Promoting Trade: Congress and the Passage of Trade Promotion Authority (TPA)

As the Trans-Pacific Partnership (TPP) negotiations with the 12 international trading partners nears conclusion after five long years of hard bargaining, the battle for the future of the agreement inside the United States is heating up.  There are two key elements of the fight: Congressional approval of Trade Promotion Authority (TPA) and passage of the implementing legislation necessary to bring it into force in the United States. 

 In the U.S., Congress has the authority to regulate commerce, which includes setting tariffs.  But getting 535 members of Congress to negotiate trade agreements is not practical, so historically the executive branch has handled these tasks.  In the 1970s, this arrangement was formalized.  Members of Congress decided to explicitly give the role of negotiating trade agreements to the White House (subject to a number of specific provisions).

 Under what used to be called “fast track” and is now labeled “Trade Promotion Authority” (TPA), Congress is to be notified of the intention to launch negotiations. Congress is given 90 days to respond.  The United States Trade Representative (USTR) office is also tasked with gathering information about the future direction and important elements for the talks during this time period from a range of key stakeholders including business groups.  After the initial comment period is concluded, USTR is required to keep Congress informed as negotiations continue.  Finally, Congress has promised to vote the entire trade agreement up or down without amendment at the end by a simple majority vote in both chambers. The timeline is shown below.

Source:  Cooper, CRS, January 13, 2014

Ideally prior to the start of new negotiations, USTR would receive TPA from Congress, with the broad parameters and objectives set for any trade agreements to be negotiated during the time covered by the approval.  However, this was not done for the TPP as the latest version of TPA expired in 2007.

The outgoing George W. Bush administration announced its intention to join what became the TPP in September 2008.  The Obama White House decided not to press Congress for renewal of TPA in 2009, but rather started negotiations in March 2010 by following the provisions of TPA “as if” it were active. 

Over all the years of TPP negotiations, the White House did not seriously pursue votes in Congress to support renewal of TPA. But now, as talks enter the closing phase, TPA is necessary to finish the agreement.  Without TPA, Congress can amend the agreement from the opening sentence to the closing word.  As I always joke, without TPA in place, someone in Congress will propose amending an opening line of "The 12 parties of the TPP..." to "The Glorious United States of America and the 11 other parties of the TPP..."

Without TPA, Congress could also allow the agreement to die in committee or tangle ratification in an endless filibuster.  In short, without the provisions of TPA in place prior to the closure of the agreement, the TPP will likely fail to be ratified by Congress.

The first problem for 2015, then, is to secure passage of TPA.  The last time the bill was authorized, in 2002, the votes were very close: approval by 215 to 212 in the House of Representatives and by a margin of 64 to 34 in the Senate. All indications are that a TPA vote may be equally close this time. 

Note that the passage of TPA, however, will not mean smooth sailing for a TPP deal.  In authorizing TPA, many members of Congress want to place strict conditions on elements of a final deal that must be present before they will grant approval.  Most controversial is an ongoing discussion of including legally binding rules to prevent trade agreement members from manipulating their currencies.  (This terrible idea will be the subject of a later post.)

Ideally, TPA will be granted—as it has always been—for a range of trade agreements and not simply given for the TPP.  The United States is simultaneously engaged in multiple negotiations over trade: with the European Union in the Trans-Atlantic Trade and Investment Partnership (TTIP); with nearly two dozen countries on the sidelines of the World Trade Organization (WTO) in the Trade in Services Agreement (TiSA); with 80 countries at the WTO in updating the Information Technology Agreement (ITA); and with more than 160 countries in the WTO in the Doha Development Agenda (DDA).   All will need a version of TPA, at least before any agreement can be implemented and enter into force for the United States.

 The White House has finally begun a whip count operation this week to start the TPA procedures in earnest.  This ought to be backed by forceful pressure from President Obama to get TPA as quickly as possible.  Tonight’s State of the Union address is the best place to begin.

Then the next phase of the battle for TPP—passage of the final agreement—can be joined.

Transparency, Congress and the TPP

The EU Commission’s decision (discussed in the Talking Trade blog post of January 12, 2015) to publish proposal texts was prompted by increasingly strident complaints about secrecy in the TTIP negotiations. 

These concerns follow similar criticisms about a lack of transparency in the Trans-Pacific Partnership (TPP) negotiations.  Claims of silence from the TPP talks are not new.  From the earliest days of negotiations in 2010, some groups have been fighting against the “excessive secrecy” surrounding the talks. 

Such language has only escalated in the nearly 5 years that bargaining has been taking place.  For example, on January 8, US Congresswoman Rosa DeLauro (D) held a press conference where she denounced the lack of transparency in TPP negotiations. 

Politicians, of course, frequently make statements that do not entirely match the facts on the ground.  In DeLauro’s case, as a sitting member of Congress, she has complete and total access to every element of the TPP texts.  She does not need to go across to the US Trade Representative’s (USTR) office either, as she can summon someone with the exact documents she requires at any time.  A staff member would likely sit with her and explain whatever specific questions she might have with the materials.

In addition, USTR has held over 1,600 briefings for Congress over the course of negotiations.  The Congresswoman could have attended these meetings where she would have been able to provide her specific inputs to whatever sections or clauses she felt necessary.

For the past several rounds of TPP negotiations, key Congressional committee staff members have been traveling with the negotiators to each meeting.  These staff members (and, presumably, their elected bosses) have extensive knowledge of the contents of the agreement. 

To prevent leaks of information, though, USTR has imposed a set of specific rules for the TPP texts.  These limit the ability of all Congressional staff members to view the texts.  Instead, only staff members of the Senate Finance Committee or House Ways and Means Committees with security clearances are allowed to read the texts.  Congress members are not allowed to have or make copies. 

These rules have probably made it more difficult for members of Congress to analyze the whole document.  However, if all 535 members of Congress and their staff had access to texts, it might just as well have been posted directly to the Internet.

A remarkable number of people have had access to all or portions of the texts in the United States, since “cleared advisors” are allowed to review proposals and materials.  It is true that the bulk of the cleared advisors are industry representatives, with smaller numbers of labor, environmental groups or academics on the list.  Obama administration rules to dilute the power of lobbyists also affected the composition of cleared advisors.  But it also means that USTR has not created the pages of the TPP rulebook in a vacuum without input from Congress and others.

Nor are these rules unique to the TPP.  Similar rules were first outlined by Congress in 1974, when legislators created provisions that used to be called fast track and are now called Trade Promotion Authority (TPA).  In fact, at the time of the original fast track, the advisory committee included 700 industry representatives appointed by the President.  Just a handful of Congress members were entitled to review materials at all and nothing was to be provided to the public.

The content of the final TPP agreement has also benefitted from a unique element of these negotiations—the “stakeholder” meetings attached to negotiating rounds.  All sorts of industries, associations, and activist groups were able to give presentations directly to negotiating officials from across the TPP members.  These stakeholder meetings were held from about Round 6-Round 19, giving firms and others an opportunity to express a wide variety of views about the negotiations.

It is not clear yet how much the stakeholder meetings influenced the negotiating texts or final positions.  But it did provide a novel way for government officials across the set of participating countries to gather feedback and suggestions.

As noted in the earlier post, there is a continuum between releasing texts and sharing no information at all.  I am opposed to releasing even draft texts as this severely limits the ability of a negotiator to find creative compromises and solutions to satisfy the needs of the parties.  But USTR might have done a better job communicating about the TPP. 

However, for all the complaints about a lack of transparency in the TPP from people based in Washington, DC, information about the talks has been even more scarce in the other 11 participating countries.  The other members have varying degrees of formal feedback mechanisms available for providing input into the talks, but no one has had the degree of access provided to U.S. companies and others in Washington.  In many cases, foreign companies and groups have gone to DC to present their information to the Americans, rather than try to reach their own representatives.

If it were not for American outreach efforts and communication through advisors and lobbyists that have been picked up by media outlets of all kinds, there might be zero news on the TPP today. 

For a demonstration of the relative openness of the TPP, try searching for news on the Regional Comprehensive Economic Partnership (RCEP).  This is a trade deal that brings together 16 countries in Asia, including China, Japan, South Korea, India, Australia and New Zealand with the 10 members of ASEAN.  Without cleared advisors, Congressional briefings, or stakeholder events, there is almost nothing at all getting out from the RCEP talks after 6 rounds of negotiations. 

So, although communication on the TPP could certainly be improved, claims of excessive secrecy are overblown—especially those criticisms coming from members of Congress.

Negotiating Secrecy

When you go to buy a house, you would never show up at the door bearing your income tax returns, pay slips and bank account balance information that you just hand over to the other party.  To do so would give a major advantage to the seller of the house.  It would allow the other side to decide whether your offer is a lowball one or genuinely fair offer, given your particular financial circumstances. 

Trade talks are even more complex types of negotiations in which both sides benefit from the flexibility to make--and trade--offers and counteroffers.  Both sides need to be able to explore a range of outcomes that could satisfy the demands of each.  The two parties are not simply trying to arrive at a single point (the price of the house) or resolve a narrow range of issues (the price of the house plus the date of the handover or the price plus date plus the inclusion of a coveted light fixture in the dining room). 

Advanced trade negotiations include 20-30 different chapters covering a huge range of issues and topics.  The final agreement is a package of elements designed to give everyone some areas of “gain” and minimize prospects for loss.  Issues have to be addressed in their own right as well as balanced across different topics.

This is what has always made it difficult for trade negotiators to publicly release texts of ongoing deals.  Doing so too soon is the equivalent of handing over tax returns for a house buying expedition.  It removes flexibility and makes it difficult, or even impossible, for negotiators to move off their original offers.  To put offers out publicly in a trade deal can make it impossible for either side to respond, since the interested public will know precisely what was “bargained away” and have a poor appreciation for what might have been gained elsewhere. 

Of course, there is a long distance between releasing zero information and handing over the keys to the bank vault.  Officials can, and should, provide news about ongoing trade talks.  But the balance is tricky, as too much information or key details revealed in the wrong place or at the incorrect time can make it impossible to creatively arrive at a complex, satisfactory outcome for all parties.

This is what makes the European Union’s decision to release information in the ongoing Trans-Atlantic Trade and Investment Partnership (TTIP) so surprising.  The European Commission did not just decide to provide helpful, plain spoken overviews of their broad objectives in different chapters.  Instead, they have opted to release the actual, legal proposals that they presumably have offered up to their American counterparts.

Cecilia Malmstrom, the EU Trade Commissioner, told Christian Oliver of the Financial Times, “It is important that everyone can see and understand what we are proposing in TTIP and—just as importantly—what we are not.”

But look at how quickly this noble sentiment runs into practical problems on the ground.  To take just one example from my literal first look at a random piece of text: the proposal on sanitary and phytosanitary measures says in Article 17.1, “The Parties recognize that animals are sentient beings.”  The rest of the article is about exchanging information and experiences on aligning standards for breeding, holding, handling, transporting, and slaughtering animals. 

This statement, released this early in the context of talks, creates problems both ways.  If the agreement provisions in Article 17 are to be legally binding, many farmers and others involved in animal husbandry and associated fields will be extremely concerned about what sort of acts might bring them into violation of this provision.  On the other hand, if it is not legally binding but merely advisory in the end, many other groups will be rightfully upset that if animals are sentient beings, then violations of their humane treatment will not be found to be legally unacceptable. 

In short, releasing texts can create significant problems since it hems in negotiators and can make it impossible for them to maneuver.  In a large scale agreement, managing coalitions of support can already be a major problem.  If information is presented too soon, and particularly before it has been put together in a package with other elements, it may be impossible to create a zone of agreement at all.

{Another post later this week will take up the issues of interest group mobilization in the face of such information as well as the growing levels of expressed outrage at a lack of transparency in key trade agreements.}

Unleashing Vietnam’s Textiles

In Hoi An in Central Vietnam.  This charming town could be viewed as ground-zero for tailoring.  Over the past few years, the number of tailor shops has zoomed past 500.  Most are located in the old, UNESCO-heritage listed central core that is only a kilometer or two across.

Tourists are here from everywhere, with a strong presence of Europeans and Australians at this time of year.  The number of hotels in the area has also increased markedly in the past five years to service the increasing demand from overseas visitors to this region.  Few people leave Hoi An without at least a few items of clothing stashed into their suitcases or newly purchased bags or backpacks.

Despite the roaring success of the tailor shops in Hoi An and the textile sector as a whole in Vietnam, the industry is set for a significant change in the coming five years. 

Vietnamese officials have been extremely active in signing free trade agreements.  They are in the last stages of work on a deal with the European Union.  They just signed an agreement with Russia, Belarus, and Kazakhstan.  But the biggest prize will be the completion of the Trans-Pacific Partnership (TPP). 

Vietnamese apparel exporters face competitive challenges getting their products into the United States, including relatively high and complicated tariffs.  Exporters are also at a disadvantage compared to manufacturers in countries like Mexico with existing FTAs with the Americans, since Mexican textiles have significantly reduced tariff rates.   Despite these problems, Vietnam’s clothing exports have continued to rise.

Under the TPP, many of the current tariffs are set to fall significantly.  To take advantage of these benefits, however, the agreement also calls for textile and apparel producers to use complex rules of origin (ROO). ROOs are necessary in FTA agreements to ensure that only products produced in member countries can take advantages of the benefits provided by the agreement.  If an FTA were finished without ROOs, any country (whether they are actually a member of the deal or not) could simply ship items and enjoy the benefits of reduced tariffs:  it would be no different than receiving the payoff from unilateral tariff cuts. 

The United States requires an especially complicated ROO for apparel—the so-called “yarn forward” rule.  Under yarn forward, items in a product must be made with the original yarn in the fabric sourced from the United States to qualify for FTA benefits.

Right now, Vietnam’s textile manufacturers generally use imported cloth.  Most comes from China.   Under a different set of textile rules, the “cut and sew” method of determining origin, Vietnam could continue to manufacture products as they currently do but would have the added benefit of lower tariffs in the American market.  The U.S. market is of prime importance to the clothing industry of Vietnam.

Note that cut and sew ROOs would not allow third-parties or non-members to sneak into TPP markets.  Members like Vietnam would still be required to demonstrate that a portion, like 40% of the final value of the product, came from Vietnam or other TPP member countries to obtain lower tariff benefits.

But the cut and sew rules are largely not allowed in the TPP either.  Instead, under strong pressure from American textile manufacturers, U.S. officials have stuck with yarn-forward ROOs for most products.

This presents a challenge and an opportunity for Vietnamese textile and apparel manufacturers.  While Vietnamese firms have done quite well under the current system and could continue to use the same sourcing methods for yarn and fabric, they cannot send the finished products to the United States under the new, lower tariffs.  If firms want to benefit from lower tariffs (perhaps 10-40% lower depending on the product), they will have to change sourcing patterns to get U.S. or TPP-made yarn and fabrics.

Hence the potential exists for radical changes in the textile industry in Vietnam.  In the past, Vietnam has not been able to wean itself off reliance on the Chinese market for raw materials.  Chinese-made fabrics have come to dominate the trade, even here in Hoi An. 

But since it became clear that the TPP is likely to materialize, firms are beginning to plan for the future.  Vietnam has started getting more and more companies (particularly from South Korea and China), relocating production of weaving, spinning and dyeing to here.  These are quite capital-intensive industries, so it has always been a challenge for local firms to decide to open such plants themselves.  The TPP, however, is such an important opportunity that these facilities are now necessary.

Another post will track some of the new inward investments.  For now, it is enough to note that the tailors of Hoi An are likely to offer new products in the future.  This includes a different range of fabrics for creating the dress, suit or shirt of a tourist’s dream.  Perhaps a new set of shops will be offering denim in five years, for example.  Certainly, the number and types of locally manufactured fabrics is likely to be dramatically larger than what is on offer now.

2015: A Promising Year for Trade

I am pleased to announce the launch of the “Talking Trade” blog with the Asian Trade Centre!

This blog provides my commentary on trade and trade-related news and events.  The opinions presented here are given in my personal capacity.  I hope you enjoy it! --Deborah Elms

The coming year holds a number of key trade milestones that we will be tracking.  For example:

1)   The Trans-Pacific Partnership (TPP) is due to be concluded.  I know, I know, I’ve been promising this for six months.  But it’s serious this time!  The electoral calendar in the United States means that the deal will need to get done as soon as possible so the American Congress will grant Trade Promotion Authority (TPA) and move towards implementing legislation before the 2016 presidential campaign season heats up.

2)   The ASEAN Economic Community (AEC) debuts on December 31, 2015.  While ASEAN will miss the targets for this hugely ambitious agenda, the year will include efforts by members to schedule new commitments in sensitive areas, such as market opening for additional services sectors and investment areas.  More on the AEC at a later date, but with the ambition of delivering “free trade in goods, services, investment, skilled labor and freer movement of capital” among the 10 ASEAN countries and a deadline that was moved forward five years, it is not surprising that members will struggle to reach the targets.  Compounding the problems of integration are extreme levels of diversity across the ASEAN membership from Singapore and Brunei to least developed country members like Lao PDR, Myanmar and Cambodia. 

3)   Several key bilateral arrangements are coming in 2015.  Most important is the announcement of the China-South Korea FTA.  The document is undergoing a more complicated than anticipated legal scrub at the moment, but should be out at the end of the month.  Although this agreement is likely to include many carve-outs of key sectors and long implementation periods for some items, the impact of linking these two economies together will be significant. 

4)   Other key bilateral arrangements in Asia include China/Australia announced on November 17, 2014; New Zealand/Korea initialed on December 22, 2014; Vietnam with the Customs Union of Russia/Belarus/Kazakhstan on December 18, 2014; and Vietnam/South Korea signed in November 2014.  Implementation of many of these agreements will be forthcoming in 2015.

5)   The European Union continues to move ahead with its efforts to spread trade integration with ASEAN.  EU Parliamentary ratification of the EU-Singapore agreement is stalled, pending the outcome of a case in the European Court of Justice over whether the EU has the negotiating competence to create commitments for its members in investment.  In the meantime, the Philippines and Vietnam are finishing up their EU FTAs.  [Note that EU GSP preferences for Thailand expired on January 1, 2015.]

6)   Costa Rica is set to enter the Pacific Alliance in 2015.  This means that half of this trade association (Mexico, Peru and Chile) will be inside the TPP while half (Columbia and Costa Rica) will remain outside.   Given the tight integration of these markets--both planned and underway in the Pacific Alliance--this split could be challenging to manage. 

7)   Changes in the Pacific Alliance could put pressure on APEC as well, since neither Columbia nor Costa Rica are currently members.  APEC has an expired “moratorium” on new members that is getting increasingly difficult to defend.  2015 could be the year for discussion of membership of countries like India and these Pacific states.

8)   At the multilateral system, implementation of the World Trade Organization’s agreement on trade facilitation should proceed in 2015.  The Bali deal has been stalled over India’s objections on a separate deal over food subsidies, but the blockage appears to be clearing up now. 

9)   Negotiations continue at the WTO over revisions to the Information Technology Agreement (ITA2).  This deal is meant to update the list of IT goods granted tariff free access to WTO members.  Right now, covered items include record players, but not smartphones since the current list is decades old.

Potential deals for 2015 include:

10)   In the category of potential agreements due in 2015:  the 16 parties of the Regional Comprehensive Economic Partnership (RCEP) are currently scheduled to conclude talks this year.  But the members have held 6 rounds so far and are still basically arguing over where to start.  Nonetheless, the schedule has been mapped out for conclusion of this FTA with the 10 members of ASEAN plus Japan, South Korea, China, India, Australia and New Zealand. 

11)  Another potential trade deal that might get finished in 2015 is the 23 member talks in Geneva under the heading Trade in Services Agreement (TiSA).  These trade talks are currently on the sidelines of the WTO, but may eventually be pulled back into the larger community.  The agreement is intended to update the rulebook on services trade that was first created in the early 1990s.  Given the importance of services, even in manufactured goods trade, creating a freer flow of services with greater certainty should spur economic growth and investment by companies.

12) Also possible in Geneva is a finished deal covering Environmental Goods and Services (EGS) for WTO members.  This agreement would lower tariffs on items valuable for addressing climate change like wind turbines. 

13)    And, finally, although not an Asian agreement, if concluded the Trans-Atlantic Trade and Investment Partnership (TTIP) between the United States and the European Union, could radically reshape the face of global trade, especially if the two major partners managed to coordinate regulations and standards in a meaningful manner.