On August 9, 2021, the Retail Litigation Center, the National Retail Federation, the American Apparel & Footwear Association, the Consumer Technology Association, the Footwear Distributors and Retailers of America, the Juvenile Products Manufacturers Association and the Toy Association today filed a “friend of the court” amicus brief in the U.S. Court of International Trade. The trade groups submitted the brief in support of businesses and their workers that have been negatively impacted by a series of escalating tariffs covering virtually all Chinese imports to the United States imposed by the United States Trade Representative (USTR).
In 2018, following a Section 301 investigation into China’s trade practices regarding forced technology transfer and intellectual property rights protection, the Trump Administration initiated several massive tariffs against Chinese imports. Thousands of American businesses have been forced to pay these taxes to import Chinese goods and products, which ultimately result in higher prices for U.S. consumers. The Biden Administration has kept these tariffs in place when American businesses are doing their best to safely serve customers, and keep workers on their payrolls, during the pandemic.
In September 2020, more than 6,000 plaintiffs filed lawsuits challenging the List 3 and List 4A tariffs as unlawful under Section 301 of the Trade Act of 1974 arguing that the USTR exceeded its authority when it imposed tariffs without attempting to connect them to any underlying investigation of China’s trade practices. The amicus brief supports the plaintiffs’ arguments and highlights USTR’s violation of its statutory obligations under the Administrative Procedure Act by failing to give adequate opportunity for, or consideration of, public comments.
(Lack of adequate opportunity for, or consideration of, public comments was an objection raised by Agathon Associates on behalf of clients in a Septebmer, 2018, blog post, which also suggested that injured parties may wish to consider suing the government.)
The staggering scale and far-reaching effects of the proposed tariffs required USTR to take a thoughtful approach consistent with its statutory obligation under the Administrative Procedure Act. Instead, USTR imposed compressed public-comment timelines, which often gave businesses only a few days to analyze the impacts on supply chains and retail operations and develop thoughtful comments. To make matters worse, despite receiving nearly 10,000 comments and pieces of testimony, the overwhelming majority of which opposed the tariffs, USTR refused to respond to any of the identified concerns.
According to the amicus brief:
“Those proposed tariffs implicated hundreds of billions of dollars of imports and impacted almost every facet of the U.S. economy. Many stakeholders, including amici’s members must plan out their international supply chains and delivery schedules months in advance. Not surprisingly, these businesses needed time to review the hundreds of thousands of products they sell to evaluate the availability and feasibility of alternative non-Chinese sources and to assess impacts on supply chains and retail operations.”
“If USTR had satisfied its obligation to allow for meaningful comments from amici and others and had actually considered them, it would have recognized the considerable harm its actions would inflict. The tariffs are a hidden tax on U.S. consumers, hurting domestic producers, retailers, and customers alike. And, as predicted, they have had a significant adverse impact on the U.S. economy.”
The amicus brief was written by Joseph R. Palmore and Adam L. Sorensen of Morrison & Foerster LLP. View the amicus brief in its entirety here
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