[Congressional Record Volume 146, Number 41 (Wednesday, April 5, 2000)]
[Senate]
[Pages S2229-S2230]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRADE ADVISORY COMMITTEE SYSTEM
Mr. BAUCUS. Mr. President, I rise today to address a concern I have
about the way we run our trade policy.
Over a quarter century ago, Congress passed the Trade Act of 1974. It
was a monumental piece of legislation which laid the foundation for
America's current trade policy operations. One of its features was a
formal system of non-partisan advisory committees. These committees
were designed to give the Executive Branch advice from the private
sector on trade agreements.
The Trade Act created two tiers of advisory committees. At the top is
the Advisory Committee on Trade Policy and Negotiations (ACTPN),
composed of 45 people serving for a 2-year term. The members are
officers of corporations, trade associations and labor unions. A
parallel committee known as TEPAC provides advice on trade and the
environment. The next tier contains the Industry Sector Advisory
Committees and the Industry Functional Advisory Committees, known as
ISAC's and IFAC's. The Trade Act gives the Executive Branch substantial
leeway in creating them, chartering them, and choosing their members.
Today there are more than two dozen ISAC's and IFAC's.
Mr. President, the Clinton Administration announced last month that
it was taking a hard look at the advisory committee process. I support
that. In the past year, we've witnessed some unwelcome developments in
the advisory committee system that call into question whether its
operating in the way Congress intended.
In May 1999, the head of a prominent environmental group resigned
from the TEPAC. He resigned after his committee was asked to comment on
regulations only after, rather than before, they were proposed by the
State Department.
In November 1999, the U.S. District Court in Seattle ruled in favor
of environmentalists who were seeking representation on two of the
ISAC's for paper and wood products. They believed that the trade issues
under discussion could have environmental consequences, and they wanted
the ISAC's to consider those consequences when providing advice to the
government. The Court agreed, and the Commerce Department took steps to
comply.
For reasons I don't understand, the Justice Department appealed the
decision after the Commerce Department had taken these steps. I have
already said that I will introduce legislation mandating environmental
participation if the District Court decision is overturned.
In January 2000, all three labor representatives resigned from the
ACTPN, the top-tier committee. Their complaint was that they had no say
in shaping the discussion agenda. So now nobody speaks on behalf of
American workers on the ACTPN.
Clearly, Mr. President, this process isn't working the way Congress
intended. It is time for a fresh look. Let me focus on what I believe
are the two main issues we should consider: trade agreement compliance
and open participation.
In the 1974 Trade Act, Congress gave the advisory committees two main
tasks. The first task was to give advice on upcoming and ongoing trade
negotiations. The advice they give helps set negotiating objectives and
bargaining positions. The second task related to existing trade
agreement. The ACTPN, the ISAC's and the IFAC's were to give advice and
information on compliance with these existing trade agreements.
We need more work on the second task.
Over the past 20 years, the United States has entered into more than
400 trade agreements. Last month the GAO issued a report on how well we
monitor and enforce them. The answer: not very well.
The American Chamber of Commerce in Japan has just released an
analysis of our bilateral trade agreements there. They examined over 50
separate agreements, testing them for effective implementation. Of the
ones given a numerical grade, over half flunked the implementation
test. That's miserable.
What's the problem? The problem is two-fold. First, everyone wants to
negotiate agreements, but nobody wants to implement them. That leads to
the second problem: too few monitors.
With respect to the first problem, Mr. President, it is worth
remembering that trade policy is carried out by human beings. Like
people everywhere, they find that negotiating deals is exciting.
Negotiating is high-profile work. What about implementation?
Implementing deals is not nearly as exciting as negotiating them.
Everyone signs up to negotiate. No one signs up to implement.
With respect to the second problem, the GAO cited a widespread lack
of personnel to monitor and enforce trade agreements. They pointed to
staffing gaps at in the U.S. Trade Representative's office, the
Commerce Department and other agencies. I don't doubt it. President
Clinton and Vice President Gore have worked hard and successfully to
slim down the federal bureaucracy. So there aren't many extra hands.
I don't think this problem can be solved by hiring more people. In
fact, given the number and complexity of modern trade agreements, I
doubt that we even could hire enough government workers to do the job
right. We've moved far beyond the old-style trade pacts that just
covered tariffs, where it is easy to see whether everybody's charging
the right rate. Nowadays these agreements cover highly specialized non-
tariff issues. We have agreements on technical standards for high-tech
electronic products. Agreements covering regulatory procedures, such as
approving new drugs. Understanding these agreements takes very specific
expertise.
[[Page S2230]]
Even though these trade agreements differ widely in scope and in
content, they have one feature in common. Their aim is opening markets
for American exports. Who is in the best position to monitor whether or
not they achieve that purpose? I submit, Mr. President, that the
companies who are supposed to benefit from the agreements are in the
best position, along with their trade associations.
We have about 1,000 people from the private sector in the advisory
committee system. They are all volunteers, working free of charge. They
do an excellent job on their first task, advising the government on the
negotiating end of trade policy. We should get them working on their
second task, monitoring existing trade agreements. And they should do
their monitoring out in the open.
Every new trade agreement should be assigned to at least one advisory
committee. That committee should be responsible for monitoring
compliance with the agreement. That committee should report regularly
on implementation. It should recommend specific action when it finds
examples of non-compliance. Complicated agreements, such as NAFTA and
the Uruguay Round, should be parceled out among several committees.
Prospective members of trade advisory committees should all meet the
following test: do they represent an organization willing and able to
help monitor compliance with trade agreements? Only those who answer
yes should be put on a committee.
Mr. President, let me turn now to the second issue we should examine:
public participation.
I come from a state with a strong tradition of open government. A
Montanan has the right to attend any meeting that a State official
holds. No exceptions. The federal government has a tradition of
openness too, especially with respect to advisory committees. Congress
made openness a statutory requirement with the Federal Advisory
Committee Act (FACA) of 1972. When we passed the Trade Act, we
specified openness by requiring that all of these trade advisory
committees follow FACA procedures.
We left one exception. Meetings could be closed to the public if they
covered matters which would seriously compromise U.S. Government trade
negotiations. That's a quote from the law. ``Seriously compromise.''
And only with respect to ongoing active negotiations.
Today there aren't many active trade negotiations underway. So there
is not much to be seriously compromised. Nevertheless, too many
advisory committees are still closed to interested observers. That's
unacceptable. It's illogical. It's illegal.
What are the advisory committees talking about in these meetings?
I've heard from people who attend them that almost all of the
information discussed is pretty straightforward. Nothing very secret.
People who are barred from the meetings don't know that. They begin
to suspect that something's going on in those rooms. Maybe somebody is
trying to hide something from them. Closing off these meetings just
feeds that feeling of mistrust. It's bad government.
In the past, the Administration used to close all ISAC and IFAC
meetings, until they lost a 1996 court challenge. It was a blanket
closure policy. In arguing this case before the court, the Trade
Representative's office said that Congress agreed with the blanket
closure policy, because we never did anything about it.
Let's do something about it. The Constitution gives Congress, not the
Executive Branch, authority over international trade. I intend to
introduce legislation designed to clear up any confusion about what
Congress expects with regard to public participation in ISAC's and
IFAC's.
Finally, Mr. President, I have found one other feature of advisory
committee that we should change. There is a ``consensus'' mentality.
Some committees feel that they can only give advice if they reach a
consensus. They say that this is why committees can't have members who
come at issues in different ways. They'll never get consensus. I see
nothing wrong with committees sending forward recommendations along
with minority viewpoints. We're a democracy. We do this all the time.
I look forward to working with my Senate colleagues and with the
trade agencies of the Executive Branch to get the advisory committee
system back on track.
Mr. President, I have written to Secretary Daley and Ambassador
Barshefsky outlining my thoughts on this issue. I ask unanimous consent
that this letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
United States Senate,
Washington, DC, April 4, 2000.
Hon. William M. Daley,
Secretary of Commerce, Washington, DC.
Hon. Charlene Barshefsky,
U.S. Trade Representative, Washington, DC.
Dear Secretary Daley and Ambassador Barshefsky: Your recent
initiative to take a close look at the trade advisory process
is right on target. As you know, I am concerned by the
resignations by prominent labor leaders and environmentalists
from TEPAC and ACTPN, and by the Administration's appeal of
the court ruling on NGO participation in ISAC's. It is time
to re-examine the process, balancing sometimes conflicting
goals.
For example, we seek influential leaders on ACTPN and TEPAC
who understand trade policy. It is not always easy to find
both qualities in one person. As a result, the ability of
ACTPN and TEPAC members to contribute to trade policy
formulation varies widely.
The desire for the ISAC's and IFAC's to foster consensus
recommendations leads to excluding certain interested
parties. I have heard from business groups and NGO's on this
point. Morever, because the advisory process can be rigid and
slow, it is tempting to circumvent the ISAC's or IFAC's, and
instead use informal groups of trade advisors.
Let me offer a few ideas for improving the process.
We should give the advisory committees a more active role
in monitoring implementation of existing agreements. Their
charters include this function, but we don't emphasize
compliance monitoring. We should strengthen this function.
The private sector can help fill the information gaps which
the GAO identified in its recent report on trade agreement
compliance.
In addition, we should reexamine committee operating rules,
such as procedures for choosing members and the role of the
designated federal official. This may entail streamlining the
system by reducing the number of standing committees.
Finally, we have to clarify the relationship between the 1974
Trade Act and the Federal Advisory Committee Act.
This 26 year-old system is ready for some fresh eyes and
for a legislative remedy. I look forward to working with you
to improve the process.
Sincerely,
Max Baucus.
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