Comments of Public Citizen, Inc.,
on Procedures for Obtaining Trade Policy Advice
from Non-Governmental Organizations

July 10, 2000

Public Citizen submits these comments in response to the Department of Commerce (DOC) and United States Trade Representative (USTR) request for public views on procedures for obtaining trade policy advice from non-governmental organizations (NGOs).(1) Public Citizen is concerned that despite lip service from the Clinton Administration regarding the need to open international commercial policy-making to consumer, environmental, labor, and other citizens' organizations, and the general public, the U.S. system for making trade policy decisions remains seriously flawed. Indeed, the period following pronouncements by President Clinton of the need for greater openness has seen a steady deterioration. Most recently, the unanimous recommendations of consumer and environmental advisory groups on trans-Atlantic issues for the selection of the consumer and environmental representatives to a high-level biotechnology panel was ignored by the Clinton Administration. The Administration instead chose perhaps the only candidate widely opposed by consumer and environmental groups because of the candidate's past corporate representation and current position on biotechnology issues.

The entire U.S. system for developing international commercial policy - from the use of the "Fast Track" version of trade negotiating authority to the advisory committee system to the decision-making process for prosecuting World Trade Organization (WTO) cases - needs to be updated. The current system for developing U.S. international commercial policy was established when international trade agreements focused on tariffs and quotas. Now that international commercial agreements affect myriad environmental, food safety, consumer and worker protection, tax, and banking laws, the system for developing these policies needs to be overhauled to allow for significantly greater citizen input into negotiating objectives and implementation.

These comments propose legislative and regulatory reforms to address these problems. Public Citizen recommends a new, more accountable trade negotiating authority and public input system to replace the outdated "Fast Track" concept and the Fast Track advisory committee system. A Fast Track replacement would allow Congress, the public, and the media to review the contents of international commercial agreements before they are signed, and, if necessary remand them for further negotiation. A comprehensive update of the 1974-established and 1988-amended trade policy-making regime of Fast Track and the current array of advisory committees will be necessary to overcome the current stalemate on international commercial policy.

However, in these comments, Public Citizen also makes specific suggestions for immediate reform of the current trade advisory committee system so that it at least conforms to provisions of the Federal Advisory Committee Act (FACA) requiring advisory committees to be "fairly balanced in terms of the points of view represented"(2) and their advice and recommendations to "not be inappropriately influenced by the appointing authority or by any special interest."(3) The Trade Act of 1974 explicitly applies these provisions to trade policy advisory committees.(4) In order to fix the advisory committee system in the short-term, until it can be replaced, Public Citizen suggests the DOC and USTR: (1) make all advisory committee meetings and information accessible to the public; (2) ensure that consumer, environmental, labor, and other non-commercial groups are represented in numbers equal to industry representatives on all advisory committees; (3) consult with consumer, environmental, labor, and other NGOs prior to developing U.S. government positions in international commercial negotiations and implementations (including decisions regarding formal and informal enforcement actions and harmonization and equivalence activities), and make these decisions through an on-the-record notice-and-comment process; (4) demonstrate a new respect for the advice and recommendations of consumer, environmental, labor, and other NGOs by responding to such advice and recommendations in writing, including explanations for why U.S. government positions do not conform to NGO advice and recommendations; and (5) re-consult consumer, environmental, labor, and other NGOs if international commercial negotiations (including the WTO "built-in" agenda currently under discussion, Free Trade Area of the Americas, Organization for Economic Cooperation and Development, North American Free Trade Agreement, and any other bilateral or multilateral discussions) result in any changes in U.S. government positions.

The Interests of Public Citizen

Public Citizen, founded by Ralph Nader in 1971, is a non-profit consumer advocacy organization with over 120,000 active supporters nationwide. Since its founding Public Citizen has worked to strengthen the ability of citizens to participate in the domestic policy-making process and to improve consumer health and safety, worker protections, and environmental protection. For the past nine years, Public Citizen has endeavored to educate the American public about the enormous impact of international trade and economic globalization on our nation's health, safety, labor, and environmental standards, and its democratic accountability and policy-making procedures. We submit these comments to urge the DOC and USTR to resolve the significant problems of imbalance against public interest, non-commercial perspectives in the current international commercial policy-making system.

Replacement for the Outdated Fast Track Concept

Any meaningful discussion of enhancing the role of NGOs and the American public in international commercial policy-making must begin with a wholesale replacement of the existing Fast Track and advisory committee regime. "Fast Track" is not synonymous with "trade authority." Rather, "Fast Track" is just the proper name for one version of how Congress can delegate to the Executive Branch its exclusive Constitutional authority to set international commercial rules. Most Members of Congress were not in office before 1974, when Fast Track was established, so they do not know that Congress has delegated trade negotiating authority in different ways over the years, as the contents of commercial negotiations have changed.

Fast Track's structural design harkens back to a day when trade negotiations focused almost exclusively on tariffs and quotas. The Fast Track delegation mechanism, which has been used only five times since its establishment in 1974, has now been outgrown by the reality of what is covered in modern international commercial negotiations, such as environmental, food and product safety; consumer and worker health protection; communications, transportation, and banking regulations; and local government procurement standards. Fast Track's design forecloses the enhanced role now necessary for Congress and U.S. citizens to confront the most significant challenge of our age - globalization - with balanced, pro-public interest rules appropriate to its complexity.

1. U.S. Constitution Requires Congress and Executive to Share Trade Power

The U.S. Constitution grants to the Legislative Branch the exclusive authority "[t]o regulate Commerce with foreign Nations."(5) However, the Constitution grants to the Executive Branch authority over relations with foreign sovereigns.(6) Thus, the negotiation of and entry into international commercial agreements requires a shared authority between the Legislative and Executive Branches.

This design is one of many checks and balances built into the U.S. Constitution to prevent one branch of government from having complete control of a vital policy area. Indeed, a review of historical documents from the time of the Constitution's development shows that the framers intentionally granted to Congress the authority to regulate international commerce to move away from the European model, which gave absolute control over such matters to a "king," and instead to grant that power to the body "closest to the people."

2. The Fast Track Concept Is Outdated And Must Be Replaced

When the Executive Branch first used Fast Track during the 1979 GATT Tokyo Round negotiations,(7) the issues under consideration were narrowly limited to traditional trade matters. Thus the fact that the private sector advisory committee system, started "in exchange" for Congress relegating itself to a less-involved role in international commercial policy-making, consisted almost exclusively of business representatives was less of a problem. For instance, the Tokyo Round implementing legislation was under fifty pages, and few U.S. laws were modified. The only non-tariff issues even discussed in the Tokyo Round were customs classifications; a non-binding, non-enforceable product standards code; fine-tuning of existing anti-dumping rules; and some limited government procurement policies.

The second use of Fast Track resulted in the 1985 U.S.-Israel Free Trade Agreement.(8) That pact's entire implementing bill was less than four pages long and pertained only to lowering tariffs and rules on government procurement between the two nations.

It was with Fast Track's third use, which resulted in the 1988 U.S.-Canada Free Trade Agreement (CUSTA),(9) that the issues under discussion in "trade" negotiations began to expand into new areas. The U.S.-Canada Agreement made several changes to domestic agriculture, banking, investment, food inspection, and other policies. It was the first trade agreement implementing bill that spanned over one hundred pages. The imbalanced representation on the trade advisory committees combined with Congress' more limited role under Fast Track claimed their first detrimental results in this agreement. As a precursor to the North American Free Trade Agreement (NAFTA), the CUSTA set a model for future negotiations that did not represent broad public interests and, indeed, excluded the health, safety, environmental and democratic procedural considerations NGOs would have pushed.

The 1993 NAFTA and 1994 GATT Uruguay Round, which created the World Trade Organization (WTO), entirely exploded the boundaries of what was included in "trade" pacts. That these pacts were designed and negotiated without balanced public input or a greater role for diverse Congressional committees is at the root of the current backlash against the version of globalization they implement. Unbalanced rules which systematically subjugate other policy goals to trade are producing broadly unacceptable outcomes.

The implementing legislation for NAFTA and GATT-WTO rewrote an array of U.S. laws and implicated a wide variety of others. The pacts required countries to constrain even non-discriminatory regulatory policies within parameters set by the pacts' far-reaching rules. Unlike the objective principles, such as "non-discrimination," of past trade deals, these agreements invaded subjective, value-laden decision-areas concerning how much food or product safety protections a country could choose. The pacts also mandated the re-shaping of domestic laws on service industries and investments, not just terms for trade in goods. Each of these agreement's implementation bill contained over one thousand pages of changes to a vast array of U.S. policies. Each agreement also established an international tribunal system with economic enforcement powers, but without the due process guarantees contained in U.S. law.

Whether or not Fast Track trade negotiating authority was suitable for its three previous uses, the unbalanced terms of NAFTA and GATT/WTO demonstrate that it and the private sector advisory system are clearly no longer appropriate for modern international commercial agreements which implicate broad areas of domestic policy.

3. Developing a New Trade Policy-Making Procedure for the 21st Century

Fast Track delegates many different aspects of Congressional authority all at once and provides "in exchange" a role for the private sector in advising the Executive Branch through the advisory committees. The Fast Track delegation system allows the Executive Branch to: (1) negotiate and agree to terms requiring changes in U.S. domestic law; (2) enter into such agreements, thus binding the U.S. to such changes under international law; (3) write legislation to amend laws to conform with these commitments; and (4) control the process by which Congress will consider this legislation under strictly limited procedures forbidding normal committee action and floor amendments. As a result, even if a new advisory system were designed to balance public interest and commercial representatives, under the current delegation system Executive Branch negotiators would not be held accountable for following or not following advisory committees' recommendations. The key principle of a more accountable, replacement international commercial policy-making system would unpack these different delegations of authority and only allow delegation of one aspect at a time, with Congressional approval that negotiating objectives representing broad input had been met as a requirement to move forward.

The most vital change will be to require Congress to vote prior to formal entry by the U.S. into a binding international commercial agreement. This will shift focus in Congress, the public, and the media to the actual text of proposed agreements at a time when they still may be "fixed." Unlike Fast Track, this approach will separate the authority to negotiate from the authority to enter into an agreement. This separation will give the public and Congress a chance to see if an agreement's terms represent the broad public interest before it is signed. The only way for NGOs and the U.S. public to have meaningful input is to give them a significant role throughout the process. For instance:

An updated replacement for Fast Track would provide a Congressional delegation of authority for the Executive to negotiate international commercial terms (defined as trade and investment law and regulation), establish a mechanism to establish negotiating objectives, establish readiness criteria for countries with whom the U.S. seeks to negotiate, and establish a system of regular Congressional and public reporting regarding negotiators' fulfilment of the objectives.

The general delegation of authority would establish a procedure through which the Executive branch could obtain input on specific country readiness criteria and negotiating authority for particular negotiations. This procedure would provide for setting of readiness criteria and negotiating objectives appropriate to the specific negotiations being planned by use by the Executive Branch of a process of public hearings and notice-and-comment procedures similar to the rulemaking process under the Administrative Procedure Act (APA). The Executive would report to Congress the outcomes of this process as part of requesting negotiating authority for a specific agreement.

After holding its own hearings in the committees whose jurisdiction is implicated, Congress would formally delegate authority for a specific negotiation by approving legislation by a simple majority in both chambers that lays out consultation and reporting requirements, readiness criteria and the explicit negotiating objectives. The precise language for the negotiating objectives would be developed through the Congressional committees of jurisdiction according to subject matter. (For instance, the language of sanitary and phytosanitary objectives would be developed jointly by the Agriculture and Commerce Committees, and the language of technical barriers to trade objectives would be developed jointly by the Natural Resources and Commerce Committees.)

Every six months during the negotiation of each specific proposed agreement, the Executive Branch would be required to report to Congress in writing and by subject matter on the progress in meeting Congress' stated objectives and the basis by which negotiating partners fulfil the readiness criteria. This review process would also include public hearings and on-the-record comment periods for the public, similar to the rulemaking process under the APA so that the public could comment on new decisions the negotiators face or proposed changes in past U.S. positions.

When the Executive Branch determined that the negotiating objectives had been met, it would give notice to Congress to begin a formal review and approval of entry into the agreement. The Executive Branch would be required to trigger this process by submitting to Congress a report on its success in meeting negotiating objectives and a detailed list of all U.S. domestic laws and regulations, including sub-federal laws and regulations, that would be affected by the terms of the agreement.

Congress would conduct a final review of the agreement text and the Executive's report, including mandatory public hearings in each Congressional committee of jurisdiction and a committee vote and report certifying either that the objectives set by Congress had been met or the areas in which further work was necessary. This process would have three favorable outcomes: it would (1) force greater Congressional scrutiny of the specific terms of agreements rather than reliance on negotiators' descriptions of the terms; (2) give Congress leverage over negotiators to enforce the Congressionally-approved negotiating objectives (under Fast Track, these objectives are regularly ignored); and (3) give additional leverage to U.S. negotiators over other countries' negotiators, given that if U.S. negotiators fail to satisfy Congress' objectives, negotiations would have to be renewed.

When each Congressional committee of jurisdiction had reported out a favorable certification, a super-committee comprised of the Chair and ranking Member of each committee of jurisdiction would be called to approve a bill for floor consideration. This bill would simply state: "The Congress of the United States approves entry into this agreement." Holding a congressional vote before the Executive branch signs (and thus enters into) an agreement shifts congressional, public and press focus to the substance of the negotiations and does so at a time when shortcomings can be remedied. By building consensus about negotiating objectives, overseeing fulfilment of such objectives by negotiators and getting Congress involved to give approval before entry into the agreement, the pressure would be taken off of the development of and passage of implementing legislation.

The concept described above contains the basic principles of a more accountable trade negotiating authority delegation mechanism. While any specific proposal would require careful consideration, this concept unpacks the assorted delegations of Congressional authority now lumped together under Fast Track, and allows for a more appropriate Congressional and public role throughout international trade policy-making.

While we are aware that this proposal will require legislative rather than regulatory changes, Public Citizen urges the DOC and USTR to push for such policies in the Congress as a means of unlocking the current logjam in building consensus on future U.S. international commercial policy. Below, Public Citizen makes specific suggestions for short-term reform of the advisory committee system which the DOC and USTR can achieve through regulatory changes.

Problems in the Current Advisory Committee System

As it stands, the trade advisory committee system clearly is broken. NGOs have made thoughtful and extensive suggestions for reforms in the past. At a minimum, these suggestions have been ignored. At times, the U.S. government has done the opposite of what was requested, resulting in NGO lawsuits. Many NGOs eagerly await the reduction of their levels of cynicism and frustration regarding Administration calls for improved NGO input into U.S. international commercial policy-making by the appearance of real, substantive changes, rather than the continued meaningless rhetoric accompanying business-as-usual.

Following are several examples of the problems in the advisory committee system and specific suggestions for regulatory reforms the DOC and USTR can make to improve the system.

1. The Shroud of Secrecy
Members of trade advisory committees are given access to government information about U.S. negotiating objectives and positions, even when that information is classified, contains trade secrets, or is otherwise unavailable to the general public.(10) Yet, the current composition of the trade advisory committees means that this privileged access is provided to hundreds of industry representatives by only a handful of labor, consumer, environmental, and other public interest representatives.

Further, although the Trade Act of 1974 subjects trade advisory committees to FACA's open meetings, public records, and public participation requirements, it provides an exception to these provisions. The exception allows meetings to be closed at the Administration's discretion "whenever and to the extent it is determined by the President or his designee that such meetings will be concerned with matters the disclosure of which would seriously compromise the development by the United States Government of trade policy, priorities, negotiating objectives or bargaining positions with respect to" trade agreements.(11) NGOs have protested the practice of issuing blanket closure of such meetings.(12)

A. Closed Meetings

The Advisory Committee on Trade Policy and Negotiations (ACTPN) is comprised mainly of representatives of business and industry, with token consumer, environmental, and labor representation (until the recent resignation of all three labor representatives in protest of ACTPN's imbalanced operation). Meetings of ACTPN are rarely, if ever, open to the public and press. For example, the March 1, 2000 ACTPN meeting lasted from 8 a.m. to noon, but was only open to the public and press for the last thirty minutes because the USTR had "determined that this meeting [was] concerned with matters the disclosure of which would seriously compromise the development by the United States Government of trade policy, priorities, negotiating objectives or bargaining positions with respect to the operation of any trade agreement and other matters arising in connection with the development, implementation, and administration of the trade policy of the United States."(13)

The USTR merely repeated the language from the Trade Act of 1974 and did not provide any supporting facts. Why specifically did the USTR have to exclude the public and press from the meeting? What U.S. government trade policies or bargaining positions could have been affected by public involvement?

Furthermore, individuals who were not members of ACTPN were only able to observe, not comment, for that thirty-minute period. Finally, according to one consumer representative who did attend the public portion of the March 1 meeting, the USTR summarily broke up the public portion of the meeting after less than ten minutes.

B. Restricted Documents

Almost all of the documents the USTR and DOC share with members of trade advisory committees are restricted under the Trade Act's secrecy provisions. The so-called "sensitive negotiating information" exception has been used to restrict the public release of documents such as bland agendas for meetings and documents that have been shared widely with other countries and foreign industries. The USTR even invoked this exception to keep secret U.S. submissions to GATT dispute resolution panels, until Public Citizen successfully challenged this policy in court.(14)

C. Gag Orders for Advisory Committee Members

People nominated by the Administration to join an advisory committee must be approved for a security clearance, and they must sign a gag order that prohibits disclosure of such information to anyone who does not have a similar security clearance. Violating this gag order can subject the committee member to loss of the security clearance and civil and criminal penalties.

D. Lifting the Shroud of Secrecy

If the USTR and DOC expect consumer, environmental, and labor groups and the public as a whole to take the Clinton Administration's "joint initiative to enhance opportunities for nongovernmental organizations to provide their views to the Administration on key trade issues"(15) seriously, the agencies must immediately stop their practice of excluding the public and press from trade advisory committee meetings without providing legitimate reasons. The default presumption for future meetings must be open access, with portions of meetings closed only on the basis of an explanation on the merits.

The USTR and DOC also cannot limit public "participation" to mere observation for ten minutes. Public participants must be permitted with opportunities to ask questions and present their points of view. Finally, the USTR and DOC must provide the public and press with access to documents and end the blanket gag order policy.

2. Industry Domination of Trade Advisory Committees

In the early 1990s, trade advisory committees included close to 800 industry representatives and no consumer or environmental representatives. In 1992, after a Public Citizen FACA lawsuit and public and Congressional backlash to this preferential access for industry, the USTR named one representative from each of the five environmental groups which split off from the rest of the environmental community to support NAFTA to a few select advisory committees. Several of these advisory committees were later disbanded. Presently, only one - the Advisory Committee for Trade Policy and Negotiations (ACTPN) - still includes an appointed environmental representative. Furthermore, none of the Industry Sector Advisory Committees (ISACs) and Industry Functional Advisory Committees (IFACs) has any consumer or environmental representation.

Instead of appointing consumer and environmental representatives to balance the overwhelming industry membership of the existing trade advisory committees, the Clinton administration established one separate advisory committee to provide USTR with advice on trade and environment issues - the Trade and Environment Policy Advisory Committee (TEPAC).(16) Unlike the other trade advisory groups, TEPAC is comprised of equal numbers of industry and environmental representatives and meets solely at the discretion of the USTR.

Although establishing TEPAC may be construed as a step in the right direction, the USTR still has failed to address the total lack of public interest representation in the ISACs and IFACs. In July, 1999, several environmental groups sued the USTR and DOC over the lack of environmental representation on the ISACs dealing with wood and paper products. Currently the membership of the Paper and Wood Products ISACs is limited to representatives of the timber industry. In fact, in the Federal Register notice soliciting nominees for these ISACs, the USTR and DOC explicitly stated, "In order to qualify for representation on an Industry Sector or Functional Advisory Committee (ISAC/IFAC), nominees must be U.S. citizens representing U.S. manufacturing and service firms that trade internationally or an industry association whose members are primarily U.S. owned and are involved in international trade."(17)

On November 9, 1999, Federal District Judge Barbara Rothstein, of the U.S. District Court for the Western District of Washington, ordered the USTR and DOC to include at least one environmentalist on both the Paper and Wood Products ISACs.(18) Judge Rothstein ruled that the USTR and the DOC violated FACA by excluding environmentalists from these committees. FACA requires advisory committees to be "fairly balanced," and that excluding environmental groups made the ISACs imbalanced.(19)

In her 25-page opinion, Judge Rothstein wrote, "[M]atters affecting the wood and paper products sector are dramatically and inextricably intertwined with the environmental health and protection of this nation."(20) She continued, "The forest ISACs offer advice on diverse and far-reaching issues that affect others, especially those who promote forest conservation. The composition of the forest product ISACs, thus, violates [the law's] requirement to be fairly balanced in terms of viewpoints to be represented."(21)

"Finally, a long-existing wrong is slowly being righted," said Patti Goldman, the attorney from Earthjustice Legal Defense Fund who argued the case. "It is both unfair and illegal to load up these panels with industry representatives."(22) Goldman has fought to have FACA applied to trade advisory committees since the early 1990s, including through earlier FACA litigation as an attorney for Public Citizen.

The two industry-only forest products ISACs have recommended the reduction or elimination of tariffs on wood and paper products.(23) Indeed, this industry demand became a core element of the U.S. position for the Seattle World Trade Organization (WTO) Ministerial.

The Clinton Administration itself admitted that the U.S. WTO "free-logging" proposal would have increased logging in countries around the globe.(24) Environmentalists relied on a leaked industry assessment to confirm that tariff cuts would have increased global consumption of paper and wood products, resulting in more logging.(25) They want the tariff reductions delayed until environmental safeguards can be implemented.(26) "Sometimes tariffs are the only limits on how much is logged if there aren't environmental standards in place," said Earthjustice attorney Goldman. "Removing tariffs means a lot more logging can happen."(27)

Environmentalists were not the only critics of the U.S. WTO proposal to reduce tariffs on forest products. On July 27, 1999, forty-eight Members of Congress from both parties sent a letter to President Clinton calling on the U.S. to withdraw from WTO negotiations on liberalizing trade in forest products due to threats to the environment, labor, and domestic sovereignty and the secrecy surrounding the negotiations.(28)

Negotiations on eliminating forest products tariffs, which had been initiated in the context of Asia Pacific Economic Cooperation (APEC) talks, were scheduled to continue at the WTO Ministerial Conference in Seattle. However, with the Ministerial ending in much publicized turmoil, thankfully the U.S. "free-logging" proposal was stalled.

At the Seattle ministerial, President Clinton reiterated his oft-voiced call for a more open, balanced approach to U.S. international commercial policy-making. Yet, simultaneously and inexplicably, the USTR and DOC decided to appeal Judge Rothstein's ruling. Indeed, during the same week that President Clinton gave a major policy speech on opening trade policy-making to new NGO "voices," the agencies announced they would appeal Judge Rothstein's decision mandating such new representation. The fact that the USTR and DOC even litigated this case in the first place is hypocritical, given the Administration's position, at least rhetorically, on opening the trade policy process. Appealing the decision was beyond the pale. Ironically, the Administration abruptly decided to drop its appeal months later in a crass favor-for-vote exchange aimed at obtaining the support of Rep. Lloyd Doggett (D-TX) for the May 2000 House vote on Permanent Normal Trade Relations for China.

Even with the appeal halted, a lack of consumer, environmental, and other public interest representation on other ISACs and IFACs still exists. There are almost two dozen industry and agriculture sector advisory committees, including committees on chemicals, tobacco, and energy, with no environmental, consumer, or other non-industry representation. The remedy to this scandalous situation is not to drop one public interest representative into a sea of industry representatives on such committees, but to balance the membership equally and to open sessions for public input.

3. Manipulation of Consumer, Environmental, and Labor Groups on Advisory Committees

When consumer, labor, and environmental organizations have been appointed to advisory committees or granted some access to trade policy negotiators, they have often been manipulated and their advice and recommendations ignored. These problems are endemic and well-documented.

The Advisory Committee on Trade Policy and Negotiations (ACTPN) is supposed to provide the President and the USTR with advice on U.S. trade policy. Instead, it has operated as part of the joint industry-Administration effort to promote industry trade priorities.

On February 24, 2000, the three labor leaders on ACTPN finally had had enough of the manipulation. Labor was long the only non-industry representation on ACTPN, but the addition of one consumer and two environmental group representatives did not result in improvements in ACTPN's function. John J. Sweeney, president of the AFL-CIO; Jay Mazur, president of UNITE; and Lenore Miller, head of the Retail, Wholesale, and Department Store Union resigned from ACTPN to protest the committee's use as an advocate for permanent normal trade relations (PNTR) for China and to indicate their frustration with the Clinton Administration. They felt the Administration was not using ACTPN to form U.S. policy but rather avoiding labor's input and using the committee to persuade Congress to grant China PNTR, a proposal American unions vehemently opposed. The labor leaders told the New York Times that the administration has systematically failed to include labor demands for worker protections when developing international trade policy and negotiating trade deals.(29) Yet, for decades, labor was the sole non-industry participant in the system.

The Trans Atlantic Consumer Dialogue (TACD) was formed in September 1998 to formalize U.S.-European Union (EU) consumer group cooperation and input to the U.S. and EU governments on a range of international commerce and consumer issues. The TACD consists of 65 consumer groups representing some 600 million consumers. The TACD was also formed to serve as a counterweight to the 1995-established Trans Atlantic Business Dialogue (TABD), which is comprised of U.S. and European business executives. TABD presents joint U.S.-EU industry policy recommendations to the U.S. and EU governments at semi-annual summits

The TACD has met with U.S. and EU government officials and regulators, including USTR and DOC officials, twice: April 23-24, 1999, in Brussels, and February 10-12, 2000, in Washington, DC. Over the course of these two meetings, TACD representatives made 50 formal, written, consensus U.S.-EU consumer movement recommendations for changes in U.S. and EU policies on issues such as genetically-modified foods, access to medicines, and privacy protections in electronic commerce. Not one of those recommendations has been adopted. In contrast, according to Vice-President Gore at the 1998 TABD conference in Charlotte, North Carolina, "of the 129 recommendations TABD has made in the past three years, over 50 percent have been implemented into law. I wish we had that same level of success with Congress!"(30)

It is not surprising that more and more environmental and consumer groups are losing faith in the Administration's real intentions and the advisory system and are turning to other means to seek changes in U.S. international commercial policy. The latest perversion of the process by the Clinton Administration involved the rejection of a consensus consumer and environmental group recommendation for the consumer and environmental representative to a high-level biotechnology panel. In a strongly-worded letter to President Clinton protesting this action, the TACD stated, "We believe it signals a lack of respect for our views that threatens the Dialogue process."(31)

If the USTR and DOC expect consumer, environmental, and labor groups and the public as a whole to take the Clinton Administration's "joint initiative to enhance opportunities for nongovernmental organizations to provide their views to the Administration on key trade issues"(32) seriously, the agencies cannot attempt to manipulate advisory committees to push administration positions opposed by the members of those committees or overrule committee decision concerning who should represent consumer and environmental interests in other fora. The USTR and DOC continue to ignore the advice and recommendations provided by consumer, environmental, and labor groups at their own peril. The current stalemate on international commercial policy will only be broken by transforming the process and the substance of international commercial policy-making to fulfill the broad public interest.

Short-Term Fixes for the Advisory Committee System

In order to remedy the problems noted above, the USTR and DOC must make the following changes.

1. Make Advisory Committee Meetings and Documents Accessible to the Public

The public has a right to know how U.S. international commercial policy is being formed, especially when it affects public health, the environment, worker safety, and the democratic procedures by which these policies are made domestically. Closing advisory committee meetings to the public for vague, amorphous reasons - or for no reason at all - does not inspire public confidence in the advice and recommendations offered by such committees. Thus, the secrecy currently surrounding the trade advisory committee system must be eliminated.

The federal government has operated under popular laws like the Government in the Sunshine Act, Freedom of Information Act, Administrative Procedure Act, and Federal Advisory Committee Act for decades. State and local governments are subject to similar laws. The USTR and DOC must promulgate rules extending the requirements of these laws to all trade advisory committees. The public must have access to advisory committee meetings in order "to provide their views to the Administration on key trade issues."(33)

The USTR and DOC should use the secrecy authority granted by the Trade Act of 1974 to exclude the public from advisory committee meetings or restrict public access to information only if the agencies determine that specific, properly-classified information would be compromised by public disclosure. In such instances, the USTR and DOC should explain in the Federal Register notices for the meetings the specific reasons for closing the meeting, rather than issuing blanket closure orders.

The agencies also must eliminate the gag order policy. Currently, with trade associations and numerous industrial companies having positions on advisory committees, whole industry sectors are privy to privileged information. Yet, lone environmental or other public interest representatives are barred from discussing vital policy questions with colleagues or constituents. This imbalance must be eliminated, both by balancing membership numerically and by lifting the gag rule.

2. Ensure That All NGOs Are Equally Represented on Advisory Committees

The USTR and DOC must ensure that consumer, environmental, labor, industry, and other groups are equally represented on trade advisory committees. Merely appointing one consumer representative or one environmentalist to an advisory committee otherwise dominated by industry groups is insufficient. Thus, while Judge Rothstein's ruling ordering the USTR to add one environmentalist to the Paper and Wood Products ISACs, which are otherwise controlled by industry, is significant, it is still insufficient to balance the weight of opinion on those committees. The USTR and DOC must certify that the viewpoints on trade advisory committees are "fairly balanced," as required by the Federal Advisory Committee Act.

In order to ensure that consumer, environmental, and labor representatives will be able to attend advisory committee meetings, the USTR and DOC must offer to reimburse them for the costs of traveling to and attending committee meetings. Requiring advisory committee members to pay their own way to distant meetings has prevented some consumer, environmental, and labor representatives from accepting appointments or attending meetings.

This challenge is well-illustrated in the area of aviation safety. Aside from the aviation unions, there is now only one NGO in the U.S. that tracks aviation safety and participates on key Federal Aviation Administration (FAA) committees. The group has a small but dedicated staff that has developed some expertise in air-safety issues. One staff member of the Aviation Consumer Action Project (ACAP) serves on a few key FAA committees involved in the international harmonization of standards between the U.S. and the EU.

The most important committee is the Aviation Rulemaking Advisory Committee (ARAC). Recently, the FAA moved three out of four meetings of this committee to Renton, Washington, to make it easier for Boeing employees to attend and to make it cheaper for Airbus Industrie employees flying in from the EU.(34) At about the same time, the FAA did away with proxy voting for advisory committee members. ACAP is a small organization with an even smaller budget. ACAP cannot afford to fly to Seattle continually for meetings. Phone and satellite links have been spotty and ineffective. While previously the FAA would occasionally reimburse the group for its travel expenses, they stopped doing so as the expenses mounted. This combination of factors means that the one public interest NGO representative with interest and expertise in airline safety will no longer be able to track or vote on important standards harmonization activities in this crucial area of public concern.

Reimbursing consumer, environmental, and labor groups for their travel expenses is a simple way to solve the problem of imbalance on trade advisory committees. Such expenses could be covered through the charge of a small fee on industry participants. Moreover, by reimbursing such non-industry groups for their travel expenses, the USTR and DOC would expand the pool of applicants and participation, especially from outside the Washington, DC, Metro area.

3. Consult With Consumer, Environmental, and Labor NGOs

In order to enhance opportunities for consumer, environmental, and labor NGOs to provide their views on international commercial policy issues, the USTR and DOC must develop a systematic and serious consultation process that guarantees the USTR and DOC will: (1) consult with consumer, environmental, labor, and other public interest NGOs prior to developing U.S. government positions in trade negotiations; (2) seriously consider the advice and recommendations of consumer, environmental, and labor NGOs; (3) respond to such advice and recommendations in writing; and (4) re-consult consumer, environmental, and labor NGOs if trade negotiations force any changes in U.S. government positions.

Public Citizen recommends that the USTR and DOC actively seek out the advice of NGOs with expertise in each issue area being covered in whatever international commercial negotiations undertaken by the USTR or DOC. This new approach will require a change in mind-set. Just as officials now contemplate which industry representatives they had better check in with when negotiating specific issues, the same officials must consult with public interest groups with expertise in those issues. For example, if the USTR is negotiating policies for trade in agricultural products, it should consult with food safety and anti-hunger NGOs, not just agribusiness; and if the DOC is negotiating policies for trade in automobiles, it should consult with auto safety NGOs, not just the auto manufacturers, importers, and retailers.

In order to ensure that the agencies are seriously considering NGOs' advice and recommendations before developing U.S. government negotiating positions, the USTR and DOC must respond to NGO comments in writing. If the USTR and DOC reject the advice of NGOs, they must explain their reasoning. Finally, if the USTR and DOC change their positions during trade negotiations, they should go through this consultation process again prior to finalizing any agreements.

The best and most cost-effective way to implement these suggestions is simply to undertake notice-and-comment rulemaking when the USTR and DOC are developing their policies and positions for international commercial negotiations, and whenever those policies and positions change during negotiations. Public Citizen believes that subjecting the USTR and DOC's trade policy and position development process to the requirements of the Administrative Procedure Act in this manner will fully accomplish the administration's stated goal of "enhanc[ing] opportunities for nongovernmental organizations to provide their views to the Administration on key trade issues."

Conclusion

For the reasons stated above, Public Citizen urges the USTR and DOC to adopt the suggestions in these comments. In effect, Public Citizen is merely urging the USTR and DOC to subject trade advisory committees to the requirements of current U.S. law: (1) opening trade advisory committee meetings and information to the public, as required by the Freedom of Information Act; (2) ensuring that the viewpoints on trade advisory committees are "fairly balanced," as required by the Federal Advisory Committee Act; and (3) undertaking notice-and-comment rulemaking procedures when developing or changing U.S. government policies and positions in trade negotiations, as required by the Administrative Procedure Act. While the broad legislative reforms to the Fast Track version of trade negotiating authority Public Citizen proposes are outside the regulatory authority of the USTR and DOC, Public Citizen urges the agencies to support these reforms in the Congress.

Respectfully submitted,

Dion Casey, Esq.
Public Citizen's Global Trade Watch
215 Pennsylvania Avenue, SE
Washington, D.C. 20003

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1. 65 Fed. Reg. 19423 (Apr. 11, 2000).

2. Pub. L. 92-463 Sec. 5(b)(2) (Oct. 6, 1972), codified at 5 U.S.C. App. 2.

3. Id. at Sec. 5(b)(3).

4. 19 U.S.C. § 2155(f).

5. U.S. Constitution, Art. I, Sec. 8.

6. Id. at Art. II, Sec. 2.

7. Trade Agreements Act of 1979, 19 U.S.C. § 2501, et seq.

8. United States-Israel Free Trade Area Implementation Act, 19 U.S.C. § 2112.

9. The United States-Canada Free-Trade Agreement Implementation Act of 1988 was replaced in 1993 by the North American Free Trade Agreement.

10. 19 U.S.C. §§ 2155(a)-(c), (g), (i).

11. 19 U.S.C. § 2155 (f)(2).

12. Public Citizen v. Barshefsky, No. 94cv2236 (RMU) (D. D.C. Sep. 19, 1996).

13. 65 Fed. Reg. 9039 (Feb. 23, 2000). The June 10, 1999, and April 21, 1999, ACTPN meetings were scheduled from 8 a.m. to 1 p.m., but only open to the public and press from 12:30 to 1 p.m. for the same reason. See 64 Fed. Reg. 28022 (May 24, 1999) and 64 Fed. Reg. 16773 (Apr. 6, 1999). The March 6, 1997 ACTPN meeting was scheduled from 10 a.m. to 2 p.m., but only open to the public and press from 1:30 to 2 p.m. for the same reason. See 62 Fed. Reg. 8505 (Feb. 25, 1997). The September 13 and May 10, 1994 ACTPN meetings were completely closed to the public.

14. Public Citizen v. Office of the U.S. Trade Representative, 804 F. Supp. 385, 387 (D. D.C. 1992).

15. 65 Fed. Reg. 19423 (Apr. 11, 2000).

16. See Exec. Order No. 12,905 (1994); see also 59 Fed. Reg. 14733 (May 10, 1994).

17. 64 Fed. Reg. 10448 (Mar. 4, 1999).

18. David Postman, "Environmentalists Win Seats on Trade Panels - Judge: Committees Can't Be Limited to Timber Industry," Seattle Times, Nov. 10, 1999, at A5.

19. "Clinton Administration Faces Court Order: Include Environmental Representation or Cancel Next Timber Advisory Meeting," U.S. Newswire, Dec. 8, 1999.

20. Jim Lobe, "Trade - U.S. Environmentalists to Sit on Trade Panels," Inter Press Service, Nov. 10, 1999.

21. Id.

22. "Ecologists Gain Spot on Trade Panels; Judge Rules They Can Advise on Wood Talks," Seattle Post-Intelligencer, Nov. 10, 1999, at A6.

23. See Danielle Knight, "Environmentalists Blast WTO Wood Trade Plans," Inter Press Service, Mar. 15, 1999, quoting Barry Polski, spokesperson for the American Forest and Paper Association, a powerful industry lobby group: "We've supported a global, tariff-free market for forest products for some time, particularly in Asia where tariffs on these products are very high."

24. Nancy Dunne, "End to Wood Tariffs 'Will Increase Timber Harvests,'" Financial Times, Nov. 3, 1999.

25. Danielle Knight, "Environmentalists Blast WTO Wood Trade Plans," Inter Press Service, Mar. 15, 1999.

26. Id.

27. Gordon Hamilton, "Eco-groups Win Right to Advise Softwood Panel," The Vancouver Sun, Nov. 13, 1999, at D1.

28. Rep. George Miller, "Lawmakers Oppose New WTO Logging Agreement," News Release, Jul. 29, 1999.

29. See Joseph Kahn, "Labor Leaders Leave Panel on China Trade," The New York Times, Feb. 24, 2000.

30. Al Gore, Speech to the TABD Charlotte Conference, Nov. 6, 1998.

31. TACD, Letter to President William J. Clinton, Jun. 16, 2000.

32. 65 Fed. Reg. 19423 (Apr. 11, 2000).

33. 65 Fed. Reg. 19423 (Apr. 11, 2000).

34. For example, the two most recent ARAC meetings (June 27-28, and 29) were held at the Boeing Commercial Airplane Group in Renton, Washington. See 65 Fed. Reg. 37448 and 37449 (Jun. 14, 2000).