Industry Trade Advisory Committees and the Federal Advisory Committee Act

The USTR recently issued two notices seeking membership applications for its Trade Advisory Committee System. One notice seeks “Industry” advisors and another seeks those for a new “Public Interest” committee. Each notice announces that the Committees will be established “[p]ursuant to the Federal Advisory Committee Act, as amended (5 U.S.C. App.).” The Committees also operate under Charters which state that the Committees will be operated “in accordance with the provisions of the FACA, . . . with the exceptions set forth in the Trade Act.” That last line, it turns out, is key. The Trade Act gives USTR broad authority to exempt the operation of these committees from FACA open government requirements, which USTR uses habitually. One positive reform of the system would be for USTR at its discretion — or for Congress through the force of law — to apply all of the provisions of FACA to USTR’s advisory committees — just as would apply if these committees were being consulted on rule making by any other federal agency.

A recent article by Margot Kaminski canvasses the relation of the ITACs to FACA in some detail. She explains:

A number of FACA’s important procedural checks do not apply to the USTR’s advisory committees, so the advisory committee relationship to the USTR is prone to capture. First, FACA’s suggested limits on advisory committee term length do not apply.  Congress statutorily lengthened the tenure of these committees beyond FACA’s recommendation of two years, to four years.[1]  In practice, the USTR extends the committees’ tenure far beyond the four-year length.[2]  Second, the Trade Act of 1974 exempts trade advisory committees from the transparency requirements of the FACA, subject to the USTR’s discretion, which it has employed.[3]  Third, Congress functionally removed the USTR’s advisory committees from FACA’s balanced membership requirements.[4]  Congress requires that members of the sectoral trade advisory committees be representative only of industry interests in the particular sector area concerned.[5]  Congress did not mandate the inclusion of consumer interest groups in the sectoral advisory committees.  Nor did it mandate the existence of a public interest advisory committee to counterbalance the voice of industry committees on IP.

The membership of the USTR’s IP advisory committee, ITAC 15, is striking. The executive delegated authority to the USTR to choose membership.[6]  The USTR chooses the membership of the committees by consulting with “interested private organizations” and taking into account a list of statutory factors, and its decisions are subject to approval by the Secretaries of Commerce, Defense, Labor, Agriculture, or the Treasury.[7]  In the case of the IP committee, the USTR chose the membership after consulting with “interested private organizations” and with the help of the Secretary of Commerce.[8]  Membership in the committee is limited to under fifty members.[9]  The current membership consists only of IP-intensive industries, including the Recording Industry Association of America (RIAA), the Coalition for Intellectual Property Rights, and the Pharmaceutical Research and Manufacturers of America (PHRMA).[10]  There are no public interest representatives, no representatives from balancing industry perspectives such as Internet companies, and no academic representatives.  Public interest groups see the trade advisory committee membership list as a strong example of USTR bias.[11]

The legislative history of the Trade Act provides only a short explanation for trade’s partial exemption from FACA.  It cites the intimacy of the expected relationship between the trade negotiators and the committees, and the nature of the information to be discussed.  “If the advisory committees are to play an effective role in the negotiations they should be privy to our negotiating objectives, strategy, and tactics. These are not subjects which can be discussed in public meetings, which may include representatives from other governments and the press.”[12]  The legislative history also contemplates that USTR may permanently exempt itself from FACA.[13]  Early analysts of FACA specifically discourage such “grants of blanket exemptions to entire agencies,” describing them as “unwise.”[14]