Boomerang Tube LLC v. United States
2017 U.S. App. LEXIS 8102
| Fed. Cir. | 2017Background
- Commerce investigated whether oil country tubular goods (OCTGs) from Saudi Arabia were dumped in the U.S.; Duferco SA was selected as the sole mandatory respondent and is exporter for JESCO (the Saudi producer).
- Commerce collapsed Duferco and three affiliates into a single entity and treated Duferco as affiliated with JESCO based on a 10% ownership interest; JESCO itself was not collapsed into the Duferco entity.
- JESCO, a voluntary respondent, provided third-country (Colombian) sales data to an affiliated Colombian distributor; Commerce found JESCO had no viable home-market sales and resorted to constructing normal value (CV).
- For CV profit, Commerce initially used Saudi Steel’s financials but in the final determination selected JESCO’s Colombian transactional data as the “best available” basis; a ministerial correction later reduced the margin to de minimis and terminated the investigation.
- Boomerang Tube and U.S. Steel challenged Commerce’s reliance on the Colombian sales as transactional CV profit on appeal to the Court of International Trade (CIT), arguing those sales were intra-company transfers within the Duferco entity and should have been collapsed.
- The CIT waived the administrative-exhaustion requirement and reached the merits, upholding Commerce’s treatment of the Colombian distributor as separate; the Federal Circuit vacated and remanded, finding the CIT abused its discretion by failing to require exhaustion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners exhausted administrative remedies before Commerce regarding collapsing the affiliated Colombian distributor into the Duferco entity | Boomerang/U.S. Steel: They objected to using Colombia sales but did not have notice Commerce would adopt those specific transactional data; exhaustion requirement need not bar review | Government/JESCO/Duferco: Petitioners failed to raise the single-entity/collapse argument before Commerce, so remedies were not exhausted | Held: Petitioners failed to exhaust; CIT abused discretion by waiving exhaustion and should have dismissed appeal |
| Whether the CIT erred in requiring Commerce to give express notice before changing methodology between preliminary and final determinations | Boomerang/U.S. Steel: CIT correctly found parties lacked fair opportunity when Commerce selected a method only at final determination | Government/JESCO/Duferco: Parties had the data on the record and opposing briefs raising the option, so they had notice and opportunity to challenge | Held: Court rejected a requirement of express notice; parties had record notice and should have raised collapse argument before Commerce |
Key Cases Cited
- Union Steel v. United States, 713 F.3d 1101 (2013) (standard for reviewing Commerce determinations)
- Corus Staal BV v. United States, 502 F.3d 1370 (2007) (statutory requirement that courts ordinarily require administrative exhaustion)
- Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (2016) (interpretation that "shall" generally imposes a requirement)
- Int’l Custom Prods., Inc. v. United States, 843 F.3d 1355 (2016) (standard of review for a court's discretionary decision on exhaustion)