20 July 2011
1.3 The Role of The Administration
Although legislation cannot originate in the executive branch, White House officials may draft or provide advice on a legislative measure that is subsequently introduced by a member of Congress. As previously explained, the president also has the power to veto legislation, although this prerogative is seldom exercised. As a matter of illustration, President Clinton vetoed only 37 bills during his eight years in office and only two of those vetoes were overridden by Congress. President Bush vetoed a mere 12 bills and four of those vetoes were overridden by Congress. For his part, President Obama vetoed only two bills through January 2011.
Some of the main duties of the executive branch include implementing the laws and regulations of the US, administering the functions of the government, and conducting foreign relations and making treaties with foreign nations. Thus, the executive is tasked with implementing any trade laws passed by Congress as well as negotiating international trade arrangements. The president influences the executive branch through executive orders, national security directives, presidential memoranda, or other forms of direct action, and he has substantial discretion in the interpretation of laws that executive branch agencies are mandated to implement.
Dozens of government agencies at the executive level have jurisdiction over some aspect of international trade, including the USTR, Department of Commerce, Food and Drug Administration, US Customs and Border Protection, Department of Agriculture, Department of State’s Bureau of Economic and Business Affairs, Federal Trade Commission, International Trade Commission, Consumer Product Safety Commission, and inter-agency Committee for the Implementation of Textile Agreements. A description of each of these agencies is provided below.
A. Office of the US Trade Representative (USTR)
The USTR is responsible for developing and co-ordinating US international trade, commodity and direct investment policy, as well as overseeing negotiations with other countries. The head of the USTR is the US Trade Representative, a cabinet member who serves as the president’s principal trade advisor, negotiator and spokesperson on trade issues. Through an inter-agency structure, the USTR co-ordinates trade policy, resolves disagreements and frames issues for presidential decision.
The USTR provides trade policy leadership and negotiating expertise in its major areas of responsibility, including:
- bi-lateral, regional and multi-lateral trade and investment issues;
- expansion of market access for American goods and services;
- international commodity agreements;
- negotiations affecting US import policies;
- oversight of the Generalized System of Preferences (GSP) and Section 301 complaints against foreign unfair trade practices, as well as Section 1377, Section 337, and import relief cases under Section 201;
- trade-related intellectual property protection issues; and
- World Trade Organization (WTO) issues.
The USTR consults with other government agencies on trade policy matters through the Trade Policy Review Group (TPRG) and the Trade Policy Staff Committee (TPSC). These groups, administered and chaired by the USTR and composed of 19 federal agencies and offices, make up the sub-cabinet level mechanism for developing and co-ordinating US government positions on international trade and trade-related investment issues.
The TPSC is the primary operating group, with representation at the senior civil service level. Supporting the TPSC are more than 90 subcommittees responsible for specialised areas and several task forces that work on particular issues. If agreement is not reached in the TPSC, or if significant policy questions are being considered, then issues are taken up by the TPRG.
The final tier of the inter-agency trade policy mechanism is the National Economic Council (NEC), chaired by the president. The NEC deputies’ committee considers memoranda from the TPRG, as well as important or controversial trade-related issues.
B. Department of Commerce (DOC)
The mission of the DOC is to foster, promote and develop the foreign and domestic commerce of the US. The DOC fulfils this mission by:
- participating with other government agencies, through the President’s Cabinet and its subdivisions, in the creation of national policy;
- promoting and assisting international trade;
- strengthening the international economic position of the US;
- promoting progressive domestic business policies and growth; and
- improving comprehension and uses of the physical environment and its oceanic life.
Several departments within the DOC have international trade functions, although the Bureau of Industry and Security and the International Trade Administration play particularly important roles.
a) Bureau of Industry and Security (BIS)
The BIS’ mission is to advance US national security, foreign policy, and economic objectives by ensuring an effective export control and treaty compliance system and promoting continued US strategic technology leadership. The BIS is tasked with vigorously administering and enforcing dual-use export controls to stem the proliferation of weapons of mass destruction and the means of delivering them, to halt the spread of weapons to terrorists or countries of concern, and to further US foreign policy objectives. The BIS must take care to ensure that its regulations do not impose unreasonable restrictions on legitimate international commercial activity that is necessary for the health of US industry, avoiding actions that compromise the international competitiveness of US industry without any appreciable national security benefits.
b) International Trade Administration (ITA)
The ITA plays several critical roles, including providing practical market intelligence to US exporters; ensuring that exporters have access to international markets as required by bi-lateral, regional, and multi-lateral trade agreements; and safeguarding US companies from unfair competition from dumped and subsidised imports. The ITA is tasked with determining whether merchandise is being sold in the US at less than fair value in anti-dumping (AD) duty investigations. In countervailing (CV) duty investigations, the ITA must determine whether any countervailable subsidies were provided to foreign producers.
C. US Customs and Border Protection (CBP)
CBP is the unified border agency within the Department of Homeland Security (DHS). Although the primary focus of CBP has shifted heavily towards security since 11 September 2001, CBP has the twin goals of guarding and securing US borders while facilitating the legitimate flow of goods and people. CBP uses multiple strategies and employs the latest technology to accomplish these goals. For example, CBP has developed several collaborative programmes designed to enhance the security of cargo entering the US by eliminating or minimising vulnerabilities throughout the supply chain. These programmes include the Customs-Trade Partnership against Terrorism (C-TPAT) and the Container Security Initiative (CSI).
Although often overshadowed by security concerns, one of CBP’s most important goals is to ensure that merchandise imported into the US complies with all applicable requirements and regulations. CBP’s responsibilities in this area range from the enforcement of strict controls and restrictions on the importation of agricultural, textile and various other products to ensuring that merchandise is correctly classified and valued and that import duties are properly assessed.
D. Department of Agriculture (USDA)
Among its many functions, the USDA is responsible for the safety of imported plant and animal products and helps ensure open markets for US agricultural goods. The USDA agencies that have the greatest impact on international trade are described below.
a) Animal and Plant Health Inspection Service (APHIS)
APHIS strives to ensure that imported animal and plant products are free of harmful pests and diseases by regulating imports with phytosanitary (plant health) certificates, importation rules and inspections.
b) Food Safety and Inspection Service (FSIS)
The FSIS is charged with ensuring that the US supply of meat, poultry and egg products is safe, wholesome and correctly labelled. Among other things, the FSIS uses a multi-step process to determine whether another country’s food regulatory system is equivalent to US standards, in which case the country is eligible to export to the US. The agency also plays a critical role in ensuring that food safety is a key aspect of global trade negotiations and that international science-based standards enhance global public health.
c) Foreign Agricultural Service (FAS)
The FAS is responsible for collecting, analysing, and disseminating information about global supply and demand, trade trends and market opportunities. The FAS seeks improved market access for US products; administers export financing and market development programmes; provides export services; carries out food aid and market-related technical assistance programmes; and provides linkages to world resources and international organisations.
d) Agricultural Marketing Service (AMS)
The AMS is responsible for developing quality grade standards for agricultural commodities, administering marketing agreements and orders, and making food purchases for USDA food assistance programmes.
E. Food and Drug Administration (FDA)
The FDA is responsible for protecting public health by assuring the safety, efficacy and security of human and veterinary drugs, biological products, medical devices, the US food supply, cosmetics and products that emit radiation. The FDA is also responsible for advancing public health by (a) helping to speed innovations that make medicines and foods more effective, safer and more affordable, and (b) helping the public get the accurate, science-based information it needs to use medicines and foods to improve health. With the exception of most meat and poultry, all food, drugs, biologics, cosmetics, electronic products that emit radiation and medical devices are subject to examination by the FDA when they are being imported or offered for import into the US. Most meat and poultry products are regulated by the USDA.
The FDA also oversees and enforces regulations implementing the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Bioterrorism Act). These regulations require (a) domestic and foreign facilities to register with the FDA if they manufacture, pack, process, label or otherwise handle foods or beverages for human or animal consumption in the US, and (b) prior notice to be given before foods or beverages are imported or offered for import into the US.
F. Federal Trade Commission (FTC)
The FTC is charged with maintaining a competitive domestic marketplace for consumers and businesses and enforcing a wide range of consumer protection laws. Among other things, the FTC enforces the requirements set forth in the Fur Products Labelling Act, Textile Fiber Products Identification Act, Wool Products Labeling Act, Care Labeling Rule, Appliance Labeling Rule, Made in the USA regulations, and the labelling requirements for socks that took effect on 3 March 2006.
G. International Trade Commission (USITC)
The USITC is an independent, quasi-judicial agency with broad investigative responsibilities on matters of trade. The mission of the USITC is to: (1) administer US trade remedy laws within its mandate in a fair and objective manner; (2) provide the president, the USTR, and Congress with independent analysis, information and support on matters of tariffs, international trade and US competitiveness; and (3) maintain the Harmonized Tariff Schedule of the US (HTSUS). The USITC also has an extensive role in trade remedy proceedings, as follows.
a) AD and CV Duty Investigations
The USITC and the DOC are responsible for conducting AD and CV duty investigations. The USITC’s role in these investigations is to determine whether a domestic industry producing a like product is materially injured or threatened with material injury by reason of dumped or subsidised imports.
b) China Product-specific Safeguard
Under Section 421 of the Trade Act of 1974, the USITC determines whether a specific product from the mainland is being imported into the US in such increased quantities, or under such conditions, as to cause or threaten to cause market disruption.
c) Global Safeguard
Under Section 201 of the Trade Act of 1974, US industries may petition the USITC for import relief. In such investigations, the USITC determines whether an article is imported into the US in such increased quantities as to cause or threaten to cause serious injury to a US industry that produces the same product or one that is directly competitive with the imported article.
d) China Trade Diversion Safeguard
Under Section 422 of the Trade Act of 1974, the USITC determines whether (1) an action by the Chinese mainland to prevent or remedy market disruption in a WTO member country, or (2) an action, including a provisional action, by a WTO member to prevent or remedy market disruption caused by imports from China, has caused, or threatens to cause, a significant diversion of trade into the US market.
e) Section 337 Investigations
Section 337 allows the USITC to investigate whether there is unfair competition in the importation of products or their subsequent sale in the US. Such unfair competition may include infringement of patents, copyrights, and registered trademarks.
H. Consumer Product Safety Commission (CPSC)
The CPSC is charged with protecting consumers from unreasonable risks of serious injury or death from more than 15,000 types of consumer products under the agency’s jurisdiction. Among other things, the CPSC develops mandatory standards to enhance the safety of consumer products and recalls products that may pose a threat to consumers.
I. Committee for the Implementation of Textile Agreements (CITA)
CITA is an inter-agency group, chaired by the DOC, responsible for matters affecting textile trade policy and for supervising the implementation of all textile trade agreements. Among other things, CITA negotiates and administers provisions of free trade agreements; administers quotas and safeguard limits; and co-ordinates the Administration’s efforts to combat illegal transhipment.