New TPA Bill Gives Congress More Authority to Strip Fast-Track Measures, Say Lawmakers, Aides

The new TPA bill marks the climax of months-long negotiations between Senate Finance Committee Chairman Orrin Hatch, R-Utah, and ranking member Ron Wyden, D-Ore. (see 1504160023). House Ways and Means Committee Chairman Paul Ryan, R-Wis., joined the talks at the outset of the 114th Congress after taking over the committee. The three lawmakers jointly introduced the legislation in both Houses of Congress.

The Bipartisan Congressional Trade Priorities and Accountability Act of 2015, S-995, gives lawmakers on the committees with trade jurisdiction, Senate Finance and House Ways and Means, an opportunity to report a trade agreement implementation bill unfavorably if the lawmakers determine the administration didn’t meet congressional trade objectives, the aides said in a background briefing on April 16. That would require a vote on the floor of each chamber to forego the expedited procedures in TPA, said the aides. In previous TPA bills, only committee chairmen, as well as the Senate Majority Leader and House Speaker, had the authority to permit such a vote on the floor, the aides added. Such a vote on the Senate floor will only now need 60 votes to pass, they said. Those expedited procedures include a required up-or-down vote and a ban on amendments.

The legislation also requires the president to publish the text of trade negotiations 60 days before signing an agreement. That mandate has never appeared in TPA legislation, and it will fall into a traditional 90-day requirement in past TPA iterations for the president to tell the International Trade Commission the U.S. plans to enter into a new trade agreement. The 60-window, therefore, won’t prolong the time period between the striking of an agreement and congressional action on implementation legislation, the aides said. TPA passage would also force the Office of the U.S. Trade Representative to publish consistent and thorough summaries of negotiating proposals in trade agreements.

Both committees released round-ups of the bill that champion the new congressional authority and transparency measures. "For the first time, the legislation establishes a new mechanism to remove expedited procedures for a trade agreement if, in the judgment of either the House or Senate, that agreement does not meet the requirements of TPA,” said Ways and Means (here). “If the House Committee on Ways and Means or the Senate Finance Committee determines that the President has not met the conditions prescribed by TPA, either Committee could trigger a Consultation and Compliance Resolution. This new resolution provides a mechanism for either the House or Senate to remove expedited procedures for its chamber with respect to that implementing bill.

Many administration officials, lawmakers and industry representatives have said TPA passage is urgently needed in order to pass TPP implementation legislation before the onset of the 2016 campaign cycle (see 14092404). In a hearing during the afternoon of April 16, the second TPA hearing on that day, U.S. Trade Representative Michael Froman said the introduction would give a “positive boost” to TPP negotiations. “TPA will move us one step closer to delivering trade agreements like the [TPP] and the Trans-Atlantic Trade and Investment Partnership which will open growing markets to ‘Made in America’ exports, protect our workers, and ensure that America, not our competitors, sets the rules of the road on trade,” said Froman later in a statement.

Senate Majority Leader Mitch McConnell, R-Ky., and House Speaker John Boehner, R-Ohio, both applauded the introduction. “Clearly this hasn’t been an easy negotiation,” said McConnell in a statement. “I look forward to the committee’s consideration of this and other trade legislation, and I hope to bring the TPA bill to the Senate floor for debate in the very near future.” President Barack Obama also praised the legislation. “The bill put forward today would help us write those rules in a way that avoids the mistakes from our past, seizes opportunities for our future, and stays true to our values,” said Obama in a statement. “It would level the playing field, give our workers a fair shot, and for the first time, include strong fully enforceable protections for workers’ rights, the environment, and a free and open internet.”

In an interview on April 16, Sen. John Thune, R-S.D., said he hopes the Senate passes TPA before the House takes up the legislation. “I hope we take it to the floor,” said Thune. “I think a big vote here will mean a better vote in the House. I don’t think there’s a decision made on that yet though.” Wyden said he, Hatch and Ryan agreed TPA and TAA will be voted on separately but will pass on the “same day.” Wyden didn’t comment on whether either chamber will go first in passing the bill.

Despite the praise from the administration, industry and supporters on Capitol Hill, introduction of the legislation also unleashed aggressive criticism from trade skeptics and opponents. House Ways and Means ranking member Sandy Levin, D-Mich., who opted out of negotiations on the bill, said the bill’s introduction, in fact, weakens the congressional role in TPP negotiations (here). “The Hatch-Wyden-Ryan Trade Promotion Authority (TPA) does not move us toward a stronger TPP agreement that will garner broad, bipartisan support in Congress,” said Levin. "TPP is not where it needs to be right now, and Hatch-Ryan-Wyden does nothing to change that. On all of the major issues in the negotiations, the negotiating objectives are obsolete or woefully inadequate.” The vast majority of House Democrats and many Senate Democrats continue to reject the administration’s trade agenda (see 1504150001).

Wyden and Sen. Susan Collins, R-Maine, also introduced a six-year renewal of Trade Adjustment Assistance on April 16. The bill “doubles job training funding” and “makes the program whole after the recent cuts it faced in 2014,” said Wyden in a release (here). During the April 16 hearings, Hatch said he opposed the legislation, but acknowledges it’s a critical trade-off for TPA support on Capitol Hill.

Industry Largely Pleased

A wide array of industry groups celebrated the introduction of TPA and the other trade bills. The TPA bill includes several pieces that improve on past versions, "such as reducing non-tariff barriers to U.S. goods and services, expanding digital commerce, avoiding restrictions on cross-border data flows, and ensuring fair competition with state-owned enterprises," said Mike Mullen, executive director of the Express Association of America. "These improvements to trade flows can be particularly valuable to small and medium sized enterprises, which benefit significantly from measures that simplify the import/export process and provide greater transparency into regulations," he said.

American Apparel and Footwear Association President Juanita Duggan said (here) Congressional approval of TPA and the "equally important" AGOA and GSP renewals "are vital for our members in reducing costs, promoting investment, and supporting trade-based jobs." The U.S. Fashion Industry (here) and Footwear Distributors and Retailers of America (here) also offered statements of support for the trade bills. The American Chemistry Council agreed (here) that TPA marks an important step forward and said it would continue to support the legislation in pursuit of TPP and TTIP deals. The National Association of Manufacturers (here), the U.S. Chamber of Commerce (here), National Retail Federation (here) and National Foreign Trade Council (here) also voiced approval for the bills.

Other groups were less appreciative. "Several provisions of the Fast Track bill would erode food safety oversight for imported food and threaten sensible food labels," said consumer protection group Food and Water Watch (here). "Fast Track requires the United States to approve the food safety systems of exporting countries even when domestic oversight is stronger" and the "forced 'equivalence' of foreign food safety systems can expose consumers to imported foodborne hazards," it said. "Fast Track also identifies some consumer labels as 'unjustified trade restrictions' that would be targeted for elimination." The Sierra Club (here), which has environmental concerns with the trade deals being considered, described TPA as "toxic." The BlueGreen Alliance, a group of labor unions and environment organizations, had similar complaints (here).

Agencies Voice Support

A number of governmental agencies also lauded the development. New rules for trade agreements included in TPA represent “the most significant upgrade to our approach to trade in over four decades,” said U.S. Trade Representative Michael Froman. Requirements that “labor and environmental protections be fully enforceable; new requirements for taking on unfairly subsidized foreign state owned enterprises; strong and balanced intellectual property protections; and new consultations and transparency requirements” reflect “seismic shifts” in the global economy since TPA was last passed in 2002, he said in a statement (here) that also highlighted USTR’s eagerness to work with Congress on GSP, AGOA and TAA.

TPA will “ensure that the U.S. continues to have a strong voice in writing the rules of the road where global trade is concerned,” said Export-Import Bank Chairman Fred Hochberg (here). The “trade framework” in TPA “framework will allow us to negotiate modern trade agreements in the Asia-Pacific and with Europe that will open up new markets, ensure fairness for our businesses and workers, and put more American workers in high paying jobs,” said Commerce Secretary Penny Pritzker (here). The bill “ensures that the U.S. is well positioned to negotiate [free trade] agreements, and allows U.S. leaders to obtain the best outcomes for American workers and businesses,” said Department of Homeland Security Secretary Jeh Johnson (here). CBP did not comment.

Secretary of Health and Human Services Sylvia Burwell, who oversees the Food and Drug Administration, praised the TPA bill’s guidance on public health objectives in FTAs, “including striking a balance between promoting innovation and ensuring access to medicines around the globe,” in a statement (here). Burwell also lauded “important” negotiating objectives “directing the administration to further strengthen food safety regulations through the improvement of our trading partners’ processes.”

Currency objectives included in the bill go “well beyond the 2002 TPA,” said Treasury Secretary Jacob Lew (here). The Treasury Department “strongly”” agrees with members of Congress “that unfair currency practices need to be addressed,” and is “committed to working with Congress to use all appropriate tools to address currency issues in a way that is consistent with our overall strategy of bilateral and multilateral engagement,” he said.

TPA will also support U.S. foreign policy objectives and strengthen ties with strategic partners by making TPP and TTIP possible, said the Defense and State Departments. Concluding TPP and TTIP “would help us promote stability and security in critical regions of the world by deepening our alliances and partnerships abroad, reinforcing American global leadership and engagement, and promoting a global order that reflects both our interests and our values,” said Defense Secretary Ash Carter (here). “Strong environmental protections, high labor standards, a free and open internet, protection of intellectual property rights, and transparency” will prove “vital to U.S. interests by “cementing our ties to strategically vital regions and raising standards that are essential to American ideals and ingenuity,” said Secretary of State John Kerry (here). Kerry also praised the introduction of GSP and AGOA renewal legislation, saying the programs “have been powerful drivers of global development and pillars of our economic and trade engagement with the developing world.”

Passage of TPA is especially critical for small businesses, said Small Business Administration head Maria Contreras-Sweet (here). “Strong trade agreements are particularly vital to our smaller exporters, who often lack offshore affiliates and other resources that help larger corporations navigate trade barriers and gain market access,” she said. Congress must act quickly to pass the bill, said Agriculture Secretary Tom Vilsack (here). “Not only do we face barriers in important foreign markets, but we are currently being hurt as these countries negotiate agreements that lower barriers for our competitors. U.S. agriculture's interests are best served by ensuring America is at the table with strong negotiating authority."