Stanley Black & Decker moved to stay proceedings in its case challenging the Section 232 steel and aluminum tariff expansion to include steel "derivative" products, in a July 30 filing in the Court of International Trade pending the appeal of the PrimeSource Building Products v. U.S. case (Stanley Black & Decker v. U.S., CIT #21-00262). Seeing as the PrimeSource case, currently working its way through the U.S. Court of Appeals for the Federal Circuit, is the case on the forefront of the Section 232 steel derivative tariff question, resolution of Stanley's case should wait until its appeal is settled, the company argued. "The ultimate resolution of the PrimeSource case will likely resolve this matter without the necessity of going to trial, or, alternatively, it may narrow the issues in dispute," the brief said. "Therefore, a stay of this matter until 65 days after a final decision in the PrimeSource case would be the most efficient course of action, serve the interests of the parties, and promote judicial economy." Stanley filed its case after PrimeSource was decided (see 2105270086).
Court of International Trade activity
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 Court of International Trade stayed the liquidation of steel and aluminum "derivative" imports potentially subject to the Section 232 national security tariffs, in an Aug. 2 decision. Due in part to a recent U.S. Court of Appeals for the Federal Circuit decision, Transpacific Steel LLC et al. v. U.S., CIT permitted the U.S.'s motion for a stay of liquidation for entries that would be assessed the 25% tariff on steel and aluminum derivatives.
The Trump administration’s “radical escalation” of Section 301 tariffs on lists 3 and 4A Chinese goods “transgressed the statutory limits carefully delineated by Congress” when it crafted the 1974 Trade Act and delegated foreign-trade powers to the executive branch, Akin Gump lawyers for sample case plaintiffs HMTX Industries and Jasco Products said. This came in a cross-motion for judgment on the agency record filed the evening of Aug. 2 at the Court of International Trade in docket 1:21-cv-52. Akin Gump’s proposed order asks that the lists 3 and 4A tariffs be vacated, that any duties paid be refunded with interest and that the government be “permanently enjoined” from imposing the tariffs again.
The following lawsuits were recently filed at the Court of International Trade:
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).
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 U.S. requested the chance to take another look at an Enforce and Protect Act investigation to consider documents that were not sent from one CBP office to another, in a July 30 motion for remand in the Court of International Trade. The agency also sought the remand in light of the court's decision in Royal Brush v. United States, in which CIT held that CBP failed to provide adequate public summaries of business confidential information (BCI) (see 2012020050). The plaintiff in the case, Leco Supply, opposed the remand request, arguing that it is "too broad to be justifiable" under the court's standards for allowing remands (Leco Supply, Inc. v. United States, CIT #21-00136).