International Trade: An Analysis of Free Trade Agreements and Congressional and Private Sector Consultations under Trade Promotion Authority
Released: 2007-12-07T00:00:00

Letter

Background

In 2002, Congress passed legislation renewing the President’s ability to enter into certain trade agreements and submit implementing bills on an expedited legislative track without possibility of amendment. The bill granting this “fast track” authority, renamed TPA, passed the House by one vote amid contentious debate, with a noticeable split along party lines. Although delegation of the constitutional authority to “regulate commerce with foreign nations” dates back to 1934 and some form of fast track authority was granted by Congress to every president since 1974, the Bipartisan Trade Promotion Authority Act of 2002 restored this authority after an 8-year hiatus.

Congress accompanied this grant with statutorily defined objectives for the trade negotiations and requirements that the administration consult with Congress and other stakeholders before, during, and after the negotiations. If Congress decided that the President hadn’t satisfied his or her obligations to consult under TPA, the implementing legislation could be treated like any other bill. Congress has applied TPA procedures to every implementing bill submitted under the Trade Act, according to USTR. Additional information about the history of the consultation requirements can be found in appendix II.

TPA also requires the administration to consult with private sector advisory committees. It continues the advisory committee system established under the Trade Act of 1974, which was intended to ensure that representatives from private business and other groups with a stake in trade policy could provide input before, during, and after negotiations. The system has a three-tier structure of committees to advise the President on (1) overall trade policy, (2) general policy areas, and (3) technical aspects of trade agreements. The law requires the President to consult with these committees on a continuing and timely basis. Each advisory committee must submit a report to Congress and the President on each trade agreement negotiated under TPA no later than 30 days after the President notifies Congress of his or her intent to enter into the agreement. The system comprises about 700 advisors across 28 committees broadly representative of the U.S. economy and various trade policy interests.

The Trade Act of 1974 also requires USTR to provide an opportunity to private organizations or groups outside the advisory committee system to present their views on trade issues. To comply with this requirement, USTR publishes a Federal Register notice and the Trade Policy Staff Committee conducts a hearing. The public can comment on any matter relevant to the proposed agreement in response to the Federal Register notice, either in writing or at the public hearing. USTR also consults with groups outside of these mechanisms; sometimes USTR is contacted, and sometimes USTR seeks out comments.

We reported on the trade advisory committee system in 2002 and found that it has made valuable contributions to U.S. trade policy and agreements. We also found, however, that consultations were not always timely or useful and that the process needed greater accountability. Furthermore, we found that committee structure and composition had not been updated to reflect changes in the U.S. economy and trade policy. In response to these findings, USTR and the other managing agencies have taken several actions, including the installation of a secure Web site for viewing draft agreement text; reconfiguration of the committee system; introduction of a monthly teleconference of chairs; and introduction of periodic plenary sessions for the third tier technical committees.

TPA was actively used by the President. In addition to pursuing numerous FTAs, a global round of trade liberalization talks at the WTO launched in November 2001 was subsequently notified under TPA. WTO talks made some progress, but they were not concluded by the July 1, 2007, deadline TPA set for an agreement to qualify. The President has called on Congress to renew TPA, in part to continue pursuit of WTO talks in hopes of achieving fundamental global agriculture reform and meaningful reduction in trade barriers to goods and services worldwide. Some in Congress are supportive, but others are skeptical, making an examination of recent experience under TPA timely. Meanwhile, FTA negotiations with Malaysia have continued despite the lapse in TPA. Congress must also decide whether to approve the last four FTAs concluded under TPA—with Peru, Colombia, Panama, and South Korea.

Since Passage of TPA, the United States Has Pursued Negotiations of 17 Comprehensive FTAs for Foreign and Economic Policy Reasons

Since the passage of TPA in 2002, the United States has pursued negotiations towards 17 comprehensive FTAs covering 47 countries. FTA partner countries were selected for a variety of foreign and economic policy reasons. The United States followed a strategy of competitive liberalization, which entails simultaneously pursuing bilateral, multilateral, and global trade agreements. Furthermore, the United States only pursued comprehensive FTAs, but a number of large trading partners were unwilling to negotiate on sensitive topics such as agriculture in FTAs.

Since 2002, the United States Has Pursued Negotiations of 17 FTAs with 47 Countries

In the 5-year period that TPA was granted to the President, from 2002- 2007, the administration pursued negotiations toward 17 FTAs with 47 countries. These 47 countries extend from North America to South America to the Pacific Rim to the Middle East. (See table 1.) Six FTAs have been approved and are in force. An additional 4 FTAs with 4 countries have been signed but not yet approved, and FTAs with Costa Rica and Oman have been signed and approved by the U.S. Congress but are not yet in force. Furthermore, an FTA with Malaysia is currently under negotiation, and negotiations for the remaining 5 FTAs are not yet concluded.

FTA Partners Were Selected for a Variety of Foreign and Economic Policy Reasons

The United States has negotiated comprehensive FTAs for a variety of foreign and economic policy reasons. Agency officials confirmed that since mid-2004, FTA partners have been judged on six criteria outlined by the National Security Council, as GAO reported in 2004. These criteria are as follows: benefits to the broader trade liberalization strategy, compatibility with U.S. interests, congressional/private sector support, and U.S. government resource constraints.

According to officials we interviewed, these criteria are broad and, as a result, the administration has considerable discretion in choosing potential FTA partners. Among the foreign policy considerations for selecting FTA partners are the strengthening of strategic relationships and the promotion of reform in partner countries. In addition to the first two criteria mentioned above of assessing country readiness as well as the economic/commercial benefit, forming regional trading blocks and replacing trade preference programs were among the economic policy factors.

Strengthening Strategic Relationships

Agency officials told us that establishing trading relationships with strategic friends and allies was a key factor in deciding with whom to enter into FTA negotiations. Particularly following the September 11 terrorist attacks and the onset of the Iraq war, pursuing FTAs with moderate Muslim countries became a significant policy goal. In May 2003, the President announced a Middle East Free Trade Initiative, which lays out a plan of graduated steps for Middle Eastern nations to increase trade and investment with the United States. Under this initiative, the United States has entered into FTAs with Morocco and Bahrain and has approved an FTA with Oman. This is in addition to the FTAs the United States already had with Israel and Jordan. USTR indicated in its November 2004 letter of intent to enter into an FTA with Oman, for example, that Oman, as a member of the Gulf Cooperation Council, will “continue to be an important strategic colleague on a broad array of foreign and national security issues.” The United States has sought to strengthen strategic relationships through FTAs in other regions as well. For example, the November 2003 letter of intent to enter into an FTA with Panama indicated that “an FTA will serve to strengthen not only economic ties but also political and security ones.”

Promoting Reform in Partner Countries

Another foreign policy goal in selecting FTA partners was promoting economic and political reform in partner countries. Public statements regarding the FTA with Morocco, for example, suggest that it would add momentum to political reform already under way there. USTR also stated that the Central America—Dominican Republic Free Trade Agreement (CAFTA-DR) will strengthen “free-market reforms” in Central America, adding that “the growth stimulated by trade and the openness of an agreement will help deepen democracy, the rule of law, and sustainable development.” Public documents related to the Andean FTA initiative state that an Andean FTA would “enhance our efforts to strengthen democracy and support for fundamental values in the region” such as rule of law, sustainable development, transparency, anti- corruption, and good governance. USTR also indicated that an FTA with South Korea would promote enhanced regulatory transparency in a top U.S. trade partner.

Enhancing Regional Economic Initiatives

Beyond assessing a country’s readiness and potential economic/commercial benefits, USTR publications and interviews with senior agency officials suggest that sequencing from previous FTAs and building toward larger regional initiatives were considerations for entering into negotiations with a number of countries. For example, as the U.S.- Chile FTA negotiations were drawing to a close, the United States announced its intent to enter into FTA negotiations with the Central American countries of Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua under CAFTA and later announced its intent to include the Dominican Republic in those negotiations. USTR also submitted a letter of intent to enter into FTA negotiations with the Andean countries of Colombia, Peru, Ecuador, and Bolivia under the Andean FTA. The individual letters of intent to enter in FTA negotiations with these ten countries cited the complementary nature of these negotiations, which would lend momentum to concluding the Free Trade Area of the Americas (FTAA). Agency officials explained that when the United States pursues individual bilateral FTAs, one goal is to enable them to be woven into regional agreements under the mantle of broader integration. The individual letters of intent to enter into FTA negotiations with Thailand and Malaysia also cited the Enterprise for ASEAN Initiative as a factor in the selection process, building upon the U.S.-Singapore FTA. The administration envisioned similar regional or subregional trading groups for the Middle East (the Middle East Free Trade Area) and South Africa (SACU, Southern African Customs Union). (See fig. 1.)

For certain developing country FTA partners, one motivation in U.S. selection was converting one-way U.S. trade preference programs into two-way reciprocal agreements. Agency officials explained that under preference programs such as the Generalized System of Preferences and the Caribbean Basin Initiative, developing countries have preferential duty-free access to the American market without having to reciprocate; by entering into FTAs with them, the United States “levels the playing field” by gaining market access in these countries. Public documents related to the SACU trade negotiations, for example, noted an opportunity to replace the African Growth and Opportunity Act trade preference program with an FTA for several of the partner countries. The Andean FTA was motivated in part by a desire to replace the Andean Trade Preference Agreement, while the CAFTA-DR was motivated in part by a desire to replace a major portion of the Caribbean Basin Initiative. Furthermore, USTR officials noted that transitioning from unilateral trade preferences to reciprocal trade agreements would deepen existing regional integration. USTR identified section 202(b) of the United States-Caribbean Basin Trade Partnership Act as an example of how this evolution was also a goal that Congress shared.

Under TPA, the Administration Pursued Strategies of Competitive Liberalization and Comprehensive FTAs

As WTO negotiations have repeatedly stalled in the face of wide substantive differences, particularly over agriculture, the United States has sought to continue to be active in pursuing trade agreements at other levels, even prior to TPA. As part of its mission to play the leading role in developing and coordinating U.S. trade policy, USTR pursued trade agreements throughout the 1990s not only at the global level through the WTO, but also at the bilateral and multilateral levels, such as through the U.S.-Jordan FTA and the North American Free Trade Agreement (NAFTA).

Since TPA passage, USTR officials stressed that they would simultaneously pursue bilateral, multilateral, and global trade agreements under a strategy referred to as “competitive liberalization,” or more recently as “complementary liberalization.” This competitive liberalization strategy linked trade policy to foreign policy, security policy, and commercial policy goals. Although still committed to liberalization on a global front, working in parallel with the WTO framework offered an opportunity to keep the concept of achieving liberalization moving forward despite setbacks at the global level.

Competitive liberalization had the dual goal of providing momentum for global trade liberalization and providing an alternative if global trade talks failed to progress. As former U.S. Trade Representative Robert Zoellick explained in 2002, “we will not passively accept a veto over America’s drive to open markets. We want to encourage reformers who favor free trade. If others do not want to move forward, the United States will move ahead with those who do.” Agency officials say that, due to its importance to the global trading system and the potential of more significant and broad-based economic gains, the successful completion of global trade agreements such as the WTO Doha Round is the administration’s ultimate goal and that FTAs were intended to serve as a stepping stone to that goal since they can provide a substantial demonstration effect. U.S. Trade Representative Susan Schwab said in her May 2006 Senate confirmation hearing that pursuing FTAs helps “to establish the breadth and scope of potential multilateral agreements in years to come by setting precedents and by demonstrating the real benefits of free and fair trade.” For example, according to administration officials, signing NAFTA contributed to moving the last (Uruguay) round of global trade talks creating the WTO to conclusion. Additionally, FTAs were seen as a tool to strengthen relationships with trading partners similarly seeking progress in global liberalization. In the letter announcing its intent to negotiate an FTA with Australia, for example, the USTR stated “we believe that an FTA would further unite and strengthen the alliance of countries leading the effort toward global trade liberalization.” The second goal of competitive liberalization was to provide an alternative venue for pursuing trade liberalization as WTO talks lagged. However, whereas competitive liberalization sought to pressure other countries to agree to tariff and subsidy cuts in the WTO, complementary liberalization sees the simultaneous pursuit of FTAs and WTO negotiations as a mutually reinforcing effort. Former U.S. Trade Representative Robert Portman explained in 2006 that, “where we have a free trade agreement, we find we have…the ability to have a better relationship on the multilateral issues it’s relatively easy on the global stage…to find some solutions.”

Closely tied to the strategy of competitive/complementary liberalization is the strategy of pursuing only highly comprehensive “gold standard” bilateral and regional FTAs. Such agreements have a number of absolute requirements, based on the model USTR seeks to use. NAFTA was the original “model,” although requirements have evolved with time and with different regions. USTR insists, for example, that partners accept the inclusion of agriculture, as well as a “negative list” approach to services, because they believe this will provide greater liberalization and lessen impediments to securing market access. Agency officials did say there is some room to change specific language depending on a country’s individual needs, such as changing what level of market access would be proposed, and the timetable for phasing down barriers. However, officials also noted that taking products, sectors, or issues off the table, particularly ones such as intellectual property rights that are considered to provide a U.S. competitive advantage, generally precludes or creates an impasse in negotiations. Other countries that negotiate FTAs frequently exclude sensitive industries or issues. Some trade experts argued that USTR’s pursuit of comprehensive agreements limits potential FTA partners since a number of larger economies are unwilling to enter into such comprehensive negotiations. Administration officials recognized this and cited the EU, Switzerland, and Japan as examples of major trading partners with which an FTA with the United States could have significant commercial value but where the trading partner appears unwilling to assume obligations consistent with the objectives set out in TPA. USTR reports that it paused negotiations pursued under TPA with other large countries or subregions, such as the FTAA and SACU, in part for similar reasons. At the same time, some partners were not considered ready for FTAs because they either were not WTO members or had only recently acceded.

Agency officials told us that a number of interrelated factors influenced their decision to pursue exclusively comprehensive trade agreements: Legislative requirements–Agency officials told us that TPA legislation played a large role in the decision to pursue only comprehensive FTAs. Since, under TPA, each agreement must make progress in meeting the applicable negotiating objectives prescribed by Congress, USTR only pursues FTAs in which the negotiating objectives are translated into 16 standard chapter headings, and the provisions require partner countries to pursue a number of nontariff based reforms. These include transparency in government procurement, protection from discrimination for investors, and liberalization of financial and other services. Agency officials told us that USTR has some discretion in how to pursue these objectives, but since the objectives are statutorily mandated, their discretion starts at a fairly high bar.

Foreign and economic policy goals–The administration has said that pursuing comprehensive FTAs links trade policy to foreign policy and security policy goals. According to USTR, comprehensive FTAs include a number of provisions linking the trade agreement to other goals such as encouraging reform and openness, strengthening partners’ regulatory environments, and establishing the framework for promoting democracy. Furthermore, agency officials and trade experts stressed that if the United States pursued FTAs with “sweetheart exemptions” it would actually be undermining the international trading system in violation of WTO rules and regulations. Furthermore, agency officials questioned whether pursuing noncomprehensive FTAs would lead to noticeable commercial gains since trade barriers with large trading partners usually only remain in sensitive industries.

Private sector input–Since all trade agreements must be approved by Congress, USTR officials told us they only negotiate agreements that they think will receive broad domestic support. As private sector representatives have identified certain “deal breakers,” which must be included in order to gain their support, USTR officials always include these topics in the FTAs they negotiate. These topics include a negative lists approach to services and inclusion of intellectual property protection provisions.

Negotiating strategy–Agency officials and congressional staff involved in trade issues also told us that since the precedent that the United States only engages in comprehensive FTAs has been set, they have reinforced their credibility in insisting on future comprehensive FTAs. Partner countries also have a better sense of what the United States expects. A trade expert we spoke with added that due to the asymmetric bargaining strength of the United States compared with most of its negotiating partners given the relative sizes of their economies, USTR likely has more leverage in proposing the baseline agreement for the negotiation. On the other hand, the United States has had less success in insisting on such requirements with some large prospective partners, such as Brazil, Switzerland, and Japan.

Not everyone involved in trade negotiations, however, believes that exclusively pursuing comprehensive FTAs is in the best interest of the United States. We heard from both the private sector and former congressional staff that strict insistence on comprehensive FTAs may disadvantage the United States compared with other countries that engage in FTAs more liberally. In addition, they told us that “one size does not fit all” and developing countries need help to develop before they trade with the United States. Agency officials told us, however, that due to the factors listed above, they remain convinced that pursuing comprehensive FTAs is the best policy for the United States. Furthermore, they pointed out that a prospective FTA partner’s readiness to undertake obligations which would meet TPA objectives and U.S. interests is evaluated in the selection choice. If a country or group of countries is not ready, the United States uses other mechanisms such as Trade and Investment Framework Agreements as building blocks, including capacity building.

FTAs Pursued Account for Limited Share of U.S. Trade and Investment but Include Diverse Markets for U.S. Exports

Trade with countries for which FTAs were pursued under TPA accounted for about 16 percent of U.S. trade in 2006 and about 16 percent of U.S. foreign direct investment in 2005. FTAs seek to expand opportunities for U.S. exporters in foreign markets, while solidifying the trade and investment relationship with these trade partners. Of the remaining 84 percent of U.S. trade, 27 percent was with countries for which the U.S. had an FTA prior to TPA (e.g., Canada and Mexico) and 56 percent was with countries not pursued under TPA, including the EU, Japan, and China.

FTAs Pursued Account for about 16 Percent of U.S. Trade

Of the approximately $3.4 trillion in U.S. trade in 2006, FTAs pursued under TPA accounted for about $558 billion, or 16 percent of the total. This includes exports and imports and both goods and services. About half of this trade (8 percent) was accounted for by agreements in force or concluded; the remainder was with partners with whom the United States has not yet concluded an agreement. Figure 2 shows the breakdown of total U.S. trade (exports plus imports of goods and services) across groups of trade partners.

FTAs pursued under TPA accounted for a somewhat larger share of total U.S. exports (19 percent) than U.S. imports (15 percent). This pattern is reversed with non-FTA countries, which accounted for 52 percent of U.S. exports, but 59 percent of U.S. imports. Table 2 shows the share of overall U.S. trade, exports, and imports by status of FTA negotiations under TPA. In addition, countries with which the United States pursued FTAs accounted for about 16 percent of U.S. foreign direct investment in 2005 (see app. III for more information on U.S. foreign direct investment).

Countries with which the United States has pursued FTAs under TPA are a diverse group. Table 3 shows the countries pursued by the status of the FTA negotiations. Concluded agreements already in force include countries in Asia (Australia and Singapore), the Middle East and North Africa (Bahrain and Morocco), and Latin America (Chile and CAFTA-DR). The concluded agreement with South Korea, for which implementing legislation has not yet been submitted to Congress, would account for the single largest individual trade partner of those pursued under TPA (about 3 percent of total U.S. trade). However, the FTAA, for which negotiations are at an impasse, would have encompassed the largest economic area since it includes Brazil and Argentina, as well as existing FTA partners in NAFTA (Canada and Mexico), CAFTA-DR, Chile, and others in the Western Hemisphere.

FTAs Provide Permanent, Reciprocal Access for U.S. Trade and Competitive Playing Field for U.S. Exports

The FTAs pursued under TPA seek a high level of liberalization. As noted previously, the United States has sought elimination of substantially all trade barriers under its FTAs in order to maximize the overall economic benefits of the agreements. While reduction or elimination of trade barriers through FTAs has been estimated to create an overall net economic benefit for the United States and its FTA partners, most economic studies find the gains for the United States of the FTAs to be relatively small compared with the overall U.S. economy. Assessments by ITC of economy-wide and sectoral effects of actual, completed FTAs also indicate positive but generally small effects on the U.S. economy and trade overall. (The U.S. FTA with South Korea is predicted to have modest effects.) However, with the exception of Singapore, given the FTA partners’ generally higher trade barriers, U.S. export gains are predicted to be larger than import increases for each FTA the ITC has assessed. For South Korea, U.S. exports are predicted to rise by $9.7 to 10.9 billion, while U.S. imports from South Korea rise by $6.4 to $6.9 billion.

While FTAs require the United States to lower its trade barriers, several FTA partners pursued under TPA already had special access to the U.S. market through U.S. trade preference programs. For example, CAFTA-DR economies had preferential access to the U.S. market through the Generalized System of Preferences and the Caribbean Basin Initiative (including the Caribbean Basin Trade Promotion Act, which provided additional access). However, FTAs provide superior market access for several reasons. First, product coverage under FTAs is more complete. About 91 percent of products in the U.S. tariff schedule (for goods) are either eligible for preferential access (54 percent) or are already duty-free for most countries (37 percent). The remaining 9 percent of products are still dutiable even for countries eligible for preference programs. FTAs eliminate nearly all U.S. duties on these remaining products. Second, FTAs are bilateral agreements that provide trade partners with permanent access to the U.S. market. Preference programs are unilateral programs that need reauthorization. Lapses in authorization have created uncertainty in the past for both foreign exporters and investors. Finally, since preference programs are unilateral, U.S. exporters do not receive preferential duty-free access to foreign beneficiary markets. FTAs address this disparity.

FTAs also help U.S. exports maintain a competitive advantage or counteract the advantages of third-country competitors that may already have better access to foreign markets through their own FTAs. In cases in which competitors do not have an FTA with U.S. FTA partners, U.S. exports gain an advantage over exports from competitors. The edge varies by country and product and depends on the restrictiveness of the tariff and nontariff barriers in our FTA partners’ economies. For example, in CAFTA-DR countries, the simple average tariff rate across all products ranged from 5.6 to 8.5 percent in 2006, with tariffs on agricultural products ranging from 9.7 to 13.1 percent. Non-FTA countries must still pay these rates on their exports. U.S. “most favored nation” tariff rates, which apply to all but two U.S. partners (North Korea and Cuba) that do not otherwise qualify for special, lower, rates, by comparison, were 3.5 percent overall and 5.3 percent for agricultural products. In some countries, average most favored nation tariff rates are even higher on agricultural products relative to those on nonagricultural products. For example, according to the WTO, the overall average tariff rate for South Korea on all products was 12.1 percent, but 47.8 percent for agricultural products. Table 8 in appendix III shows the simple average tariff rates (non-FTA rates) across U.S. FTA partners to provide an indication of the tariff benefits provided by FTAs. For countries that have FTAs with trade partners besides the United States, FTAs help restore the competitiveness of U.S. exports by providing comparable access. For example, Chile also has FTAs with Canada, Mexico, and the EU, as well as the United States. If the United States did not have an FTA with Chile, then U.S. exporters would be at a disadvantage relative to exporters from Canada, Mexico, and the EU. On the other hand, since FTA partners are free to enter into additional agreement with other countries, any advantage gained for U.S. exporters may be temporary.

Majority of Trade Already Covered by FTAs Prior to TPA or Not Pursued under TPA

Non-FTA trade partners accounted for over half (56 percent) of U.S. trade in 2006. The remaining share of U.S. trade was accounted for by countries pursued under TPA (16 percent) and countries with which the United States already had an existing FTA (27 percent). Of the non-FTA trade partners, some of them comprised relatively large shares of U.S. trade. Table 4 shows the top 20 markets for U.S. exports and top 20 suppliers of U.S. imports among non-FTA trade partners. The largest market and supplier—the EU with its current 27 member countries—accounted for approximately 21 percent of U.S. exports and nearly 18 percent of U.S. imports. Japan, China, and Taiwan were the next 3 largest markets and suppliers for the United States, although China is the second largest non- FTA supplier after the EU.

There are several reasons why the United States has chosen not to pursue some of the largest trade partners for FTA negotiations. As discussed previously, the United States seeks to include agricultural liberalization in its FTA agreements. This is a sensitive issue with the EU that is also being dealt with at the WTO and has made prospects for a U.S.-EU FTA less likely. Since trade barriers on nonagricultural products between the U.S. and EU are already very low, an FTA that did not include agriculture would have less impact. Similarly, agriculture issues are sensitive with Japan and Switzerland. However, the United States did pursue an FTA with South Korea, which also had sensitive agricultural issues but was willing to address them within the context of an FTA. Although agriculture is also a sensitive issue with China, the country also recently acceded to the WTO (December 2001), is still implementing those commitments, and has been in transition to a more market-based economy. Similarly, Taiwan has recently acceded to the WTO.

After the top few non-FTA trade partners, remaining trade partners each account for about 1 percent or less of U.S. trade. Since most of the smaller non-FTA trade partners are WTO members, successful conclusion of the WTO Doha Round would still provide market liberalization. However, a Doha agreement would be less likely to completely eliminate trade barriers; FTAs provide much deeper liberalization for individual countries by eliminating trade barriers between the United States and its FTA partners. Nevertheless, various studies conclude that a Doha agreement, even though unlikely to eliminate all trade barriers, would still have a much larger impact on global—and overall U.S.—trade than eliminating all trade barriers with small non-FTA partners.

Comparing countries pursued under TPA with those not pursued shows some differences in the U.S. trade and investment relationship between these two groups. Overall, the U.S. tends to (1) maintain more balanced trade with TPA countries, (2) export relatively more manufactured goods (compared with services and agriculture), and (3) have relatively faster investment growth with TPA countries, particularly in countries with FTAs in effect. While these differences do not necessarily indicate the reasons countries were chosen to be pursued, they do provide useful context for the overall U.S. economic relationships with these countries as those relationships get deepened. Appendix IV discusses these differences in more detail.

USTR Consulted Extensively with Congressional Staff, but Staff Have Mixed Views about Having a Meaningful Opportunity for Input

Although USTR consulted frequently with Congress, some congressional staff said that both the nature of the consultations and issues such as timing of the consultations limited congressional input into FTAs. TPA requires consultations with Congress before, during, and after FTA negotiations, and records indicate consultations were extensive, particularly with the primary trade committees. The preponderance of congressional staff we interviewed viewed the consultation process as generally a good conduit for information flow from USTR. While slightly less than half of the staff we interviewed were satisfied with the quality of consultations, slightly more than half believed that the consultations did not provide the opportunity for meaningful input or influence into trade negotiations. An important element of this perception for many of these staff, particularly staff not on the trade or agriculture committees, was their view that the timing of the consultation meetings did not give them sufficient time to provide meaningful input to the negotiations. Several staff also cited situations where USTR had not fully informed them of important changes in the draft text under negotiation. Process issues of concern included the role and function of COG, selection of FTA partners, use of mock markup and the lack of a mock conference, the need to get Congress to focus on trade agreements earlier in the process, the need for additional technical information, access to USTR’s secure Web site, and the importance of congressional staff working on FTAs obtaining security clearances to facilitate the consultation process.

TPA Requires Significant Consultation with Congress

In addition to requiring the President to consult with Congress before, during, and after trade agreement negotiations, TPA also established the Congressional Oversight Group, known as COG. COG is to be consulted at key points in trade negotiations, and its members are accredited as official advisors to the U.S. negotiating delegation. COG was designed to consult with and provide advice to USTR regarding the formulation of specific objectives, negotiating strategies and positions, development of trade agreements, and compliance and enforcement of negotiated commitments. Its meetings were with the U.S. Trade Representative. COG’s members were the Chairs and Ranking Minority Members of the Senate Finance and House Ways and Means Committees plus two majority and one minority Member from each. In addition, membership was extended to the Chair and Ranking Minority Member of each House and Senate committee that had jurisdiction over issues affected by the negotiations, including agriculture and fisheries, which were specifically designated by TPA for consultations.

TPA also contained a detailed time line for required consultations, as shown in figure 3.

Before beginning trade negotiations, the President must: notify Congress in writing of an intention to commence negotiations at least 90 days before initiating negotiations; consult, before, and after the submission of the notice, with the House Ways and Means Committee, the Senate Finance Committee, other relevant committees, and COG; and conduct consultations with Congress regarding agriculture, import sensitive agricultural products, the fishing industry, and textiles.

During negotiations, or before entering into (signing) trade agreements, the President must: consult with the House Ways and Means, Senate Finance, other committees with jurisdiction over legislation involving matters affected by the trade agreement, and COG, with respect to the nature of the agreement, how it achieves congressional objectives set forth in TPA, and the effect the agreement may have on existing laws; report to the House Ways and Means and Senate Finance committees on any changes to U.S. trade remedy laws that an agreement would require at least 180 days before entering into the agreement; notify Congress of intent to enter into the agreement at least 90 days submit private sector advisory committee reports to Congress within 30 days of notifying Congress of intent to enter into an agreement; and provide the ITC, at least 90 days before entering into the agreement, with the details of the agreement and request that ITC conduct an assessment of the likely economic impact of the agreement; the ITC must then present this assessment to the President and Congress no later than 90 days after the President enters into the agreement.

There are also consultation requirements for the period between when the President signs the agreement and when the implementing legislation is voted upon in Congress. In order for the agreement to enter into force, the President must do the following during this period: submit to the Congress, within 60 days after entering into the agreement, a description of the changes to existing laws that would be required to bring the United States into compliance with the agreement; and submit to Congress the final legal text of the agreement, a draft of an implementing bill, a statement of administrative action proposed to implement the trade agreement, and other supporting information, including a statement describing how the agreement makes progress in achieving goals set by Congress in TPA and a statement on how the agreement serves U.S. commercial interests; there is no deadline for this step.

If Congress believes that the President has failed to meet these consultation requirements, it may make the implementing bill ineligible for consideration under TPA procedures by adopting a procedural disapproval resolution in both houses. In addition, Congress limits trade promotion authority by making it a time-limited authority. The most recent grant of TPA expired July 1, 2007. It could have expired 2 years earlier had Congress passed a resolution that was introduced to disapprove of its extension. Finally, TPA includes language stating that TPA procedures are rules and that Congress retains the right of either house to change the rules. In combination with the need to secure congressional approval of each agreement, these conditions all help ensure Congress’s influence over agreements.

USTR Has Consulted Frequently with Congress

USTR had held frequent consultation meetings with Congress on FTA- related issues, as well as other topics. USTR consulted with Congress 1,605 times on FTA-related issues between the date TPA was signed into law on August 6, 2002, and the cutoff date for our analysis, April 20, 2007, according to a copy of USTR’s consultation log. Of these consultations, 1,289 were related to specific FTAs, and 316 were related to general FTA issues, such as investment provisions or agriculture issues. Consultations were primarily in-person meetings with the trade and agriculture committees but also included conference calls, particularly with the other committees of jurisdiction.

Most USTR consultations (83 percent) were with staff of congressional committees with jurisdiction over trade issues. USTR met 459 times with the Senate Finance Committee and 454 times with the House Ways and Means Committee. (See fig. 4.) It met 153 times with the House Agriculture Committee and 152 times with the Senate Agriculture, Nutrition, and Forestry Committee. Thus, about two-thirds of USTR’s consultations were with these four committees. USTR also met with the other committees that had jurisdiction over the following: Fisheries–Senate Commerce, Science and Transportation and House Intellectual property, competition, and immigration–House and Senate Judiciary; Financial services–House Financial Services and Senate Banking, Housing, and Urban Affairs; Telecommunications–House Energy and Commerce and Senate Commerce, Science and Transportation; and Government procurement–House Oversight and Government Reform and Senate Homeland Security and Governmental Affairs.

In addition to these meetings, 163, or 9 percent, of meetings were with individual Senators and Representatives, and 3 percent were with staff of individual Senators and Representatives. Another 2 percent of meetings were with other committees, caucuses, or congressional groups. COG met as a body nine times, constituting less than 1 percent of meetings. USTR also met with the Senate Foreign Relations Committee seven times and the House International Relations Committee four times on matters related to FTAs.

A USTR official told us that the majority of meetings were open to both majority and minority committee staff, as well as to legislative assistants of Members of Congress on the committees. This is consistent with GAO analysis of the USTR logs, which showed that 148, or 11 percent, of the 1,329 meetings with staff of committees of jurisdiction were with majority members only, and 6 percent were with minority members only. This was also confirmed in our interviews with congressional staff.

Current and former USTR officials told us that, for each FTA, they met with Congress throughout the process of negotiating and implementing the agreement. This was generally confirmed in our interviews with congressional staff. These officials said they met with Congress before negotiations began, before each negotiating round (with more congressional meetings in the later rounds of each FTA), before signing agreements, during congressional consideration of the FTA implementing legislation, and during FTA implementation. They said that they provided the classified negotiating text to the staff with security clearances on the trade and agriculture committees in advance of each round and discussed it at the consultation meetings. These officials said there was ample opportunity for committee staff to provide input during the negotiations and that they valued the insights they gained as to what was important to the committees. USTR officials said that they had never turned down a request for a briefing and believed that they had fully consulted with Congress. One former negotiator said that they could not conceive of a way that USTR could do more consultations than it does now and that consultations were both extensive and substantive.

As required by TPA, USTR developed guidelines for COG in consultation with Congress that established notice, consultation, and reporting requirements for agreements negotiated under TPA. USTR officials said that in developing these guidelines they consulted with the Senate Finance and House Ways and Means Committees and got their input. These guidelines provide that, in the course of negotiations, USTR will consult “closely and on a timely basis” with COG and all House and Senate committees with jurisdiction over laws that would be affected by an agreement.

To verify that consultations occurred before, during, and after negotiations, we analyzed consultation patterns for two agreements. Figures 5 and 6 show the number of USTR consultations with Congress on CAFTA-DR and on the Australia FTA over time in relation to key points in the negotiation and implementation process.

We also analyzed the total number of congressional consultations on FTA- specific and FTA-related topics and found they varied over time. (See fig. 7.) There were more consultations when more FTAs were under negotiation at the same time. There were also more consultations in the 1 ½ years after TPA passed in 2002, when model text for each of the 16 standard FTA chapters was being developed.

Some Congressional Staff Noted Improvements That Could Be Made to Content and Process of Consultations

Current and former congressional committee staff on key committees with jurisdiction over matters covered by FTAs provided us with their views on a range of issues related to the FTA consultations. These issues included the nature and extent of consultation meetings, as well as how well they met their expectations and needs.

Consultations Weekly with Trade Committees, Less Frequently with Others

From August 2002 to April 2007, the trade committees (Senate Finance and House Ways and Means) generally had weekly consultation meetings with USTR officials that often lasted an hour to an hour-and-a-half. Sometimes two or even three such meetings were held back to back on the various FTAs being negotiated. Typically, the USTR lead negotiator and members of the FTA negotiating team would meet in person with the committee. Occasionally, the USTR staff were joined by staff from other agencies, such as the Departments of Agriculture or Commerce. Generally, these meetings were bipartisan, with both majority and minority professional committee staff invited, as well as the responsible legislative assistants of the Senators or Representatives that were members of the committee.

Trade committee staff said that most consultation meetings were held in person. Some were conducted through a conference call, which was usually shorter. Generally, there were more conference calls at the end of the negotiations, when the USTR negotiators were more pressed for time or were overseas at negotiating sessions and calling back to update the committee staff on progress. Some of the trade committee staff we interviewed commented that in-person meetings were much more useful, although they understood the need for conference calls.

The trade committee staff we spoke with said that consultations generally took place before and after each negotiating round. Before each round, USTR provided the confidential text that it was going to table in the negotiations with the FTA partner country. Staff with security clearances had access to this text; staff without clearances received more general information. After each negotiating round, USTR updated congressional staff on the issues that had been raised, the progress made, and what they thought the next round would bring.

The agriculture committees had consultation meetings with USTR approximately every 2 weeks, with the Department of Agriculture generally accompanying the USTR negotiators, according to a committee staff person. Otherwise, the descriptions of the consultation meetings were mostly similar to those of the trade committee staff. In contrast, the other committees of jurisdiction generally had a much more limited experience with consultation meetings than the trade and agriculture committees, which are the main committees of jurisdiction regarding FTA issues. Generally, the issues involved in the FTA negotiations were not priority issues for these committees, and many of them had a much more limited understanding of the proceedings. Most did not have clearances and received more general descriptions of provisions that would be negotiated, since they were not cleared to receive actual negotiating text.

The number of consultation meetings for these committees was substantially less than for the trade and agriculture committees and varied from once a month to once for each FTA.

Consultations Generally Praised for Providing High- Quality Information but Satisfaction with Input and Influence Mixed

Almost all of the committee staff we interviewed said that USTR provided high-quality information that provided them with insight into the progress of the negotiations. In this respect, they met the expectations of these congressional staff for information related to the FTA negotiations. These staff felt that the briefings were very well done. They also praised USTR’s willingness to answer questions and follow up on particular issues of interest. The general view was that USTR was very responsive in answering questions and providing follow-up information.

In terms of satisfaction that the consultation meetings provided an opportunity for input or influence on the trade negotiations, however, the committee staff we interviewed were fairly evenly divided. Slightly less than half of the congressional staff we interviewed felt that the consultation meetings had met their expectations in this respect as well. They were satisfied that they had been fully briefed, and the USTR negotiators had listened to their views. They indicated that they knew that USTR could not always obtain the results their committee or their Member of Congress wanted, but felt that their views had been taken into consideration. However, slightly more than half of the congressional committee staff with whom we spoke felt that they did not have any real input or influence on the trade negotiations. For these staff, USTR’s consultation meetings had not met their expectations because they had not provided an opportunity for a two-way exchange of information that the staff considered a true consultation. One committee staff person appeared to reflect the views of these staff in characterizing the consultations as a good conduit for information flow from USTR, but not as a good forum for working together and developing policy jointly. Others characterized the meetings as helping them feel well-briefed, but not consulted. Among these staff, several said they felt that USTR was “checking the box” in their meetings with them. At the same time, among the staff who indicated that the consultations were more of a one-way briefing than a two-way consultation, several were on the other committees of jurisdiction and said they did not have expectations of more. They said that they were satisfied with receiving briefings because this was not a priority issue for them or because they did not expect to influence the negotiations. Overall, on this issue, the degree to which the committee staff we interviewed felt that they had input or influence on trade negotiations varied across parties. In particular, Republican staff (which was in the majority in Congress for nearly all of the TPA period) generally had more positive views about their input and influence than Democrats.

We also found mixed views among the staff we interviewed on whether the timing of the consultations gave sufficient time for staff to provide meaningful input. Most, but not all, of the staff of the trade and agriculture committees said the timeliness of consultations was good. However, staff from the other committees of jurisdiction often said that the consultations were not timely and cited this as a reason that they felt briefed rather than consulted. They said that they generally weren’t briefed and given information until the last business day before the negotiators were leaving for the next round. This did not give them enough time to fully consider the information, consult with their committee or Member to develop a response, and give feedback that USTR would have time to consider. These staff felt strongly that one way to achieve more meaningful congressional input was to allow more time for feedback by having earlier consultations and by providing them with text or other information in a more timely manner. In addition, staff of one of the primary committees of jurisdiction complained of last-minute consultations on some of the more controversial issues. While they understood that the interagency process took time and that USTR was moving as quickly as possible, they felt that if congressional consultation was meant to be meaningful, USTR could either build in the time needed for congressional consultation or delay tabling the controversial text at the next negotiating round to allow time for congressional input.

Among the committee staff who had expressed satisfaction with the consultation meetings, several noted that the style of the briefer was important. In some cases, the briefers tended to keep the briefing short and let committee staff ask questions. The staff we spoke with said that if they asked a question, the briefers would answer it fully. But, if staffers didn’t know what to ask, they were at a disadvantage in obtaining pertinent information. They said that most staff depended on the briefers to let them know about issues of concern. This was very important to them. It was much more helpful when the briefers provided the context and alerted them to any changes in the text or any areas of concern developing in the negotiations.

Several other committee staff, who were dissatisfied with the consultations, expressed a much more negative view about briefers’ willingness to share information. While they agreed that the information USTR provided was generally of good quality, they said there were instances when, in their opinion, USTR deliberately did not offer information on changes to the negotiated text that would be of concern to staffers, unless they asked specific questions, which they often did not know to ask. One committee staff said that this had been the case, for example, with the U.S.-Korea FTA, in which significant changes had been made to the investment chapter. Although the committee staff had received the amended text, USTR did not mention that changes had been made to a sensitive provision in the Expropriation Annex, which the committee staff said was extremely controversial—to the point that the language in the text had been carefully worked out in the 2001-2002 time period and then never touched again. The staff person said that this text was considered to be “set in stone,” and any change to it clearly merited mention by USTR. With the press of business during consideration of the U.S.-Korea FTA, the committee staff had not realized that it had been changed, and they didn’t learn about it until they were alerted by the private sector. The committee staff who were dissatisfied with the consultations also said that there had been instances when it appeared USTR had withheld information. For example, several committee staff mentioned that a controversy related to the Australia FTA pharmaceuticals benefits scheme resulted from USTR withholding information. Again, committee staff found out about the controversial provisions from the private sector when the text was made public. In another example, some committee staff said that USTR had not adequately briefed Judiciary Committee staff on the H1-B visas issue with the Chile and Singapore FTAs. While there was disagreement among the staff who commented on this as to whether USTR had adequately briefed the staff or withheld critical information, a lack of clarity in the consultations did result in the Judiciary Committee being highly upset about this issue. (As a result of the Judiciary Committee’s views, USTR significantly modified its objectives regarding immigration. Subsequent agreements have either included a side letter stating that the agreement has no effect on U.S. immigration law or policy or, in more recent agreements, this type of provision has been included in the text of the agreement.) These staff felt strongly that in order for the consultation process to work, Members of Congress and committee staff need to know that USTR will always make a good faith effort to tell them when substantive changes to the model text have been made in the negotiations. In FTAs, specific details that are negotiated are critical to the outcome.

Many Staff Cite Shortcomings in Consultation Process

Congressional staff also expressed concerns about the consultation process, including the usefulness of COG, the congressional role in FTA partner selection, the role of mock markup, the importance of earlier congressional focus on FTA negotiations, the need for greater access to technical information, and problems with access to USTR’s secure website. Most of these issues focused more on internal congressional matters than on USTR. In addition, USTR also stressed the importance of congressional staff working on FTAs to obtain security clearances to facilitate the consultation process.

COG Generally Not Seen as Successful

COG was a new mechanism under TPA intended to draw Members of Congress into the consultation process, particularly members from nontrade committees, and to provide them with a private and confidential opportunity to have a consultative and advisory role in trade policy, according to a committee staff person familiar with its creation. The staff person went on to state that COG was also meant to provide greater transparency and inclusiveness to the trade policy consultation process. After it was launched in September 2002, COG was convened only nine times before TPA lapsed in July 2007, according to the USTR consultation log. COG’s record drew mixed reviews. Some trade committee staff had a positive view of COG, saying that it had been a useful forum for input on FTAs, including FTA selection, or that it was worthwhile because it had provided a mechanism for transparency. However, most trade and agriculture committee staff said it had been of limited usefulness and had not functioned well. These staff said that COG was not well attended, particularly after the first few years. While the trade committee members continued to attend regularly, few others did. Some trade committee staff said that the separate committee executive sessions with their Members were more useful than COG. Most staff outside of the trade and agriculture committees with whom we spoke were unfamiliar with COG or unaware it existed; those staff who were familiar with COG did not find it to be useful.

USTR officials and committee staff noted that it was difficult to schedule meetings around the busy schedules of Members of Congress. One committee staff said that it had been difficult to schedule attendance by the Member because of short notice for the COG meetings, pointing out that it would be helpful if COG meetings were put on a regular schedule. Two committee staff said a limitation of COG was the requirement that staff could only attend with their Member, so they could not cover meetings the Member could not attend. Another committee staff said that COG meetings should not be scheduled solely at the discretion of the majority staff but also by the minority in order to protect minority rights. Several committee staff described the COG meetings as formalities, particularly as time went on. One staff of a Member on a trade committee, but not on the COG, said that they had resented being excluded from this trade policy-making forum.

FTA Partner Selection Concerns Due to Lack of Commercial Significance

Most congressional staff we interviewed who had a view on this issue felt that their committee did not have any meaningful input into the selection of FTA partner countries. However, there was substantially more awareness and concern about this issue among the trade and agriculture committee staff than among staff of other committees of jurisdiction.

Among those concerned about partner selection, the primary concern seemed to be that so many smaller trading partners were being selected for FTA negotiations, rather than larger trading partners with greater commercial and economic significance. One committee staff commented that, increasingly, every congressional vote for an FTA was a difficult vote that involved using up significant political capital. While Members supporting free trade had no problem in principle with negotiating FTAs with smaller countries for foreign policy or other reasons, if Members were going to be expending significant political capital, they wanted it to at least be economically and commercially beneficial. Another committee staff said that the selection of FTA partners and dialogue about it with Congress should be more transparent and that the reasoning behind the choices of FTA partners and the complicating factors should be openly discussed.

Some staff said that in TPA the role of input into FTA partner selection had been given to COG, rather than to committee staff. Although this role was informal, some committee staff and USTR officials said that USTR took COG’s advice on selection seriously and that some potential partners supported by COG had been pursued by USTR. They cited the U.S.-Korea FTA as an example.

A few committee staff favored restoring the gatekeeper provision, which was part of prior fast track legislation but was dropped when TPA was passed in 2002. The gatekeeper provision had required the President to notify Congress and give it an opportunity to disapprove launching of negotiations with a particular partner. These staff felt that restoring it might be beneficial in terms of potentially generating greater buy-in to the FTAs selected for negotiation. Generally, only trade committee staff were aware of the gatekeeper provision. Those opposed did not see any value in it given COG’s role in discussing potential FTA partners. The former USTR negotiators with whom we discussed this issue also opposed it. They were particularly concerned about the potential effects of any requirement for an affirmative vote for launching FTA negotiations with a trade partner country because it would mean that Congress would have to vote twice for each FTA and it would force a vote before anyone knew what the actual benefits from the FTA would be.

Mock Markup Considered Important, but Mock Conference Controversial

Most trade and agriculture staff we interviewed were familiar with the mock markup process—the informal committee process to “mark up” or amend the draft implementing bills for FTAs. Most trade staff said that it was an important part of the consultations process for TPA. Committee mock markups are generally the only opportunity Congress has to offer amendments to the proposed FTA implementing bill. However, while some were concerned that the mock mark-up process had not been used effectively, others were concerned that it could be misused in order to delay consideration of FTAs or to introduce inappropriate last-minute provisions that should have been addressed during the negotiations.

Some also expressed concern that the trade committees had not scheduled mock conferences when the House and Senate had adopted differing mock amendments. They said that a mock conference was an important part of the consultation process. Some of these staff cited the case of CAFTA when the House and Senate versions of the draft implementing bills differed because the Senate Finance Committee and the House Ways and Means Committee had recommended different mock amendments. They said the two committees did not hold a mock conference and the administration chose the version it preferred, the House version, ignoring the Senate Finance Committee amendments. Other staffers said that complex multilateral negotiations like those of the WTO would need a mock conference, but that FTAs were simpler and a mock conference was often unnecessary and time consuming.

Earlier Congressional Focus on FTA Negotiations Seen as Important

Some committee staff felt that an inherent problem with the consultation process was that Congress tended to focus on the FTAs at the end of the negotiations, when the deal was essentially done, and it was difficult (if not impossible) to change the terms of the agreement. They said that this resulted from the congressional culture of waiting until an issue was fully developed and likely to become law before focusing on it. In contrast, they said that trade negotiations particularly require congressional attention throughout the process. For consultations to be meaningful and most effective, they felt that it would be important to find ways through the consultation process to facilitate Congress focusing earlier on the FTAs. This was particularly critical given the nature of fast track provisions, in which the final agreement comes to Congress for an up-or-down vote with no amendments.

USTR officials, including some former lead negotiators who we interviewed, also said that earlier attention by Congress was important. Some of them expressed frustration that they would hold frequent consultation meetings, but that many committee staff would not attend, or would not actively engage. Then, at the end of the process, when the negotiations were finalized, they would start to focus and ask questions and want changes. This was very ineffective—sometimes USTR was able to get changes, but often it was no longer possible to modify something that could have been changed earlier in the negotiations.

Greater Access to Technical Expertise and Information Desired

Another issue raised by several congressional staff was the need for greater access to technical information on an ongoing basis. These staff said that although committee staff on the trade and agricultural committees are knowledgeable about their fields, trade negotiations are today too broad and complex for any one staff member to fully understand all of the implications. One trade staff told us that staff on the other committees of jurisdiction are at a disadvantage because trade is not their primary issue, and they don’t have time to follow it. Having access to expert staff, such as through a congressional trade office, would be very helpful, according to one committee staff. Another committee staff opposed what they feared might be creation of an additional bureaucracy with a new trade office and instead said that GAO could serve this role.

In principle, the formal private sector trade advisors could help fill this void. However, committee staff said that they did not have contact with them during the FTA negotiations. One staff said that they used to be invited to trade advisory committee meetings, but no longer. Although the trade advisory committees provide extensive technical information to Congress in their required reports on each FTA at the end of the process, committee staff did not have access to their substantial knowledge base during the negotiations.

A related issue raised by a few staff on some of the nontrade committees of jurisdiction was that trade negotiations involve a great deal of specialized terminology and information. Staff of one committee said that sometimes they found it difficult to fully understand the briefings because the negotiators used so much jargon. They said that it would be helpful if USTR developed a primer describing the typical evolution of the trade negotiations process and providing a glossary of trade terms. Other ideas included USTR providing an overview on upcoming issues at the start of the year, giving more of an overview on FTAs early on, and describing in some detail FTAs at their conclusion.

Problems with Access to Secure USTR Web Site Limits Information Availability

An issue raised by many of the trade and agriculture committee staff that we interviewed was access to USTR’s secure Web site on which it posts the negotiating text for FTAs, as well as other information. The Senate staff said that this was more a matter related to internal congressional security issues than to USTR. Until this year, the Senate committee staff that have access to the classified negotiating texts said they received hard copy information because the Senate was unable to resolve security concerns to allow electronic access. When USTR sent a hard copy to the Office of Senate Security, it took the office a day to log it in and notify staff of its availability. Then staff had to make an appointment to go to a secure room in the Capitol in order to read these documents. The result was that they had a significantly smaller window of time to access the documents than if they had been immediately available electronically. Staffers said that recently a computer in a Senate office building had been made available for this purpose. While this was an improvement, they would prefer to have access in their own offices, or at least their own buildings. On the House side, committee staff did not have any electronic access to USTR’s secure Web site, as of the end of August 2007. However, several committee staff said that access was being planned and would greatly improve timely staff access to negotiating information.

USTR officials said that they would welcome expansion of congressional access to USTR’s secure Web site. They also said that an important related issue is whether congressional staff working on FTAs under negotiation had security clearances. USTR officials felt strongly that if more congressional staff obtained security clearances, it would greatly facilitate the consultation process, both in terms of access to information and timeliness of information.

Consultations Afford Trade Advisory Committees Access, but Process Issues Impede Effective Provision of Advice

The trade advisory committee chairs we contacted said that USTR and the managing executive branch agencies consulted with their committees on a fairly regular basis, providing access to administration officials, but process issues made it difficult for some committees to function effectively. In addition to consultations with Congress, the administration is required to consult with private sector advisory committees and with the public at large to get a sense of their views. We spoke with 16 chairs of the relevant 27 trade advisory committees, as well as five additional committee members. They reported that consultations were generally extensive in number. The chairs and members, however, had mixed reactions as to whether the nature of the consultations, quality of information provided, and feedback received were satisfactory. Furthermore, process issues such as reporting time frames, committee composition, and chartering and appointment sometimes impeded advisory committees’ ability to provide advice on trade negotiations.

Consultations with Trade Advisory Committees Were Generally Extensive

Four agencies, led by USTR, administer the three-tiered trade advisory committee system. (See fig. 8.) USTR directly administers the first tier overall policy committee, the President’s Advisory Committee for Trade Policy and Negotiations (ACTPN), and three of the second tier general policy committees, the Trade Advisory Committee on Africa (TACA), the Intergovernmental Policy Advisory Committee (IGPAC), and the Trade and Environment Policy Advisory Committee (TEPAC), for which the Environmental Protection Agency also plays a supporting role. The Department of Labor coadministers the second tier Labor Advisory Committee (LAC) and the Department of Agriculture coadministers the second tier Agricultural Policy Advisory Committee (APAC). The Department of Agriculture also coadministers the third tier Agricultural Technical Advisory Committees (ATACs), while the Department of Commerce coadministers the third tier Industry Trade Advisory Committees (ITACs). Ultimately, member appointments to the committees have to be cleared by both the Secretary of the managing agency and the U.S. Trade Representative, as they are the appointing officials.

USTR and the relevant executive branch agencies consulted with the first and third tier advisory committees on a fairly regular basis. The first and third tier chairs we contacted generally felt that these consultations provided the committees with important access to the administration and ongoing negotiations. From fiscal year 2002 through May of fiscal year 2007, USTR met with the 16 ITACs a total of 729 times. From fiscal year 2002 through fiscal year 2006, USTR met with the six ATACs a total of 92 times. Most of these meetings were in person, although conference calls were sometimes held for fast-moving issues or during the 30-day time frame for report writing. In addition, USTR established a monthly conference call for all trade advisory committee chairs, beginning in late 2002.

The number of consultations with USTR was more limited at the second tier policy committee level. Although USTR has met fairly regularly with APAC and TEPAC over the past 5 years, the LAC had no meetings for over 2 years from September 2003 to November 2005. Furthermore, IGPAC did not have an in-person consultation with USTR from July 2005 to September 2007. In late 2006, USTR instituted a monthly conference call for IGPAC, together with state points of contact. Agency officials said this was done to broaden outreach to the states and increase the frequency of interaction with USTR without travel costs. The officials added that they have also convened additional IGPAC conference call meetings, as needed on particular issues. LAC and TEPAC (as well as ACTPN) have liaison groups that meet more often. For example, the TEPAC liaison group tries to meet every 4 to 6 weeks. According to members from these committees, liaison meetings are at the staff level and are usually fairly technical, whereas the principals’ meetings tend to look at broader, political issues.

Committees Had Mixed Reactions to Nature of Consultations

Slightly over half of the committee chairs we interviewed felt that their expectations of the consultation process were met, but overall views on the opportunity to provide meaningful input varied. For example, one third tier chair said that his expectations were met since the process works well to facilitate access between negotiators and private sector representatives, and the administration seems to take consultations seriously. The second tier committees in particular, however, stated that their advice and opinions were not considered. A few of the third tier committees concurred. Those who said their expectations were not met told us their committees were not being used properly. According to a few of these chairs, while the administration has consultation meetings with them, they are more to “check off the box” than to engage in meaningful dialogue. The chairs feel that the administration tells them what has already been decided upon instead of soliciting their advice. Furthermore, two ITAC chairs told us that it is more effective to use venues other than the advisory committee system to provide meaningful input. For example, one chair said that a coalition of industry-related companies outside of the ITAC is the major venue for consultations with the administration for that industry. The chair told us that the ITAC advisory process tends to be at the end of negotiations and is not as significant as it should be. At the same time, the chair felt the ITAC did play a role in the consultation process. Although it could not consult at the highly technical level that the coalition could, it was able to consult on the broad direction of U.S. trade policy for that industry. USTR officials told us that the fact that the advice of any particular advisory committee may not be reflected in a trade agreement does not mean that the advice was not carefully considered. USTR emphasized that it does consider advice from its advisory committees in formulating U.S. trade policy. At the same time, however, USTR also acknowledged that for some contentious issues, the advice is not in line with long-standing U.S. policy or congressional guidance set out in TPA. In those instances, USTR told us they are very limited in what they can do in response to advisory committee advice. This appears to be particularly problematic for second tier policy advisory committees. For example, the strength and reach of FTA investment provisions and dispute settlement mechanisms have long been a concern of both IGPAC and TEPAC. LAC, meanwhile, has criticized the worker rights standards and dispute settlement mechanisms in FTAs as insufficient.

Overall, the first tier and most of the third tier committee chairs we interviewed felt that the information USTR provided was of high quality and detail, providing a mixture of publicly available information and more proprietary, confidential information. Most of the second tier policy committee and a few third tier technical committee chairs in our selection, however, were not satisfied with the quality of information presented during consultations and felt that it was no better than information available to the general public. Of those committees, one chair felt USTR was constantly holding back information, and the committee learned something new only every seventh or eighth meeting. Another chair expressed frustration at trying to get information as negotiations were in progress, saying that USTR was reluctant to state what the other country was proposing. Two of the chairs who were dissatisfied went on to say that although most of the information presented is available publicly, having access to administration officials was valuable. Several other committee chairs also emphasized the value they place on having access to the administration through the advisory committee process.

Approximately half of the advisory committee chairs with whom we spoke felt that the administration was responsive to their advice and provided feedback, whether or not their advice was incorporated into the agreement. The first tier and over half of the third tier committee chairs feel there is an adequate opportunity for dialogue and that their interests are considered. Most of the second tier and a few of the third tier committee chairs, however, expressed dissatisfaction with the feedback from USTR. They expressed their perception that USTR is either biased against their committee or that by being asked to comment on completed deals, their opinions are not truly valued or taken into consideration. Two chairs said USTR wants them to “rubber-stamp” decisions or to be “cheerleaders” for the administration. Other chairs said their committees rarely or never get feedback.

In general, the advisory committee chairs we spoke with were pleased with the numerous changes that have been made to the advisory committee system in response to GAO’s 2002 report. In particular, members found the secure Web site very useful. A quarter of the chairs said that having text on the Web site sooner, or when USTR says it will be posted, would be helpful, but they agreed that the secure Web site was a valuable tool. Three-quarters of the chairs we interviewed had no complaints about the reconfiguration of the committee system to more closely align with the current U.S. economy, although chairs and members from slightly over a third of the committees we interviewed found problems with the representation of interests on their individual committees. Ten of the 16 chairs with whom we spoke did not find the monthly chairs’ teleconference call useful, primarily because of a lack of detailed information; those chairs located in Washington, D.C., cited lack of new information. Furthermore, 8 of the 11 chairs we interviewed whose committees are invited to the newly instituted periodic plenary meetings (ATACs and ITACs) did not find them useful. A couple of those chairs did acknowledge, however, that their out-of-town members might find them more useful and that they are a good opportunity to hear cabinet-level speakers to whom they would not routinely have access. Beyond the plenary meetings, several chairs, particularly among the ITACs, said that more interaction with other advisory committees would be useful. Currently, only three ITACs (Customs Matters and Trade Facilitation, Intellectual Property Rights, and Standards and Technical Trade Barriers) allow for members from other ITACs to sit in on meetings in a nonvoting capacity. There is also an Investment Working Group that draws from across the ITAC committees that a couple of chairs said was a helpful device.

Other Stakeholders Found Public Hearings Ineffective or Did Not Participate

Stakeholders outside of the trade advisory committee system were also provided an opportunity to express their views on the record through the public hearing process; however, they have found other methods to be more effective. The administration holds public hearings and gives the public an opportunity to submit written comments for each FTA. Anyone is free to come to these meetings and express their opinions.

We spoke with three of the former Assistant U.S. Trade Representatives who were in charge of negotiating FTAs over the past 5 years under TPA, and each said that the public hearing process was useful and gave USTR a good overall sense of what issues were important to the general public. They noted that they sometimes gained information from viewpoints not represented in the formal system and that comments were distributed to responsible officials and taken into account.

While we did not speak extensively with stakeholders that used these formal and informal avenues for input, we spoke with a few trade experts in the nongovernmental organization and academic communities that had used them or were familiar with them. The experts from the academic community admitted that although they were aware of the public hearing process, they did not participate in it. Those in the nongovernmental organization community, however, had either personally participated or their organization had, but they did not feel that their opinions were heard. Furthermore, they felt left out of the process and that industry groups had much better access. As a result, these groups said they have to go directly to Congress to express their opinions through hearings or personal contact.

Process Issues Impeded Committees’ Function

Despite the frequency and quality of USTR consultations with the advisory committees, process issues such as short reporting time frames, lack of transparency in committee composition, and delays in rechartering committees and appointing members sometimes impeded committees’ ability to provide trade advice.

Reporting Deadlines Are Difficult to Meet

The Trade Act of 1974 requires trade advisory committees to provide to the President, the Congress, and USTR a report detailing their advisory opinion as to (1) whether and to what extent the agreement promotes the economic interests of the United States and achieves the applicable overall and principal negotiating objectives (for first and second tier committees) and (2) whether the agreement provides for equity and reciprocity within the sector or within the functional area. TPA legislation gives the advisory committees 30 days after the President notifies Congress of the intent to sign a trade agreement to submit these reports.

Approximately half of the committee chairs we interviewed said that this deadline can be difficult to meet for both technical and logistical reasons, and the committees cannot always give advice based on a thorough review. Reasons they gave include the following: FTAs are technical, complex documents including thousands of lines of tariffs.

Advisory committee members are volunteers with full-time jobs and other commitments.

Coordinating the FTA review and report within 30 days can be a challenge.

The text is sometimes not available until several days into the 30-day period.

Negotiations are not always finalized for all sectors at the same time, and the posting of various chapters is staggered.

Although committee members see versions of the text as the FTA develops, the final agreed-upon text can change the implications for their particular interest significantly.

The FTA with South Korea provides the most obvious and recent example of presenting a challenge in meeting the deadline. Chairs told us the text was not available to their committees until between 7 and 14 of the 30 days had passed. Furthermore, although some issues such as rice had been agreed upon in principle between the United States and South Korea at the conclusion of the agreement and the advisors had been briefed on the results, the final text had not yet been written. According to administration officials, the FTA with South Korea was an exception, since USTR was rushing to finish negotiations before TPA expired. Committee chairs told us, however, that meeting the 30-day deadline has been difficult for other FTAs as well. One of the second tier policy committee chairs, for example, noted that the committee did not have access to the agricultural sections of the final text of the Colombia FTA in time to complete the review prior to issuing a committee report. The committee therefore had to submit a pro forma letter, noting that they would provide a more detailed addendum to their report after the full text became available. A third tier committee chair told us that his committee regularly reserves the right to amend its report. USTR officials acknowledged that the time frame for report writing has been problematic for years. Furthermore, they pointed out that as USTR is actually tasked with sending all of the committee reports within 30 days to Congress, they need at least a couple of days to collect reports from the various committees, make copies, and then send them by courier.

It is also difficult for the ITC to provide in the specified time frame its statutorily required report assessing the likely impact of the agreement on the U.S. economy and specific industry sectors because of delays in receiving the final agreement text. The President is required to provide the ITC with the details of the agreement, as it exists at that time, 90 days before the date on which the President enters into the agreement. The ITC has a total of 180 days from that date to hold any hearings, do its analysis, and submit its report. TPA also requires the President to update ITC on the details of the agreement during this period. According to ITC officials, the deadline is often difficult to make due to last minute changes and late delivery of the final text. These officials told us that ITC sometimes does not get the full text of the agreement and all of the annexes until they are already more than halfway through the 180-day period. The ITC officials agreed with advisory committee chairs who suggested that a longer report writing window would be useful. One committee chair specifically suggested extending the window by 15 days. Commerce and USTR officials agreed that they would like to see at least 15 more days allowed for report writing.

Incorporation of Nonbusiness Interests Remains Difficult, and Committee Composition Is Not Transparent

The represented interests on trade advisory committees are not always transparent. Congress requires, through the Trade Act of 1974, that the President seek information and advice from representative elements of the private sector and the nonfederal government sector through trade advisory committees that include representatives of certain interests. For example, the first tier ACTPN is to include representatives of nonfederal governments, labor, agriculture, small business, environmental and conservation organizations, and consumer interests, among others. The third tier committees are to be representative, insofar as is practicable, of all industry, labor, agricultural, or service interests in the sector or functional areas concerned. After we reported in 2002 that the committee system’s structure needed to be revisited, USTR and managing agencies worked with Congress in reconfiguring some of the committees. For example, the LAC membership now includes primarily union presidents to ensure that the administration receives advice from the highest levels. Furthermore, the 21 industry functional and sector committees were realigned and streamlined into 16 industry committees to more accurately reflect the current U.S. economy and trade policy needs. USTR and the other managing agencies, however, still have had difficulty incorporating nonbusiness stakeholders into the committees. For example, USTR said it has had difficulties finding labor representatives willing to serve on ACTPN, the overall policy first tier committee that is required to be broadly representative of key sectors and groups affected by trade. Just under half of the committee members with whom we spoke expressed frustration with the current composition of their committees. Members who were dissatisfied with representation told us either that they felt that certain relevant viewpoints were not adequately represented or that the composition favored representation of one industry or group at the expense of another. Furthermore, some members are the sole representative of a nonbusiness interest on their committee. The nonbusiness members we spoke with told us that although their interest is now represented, they still feel isolated within their own committee. The result is the perception that their minority perspective is not influential.

Available public information makes it difficult to determine what perspective or interest a committee member represents. For example, USTR officials pointed to the charters of the committees for which USTR is the principal administrator for guidelines as to which representatives they select. The charter for TEPAC, however, simply says that members shall be from environmental interest groups, industry, agriculture, services, nonfederal governments, and consumer interests, and that they shall be broadly representative of key sectors and groups with an interest in trade and environmental policy issues. The Department of Labor’s charter for LAC only says members will be selected from the U.S. labor community. In addition to charters, the Departments of Agriculture and Commerce also put out Federal Register notices soliciting new members. These notices stipulate that members must have expertise and knowledge of trade issues relevant to the committees and that geographic, demographic, and sector balance will be sought. Neither the charters nor the Federal Register notices, however, explain how the agencies actually determined which representatives they placed on committees, although these are the documents agencies continually referred us to for this information. Without reporting such an explanation, it is not transparent how agencies followed their own guidelines for member selection or met statutory representation requirements.

It is also not always transparent from the final roster which interest a particular member represents. The FACA required the President to report annually on the status of advisory committees, although this requirement was terminated in 2000. The General Services Administration now collects this information from the relevant executive branch agencies and posts it on the FACA database (a publicly available database on committees operating under FACA). While the Department of Commerce reports on the specific interest each committee member represents, USTR and the Departments of Agriculture and Labor do not. Instead, they list the member’s occupation or affiliation. However, it is not always possible to deduce from that information a member’s represented interest, as for example, several committee members are from law firms or large companies that deal with a variety of issues. Listing the name of the firm or company alone does not necessarily indicate representation of a particular interest. As a result, it is difficult to determine whether USTR is receiving the information and advice Congress intended it to obtain from these committees.

Rechartering and Appointment Processes Flawed

Weaknesses in the processes of rechartering and repopulating committees have caused significant lapses in committees’ functions. Originally, FACA called for the termination of advisory committees every 2 years unless renewed or its duration is otherwise provided for by law. Legislation passed in 2004 in response to our 2002 report leaves it to the discretion of the President whether or not to extend the charters of the trade advisory committees established under the Trade Act of 1974 to 4 years. All of these committees, with the exception of LAC, now have 4-year charters. Department of Labor officials told us this is because of miscommunication surrounding the 2004 legislation. Charters of several committees have been allowed to lapse recently, however, resulting in committees not being able to meet for extended periods of time (up to 7 months in the case of LAC). Furthermore, the process of selecting and appointing committee members requires a number of time-consuming steps. The Department of Commerce, for example, starts the process of appointing new members approximately 9 months prior to the ITACs’ charter expiration dates, to try and ensure that the work of the ITACs does not stop, and has been successful in avoiding lapses as a result. However, other agencies do not always start this process in time for committees to begin meeting once the charter is renewed. When both processes of rechartering and member appointment are delayed, it further reduces a committee’s ability to give timely, official advice before the committee is terminated, and the rechartering process has to begin again. This is particularly true in the case of LAC, which still has a 2-year charter.

These periods of committees not being able to meet have occurred during important stages of the U.S. trade agenda for both bilateral agreements and the WTO. Most recently, the charters of APAC and all six of the ATACs expired on April 29, 2007. The Department of Agriculture began the process of soliciting new members on March 20. Although the committees were rechartered in late May, as of late September 2007 they had still been unable to meet because they had not yet been repopulated. A Department of Agriculture official told us that this is because key people responsible for the vetting process in the undersecretary’s office have been unavailable due to travel schedules. In the interim, however, the United States signed FTAs with Panama and South Korea on June 28 and June 30, respectively. Although these committees were able to get their reports on the two FTAs to USTR just before their charters expired, they have not been able to give any official advice in the interim period, when agricultural issues— particularly rice in the FTA with South Korea—were still being negotiated. In another example, the LAC did not meet from September 2003 until November 2005. Department of Labor officials indicated this was due in part to the difficulty in getting members vetted and appointed. During this more than 2-year period, the United States was not only negotiating in the Doha Round of the WTO, but was also negotiating FTAs with numerous countries. The administration, however, is not required to report such lapses and the reasons behind them. The FACA database does collect data on the length of the current charter and the number of meetings held each year. This information, however, is only reported on an annual basis, and we found several discrepancies in the data posted, including incorrect charter and meeting dates.

Conclusions

TPA expired on July 1, 2007, but the issue of its renewal awaits congressional consideration. This report reviews what FTAs the administration pursued under TPA. The systematic review this report provides forms part of the historical record of what was achieved with this important grant of authority. This report also examines how well the congressional and private sector consultations worked in practice. Although these are considered an essential check to ensure substantively sound and well-supported agreements, our report finds room for improvement.

Under this TPA authority, we found USTR has pursued bilateral and subregional FTAs in order to advance both foreign policy and economic policy goals and as building blocks to larger regional initiatives and global trade expansion. While many in Congress and U.S. industry have supported these FTA negotiations, some have been concerned about the limited economic and commercial benefits gained. However, the U.S. standard of only negotiating comprehensive FTAs has had implications for the universe of suitable trading partners. Certain larger trading partners like the EU and Japan have been unwilling to open up sensitive sectors such as agriculture bilaterally. Negotiations with some larger developing country partners such as Brazil were ultimately abandoned, in part because they were unwilling to accept the comprehensive template proposed by the United States on such topics, as well as intellectual property rights and services. The results in terms of trade coverage illustrate the limitations of pursuing comprehensive FTAs: those in force or concluded under TPA accounted for just 8 percent of total U.S. trade. Yet, after the EU, Japan, and China, the trade partners that remain to be covered by FTAs each account for relatively small shares of U.S. trade.

TPA required that the administration consult with Congress as USTR negotiated trade agreements. We found that USTR provided extensive consultations on FTAs, numbering well over a thousand, over the past 5 years—a significant expenditure of effort, resources, and time for an office of about 200 staff. However, while some current and former congressional committee staff we spoke with were satisfied with the consultations, others still came away feeling that they had not been truly consulted, particularly staff outside of the trade committees. Current and former USTR negotiators we interviewed believed that congressional input was constantly being factored into their discussions, but said lack of early focus by Congress on agreement details often complicated USTR’s ability to incorporate congressional input. Clearly, clarification of expectations on both sides is essential to any renewal of TPA.

Certain procedural issues also hampered consultations. For example, most committee staff, particularly outside the trade and agriculture committees, often did not feel that they had the time they needed to review the information USTR shared with them on the status of the negotiations and, in turn, provide meaningful input. Although USTR reports that it has already taken the step of providing committee staff that have security clearances with the negotiating text 5 days in advance, several committee staff told us they frequently have less time. Staff also need to obtain security clearances if they want to be able to access the classified negotiating text; however, some key staff still lack clearances. In addition, some staff with clearances are only able to access text through a cumbersome paper process, while others enjoy electronic access through USTR’s secure Web site. Discussing changes from previously proposed text also appears essential to ensuring trust and effective communication. However, both committee staff and former USTR negotiators commented that process changes alone cannot resolve the issues at the heart of the consultation controversy. They said that the political will to engage in meaningful consultations is key and that consultations only work as well as the political relations and good faith of players.

Just over half of the private sector advisory committee chairs we spoke with said they were adequately consulted and told us that having direct access to administration officials is valuable. Nevertheless, our work suggests that tight reporting time frames and delays in finalizing text often compromise committees’ ability to provide an advisory opinion within 30 days as to whether agreements promote U.S. economic interests, achieve negotiating goals, and provide for equity and reciprocity, as TPA required. The ITC faces similar challenges in securing text or agreement details that can impede its ability to prepare required reports within statutory time frames. Finally, delays in both committee rechartering and member appointments have led to prolonged lapses in some committees’ ability to convene and provide advice. Current reporting by the administration on the trade advisory committee status does not provide sufficient transparency, so Congress may be unaware of some committees’ inability to meet and how statutory representation requirements are achieved. As a result, to effectively perform the unique role in U.S. trade policy Congress has given trade advisory committees, certain process issues need to be resolved.

Matter for Congressional Consideration

To assist the U.S. Trade Representative and the other agencies in improving the operations and input of the trade advisory committees, Congress should consider extending the reporting deadlines for the trade advisory committees and the ITC by 15 days, giving them 45 days and 195 days, respectively.

Recommendations for Executive Action

To facilitate better consultations with Congress, we recommend that the U.S. Trade Representative: Take steps to reach agreement with the committees of jurisdiction on the amount of time they need to receive information in advance of consultation meetings in order to afford them better opportunity for meaningful input, and Work together with Congress on ways to improve access to information prior to consultation meetings, such as through security clearances, so that congressional staff can better assess the status of negotiations and provide advice to USTR.

To provide transparency and accountability to the composition of the trade advisory committees, we recommend that the Secretaries of Agriculture, Commerce, and Labor work with the U.S. Trade Representative to annually report publicly on how they meet the representation requirements of FACA and the Trade Act of 1974, including clarifying which interest members represent in a manner similar to the Department of Commerce and explaining how they determined which representatives they placed on committees.

To assure Congress that it is receiving the private sector advisory opinions that it intended in the Trade Act of 1974, we recommend that the Secretaries of Agriculture and Labor work with the U.S. Trade Representative to take the following two actions: Start the advisory committee rechartering and member appointment processes with sufficient time to avoid any lapse in the ability to hold committee meetings, and Notify Congress if a committee is unable to meet for more than 3 months due to an expired charter or a delay in the member appointment process.

To promote greater efficiency in trade advisory committee function, we recommend that the Secretary of Labor work with the U.S. Trade Representative to extend the Labor Advisory Committee charter from 2 years to 4 years, to be in alignment with the rest of the trade advisory committee system.

Agency Comments and Our Evaluation

We provided a draft of this report to USTR; the Departments of Agriculture, Commerce, Labor, State, and the Treasury; the Environmental Protection Agency, and ITC. The Department of Commerce provided written comments, which are reproduced in appendix V. It said that the report was generally an accurate summation of the status and impacts of FTAs and provided a good overview of some of the complexities associated with negotiating an FTA. USTR; the Departments of Agriculture, Commerce, and Labor; the Environmental Protection Agency, and ITC provided us with technical comments, which we have incorporated where appropriate. The Departments of State and the Treasury had no comments.

USTR staff also commented to GAO on the proposed recommendations regarding statutory representation requirements in advisory committee composition and consultation with Congress. GAO incorporated these comments as appropriate in the final report. USTR indicated that it would report on the actions taken in response to the recommendations in a letter as required under U.S. law.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies of this report to interested congressional committees; the U.S. Trade Representative; the Departments of Agriculture, Commerce, Labor, State, and the Treasury; the Environmental Protection Agency; and ITC. We also will make copies available to others upon request. In addition, this report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff has any questions about this report, please contact me at (202) 512-4128 or yagerl@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix VI.

Appendix I: Objectives, Scope, and Methodology

To determine how Trade Promotion Authority (TPA) has been used in negotiation of free trade agreements (FTA), we reviewed: (1) What FTAs have been pursued under TPA and why? (2) Overall, what is the economic significance of these agreements to the United States? (3) What is the nature of the consultation process for Congress, and how well has it worked in practice? (4) What is the nature of the consultation process for trade advisory committees and other stakeholders, and how well has it worked in practice?

To answer these questions, generally we reviewed documents and interviewed officials responsible for international trade policy and negotiations at the Office of the U.S. Trade Representative (USTR); the Departments of Agriculture, Commerce, Labor, State, and the Treasury; and the Environmental Protection Agency, as well as officials of the U.S. International Trade Commission (ITC).

To determine what FTAs have been pursued under TPA and why, we reviewed USTR documents and interagency memoranda discussing FTA partner selection and updated our findings from our prior work on FTA partner selection. We also interviewed relevant executive branch agency officials, both current and former, in order to gain the perspectives of those officials involved with the earlier FTAs negotiated under TPA. In addition, we interviewed congressional staff from the House and Senate trade and agriculture committees, as well as other committees of jurisdiction, and over half of the trade advisory committee chairs, in order to learn what input they had into the partner selection process.

To determine the overall economic significance of these FTAs, we analyzed official U.S. trade and investment data, as well as selected studies and analyses from USTR, ITC, and trade experts. U.S. goods trade statistics are from the Bureau of the Census, and are through 2006. U.S. services trade and investment statistics are from the Bureau of Economic Analysis, and are through 2005, which is the most recent year available. For the purpose of analyzing the overall U.S. trade and investment relationship with TPA and non-TPA trade partners, we determined that these data are sufficiently reliable. Where we combined the two data sets to show the share of total trade (imports plus exports of goods plus services), the modest changes that occur from year to year would only have a minimal effect on the shares reported and no effect on the overall findings. We also grouped detailed U.S. goods trade statistics into two broad categories: agriculture and manufacturing based on the Harmonized Tariff Schedule product chapters. Chapters 1 through 24 are agriculture and the remaining nonagricultural chapters are manufacturing. ITC maintains the official U.S. tariff schedule. A complete list of the product chapters of the Harmonized Tariff schedule can be found at www.usitc.gov. Finally, in order to analyze the growth of U.S. goods trade flows over time we used Bureau of Labor Statistics import and export price deflators at the most disaggregated level available to adjust U.S. trade statistics for inflation from 1992 to 2006. We did not adjust U.S. services statistics since reliable price deflators are not available for the time period we examined.

To determine the nature of the congressional consultation process and how well it has worked in practice, we reviewed fast track provisions from the Trade Act of 1974 up through TPA to trace the evolution of the consultation provisions. We also analyzed USTR’s congressional consultation logs in order to determine which committees USTR had provided with consultation meetings, how often, and on which FTAs. We interviewed USTR officials about how the log was compiled and generally found them sufficiently reliable for the purposes of this report. In addition, we interviewed current and former USTR officials who had been involved in providing the FTA consultations, as well as current and former staff of congressional committees that had participated in these consultation meetings, in order to obtain their descriptions of the consultation process and their views on what had worked well and what could be improved. In our congressional interviews, we interviewed both House and Senate committees, including both majority and minority staffs, of all the trade, agriculture, and other committees of jurisdiction that had been involved in these consultations. The committees of jurisdiction comprised the following: Senate Finance and House Ways and Means, Senate Agriculture, Nutrition, and Forestry and House Agriculture, Senate Commerce, Science and Transportation and House Natural Resources (fisheries subcommittees), Senate and House Judiciary (intellectual property rights subcommittees), Senate Banking, Housing, and Urban Affairs and House Financial Services, Senate Commerce, Science and Transportation (telecommunications staff) and House Energy and Commerce (telecommunications subcommittee), Senate Homeland Security and Governmental Affairs and House Oversight and Government Reform.

Of the 28 committee staffs (from 7 Senate committees and 7 House committees, each with majority and minority staffs) that we contacted, staff of 18 (64 percent) agreed to be interviewed. The views of the committee staff we interviewed are not necessarily representative to all relevant Senate and House Committees. We interviewed staff of all 4 trade committee staffs, as well as 4 former trade committee staff in order to assure coverage back to the beginning of TPA in 2002, due to staff turnover on some committees. We also interviewed former committee staff of the other committees of jurisdiction when there had been turnover on the staff and the current staff were not sufficiently familiar with the process to comment and referred us to the appropriate former staff.

To determine the nature of the consultation process for the trade advisory committees and how well it worked in practice, we reviewed relevant provisions in the Trade Act of 1974, the Federal Advisory Committee Act (FACA), and TPA governing the establishment and function of the committees as well as their reporting requirements and time frames. We obtained and analyzed committee meeting records and charter and roster information from both designated agency officials and through the FACA database maintained by the General Services Administration. We interviewed a nongeneralizable sampling of 27 trade advisory committee chairs. We interviewed the first tier and all of the relevant second tier chairs. For the third tier, we interviewed a judgmental sample of half of the chairs—half of the agricultural technical advisory committee chairs and half of the industry trade advisory committee chairs—representing a cross section of both agriculture and industry, as well as select committee members referred to us by the chairs for their alternative views. Altogether, we interviewed 16 of the 27 chairs and 5 additional members. The views of the trade advisory committee chairs with whom we spoke are not necessarily representative of all committee chairs. We also selected four other stakeholders to interview, based on literature and background research, recommendations from trade experts, and participation in public hearings held for each FTA. These stakeholders were trade experts in the nongovernmental organization and academic communities. In addition, we interviewed the executive branch agency officials responsible for overseeing the committees, at USTR and the Departments of Agriculture, Commerce, and Labor. We also interviewed agency officials from the ITC. Finally, we updated findings from our prior work on the trade advisory committees through interviews and document review and analysis.

We conducted our work from January 2007 to August 2007 in accordance with generally accepted government auditing standards.

Appendix II: Expansion of Congressional Consultation Requirements and Role of Gatekeeper Provision

This appendix briefly reviews the evolution of congressional consultation requirements under TPA. In general, consultation requirements have expanded under each renewal of authority. The Trade Act of 1974 was the first grant of fast track authority, which later became known as trade promotion authority. It established the basic consultation framework, including required notifications, consultations with congressional committees, the advisory committee system, and the accreditation of 10 Members of Congress to serve as official advisors to the U.S. delegation of negotiators. The Trade Agreements Act of 1979 extended fast track authority but made no significant changes. The next renewal came through the Trade and Tariff Act of 1984. This act added a new requirement that the President notify Congress of intent to begin trade negotiations at least 60 days in advance. Either the House Ways and Means or the Senate Finance committees could deny fast track consideration by disapproving of the negotiation within 60 days of the notification. This provision became known as the “gatekeeper” provision. In at least one instance, Congress reportedly used the provision as a tool to successfully influence the administration.

The Omnibus Trade and Competitiveness Act of 1988 continued the previous consultation requirements and added that the Congress could withhold a trade agreement from fast track consideration by passing resolutions of disapproval if it determined that the President had failed to adequately consult with Congress. In addition, the 1988 act extended fast track procedures only for 3 years but allowed an extension of fast track procedures for an additional 2 years if the President requested the extension, and Congress did not pass a resolution disapproving of the extension. The Trade Act of 2002 included all of the consultation requirements of previous acts with the exception of the gatekeeper provision. Instead of giving the two main trade committees the power to essentially veto potential trading partners before negotiations begin, the 2002 act replaced the 60-day notification of intent to begin negotiations with a 90-day notification. The Trade Act of 2002 also established the Congressional Oversight Group (COG) as an additional consultation mechanism.

Appendix III: Detailed Information on U.S. Goods and Services Trade, Investment, and Tariffs of U.S. Trade Partners

This appendix provides detailed information on U.S. goods trade (table 5) and services trade (table 6) with U.S. trade partners grouped by whether the United States pursued an FTA with them under TPA, already had an existing FTA with them, or did not pursue an FTA with them. It also provides information on U.S. foreign direct investment in these countries (table 7) and the countries’ average applied tariff rates (table 8).

Appendix IV: Comparison of U.S. Trade and Investment with FTA and Non-FTA Partners

The U.S. trade and investment relationship with countries that the United States has chosen to pursue FTAs under TPA differs from that with non- FTA countries in several ways. The United States tends to (1) maintain more balanced trade with TPA countries, (2) export relatively more manufactured goods (compared with services and agriculture), and (3) have relatively faster investment growth with TPA countries, particularly in countries with FTAs in force.

U.S. Maintains More Balanced Trade with TPA Countries

The overall U.S. trade deficit has been large and growing for many years. Much of the gap between exports and imports has been driven by increased imports from Asian countries, including China and Japan. In contrast, the United States has relatively more balanced trade with the group of countries pursued under TPA. Figure 9 shows the goods trade balances for TPA countries, existing FTA partners (e.g., Canada and Mexico), and non-FTA countries (e.g., EU, Japan, China, India). The trade balance with TPA countries is in deficit overall, but the deficit is relatively smaller and has deteriorated less rapidly than the much larger deficit with non-FTA countries.

Moreover, the trends in the U.S. trade deficit vary across the groups of countries pursued under TPA. For TPA countries with which the United States has put in force the FTA agreements (e.g., Australia, Chile, CAFTA- DR), the goods trade balance is in surplus. Figure 10 shows TPA countries by the status of the FTA negotiations: in force, concluded but not yet in force, and pursued but not yet concluded. For FTA agreements that have been put in force, the United States maintains a small but growing trade surplus. For agreements that have been concluded but not yet in force, the United States maintains a trade deficit that has declined in recent years. Finally, for countries in which the United States pursued an FTA agreement, but has not yet completed negotiations, the trade deficit has been negative and growing.

U.S. Exports More Manufacturing and Imports More Agricultural Products with TPA Countries

Relative to services and agriculture, manufacturing products comprise a higher share of total U.S. exports to TPA countries (70 percent) compared with non-FTA countries (59 percent), as shown in figure 11. This is mirrored by a relatively smaller share of services exports to TPA countries (26 percent) compared with non-FTA countries (36 percent). In addition, while U.S. manufacturing exports to both TPA and non-FTA countries are growing at similar rates (between 10-11 percent annually, from 2002–2006 based on a compound annual growth rate), U.S. services exports to TPA countries are growing more slowly than U.S. services exports to non-FTA countries (5 percent for TPA countries, versus 10 percent for non-FTA countries). Table 6 in appendix III shows growth rates for services trade.

Manufacturing includes all nonagricultural goods trade. U.S. trade in goods statistics are for 2006. U.S. trade in services statistics are for 2005, which is the most recent year available. See appendix I for more information on our methodology and product composition.

In terms of U.S. imports, manufacturing products comprise a much larger share of both TPA and non-FTA imports—80 and 82 percent, respectively, than manufacturing comprises in U.S. exports to these groups. Figure 12 shows the composition of U.S. imports from both groups. While U.S. services imports are relatively similar for TPA and non-FTA countries, agricultural imports from TPA countries (7 percent) are much larger as a share of total imports from TPA countries, compared to non-FTA countries (2 percent). In addition, agricultural imports from TPA countries have also been growing faster (9 percent annually) compared to imports of agricultural products from non-FTA countries (6 percent annually) from 2002 to 2006, based on a compound annual growth rate.

U.S. Investment in TPA Countries Growing Relatively Rapidly Since Completion of FTAs

U.S. direct investment abroad (or foreign direct investment, FDI) in TPA countries has grown more rapidly than investment in non-FTA countries, particularly in recent years since the conclusion of FTA agreements. Table 9 shows that U.S. FDI in TPA countries registered a compound annual growth rate of 9 percent between 1996 and 2005, and a 13 percent compound annual growth rate since 2002. For TPA countries in which an FTA with the United States is already in force, the compound annual growth rate was 20 percent from 2002 to 2005. In comparison, U.S. direct investment in non-FTA countries grew at a compound annual growth rate of 7 percent over the same period.

Appendix V: Comments from the Department of Commerce

Appendix VI: GAO Contact and Staff Acknowledgments

Staff Acknowledgments

In addition to the individual named above, Kim Frankena, Assistant Director; Leyla Kazaz; Tim Wedding; Judith Williams; Gezu Bekele; Tina Hodges; and Arthur Lord made key contributions to this report. Other contributors include Grace Lui, Martin De Alteriis, and Karen Deans.