Inside US Trade has a copy of the draft Statement of Administration Action for the USMCA here. One thing that jumped out at me was that there was no mention of the sunset clause, i.e., Article 34.7: Review and Term Extension. That provision states in part:
1. This Agreement shall terminate 16 years after the date of its entry into force, unless each Party confirms it wishes to continue this Agreement for a new 16-year term, in accordance with the procedures set forth in paragraphs 2 through 6.
2. On the sixth anniversary of the entry into force of this Agreement, the Commission shall meet to conduct a “joint review” of the operation of this Agreement, review any recommendations for action submitted by a Party, and decide on any appropriate actions. Each Party may provide recommendations for the Commission to take action at least one month before the Commission’s joint review meeting takes place.
3. As part of the Commission’s joint review, each Party shall confirm, in writing, through its head of government, if it wishes to extend the term of this Agreement for another 16-year period. If each Party confirms its desire to extend this Agreement, the term of this Agreement shall be automatically extended for another 16 years and the Commission shall conduct a joint review and consider extension of this Agreement term no later than at the end of the next six- year period.
4. If, as part of a six-year review, a Party does not confirm its wish to extend the term of the Agreement for another 16-year period, the Commission shall meet to conduct a joint review every year for the remainder of the term of the Agreement. If one or more Parties did not confirm their desire to extend the Agreement for another 16-year term at the conclusion of a given joint review, at any time between the conclusion of that review and expiry of the Agreement, the Parties may automatically extend the term of the Agreement for another 16 years by confirming in writing, through their respective head of government, their wish to extend the Agreement for another 16-year period.
Under this provision, each "Party" (i.e., the governments of Canada, Mexico and the United States) can decide whether to continue the agreement. But the domestic process for such a decision is not set out. If Congress wants to make sure it has a role in that process, it needs to make this clear in the implementing legislation and the SAA now. Here's what I said about this last year:
... [Congress] better weigh in on how [the sunset clause] is supposed to operate in the U.S. political system. The agreement references "the Parties," but does not make clear who within each Party has the responsibility here. Paragraph 3 states that "each Party shall confirm, in writing, through its head of government," but that's just who notifies, as opposed to who decides the question. So which U.S. government branch gets to decide on whether the agreement should be extended as part of this review? What is the role of Congress here? Congress has ceded a lot of power to the President on trade over the years, and if it allows this provision to stay in, it better make sure that it has a full say on whether to confirm that the United States wishes to extend the new NAFTA deal as part of the review.
