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Keywords

appealrespondent
statuteappealrespondentdumping

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Boomerang Tube LLC v. United States, 856 F.3d 908, 38 ITRD 2145

Facts

On July 29, 2013, the Department of Commerce initiated an investigation into whether OCTGs from Saudi Arabia were being sold in the U.S. at less than fair value. Duferco SA was selected as the sole mandatory respondent, and Commerce determined to treat Duferco and its affiliates as a single entity due to potential manipulation. JESCO, an affiliate, provided sales data for calculating normal value, but the companies contested the use of JESCO's sales to an affiliated Colombian distributor in calculating constructed value profit. The Trade Court affirmed Commerce's final determination, leading to the appeal.

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.

Issue

Did the companies fail to exhaust their administrative remedies before the Department of Commerce regarding the argument that Commerce erred in using JESCO's sales to the affiliated Colombian distributor to calculate constructed value profit?

The sole issue raised on appeal was whether Commerce erred in its use of JESCO's sales to the affiliated Colombian distributor to calculate CV profit.

Rule

The exhaustion of administrative remedies is required before parties can raise arguments in court, and the Trade Court has discretion in determining whether to enforce this requirement.

By statute, the Trade Court 'shall, where appropriate, require the exhaustion of administrative remedies.' 28 U.S.C. § 2637(d).

Analysis

The Court of Appeals found that the companies did not exhaust their administrative remedies because they failed to raise the argument regarding the Colombian distributor before Commerce. The Trade Court's reasoning that the companies were not on notice of Commerce's methodology was deemed erroneous, as the relevant data was available prior to the preliminary determination, and the companies should have anticipated its use.

The Trade Court found that Boomerang and U.S. Steel exhausted their administrative remedies because they were not required to speculate from positions advanced in briefs which position Commerce would adopt, thereby depriving them of a full and fair opportunity to present their argument.

Conclusion

The Court of Appeals vacated the Trade Court's decision and remanded the case, stating that the companies should have exhausted their administrative remedies before raising their argument.

Accordingly, we vacate the Trade Court's decision and remand for proceedings in accordance with this opinion.

Who won?

The United States prevailed in the case because the Court of Appeals determined that Boomerang and U.S. Steel failed to exhaust their administrative remedies before the Department of Commerce.

The Court of Appeals, Reyna, Circuit Judge, held that companies failed to exhaust their administrative remedies before Commerce by not arguing that Commerce failed to collapse distributor into mandatory respondent in antidumping duty investigation when calculating constructed value (CV) profit, as required for companies to raise that argument before Court of International Trade.

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