Increase Transparency of Trade Policy and Negotiations (US0074)

In September 2015, the Administration appointed a Chief Transparency Officer in the Office of the United States Trade Representative who will take concrete steps to increase transparency in trade negotiations, engage with the public, and consult with Congress on transparency policy. This work builds on previous steps to increase stakeholder engagement with trade negotiators, expand participation in trade advisory committees, and publish more trade information online. To further increase public access to U.S. trade policy and negotiations, the Office of the United States Trade Representative will also continue to promote transparency and public access to international trade disputes in the World Trade Organization and under regional trade agreements, and encourage other countries to similarly increase transparency in this regard. The Office of the United States Trade Representative will also continue to encourage posting video of trade dispute hearings to give the public insight into these processes.

For details of these commitments, see the report: https://www.opengovpartnership.org/documents/united-states-mid-term-report-2015-2017/

Commitment 22. Increase Transparency of Trade Policy Negotiations

Commitment Text:

Increase Transparency of Trade Policy and Negotiations

In September 2015, the Administration appointed a Chief Transparency Officer in the Office of the United States Trade Representative who will take concrete steps to increase transparency in trade negotiations, engage with the public, and consult with Congress on transparency policy. This work builds on previous steps to increase stakeholder engagement with trade negotiators, expand participation in trade advisory committees, and publish more trade information online. To further increase public access to U.S. trade policy and negotiations, the Office of the United States Trade Representative will also continue to promote transparency and public access to international trade disputes in the World Trade Organization and under regional trade agreements, and encourage other countries to similarly increase transparency in this regard. The Office of the United States Trade Representative will also continue to encourage posting video of trade dispute hearings to give the public insight into these processes.

Responsible Institution: Office of the U.S. Trade Representative

Supporting Institutions: Civil society stakeholders

Start Date: Not Specified ....... End Date: Not Specified

Commitment Aim

This commitment aimed to increase public access to information on US trade policy and negotiations by promoting public access to trade disputes under the World Trade Organization and regional agreements. It also called for encouraging the public posting of videos of trade dispute hearings.

Status

Midterm: Substantial

At the midterm, the government had made substantial progress on this commitment. In October 2015, the US Trade Representative (USTR) published guidelines [319] that stipulate how the government will provide information on trade policy negotiations to the public. The mediums included press releases, reports, actual text of trade agreements prior to their signature by the president, and a summary of trade policy negotiation objectives in advance of trade agreement negotiations. The guidelines further stipulate that the USTR will aim to engage the public on trade agreements by soliciting comments through the Federal Register. The USTR will also hold hearings and briefings, and share additional information online and through other channels. The guidelines are nevertheless silent on the issue of trade disputes, representing an area in which additional progress could be made.

End of Term: Substantial

At the end of term, progress on this commitment remained substantial. The US Trade Representative (USTR) continues to take actions in line with the aforementioned guidelines (see discussion below). However, the IRM researcher was unable to document actions taken by the government to further public access to trade disputes under the World Trade Organizations and/or regional agreements. This access constituted the core activity with no progress at the midterm.

The government’s call for public feedback on existing US trade agreements and its renegotiation of the North America Free Trade Agreement (NAFTA) are particularly noteworthy. On 29 June 2017, the USTR formally invited the public to submit written comments to support a performance review of all US international trade and investment agreements. The USTR made the announcement via a press release posted on its website, [320] pursuant to Executive Order 13796 of 29 April 2017. [321] The USTR solicited public comments via the Federal Register over a roughly one-month period ending 31 July 2017. Comments were accepted via Regulations.gov and other channels. [322] A total of 103 public comments were received through Regulations.gov. [323]

On 23 May 2017, the USTR similarly posted a request for public feedback via the Federal Register “to inform development of U.S. negotiating positions” for the modernization of NAFTA. Written comments were initially due by 12 June 2017. [324] The USTR subsequently extended the deadline to 14 June 2017. [325] The USTR held a related public hearing at the US International Trade Commission during 27–29 June 2017, announced via a press release on its website. [326] It made transcripts from the hearing available via the Federal Register. [327] Collectively, these efforts followed US Trade Representative Robert Lighthizer’s notification to Congress of President Trump’s intention to renegotiate the agreement on 18 May 2017. This was also described in a press release on the USTR’s website. [328]

Following the solicitation of public feedback, the USTR publicly released an 18-page summary of its NAFTA negotiation objectives on 17 July 2017. It noted the government’s receipt of over 12,000 comments during the earlier comment period and the testimony of more than 140 witnesses during the aforementioned hearing. [329] Videos from several panels held during the hearings were subsequently made available on the USTR’s YouTube channel. [330] The latter activities fall beyond the end-of-term evaluation period. However, they speak to the government’s ongoing adherence to the USTR guidelines and are therefore noted here.

The government has acted similarly in less high-profile cases during the end-of-term evaluation period. For example, on 17 April 2017, the Department of Commerce and the USTR announced a public hearing on US trade deficits on 18 May 2017 at the Department of Commerce. Representatives from a variety of federal agencies participated. The Department of Commerce’s International Trade Administration, along with the Executive Office of the President and the USTR, also announced a request for public comments via the Federal Register. The deadline for written comments was 10 May 2017. [331] The comments are intended to support the Department of Commerce’s and the USTR’s production of the Omnibus Report on Significant Trade Deficits, pursuant to Executive Order 13786 of 31 March 2017. [332] Separately, on 21 August 2017, the USTR also submitted a request for public comments on government procurement provisions in US trade agreements. Those comments were accepted via the Federal Register for a roughly one-month period ending 18 September 2017. [333] The Federal Register provides no information on the number of comments received. [334]

Did It Open Government?

Access to Information: Marginal

Civic Participation: Marginal

This commitment has marginally opened government with respect to both access to information and civic participation.

The government called for public feedback on existing US trade agreements and on its renegotiation of the North America Free Trade Agreement (NAFTA). It also publicly released its NAFTA negotiating positions—all directly in line with the USTR guidelines. These stood as clear examples of open government processes during the end-of-term evaluation period. As described above, the government has similarly held public hearings and requested public comments in somewhat less high-profile cases. Nonetheless, the soliciting of public comments on negotiation aims and the hosting of public hearings on this subject are not new actions. These processes date back to before the launch of this action plan. [335]

Moreover, there is still significant room for improved transparency in trade policy negotiations, according to civil society. One important challenge is the lack of public access to negotiating documents. As noted by a research professor at George Washington University, “Public engagement in the trade policy process in the U.S. is sporadic and limited. The public can formally comment before negotiations begin but once initiated, the public cannot directly influence the course of negotiations” because “the actual negotiating documents remain secret.” [336] According to the Electronic Frontier Foundation, it is essential for the US government to “publish consolidated texts after each round of ongoing negotiations.” The foundation noted that government should also open up these texts “to a notice and comment and public hearing process.” [337] Creative Commons and OpenTheGovernment.org similarly agree that this remains an important limitation of the current trade negotiation process. [338] The Association of Research Libraries noted, “Descriptions about negotiating texts and engagement with stakeholders are no substitutes for the ability to view and comment on the actual texts.” [339]

There have also been concerns about transparency related to the US government’s ongoing trade negotiations. Civil society groups have openly criticized the lack of transparency during the renegotiation of NAFTA. [340] More recently, Congress has criticized the Trump administration for its failure to release the required formal notice of negotiations and objectives amid the start of trade talks with South Korea. [341] Civil society organizations have also specifically called for reform to the structure of advisory committees. According to these organizations, advisory committees are more intimately involved in negotiations, but currently do not include a diversity of views beyond business and labor. [342]

Ultimately, while the US government engaged the public through various channels during the action plan period, it is clear that significant challenges remain. To have a major improvement in the transparency of trade negotiations, greater public access to negotiating documents and a more diverse base of participants directly involved in the negotiating process are necessary.

Carried Forward?

At the time of writing, the US government had not yet published its fourth national action plan, so it is unclear if this commitment will be carried forward. The US Trade Representative (USTR) should nevertheless continue its efforts to make information on trade disputes and negotiations available to the public. The Electronic Frontier Foundation and OpenTheGovernment.org issued five key recommendations on this subject:

• Publish US textual proposals on rules in ongoing international trade negotiations.
• Publish consolidated texts after each round of ongoing negotiations.
• Appoint a “transparency officer” [at USTR] who does not have structural conflicts of interest in promoting transparency at the agency.
• Open up textual proposals to a notice and comment, and public hearing process.
• Make trade advisory committees more broadly inclusive. [343]

[319] Office of the United States Trade Representative, Guidelines for Consultation and Engagement, 27 October 2015, https://ustr.gov/sites/default/files/USTR%20Guidelines%20for%20Consultation%20and%20Engagement.pdf, consulted 4 October 2017.

[320] “The Trump Administration Invites Public Comment for Review of Existing Trade Agreements,” United States Trade Representative, 29 June 2017, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/june/trump-administration-invites-public, consulted 16 September 2017.

[321] “Executive Order 13796: Addressing Trade Agreement Violations and Abuses,” Executive Office of the President, https://www.federalregister.gov/documents/2017/05/04/2017-09156/addressing-trade-agreement-violations-and-abuses, consulted 16 September 2017.

[322] “Request for Comments Regarding the Administration's Reviews and Report to the President on Trade Agreement Violations and Abuses,” Federal Register. Docket Number USTR-2017-0010, 29 June 2017, https://www.federalregister.gov/documents/2017/06/29/2017-13610/request-for-comments-regarding-the-administrations-reviews-and-report-to-the-president-on-trade, consulted 16 September 2017.

[323] “Public Comments Regarding the Administration’s Reviews and Report to the President on Trade Agreement Violations and Abuses,” Regulations.gov, http://bit.ly/2CfvkXl.

[324] “Request for Comments on Negotiating Objectives Regarding Modernization of the North American Free Trade Agreement with Canada and Mexico,” Federal Register. Docket Number USTR-2017-0006, 23 May 2017, https://www.federalregister.gov/documents/2017/05/23/2017-10603/request-for-comments-on-negotiating-objectives-regarding-modernization-of-the-north-american-free?utm_campaign=subscription%20mailing%20list&utm_source=federalregister.gov&utm_medium=email, consulted 16 September 2017. See also “Public Hearings on the Renegotiation of NAFTA,” United States Trade Representative, 14 June 2017, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/june/public-hearing-nafta-renegotiation, consulted 16 September 2017.

[325] “USTR Extends Public Comment Period For NAFTA Renegotiation Objectives,” United States Trade Representative, June 2017, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/june/ustr-extends-public-comment-period, consulted 17 September 2017.

[326] “Public Hearings on the Renegotiation of NAFTA,” United States Trade Representative, 14 June 2017, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/june/public-hearing-nafta-renegotiation, consulted 16 September 2017.

[327] “Request for Comments on Negotiating Objectives Regarding Modernization of the North American Free Trade Agreement with Canada and Mexico,” Federal Register. Docket Number USTR-2017-0006, 23 May 2017, https://www.federalregister.gov/documents/2017/05/23/2017-10603/request-for-comments-on-negotiating-objectives-regarding-modernization-of-the-north-american-free?utm_campaign=subscription%20mailing%20list&utm_source=federalregister.gov&utm_medium=email.

[328] “USTR: Trump Administration Announces Intent to Renegotiate the North American Free Trade Agreement,” United States Trade Representative, 18 May 2017, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/may/ustr-trump-administration-announces, consulted 16 September 2017. Per this same source, President Trump first announced his intention to initiate NAFTA renegotiations on 2 February 2017. The text of Lighthizer’s notification to Congress is available at https://ustr.gov/sites/default/files/files/Press/Releases/NAFTA%20Notification.pdf, consulted 16 September 2017.

[329] “Summary of Objectives for the NAFTA Renegotiation,” United States Trade Representative and Executive Office of the President, 17 July 2017, https://ustr.gov/sites/default/files/files/Press/Releases/NAFTAObjectives.pdf, consulted 16 September 2017. For figures cited here, see page 2.

[330] “Public Hearings on the Renegotiation of NAFTA,” United States Trade Representative, 14 June 2017, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2017/june/public-hearing-nafta-renegotiation, consulted 16 September 2017.

[331] “Public Comments and Hearing Regarding Administration Report on Significant Trade Deficits,” International Trade Administration, 17 April 2017, https://www.federalregister.gov/documents/2017/04/17/2017-07827/public-comments-and-hearing-regarding-administration-report-on-significant-trade-deficits, consulted 16 September 2017.

[332] Ibid. For the text of the executive order, see “Executive Order 13786: Omnibus Report on Significant Trade Deficits,” Executive Office of the President, 31 March 2017, https://www.federalregister.gov/documents/2017/04/05/2017-06968/omnibus-report-on-significant-trade-deficits, consulted 16 September 2017.

[333] “Request for Comment on the Costs and Benefits to U.S. Industry of U.S. International Government Procurement Obligations for Report to the President on ‘Buy American and Hire American,’” International Trade Administration, Executive Office of the President, and the United States Trade Representative, 21 August 2017, https://www.federalregister.gov/documents/2017/08/21/2017-17553/request-for-comment-on-the-costs-and-benefits-to-us-industry-of-us-international-government, consulted 16 September 2017.

[334] Ibid.

[335] “Fact Sheet: Transparency and the Obama Trade Agenda,” Office of the United States Trade Representative, January 2015, https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/january/fact-sheet-transparency-and-obama.

[336] Dr. Susan Ariel Aaronson, How Can US Trade Policy Be Made More Transparent and Accountable, https://www2.gwu.edu/~iiep/signatureinitiatives/governance/Trade_Trust_Transparency_Accountability/open_government_partnership_recommendations.pdf.

[337] Electronic Frontier Foundation, letter to USTR, 18 May 2017, https://www.eff.org/files/2017/05/18/letter_to_ustr.pdf.

[338] Timothy Vollmer, “Is Re-negotiating NAFTA Opening a Pandora’s Box?” Creative Commons, 14 June 2017, https://creativecommons.org/2017/06/14/re-negotiating-nafta-opening-pandoras-box/.

[339] Krista Cox, “Meaningful Transparency Is Needed in Trade Negotiations,” Association of Research Libraries, 22 January 2016, http://policynotes.arl.org/?p=1269.

[340] Sharon Anglin Treat, “It’s time for Members of Congress to use their clout on NAFTA,” Institute for Agriculture and Trade Policy, https://www.iatp.org/blog/201711/its-time-members-congress-use-their-clout-nafta; and “Little Transparency after Three Rounds of NAFTA Renegotiations,” Center for International Environmental Law, http://www.ciel.org/little-transparency-three-rounds-nafta-renegotiations/.

[341] Vicki Needham, “Senate Finance Dems Want More Transparency on Trade from Trump,” The Hill, 12 January 2018, http://thehill.com/policy/finance/368815-senate-finance-dems-want-more-transparency-on-trade-from-trump-administration.

[342] See the recommendations made by the Electronic Frontier Foundation (available here: https://www.eff.org/files/2017/05/18/letter_to_ustr.pdf, as well as the comments by Dr. Susan Ariel Aaronson, professor at George Washington University, available at https://www2.gwu.edu/~iiep/signatureinitiatives/governance/Trade_Trust_Transparency_Accountability/open_government_partnership_recommendations.pdf.

[343] Electronic Frontier Foundation, letter to USTR, 18 May 2017, https://www.eff.org/files/2017/05/18/letter_to_ustr.pdf.