CAFC Ruling Killed Thai Pipe Exporter's CIT Case, US Argues
The U.S. filed a May 19 supplemental brief in a 2021 case involving dual-stenciled pipe from Thailand to address the case’s last “remaining contention” after the importer lost in the U.S. Court of Appeals for the Federal Circuit (Blue Pipe Steel Center Co., Ltd. v. United States, CIT # 21-00081).
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Importer Blue Pipe admits its claim regarding a CBP evasion finding can no longer be litigated after the CAFC decision in Saha Thai Steel Pipe v. United States (see 2405150027), the government said. But Blue Pipe Steel still argues that the evasion finding’s timing was improper, and thus not applicable to products entered before the Commerce Department began a scope inquiry.
The government noted that Blue Pipe has unsuccessfully raised this argument before (see 2208260024). The exporter claims that CBP shouldn’t have been able to suspend liquidation of its products and launch an Enforce and Protect Act investigation with a period of investigation beginning prior to the start of a Commerce Department scope inquiry on Blue Pipe’s products; CBP later relied on the Commerce scope ruling to reach an affirmative evasion finding. But the trade court has ruled that CBP’s EAPA investigations aren’t bound by Commerce’s regulatory deadlines, the U.S. said.
This is true even when CBP does use a Commerce scope ruling in its determination, it said, as the two agencies have “co-extensive authority” to suspend liquidation.
“In its supplemental brief, Blue Pipe cites no authority for its position that CBP should not be allowed to use an effective date prior to Commerce’s initiation of its scope review,” it said. “Instead, it relies on its argument that, prior to Commerce’s scope review in this case, dual stenciled pipe was considered outside the scope of the antidumping [duty] order ... [on] line pipe and, therefore, it did not attempt to evade the antidumping [duty] order prior to the initiation of Commerce’s scope review."
But the U.S. Court of Appeals for the Federal Circuit "expressly rejected" this argument in Saha Thai, it said.