[Congressional Record Volume 143, Number 27 (Wednesday, March 5, 1997)]
[Senate]
[Pages S1971-S1973]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page S1971]]
NOMINATION OF CHARLENE BARSHEFSKY OF THE DISTRICT OF COLUMBIA TO BE
U.S. TRADE REPRESENTATIVE WITH THE RANK OF AMBASSADOR EXTRAORDINARY AND
PLENIPOTENTIARY
The legislative clerk read the nomination of Charlene Barshefsky of
the District of Columbia to be U.S. Trade Representative with the rank
of Ambassador Extraordinary and Plenipotentiary.
The Senate proceeded to consider the nomination.
Ms. SNOWE. Mr. President, I rise in support of Charlene Barshefsky's
nomination as the United States Trade Representative.
I have scrutinized Ms. Barshefsky's nomination very carefully. During
the time of her confirmation hearing before the Finance Committee, I
submitted a list of 10 specific questions concerning her past work on
behalf of the Canadian Government, her commitment to aggressively
defending and advocating United States trade interests before all
foreign parties, and her commitment to raising issues of interest to
Maine before the Canadian Government, particularly with regard to
Maine's long-running problems on potato trade. I ask unanimous consent
that these questions and her responses be printed in the Record after
my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Ms. SNOWE. My reason for investigating this nomination was simple: to
make certain that this nominee could be counted on to defend United
States. interests in the trade arena, and to ensure that her past legal
work for Canadian entities would not in any way influence the exercise
of her duties as United States Trade Representative.
Ms. Barshefsky's written responses to my questions, and on her
responses to the questions of other senators and the Finance Committee,
indicate that her nomination does not pose any such problems.
As has been widely reported, Ms. Barshefsky worked, while an attorney
for a Washington, DC, law firm, for several Canadian entities. But as
her responses to the Senate detail, this work amounted to a tiny
fraction of the total over the course of her 18-year career as a trade
attorney in private practice. In fact, Ms. Barshefsky has certified to
me and to the Finance Committee that her work for all Canadian
Government entities represents less than 1 percent of the total hours
that she spent working while in private practice. Furthermore, Ms.
Barshefsky states in her responses to me that she never lobbied the
U.S. Government on behalf of any foreign government or political party.
I also questioned Ms. Barshefsky closely regarding her commitment to
defend American interests in the arena of international trade. Ms.
Barshefsky's responses are unequivocal. She states that she will
forcefully defend and advocate American business interests in all
international trade disputes, negotiations, and discussions involving
the United States. She states that she will aggressively pursue all
effective remedies to unfair trade practices committed by other
countries against American businesses. And she states that she will
pursue the strict adherence to, and vigorous enforcement of, all United
States trade laws.
Ms. Barshefsky also specifically says that, if confirmed, she will
ensure that the USTR's office raises the issues of concern to the U.S.
potato industry during our bilateral meetings with Canada.
In addition to her words on paper, we also have Ms.
Barshefsky's track record. She served as Deputy U.S. Trade
Representative from 1993 to 1996, and as Acting U.S. Trade
Representative for the past year. Her experience in these positions has
given us a body of work to evaluate, and a record upon which to judge
whether Ms. Barshefsky means what she says. And from what I have seen
in her performance of her duties in these positions, through my own
dealings with her, and from what other Senators have said, I believe
that her deeds will be consistent with her words after she is
confirmed.
I have spoken with and sought the assistance of Ms. Barshefsky on
several occasions over the past year. In each instance, I have found
Ms. Barshefsky to be responsive and cooperative. She displayed a
genuine interest in the problems facing my constituents, and offered a
number of options through which the administration could be of
assistance.
I think it is also instructive to look at the Canadian softwood
lumber issue. Although Ms. Barshefsky had, while in private practice,
represented Canadian interests on the countervailing duty case that the
United States filed against Canada in 1991, she later served as the
second-highest ranking trade negotiator in the United States Government
and participated in the negotiation of a bilateral agreement approved
in 1996 that curtails subsidized Canadian softwood imports into the
United States. That agreement has restored a measure of fairness to the
lumber trade between the United States and Canada. And we would not
have successfully concluded the agreement without the strong support of
our senior trade officials like Ms. Barshefsky because the Canadians
were under no legal obligations to sign an agreement with us. The
United States had lost a succession of binational dispute resolution
panel decisions on the issue up to that point, and had no way to
legally require Canada to negotiate.
Mr. President, I was concerned when I first learned about some of Ms.
Barshefsky's past work, but upon investigating this matter and
questioning Ms. Barshefsky, I accept her assurances that this work will
not influence her decisions and actions as the U.S. Trade
Representative. And I am confident that she will defend and advocate
American interests in the international trade arena, consistent with
the policies of the Clinton administration. I cannot find anything in
the record that compels opposition to Ms. Barshefsky's nomination, and
I believe that she has earned the support of the Senate.
Exhibit 1
Written Response to Questions from Senator Snowe
Canada/Journal of Commerce
The Journal of Commerce reported on November 15, 1996,
that, as a lawyer in private practice, you were retained by
the Canadian federal government and the Government of Quebec
on issues involving trade with the U.S. in lumber and pork.
What was the specific nature of the services that you
provided on these governments on these issues, and at what
times did you provide these services?
Following is the verbatim response provided to the Senate
Finance Committee Questionnaire Statement of Information for
Potential Nominees, Question C.6 on Potential Conflicts of
Interest:
``Before becoming the Deputy United States Trade
Representative in May of 1993, I worked for 18 years as a
lawyer with the Washington law form if Steptoe & Johnson. The
vast majority of my work during those 18 years was in the
international trade area, particularly in the area of trade
litigation, including antidumping, countervailing duty,
escape clause, and similar on-the-record litigations arising
under the U.S. trade laws. My representation of foreign
governments or foreign political parties was limited to
Canada, viz, the Government of Quebec and the Embassy of
Canada, which were disclosed at the time that I was confirmed
in 1993 to serve as Deputy United States Trade
Representative. At no time during the 18 years that I
practiced law did I ever lobby on behalf of any foreign
government or foreign political party.''
With respect to the Government of Quebec, my work involved
providing guidance and legal drafting assistance to the
Steptoe & Johnson lawyers responsible for the client in
connection with on-the-record litigation in two trade cases:
1) the administrative reviews of countervailing duty orders
on Fresh, Chilled and Frozen Pork from Canada (hereinafter
Canadian Pork) and the appeal thereof to an FTA panel; and 2)
the petition filed under Section 302 of the Trade Act of 1974
by the G. Heilman Brewing Company (later jointed by Stroh's
Brewing Company) concerning Canadian beer practices
(hereinafter Canadian Beer). I did not meet with any U.S.
government officials or appear on behalf of Quebec in any
proceeding, nor did my name appear on any of the briefs or
submissions in any of the proceedings. With respect to
Canadian Beer, neither I nor the firm were involved in the
GATT Panel proceeding.
My work related to the Government of Quebec began in
October of 1989 and ended in March 1991, almost six years
ago. My time on the Canadian Pork and Canadian Beer matters
totaled approximately 240 hours, which represented just over
0.50 percent of my work while in private practice.
With respect to the Embassy of Canada, my former law firm
and I were retained by the Embassy to monitor developments in
the United States concerning a broad range of substantive
areas, including international trade. The contract with the
Embassy of Canada for this monitoring work stated that
[[Page S1972]]
Steptoe & Johnson was ``to provide legal advice to the
Canadian Embassy, in Washington, D.C., on political,
legislative and regulatory developments in the United States
relating to trade and economic issues.'' The Embassy
explicitly prohibited lobbying on its behalf and I did not
lobby.
We routinely reviewed developments in the international
trade area, which included administrative, legislative and
judicial actions on issues of relevance to the Embassy,
ranging from changes in U.S. trade law to investment
restrictions in various countries. I coordinated the work of
other lawyers and paralegals in the firm as well, and routed
to them pertinent materials for their use.
Pursuant to the monitoring contract, the Embassy requested
that I also provide advice with respect to two specific trade
matters. First, I directed the preparation of memoranda on
the options and legal consequences if Canada were to
terminate its settlement agreement with the United States
involving softwood lumber, as well as the implications of
judicial, administrative and legislative developments in U.S.
trade law on possible future trade litigation in the event
that Canada decided to terminate the settlement agreement. I
did not recommend to the Embassy what course of action Canada
should take with respect to the lumber matter. At the time
that I directed this work, the settlement agreement was in
force; there was no pending trade litigation and there were
no negotiations on softwood lumber between the United States
and Canada. In fact, my work on the settlement agreement
ended several months before the countervailing duty
litigation on Softwood Lumber from Canada began.2
Second, I reviewed certain draft composite texts prepared
by the Chairmen of the GATT working groups on antidumping and
countervailing duty law for circulation to all of the
approximately 117 countries that participated in the Uruguay
Round MTN. The Chairmen's drafts that I commented on were
prepared by the GATT Chairmen as an attempt to reflect the
consensus of GATT members. They were not U.S. texts. My
review of these draft texts involved comparative analyses of
the Chairmen's drafts with past GATT provisions, GATT
practice, prior Chairmen's drafts, and U.S. law, as
appropriate, and an evaluation of the potential impact of
these and alternative texts on U.S. law.
My time spent on the MOU settlement agreement and MTN
matters totaled approximately 145 hours, or slightly more
than 0.30 percent of my work while in private practice. My
work on these two matters was done intermittently from May
1990 to December 1991, and ended more than five years ago.
What other Canadian governments, business, industry groups,
or organizations have you represented on matters related to
trade with the United States? What was the specific nature of
the services that you provided to these entities, and at what
times did you provide these services?
As indicated in response to question 1, I represented the
Canadian Forest Industries Council (``CFIC'') in the
countervailing duty litigation on Softwood Lumber from
Canada. CFIC is an unincorporated association comprised of
trade associations in the Canadian forest products sector,
private Canadian softwood lumber producers, Canadian
exporters of softwood lumber, and U.S. importers of softwood
lumber. The services provided included those required in
an on-the-record trade litigation, such as brief writing,
assistance with preparation of responses to Department of
Commerce questionnaires, and oral advocacy. I was retained
in October, 1991, and my involvement ended when I left my
former law firm, Steptoe & Johnson, in April, 1993.
Were you ever retained by a Canadian entity to work on a
particular issue at a time when that entity was engaged in a
formal dispute resolution proceeding with the United States
related to that issue under trade agreements signed by the
United States and Canada? If so, what was the specific nature
of the work that you performed for that entity on that issue?
See question 1 which describes all my work relating to
foreign governments. As indicated above, I was retained by
CFIC in the countervailing duty litigation on Softwood Lumber
from Canada.
Were you ever retained by a Canadian entity at a time when
that entity was involved, either directly as a government, or
indirectly as an interest lobbying a Canadian Federal or
provincial government, in negotiations on bilateral and
multilateral trade agreements to which the United States was
a party? If so, can you please describe the specific nature
of that work?
With respect to being retained directly by the Canadian
government, see response to question 1. I was never retained
by any client to lobby Canadian Federal or provincial
governments.
Were you ever retained by the Canadian federal government,
a provincial government, or any other Canadian entity to
perform work related to the Uruguay Round negotiations of the
GATT, particularly as these negotiations related to the
United States? If so, can you please describe the specific
nature of this work?
See response to question 1.
(a) Do you think your past work in the private sector on
behalf of Canadian entities will in any way hamper your
ability to perform your duties as the U.S. Trade
Representative as those duties relate to Canada? (b) Do you
feel compelled to recuse yourself on any matters that come
before the U.S. Trade Representative's office on issues
related to Canada?
(a). No.
(b) No. However, I have recused myself from any particular
matter involving specific parties in which I served as
counsel on that matter while in private practice, unless I
have been authorized to participate in that matter under the
provisions of 5 C.F.R. 2635, Subpart E.
Can you assure me and other senators that your past work on
behalf of any Canadian entity will not have any bearing on
the performance of your duties as the U.S. Trade
Representative?
Yes, unequivocally.
American businesses need a forceful, aggressive, and
indefatigable advocate in the position of U.S. Trade
Representative, particularly when dealing with intransigent
and unscrupulous governments like Canada's. (a) Do you intend
to forcefully defend and advocate American business interests
in all international trade disputes, negotiations, and
discussions involving the United States? (b) Will you
aggressively pursue all effective remedies to unfair trade
practices committed by other countries against American
businesses? (c) Will you, to the extent authorized in the
position of Trade Representative, pursue the strict adherence
to and vigorous enforcement of all U.S. trade laws?
(a) Yes
(b) Yes
(c) Yes
Do you intend to make full use of Sections 201, 202, and
203 of the Trade Act to assist American industries that are
suffering from injurious import surges?
Sections 201, 202 and 203 are the so-called escape clause
or safeguards sections of our trade laws. These provisions
are administered primarily by the International Trade
Commission (ITC), not the USTR. The law permits an entity
that is representative of an industry, including a trade
association, firm, union or group of workers to petition the
ITC for relief. Alternatively, the President, USTR or House
Committee on Ways and Means or Senate Committee on Finance
may request the ITC to conduct an investigation. the ITC's
investigation is to ``determine whether an article is being
imported into the United States in such increased quantities
as to be a substantial cause of serious injury, or the threat
thereof, to the domestic industry producing an article like
or directly competitive with the imported article.'' Once the
ITC makes an affirmative injury determination, the ITC then
recommends to the President certain actions to address the
injury to the domestic industry. USTR is also involved in
providing a recommendation to the President as to what course
of action would best assist an industry in adjusting to a
serge in imports. If confirmed as USTR, I would intend to
review all recommendations by the ITC to grant relief to an
injured industry in order to ensure that USTR provides the
President with the most considered recommendation possible
regarding remedy actions that might be taken.
Based on our past discussions, I know that you are aware of
the long-running trade problems that the potato industry in
Maine and other states has had with Canada. If confirmed, do
you intend to make the satisfactory resolution of potato-
related trade disputes with Canada a high-ranking and
continuous priority of the United States? Will you take steps
to ensure that this issue is prominently featured on the
agenda of any major bilateral trade discussions with Canada?
As you know, in close consultation with the Maine potato
industry, I sent a formal request to Marcia Miller, Chairman
of the ITC, requesting a formal 332 investigation on
conditions of competition in the fresh and processed potato
industry. This investigation will focus on the factors
affecting trade between the United States and Canada. I
expect to receive this report by July 15. The report will
provide information on Canadian prices and costs of
production which may be useful to the Maine potato industry
and the U.S. government.
I have become very familiar with this issue and will work
closely with you over the months ahead on finding ways to
address the concerns of this important industry. You can be
assured that we will continue to raise the issues of concern
for the Maine potato industry at our bilateral meetings with
Canada.
Mr. DOMENICI. Mr. President, it is my pleasure to support the
nomination of Charlene Barshefsky to become the U.S. Trade
Representative.
Mr. President, one of the things I find most interesting about
Charlene Barshefsky is that in many ways she is a study in
contradiction. On the one hand, she is a tough-as-nails trade
negotiator who has developed a reputation for bringing the most
experienced and determined of opponents to their knees. On the other
hand, she is a loving and supportive wife and mother who recognizes the
importance of family and, despite having very important
responsibilities, makes time for her children.
Mrs. Barshefsky's tough negotiating strategy has earned her the
nickname ``Stonewall'' from her colleagues, and ``Dragon Lady'' from
the Japanese.
[[Page S1973]]
This reputation, however, was not gained at the expense of attention
to her children. It has been reported that she has been known to help
her children with homework while on the telephone to Hong Kong and
other far off places.
Mr. President, I have had an opportunity to witness Mrs. Barshefsky's
abilities first hand in the 1980's. At that time, a number of my
colleagues and I fought to stop Chile from dumping Government
subsidized copper on the world copper market potentially putting
thousands of people in New Mexico and throughout the United States out
of work. Although U.S. copper producers ran the most competitive mining
operations in the world, Americans were loosing jobs because the
Chilean Government was subsidizing its industry with Government
revenues and development funds from the World Bank and the
International Monetary Fund. Charlene Barshefsky was one of the primary
people who worked to rectify this situation.
Mrs. Barshefsky has successfully worked on numerous other trade
related issues since then. She became the Deputy U.S. Trade
Representative in May, 1993, and Acting Trade Representative in April,
1996. She marshaled support for the Global Information Technology
Agreement and successfully concluded negotiations on the Basic
Telecommunications Services Agreement to expand telecommunications
trade and facilitate the building of a global information
infrastructure. She played a vital role in solving trade disputes with
Japan and China. She fought to open markets for the U.S. agricultural
industry, and is leading efforts to expand trade with Europe. In fact,
its hard to find an area of trade where Mrs. Barshefsky has not been
involved.
Charlene Barshefsky's tenacity and skill as a trade negotiator is
well know the world over. Her demonstrated ability to do an exceptional
job, her reputation for being a supreme tactician and tough negotiator,
and her ability to do all of this and still make time for her family
makes her an ideal choice for this post. For these reasons and others,
it gives me great pleasure to support Charlene Barshefsky's nomination.
Mr. GORTON. Mr. President, I am pleased to voice my strong support
for the nomination of Charlene Barshefsky as U.S. Trade Representative.
Ambassador Barshefsky has done an outstanding job as acting USTR since
her appointment last April.
I believe Ambassador Barshefsky is one of the best nominations
President Clinton has made and am honored to have the opportunity to
speak on her behalf. Charlene Barshefsky is an aggressive and
articulate advocate of U.S. trade interests and has been very
successful in defending U.S. business and agriculture throughout the
world. The Office of the U.S. Trade Representative is vital to opening
up trade markets to U.S. goods, and Charlene Barshefsky has proven
herself to be very effective at doing just that.
Ambassador Barshefsky understands that U.S. agriculture and industry
can compete very effectively in the international market, but only if
trade barriers are torn down. She has been relentless in her efforts to
expand market access for U.S. exports and to promote U.S. trade
interests abroad.
I am particularly impressed with Ambassador Barshefsky's work on
intellectual property rights. My State is home to the Nation's largest
software producer and to many smaller software and video game
companies. These businesses have faced devastating problems with the
counterfeiting of their products overseas. Ambassador Barshefsky has
been a leader in the fight to end such violations of U.S. intellectual
property rights. Last year, she negotiated a tough deal with China. By
threatening sanctions against $2 billion in Chinese exports to the
United States, she was successful in forcing Beijing to crackdown on
software counterfeiters. While intellectual property theft still
occurs, Ambassador Barshefsky has made great strides in defending
United States interests in Asia.
She has also worked as a tough negotiator on Pacific Northwest wheat
exports to China. As many of my colleagues know, China has, for the
past 25 years, imposed arbitrary restrictions on the importation of
wheat from the United States. The Chinese Government claims that
Washington State wheat is infected by TCK Smut disease and therefore
forbids its import into China for fear that the disease will spread to
Chinese wheat. Unfortunately, their claim has no scientific basis.
Ambassador Barshefsky has worked diligently to eliminate trade
restrictions based on unsound science. Although her efforts have not
yet been successful, she has been the strongest voice Washington state
wheat growers have had in the administration for several years.
Mr. President, I strongly support the nomination of Charlene
Barshefsky, and I urge my colleagues to join me in voting to confirm
her as U.S. Trade Representative.
Mr. ROTH addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. ROTH. Mr. President, once more, I strongly endorse the nomination
of Ambassador Barshefsky. I urge my colleagues to vote for her. I ask
for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
Mr. MOYNIHAN. Mr. President, I do want to assert that she is
extraordinary and will be plenipotentiary.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Charlene Barshefsky, of the District of
Columbia, to be U.S. Trade Representative, with the rank of Ambassador
Extraordinary and Plenipotentiary? On this question the yeas and nays
have been ordered, and the clerk will call the roll.
The legislative clerk called the roll.
The result was announced--yeas 99, nays 1, as follows:
[Rollcall Vote No. 27 Ex.]
YEAS--99
Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Cleland
Coats
Cochran
Collins
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Domenici
Dorgan
Durbin
Enzi
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Santorum
Sarbanes
Sessions
Shelby
Smith, Bob
Smith, Gordon H.
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Torricelli
Warner
Wellstone
Wyden
NAYS--1
Allard
The nomination was confirmed.
Mr. ROTH. Mr. President, I move to reconsider the vote.
Mr. MOYNIHAN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________