This is a good set of questions, as a follow-up to a recent Senate Finance Committee hearing, from Senator Toomey to U.S. Trade Representative Lighthizer on the USMCA sunset clause:
The renegotiated NAFTA agreement contains a new mechanism called “Review and Term Extension,” i.e. a sunset provision, which is codified at Article 34.7 of USMCA. The sunset provision requires that USMCA’s “Free Trade Commission” (as outlined in Chapter 30) meet to conduct a “joint review” of the agreement six years after entry into force. As part of the joint review, “each Party shall confirm, in writing, through its head of government, if it wishes to extend the term of the agreement for another 16-year period.” If a Party does not agree to extend the agreement at the six year review, the Commission must conduct joint reviews every year, until the agreement is extended or terminates.
As you know, USTR’s draft statement of administrative action (SAA), which outlines in part the administration’s view on how the implementing legislation for the agreement will change or effect existing law, was transmitted to Congress on May 30, 2019. While the draft SAA details numerous changes to U.S. law that are “strictly necessary or appropriate” to implement the agreement, it does not include any changes to U.S. law in order to implement the sunset provision.
a. Please explain why the administration feels that no changes to U.S. law are required to implement the agreement’s sunset provision.
b. Assuming that “Party” refers to each USMCA country’s government—e.g. the Government of the United States of America—per the agreement’s preamble, what should the internal process be for the United States to decide whether it wishes to stay in the agreement at the first six year review?
c. Does the administration believe that Congress is included in USMCA’s definition of “Party” as “the Government of the United States of America”? If not, why not? What role should Congress have in determining whether or not the U.S. chooses to extend its participation in the agreement at each joint review?
d. Chapter 30 of USMCA states that the Free Trade Commission tasked with joint reviews shall be composed of “government representatives of each Party at the level of Ministers or their
designees.” In the draft SAA, the administration states that the U.S. Trade Representative (or his or her designee) will represent the U.S. on the Commission. How will USTR ensure that the views of Congress are accurately represented at each joint review?
Unfortunately, Lighthizer's response tells us very little:
The USMCA’s review and term extension mechanism will help ensure that the agreement is working as intended and continues to serve the interests of the United States. I look forward to working with you and other Members to ensure that Congress’s views are appropriately accounted for as part of this review process.
I hope they are having serious discussions behind the scenes about these specific questions and about the the role of Congress here more generally (although it would be better if they were talking about these issues in public). The role of Congress should be decided in advance and defined clearly in the implementing legislation. If it is not, I don't think Congress will have much of a role.
