CIT OKs Applying AD Evasion Finding to Start of EAPA Proceeding, Not Start of Scope Inquiry

Reif held that the request to conform CBP's evasion finding to the "timeline of Commerce's scope ruling would run counter to the language" of the evasion statute "as buttressed by its legislative history." There's nothing in the Enforce and Protect Act, the evasion law, "that prescribes the extent to which Customs may rely on a scope ruling of Commerce in reaching an evasion determination," nor is there anything that "pegs the effective date of an evasion determination to the date of a scope ruling of Commerce that Customs may have relied upon in reaching that determination," the judge said.

CBP opened the evasion proceeding on Oct. 18, 2018, then paused the proceeding while Commerce figured out whether dual-stenciled pipe is within the scope of the AD order. Following litigation on the scope decision, the U.S. Court of Appeals for the Federal Circuit said in Saha Thai Steel Pipe v. U.S. that the order unambiguously covers dual-stenciled pipe (see 2405150027).

In light of this ruling, CBP said Blue Pipe evaded the AD order by not entering its dual-stenciled pipe from Thailand as subject to AD. After the Federal Circuit sustained the scope ruling, Blue Pipe said CBP's evasion determination should be affirmed, though it argued that it should apply from the date of the scope ruling and not from the start of the EAPA investigation.

Reif held that CBP properly applied the evasion determination from the investigation's start date. Blue Pipe argued that since CBP "relied entirely on Commerce's scope ruling," it "must abide by not just the merits of Commerce’s scope ruling but also the timeline of Commerce’s scope ruling." The court first recognized CBP's independent authority under IEEPA from Commerce's authority under AD/CVD law, adding that the purpose of EAPA "was to empower the U.S. Government and its agencies with the tools to identify proactively and thwart evasion at earlier stages to improve enforcement of U.S. trade laws."

The court said the request to peg the timeline of evasion proceedings to Commerce's scope rulings isn't found in the evasion statute. "Given this silence, the court concludes that Customs’ decision to set the effective date at the beginning of the period of investigation for the evasion inquiry accords with the 'best reading' of [EAPA] as well as with congressional intent," the decision said.

Blue Pipe argued that any importer of the company's dual-stenciled pipe wouldn't have had "any reasonable notice" that this product was in scope merchandise prior to the start of the scope inquiry. To this, Reif invoked the CAFC's Saha Thai decision, which said the order doesn't contain any exclusionary language. Thus, "any purported exclusion of dual-stenciled pipe is not justifiable by way of a plain reading of the Order or the Final Determination," the court said.

The importer then urged the trade court to rely on various sunset reviews from the International Trade Commission in which dual-stenciled pipe was acknowledged as not being in the scope of the orders on standard pipes. Again, Reif turned to Saha Thai, which rejected an attempt to read the sunset reviews as excluding dual-stenciled pipe from the AD order at issue.

Reif said EAPA "does not entitle importers to 'reasonable notice' that their merchandise is within the scope of the AD order that the importer is alleged to have evaded." It's this lack of a "reasonable notice" requirement in the statute along with the lack of a clear exclusion in the order that makes CBP's decision to apply the evasion determination from the start of the investigation proper, the court held.

(Blue Pipe Steel Center v. United States, Slip Op. 25-126, CIT # 21-00081, dated 09/25/25; Judge: Timothy Reif; Attorneys: Adams Lee of Harris Bricken for plaintiff Blue Pipe Steel Center; Robert Kiepura for defendant U.S. government; Roger Schagrin of Schagrin Associates for defendant-intervenor Wheatland Tube Co.)