[Congressional Record (Bound Edition), Volume 146 (2000), Part 4]
[Senate]
[Pages 4663-4664]
[From the U.S. 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,

[[Page 4664]]

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.
  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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