Amazon threw its hefty weight into the Section 301 litigation inundating the Court of International Trade, alleging in a complaint that the lists 3 and 4A tariffs are unlawful under the 1974 Trade Act, violate Administrative Procedure Act rules against sloppy rulemakings, and are unconstitutional because only Congress, not the executive branch, has the power to levy taxes. Amazon reported 2020 revenue of $386.1 billion and is believed now to be the second-largest Section 301 plaintiff by revenue behind Walmart, which sued the government March 8. Walmart reported $559.2 billion in revenue for the fiscal year ended Jan. 31. Both companies are the relatively few among the roughly 6,500 importer plaintiffs to challenge the tariffs on constitutionality grounds. Crowell & Moring is representing Amazon. Walmart’s attorneys are from Hogan Lovells. Both law firms have representatives that sit on the 15-member plaintiffs’ steering committee formed in late March to help manage the massive litigation.

The Commerce Department on Aug. 2 continued to find affiliation between the lone respondent in an antidumping duty investigation and one of its U.S. customers after voluntarily remanding the case to consider comments from the respondent. After clearing this procedural hurdle, Commerce maintained this determination in its remand results, accounting for the finding in the duty margin calculation using neutral facts available (OCTAL, Inc. et al. v. United States, CIT #20-03697).

The Court of International Trade issued two opinions on Aug. 3 sustaining the Commerce Department's remand results that held that Simpson Strong-Tie Company's split-drive anchors and crimp drive anchors do not fall within the scope of the antidumping duty order on certain steel nails from China. Following a U.S. Court of Appeals for the Federal Circuit decision, OMG, Inc. v. United States, Commerce changed its findings for both products to exclude them from the order. The Federal Circuit held in OMG that masonry anchors are not nails and thus excluded from the order. Since Simpson's split-drive and crimp drive anchors are similar, they are also excluded, the court held.

The U.S. District Court for the Southern District of Texas properly struck down the crude oil export tax under 26 U.S.C. Section 4611(b) as unconstitutional, commodity trading and logistics house Trafigura Trading said in its July 30 brief to the U.S. Court of Appeals for the 5th Circuit. The tax on crude oil exports violates the U.S. Constitution's Export Clause banning any taxes on exports, the company said. As a result, the district court appropriately awarded Trafigura a $4.2 million refund for its taxes paid, the company said (Trafigura Trading LLC v. U.S., 5th Cir. #21-20127).

The following lawsuits were recently filed at the Court of International Trade:

Strait Shipbrokers and its managing director, Murtuza Mustafa Munir Basrai, filed a complaint July 19 in the U.S. District Court for the District of Columbia challenging its Specially Designated Nationals listing (see 2101050012). The Trump administration made the designation after concluding the company helped with the transport of petroleum from Iran. Straight Shipbroker countered, claiming it's not required to check the origin of its cargo in its role as a broker and that the designation was made in violation of the Administrative Procedure Act and its Fifth Amendment rights to due process (Strait Shipbrokers Pte. Ltd. et al. v. Blinken et al., D.C. Cir. #21-01946).

The following lawsuits were recently filed at the Court of International Trade:

The Court of International Trade should grant the Commerce Department's cross-motion for judgment, enforcing the antidumping and countervailing duty rates at which the agency instructed CBP to liquidate crystalline silicon photovoltaic products entries, Commerce said in a July 30 brief. While CBP initially imposed an incorrect AD duty rate for the entries in question, the government defense said it identified the proper rate at which the court should enforce the duties (Aireko Construction LLC v. United States, CIT #20-00128).

The Court of International Trade remanded the Commerce Department's second remand results for the first administrative review of the antidumping duty order on steel nails from Taiwan, in a July 30 confidential opinion. In a letter sent to the litigants, Chief Judge Mark Barnett said that the parties have until Aug. 6 to identify any confidential information to be redacted in the public version of the opinion. Barnett did signal, however, that he does not believe there is any confidential information in the text as it currently stands. In the most recent opinion in the case, Barnett remanded Commerce's selection of the petition rate as adverse facts available since the agency didn't adequately corroborate the rate (Pro-Team Coil Nail Enterprise, Inc., et al. v. United States, CIT #18-00027).

Turkish steel exporter Celik Halat ve Tel Sanayi's argument that an “extraordinary circumstance” existed, precluding the timely filing of a questionnaire response in antidumping and countervailing duty cases, is not backed by substantial evidence, the Justice Department said in two July 27 reply briefs. By Celik's counsel's own admission, an oversight in the time difference for the filing deadline resulted in the untimely submission, not counsel's emergency medical procedure, DOJ said (Celik Halat ve Tel Sanayi A.S. v. United States, CIT #21-00045, #21-00050).