Notes on USTR TPP Briefing
On Wednesday September 29th at 11:30AM at the USTR Annex (1724 F Street NW), Assistant U.S. Trade Representative Mark Linscott hosted a TPP stakeholder meeting to discuss Regulatory Coherence.
The meeting was called with just 24 hours notice to civil society groups. That is not a great practice. But in a noticeable departure from ACTA negotiations, here the USTR reached out to civil society organizations (no industry representatives were present) for their views before the negotiating round. The USTR also committed to meeting more regularly with the group to share information and solicit advice. Without text of course.
My notes form the meeting are enclosed:
We brought you together to discuss new developments in the negotiations before the next round.
Previously there have been public references from Barbara Weissel to the "Horizontal issues," meaning cross-sectoral issues.
We are in an early discussion on this issue and want to ask for particular insights.
We have suggested that regulatory coherence (RC) involves systematic mechanisms to improve data collection, transparency and even enforcement in domestic regulatory systems.
RC can be internal and external. It is External in the sense that governments exchange info and promote dialogue.
Our process is exploratory.
The U.S. is planning to present a conceptual paper next week to TPP participants.
Procedurally, while regulatory coherence has been identified as a cross cutting horizontal issue, we think it is important that individual negotiating groups consider particular issues that RC might bring in their negotiation. For example on technical barriers to trade.
It is critical that TPP partners recognize that TPP preserve and protect the right to regulate to meet national policy objectives.
In terms of framing future discussions in TPP, we have offered four specific areas for further work.
First, inviting TPP participants to provide information on national regulatory systems. In particular participants might provide info on whether they have a central coordinating body for regulatory processes.
In the US we have OIRA, which has certain responsibilities and authorities. It does not extend beyond the federal level. It does not extend to independent regulators like the FCC. But we offer that up as a particular experience.
Second, some questions we pose on to what extent regulatory authorities consider international trade effects when they craft regulations.
Third, reviewing to what extent govts are already coordinating in particular areas, APEC or bilateral memoranda of understand between authorities. We want to ensure that there is value added in TPP. We suggest that whether there should be any framework in TPP for parties to consider certain priorities in TPP - for exchanging information, initiating dialogues -- depends on what is ongoing now.
Fourth , TPP should consider whether there is scope and value to sectoral approaches. We have experience in FTAs on sectoral approaches, e.g. telecom.
This is not put forward as a specific proposal. But we can anticipate discussions and proposals at the upcoming meeting.
Q. Bob Stumberg - how does the TPP discussion relate to the WTO framework discussions on regulation.
A: In our view, they don't suggest any approach that would prejudice the WTO services discussions. We are aware of the concerns and our own sensitivities. We have communicated that to other TPP participants.
Q. Bob: US elsewhere has said they only want transparency. No substance. Is that happening in TPP?
A: There is no difference. Our position has not been only transparency. We have emphasized transparency on horizontal aspects of agreements. We have pushed for sectoral issues, eg in telecom.
We have to be aware that in the US most regulation is at the state level.
Bob: is necessity test off table?
A: model is korea FTA. There are participants with different views. Necessity test is not something we are supporting.
Q. in respect of transparency, are you trying to export notice and comment to other countries?
A - We are interested in a central coordinating authority, asking whether it makes sense for all countries to have a central coordinating authority.
Will martin, Dan hunter at USTR are leading this up.
They are working on transparency negotiation drawing on recent FTAs.
We are not proposing anything beyond recent FTAS or that would require changes in the US.
Notice and comment is a priority.
There will likely be a free standing transparency chapter.
There will be RC issues within sectoral sections. E.g. financial.
There will be a separate transparency chapter. We are looking at enhancements in other areas.
Q. Peter Maybarduk: Will discussion paper be shared?
A: No. it is protected document. But I am sharing the ideas in it.
I am ready to convene a group like this on a regular basis.
Q. Bill Waren - we want to avoid state and local govt being subjected to anything under TPP.
Q. Sean Flynn. When looking at a central coordinating body, what is it that you want it to do, particularly given that in the US as you mention OIRA is not in charge of many major areas of regulation (stare and local, independent agencies)?
A. We are looking at an OIRA type coordinating body. A coordinating body. It could look at the body of work on good regulatory practice. PIRA reviews 500 rules every year. It allows other agencies to review and comment on regulations to ensure coherence. It reviews rules for trade impact.
Q. Sean Flynn. Is a cost benefit analysis one of the things you are looking at and would that be only a cost to trade or would it create a standard applicable to purely domestic regulation.
OIRA does cost benefit analysis under exec order 121866. But those are principles. Some legislation requires a different analysis or gives exceptions.
Q. Sean Flynn. Would a US proposal on cost benefit be limited to the trade related costs?
A. We are too early to answer that.
Q. Sierra Club is interested in a general exception for good faith non-discriminatory environmental regulations. E.g. life and health of plants or people.
A. We are looking at general exceptions as there are in other agreements.