Boomerang Tube LLC v. United States, No. 16-1554 (Fed. Cir. 2017)Annotate this Case
Trade Court abused its discretion in waiving the exhaustion requirement in appeal of antidumping order. The Department Commerce initiated an investigation into whether oil country tubular goods (OCTGs) from Saudi Arabia and other countries were sold for less than fair value in the U.S. Commerce selected Duferco as the mandatory respondent; preliminarily found dumping; determined to treat Duferco and three affiliates as a single entity; and determined that Duferco is affiliated with JESCO, the producer of the OCTGs. Duferco owns 10 percent of JESCO. JESCO participated as a voluntary respondent. Commerce published its final determination, concluding that Saudi OCTGs were being dumped and recalculating the duty margin at 2.69 percent. Following the final determination, JESCO identified an error in Commerce’s calculation of Constructed Value (CV) profit. Correcting this error lowered JESCO’s CV profit, reducing JESCO's dumping margin to 1.37 percent. Commerce issued an amended negative final determination, imposing no duties. U.S. companies appealed, arguing that JESCO’s sales to a Colombian distributor were intra-company transfers within the Duferco entity, not an appropriate basis to construct CV profit--an argument not made during the investigation. The Trade Court affirmed Commerce’s determination, declining to apply the exhaustion requirement because the parties did not know that Commerce was considering using the Colombian sales until the final determination. The Federal Circuit vacated. Commerce need not expressly notify interested parties when it intends to change its methodology between its preliminary and final determinations, given the inclusion of the relevant data in the record and the advancement of arguments related to that data. The parties had an opportunity to raise their single entity objection before Commerce.