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.

         In 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 ...


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