Feb 192014

sean - 150x150United States Trade Representative Froman announced yesterday that his agency will create a public interest trade advisory committee (PITAC) for academics and NGOs as part of the trade advisory committee structure. But instead of including public interest representatives within Industry Trade Advisory Committees, USTR has accepted the proposal of industry representatives to segregate non-industry views into a separate committee.

As reported by Inside US Trade (Feb 19, 2014), the new Committee will separated from the ITAC process as are the current “tier two” committees for labor and environmental groups:

“Members of both the LAC (Labor) and the Environment Advisory Committee are limited to that specific forum and not allowed to attend the meetings of any of the 16 Industry Trade Advisory Committees (ITACs), unlike the ITAC members.”

The proposal to segregate public interest representatives into a separate committee was put forward by the corporate Chairs of the ITACs in 2010. At that time, the Obama Administration was reviewing whether to expand ITACs to include more non-industry representatives to balance the views represented. In a rare public meeting of ITAC chairs, the chairs unanimously opposed a proposal to incorporate non-industry representatives on ITACs, and suggested instead the segregated model that Froman adopted yesterday. The ITAC chairs argued:

We note that the ITACs were created and designed to present the views and interests of the producing sectors of the U.S. economy. ITACs are charged with giving highly technical advice. Exports are created by business, investments are created by business, and good, high-paying jobs are created by businesses.

With this understanding, we believe it’s important that any changes in the ITAC advisory membership reform be done understanding that the key point of this whole system is to be sure that the negotiators understand the needs of businesses.The ITAC system has been around for about 35 years. It was largely designed around the debacles of the Tokyo Round, where the Japanese cleaned our clock, because the Japanese fielded negotiators that truly understood the needs of Japanese industry, while the U.S. fielded negotiators that thought they understood the needs of U.S. industry, and the difference between “thought” and “truly understood” was shown in the results of the Tokyo Round. . . .

[W]e strongly believe that USTR and DOC have a very highly-motivated, very qualified group of individuals that are working in the best interests of the United States, and they are very capable of obtaining the information that they need from various sources. It does not all need to come from one forum.

You’ve got two options. You can open up the existing ITACs and bring in NGOs and other non-industry groups. We strongly disagree with that option. Option two is to set up another committee, or group of committees, within the present three-tiered structure that would provide a forum for seeking the advice of NGOs and other non-industry groups.

Of course, trade agreements today do not affect only businesses. They set and restrain regulatory choices on a broad range of topics — including every strand of intellectual property law — that effect nearly everyone. And on many such issues, industry interests are diametrically opposed to that of the general public interest regulations are meant to serve.

The conflict between industry and public interest positions can make it harder to advance more extreme proposals. As noted by USTR representatives in the meeting, there have been ITACs with non-industry representatives, including environmental group representatives on the ITAC that deals with chemical and health products. The chair of that ITAC confirmed that”[i]n the past, we did have environmental representatives on ITAC 3,” and “when they chose to participate, it made life very, very difficult.” Some might say that it should be difficult to advance proposals that would not survive in more in more open policy fora.

One of the important effects of the decision to keep public interest representatives out of ITACs is that it will maintain the unprecedented secrecy that defines the relation between USTR and corporate its advisers.  As Margot Kaminski and David Levine canvassed in recent articles, the ITACs operate with near immunity from the two central Watergate-era transparency laws — the Federal Advisory Committee Act and the Freedom of Information Act — that require a measure of transparency in the operation of advisory bodies in relation to most agency policy making. USTR’s decision to keep the PITAC as a separate tier two committee maintains this secrecy free from any public interest oversight of communication that could be furthered by including them on the committees themselves.

The volume and secrecy of input received from ITAC members was displayed in a recent Freedom of Information Act request request by IP-Watch. IP-Watch requested emails with ITAC members concerning the negotiation of the Trans Pacific Partnership Agreement involving members of the ITACs for Intellectual Property Rights, for Chemicals, Pharmaceuticals, Health Science Products and Services, and for Services and Finance Industries. USTR responded that it “located two hundred ninety-eight (298) responsive emails/ attachments,” of which two hundred thirty-four (234) were withheld in full as being exempted from public disclosure under FOIA. The remaining emails that were disclosed display an incredibly close — even cozy — relationship between USTR staff and industry advisers marked by frequent meetings in which specific proposals for language in the TPP are shared and discussed, but withheld from public view.

There is a brighter light on the horizon. Froman also mentioned in his address yesterday that at least with regard to the Trans Atlantic Investment Partnership being negotiated with the EU, each side would likely release to the public written summaries of negotiations after each round. Better transparency measures may also be announced in the future for TTIP because, unlike the TPP members, the EU has refused to sign a confidentiality agreement with the US. There remains a question as to whether the TTIP will provide something closer to the level level of transparency forced by the the EU Parliament at the end of the Anti-Counterfeit Trade Act (ACTA) negotiation. At least then, there was a public release of draft text before the conclusion of the agreement and all legislative staff in one negotiating party (the EU) could access ongoing text. USTR’s proposal for increased transparency in the TPP has not risen to even this much criticized level.