Judgment in Evasion Case Is Inappropriate While Scope Is Still at Issue, US Argues at CIT

An Enforce and Protect Act finding of evasion against Blue Pipe Steel Center should not be decided on by the Court of International Trade while the underlying scope issue is still on appeal, argued the government in a Feb. 15 motion at the Court of International Trade. DOJ asked the court to deny a motion for judgment from Blue Pipe, or alternatively, defer its decision until after the U.S. Court of Appeals for the Federal Circuit resolves the scope issue (Blue Pipe Steel Center Co., Ltd. v. United States, CIT # 21-00081).

The case stems from a 2020 EAPA determination, later affirmed in 2021, that Blue Pipe had evaded the antidumping duty order on circular welded pipe from Thailand by mislabeling imported dual-stenciled pipe from Thai producer Saha Thai Public Company Ltd. as "line pipe." Commerce self-initiated a scope inquiry on Saha Thai's dual-stenciled line pipe before the EAPA investigation into Blue Pipe. Commerce initially ruled that the pipe in question fell within the scope of the order but reversed its determination in 2022 after Saha Thai successfully sued at CIT. The case is currently on appeal at the Federal Circuit (see 2209020053).

In its Dec. 14 motion for judgment, Blue Pipe asked the court to hold that the evasion determination was incorrect and that it be remanded back to CBP with instructions to reconsider in light of the amended scope ruling. Alternatively, Blue Pipe asked that CIT reject CBP’s decision to apply that determination to entries made before Commerce initiated its scope inquiry should the court uphold the evasion (see 2212150065).

"The only question is whether that type of pipe is covered by the AD Order," the government said. "Blue Pipe’s arguments are entirely dependent on the court’s scope ruling in Saha Thai," DOJ argued. Any argument accusing CBP of overstepping its authority "will be mooted -- one way or the other ..." by the Federal Circuit's appeal decision. If the Federal Circuit confirms CIT's decision, then the issue will not matter as the product was outside the scope of the order. If CAFC reverses the decision, CBP's evasion finding would be validated since it would have relied on Commerce's initial 2020 scope ruling, the government said. If the Court were to issue an opinion relying on its earlier Saha Thai decision and that decision were reversed, it would require a separate appeal or reconsideration of the decision to conform with the potential ruling from the Federal Circuit.