United States Court of Appeals 

for the Federal Circuit ______________________ 

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

______________________ 

2016-1554, 2016-1561

______________________ 

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.

______________________ 

Decided: May 8, 2017 

______________________ 

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.
2 BOOMERANG TUBE LLC v. US

JONATHAN GORDON COOPER, Quinn Emanuel Urquhart & 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
BOOMERANG TUBE LLC v. US 3

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 OCTGs 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 

 

1 Initiation of Antidumping Duty Investigations, 78 

Fed. Reg. 45,505 (Dep’t of Commerce July 29, 2013).

2 Certain Oil Country Tubular Goods from India, 

Korea, the Philippines, Saudi Arabia, Taiwan, Thailand, 

Turkey, Ukraine, and Vietnam: Determinations, 78 Fed. 

Reg. 52,213 (Dep’t of Commerce Aug. 22, 2013). 

3 Certain Oil Country Tubular Goods from Saudi 

Arabia: Preliminary Determinations of Sales at Less Than 

Fair Value, and Postponement of Final Determination, 79 

Fed. Reg. 10,489, 10,490 (Dep’t of Commerce Feb. 24, 

2014). 
4 BOOMERANG TUBE LLC v. US

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 2012 audited financial statements of 

Saudi Steel Pipes Company (“Saudi Steel”). J.A. 6630−33, 

6640−41. 

B. Party Briefing to Commerce 

Following Commerce’s preliminary determination, interested parties submitted briefs on, among other issues,

the profit value used in CV for JESCO. Boomerang, 

JESCO, and Duferco submitted case and rebuttal briefs. 

U.S. Steel did not. 

Boomerang’s case brief challenged Commerce’s reliance on the financial statements of Saudi Steel, arguing 

that the data were unreliable because the company is 

more of a pipe line producer than an OCTGs producer. 
BOOMERANG TUBE LLC v. US 5

Boomerang suggested that Commerce use profit data from 

Tenaris S.A., a multinational corporation that produces 

OCTGs in several countries, or profit data of the U.S. 

producers of OCTGs. Data for each of those options were

added to the record after Commerce’s preliminary determination. 

Duferco’s and JESCO’s case briefs contended that 

Commerce should continue using the financial statements

of Saudi Steel, or, alternately, the financial statements of 

Arabian Pipes Company, a Saudi entity. As another 

option, Duferco and JESCO suggested that Commerce use

profit data from JESCO’s sales to its affiliated Colombian 

distributor. These data were placed in the investigation 

record prior to the preliminary determination. 

Boomerang submitted a rebuttal brief that argued

against using JESCO’s Colombia sales: “[JESCO] suggests that the Department can use the profits on JESCO’s 

sales to Colombia for CV profit. Again, this is sort of a 

mini-alternative (i) scenario, and there is no basis in the 

statute to use such a method to calculate CV profit.” 

J.A. 7033 (redactions omitted). Significantly, Boomerang 

did not argue that the affiliated Colombian distributor 

was a member of the Duferco entity, or that the Colombian sales were intra-company sales.

C. Commerce’s Final Determination

Commerce published its final determination in July 

2014, again concluding that Saudi OCTGs were being 

dumped in the U.S. and recalculating the antidumping 

duty margin of 2.69 percent ad valorem.4 With respect to 

CV profit, Commerce determined that JESCO’s sales to 

 

4 Certain Oil Country Tubular Goods from Saudi 

Arabia: Final Determination of Sales at Less Than Fair 

Value, 79 Fed. Reg. 41,986 (Dep’t of Commerce July 18, 

2014) (final determination). 
6 BOOMERANG TUBE LLC v. US

Colombia were “the best available option” and explained 

why the Colombian transactions were preferable. 

J.A. 7140−46. 

Following issuance of the final determination, JESCO 

identified a ministerial error in Commerce’s calculation of 

CV profit; specifically, Commerce failed to deduct certain 

movement expenses. Correcting this error lowered 

JESCO’s CV profit, significantly reducing the dumping 

margin for JESCO from 2.69 percent to the de minimis

value of 1.37 percent. Commerce issued an amended 

negative final determination that imposed no antidumping duties on imports of OCTGs from Saudi Arabia and 

terminated its investigation.5 

D. Appeal to the U.S. Court of International Trade

Boomerang and U.S. Steel appealed Commerce’s final 

determination to the Trade Court. 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. Plaintiffs argued that JESCO’s sales 

to the Colombian distributor were intra-company transfers within the Duferco entity and were, therefore, not an 

appropriate basis to construct CV profit. Duferco and 

JESCO countered that plaintiffs failed to exhaust their 

administrative remedies with respect to this argument 

because it was not made during the dumping investigation and was raised for the first time on appeal before the 

Trade Court. 

The Trade Court affirmed Commerce’s determination 

and found that Boomerang and U.S. Steel did not fail to 

 

5 Amended Final Determination and Termination of 

the Investigation of Sales at Less Than Fair Value: Certain Oil Country Tubular Goods from Saudi Arabia, 79 

Fed. Reg. 49,051 (Dep’t of Commerce Aug. 19, 2014). 
BOOMERANG TUBE LLC v. US 7

exhaust their administrative remedies.6 The Trade Court 

reasoned that applying the exhaustion requirement would 

be unwarranted in this case because the parties did not 

have any indication that Commerce was considering using 

the Colombian sales until it issued the final determination. The Trade Court rejected the argument that U.S. 

Steel and Boomerang were on notice that Commerce 

might use the Colombian transactions because this argument was made in JESCO’s case brief. According to the 

Trade Court, adopting that argument would require 

parties to predict among proposed substitutes in an 

opposing brief, and preemptively defend against it: 

Denying relief on exhaustion grounds would require the court to conclude that plaintiffs should 

have predicted that Commerce might accept 

JESCO’s proposal to use sales by Duferco 

SA/JESCO to Colombia to calculate CV profit and 

should have raised, in their case briefs, potential 

arguments against that possibility. The court declines to require such speculation. The court concludes, instead, that petitioners did not have a full 

and fair opportunity during the investigation to 

challenge the Department’s method of determining CV profit. Therefore, the court adjudicates on 

the merits the claims of all plaintiffs in this litigation.

J.A. 10. 

The Trade Court further decided that substantial evidence supports Commerce’s treatment of the Colombian 

distributor as a separate entity. The Trade Court characterized Commerce’s decision as an implicit determination 

that the Colombian distributor is not part of the Duferco 

 

6 Boomerang Tube LLC v. United States, 125 F. 

Supp. 3d 1357 (Ct. Int’l Trade 2015). 
8 BOOMERANG TUBE LLC v. US

entity, a determination supported by substantial evidence. J.A. 14−18. As a result of the Trade Court’s 

decision, the de minimis dumping margin remained in 

effect. 

Boomerang and U.S. Steel appeal. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

STANDARD OF REVIEW 

This court reviews decisions of the Trade Court de novo, applying the same standard of review applied by the 

Trade Court in reviewing the administrative record before 

Commerce. Union Steel v. United States, 713 F.3d 1101, 

1106 (Fed. Cir. 2013). Thus, this court will uphold Commerce’s determination unless it is unsupported by substantial evidence in the record or otherwise not in 

accordance with law. Id. 

We review a decision of the Trade Court on whether to 

require exhaustion in a particular case for abuse of discretion. See Corus Staal BV v. United States, 502 F.3d 1370, 

1381 (Fed. Cir. 2007). Thus, we will reverse only if the 

Trade Court erred in interpreting the law, exercised its 

judgment on clearly erroneous findings of material fact, or 

made an irrational judgment in weighing the relevant 

factors. See Int’l Custom Prods., Inc. v. United States, 843 

F.3d 1355, 1358 (Fed. Cir. 2016).

DISCUSSION

On appeal, Boomerang and U.S. Steel argue that 

Commerce erred when it failed to collapse the affiliated 

Colombian distributor into the Duferco entity. The government, JESCO, and Duferco respond that Boomerang 

and U.S. Steel failed to exhaust their administrative 

remedies because they did not argue before Commerce 

that the Colombian distributor should be collapsed into 

the Duferco entity. Boomerang and U.S. Steel argue that 

the Trade Court acted within its discretion in finding that 

the exhaustion requirement did not apply in this case.
BOOMERANG TUBE LLC v. US 9

By statute, the Trade Court “shall, where appropriate, 

require the exhaustion of administrative remedies.” 28 

U.S.C. § 2637(d). We have explained that this statutory 

mandate “indicates a congressional intent that, absent a

strong contrary reason, the court should insist that parties exhaust their remedies before the pertinent administrative agencies.” Corus Staal, 502 F.3d at 1379; see also 

Kingdomware Techs., Inc. v. United States, 136 S. Ct. 

1969, 1977 (2016) (“Unlike the word ‘may,’ which implies 

discretion, the word ‘shall’ usually connotes a requirement.”). 

Here, 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. According to the Trade

Court, Boomerang and U.S. Steel did not have notice that 

Commerce might use data relating to JESCO’s third party 

transaction with the affiliated Colombian distributor to 

calculate CV profit. We disagree. 

The Trade Court’s decision constitutes an abuse of 

discretion for two reasons. First, the decision is legally 

erroneous to the extent it stands for the proposition that 

Commerce must expressly notify interested parties any 

time it intends to change its methodology between its 

preliminary and final determinations, despite the inclusion of the relevant data in the record and the advancement of arguments related to that data before Commerce. 

There is no support for such a requirement. 

Second, the decision is based on a clearly erroneous 

finding of material fact that the parties did not have an 

opportunity to raise their single entity objection to using 

the Colombian transactional data before Commerce. It is 

undisputed that the data regarding JESCO’s transactions 

with the affiliated distributor were in the record prior to 
10 BOOMERANG TUBE LLC v. US

Commerce’s preliminary determination. At that point, 

U.S. Steel and Boomerang either knew or should have 

known that Commerce may consider those data during its 

calculations, especially given that the basis of CV profit 

was at issue. It is also undisputed that, in its case brief, 

JESCO suggested using those data to calculate CV before 

Commerce. At that point, Boomerang and U.S. Steel had 

notice of the potential that Commerce might use the

Colombian data to calculate JESCO’s CV profit. Indeed, 

Boomerang’s rebuttal brief to Commerce reveals that it 

recognized JESCO’s suggestion to use the Colombian data 

for CV profit and that Boomerang objected to that approach. Unfortunately for Boomerang, its rebuttal brief 

made no mention of its current argument that the affiliated Colombian entity should be collapsed into the Duferco 

entity. As such, the argument was not exhausted before 

Commerce and should not have been considered by the 

Trade Court. 

CONCLUSION

Because Boomerang and U.S. Steel failed to exhaust 

administrative remedies before Commerce, the Trade 

Court should have dismissed this appeal without reaching 

the merits. Its failure to do so was an abuse of discretion. 

Accordingly, we vacate the Trade Court’s decision and

remand for proceedings in accordance with this opinion. 

VACATED AND REMANDED 

COSTS 

Each party to bear its own costs.