What s Next for FTAs: Colombia, Panama and Korea

Transcription

1 ALSTON&BIRD LLP What s Next for FTAs: Colombia, Panama and Korea New York July 20, 2011 Copyright 2011 Jonathan M. Fee All Rights Reserved

2 The three FTAs and their context The Colombia FTA will let Colombia catch up to Peru and will replace APTDEA for apparel from Colombia The Panama FTA will let Panama compete more directly with CAFTA, NAFTA, Peru and Colombia and will replace CBTPA for apparel from Panama The Korea FTA has no predecessor; Korea has enjoyed no preferential status with the United States since it lost GSP status during the Reagan administration

3 Substantive issues resolved Korea and United States agreed not to agree about beef Korea agreed to relax auto safety and emission standards for U.S. cars Colombia met its milestones on violence and labor rights issues Panama changed its rules about registering bearer bonds

4 Apparel origin rules Apparel origin rules in the three FTAs are based on yarn forward, first introduced in NAFTA, with some expected exceptions familiar from existing FTAs Each has the same chapter note for chapter 61 and 62 saying that the rule applicable to an apparel article only applies to the component determining tariff classification

5 Examples of yarn forward variations Panama allows the use of foreign wool yarn; Colombia and Korea do not Colombia and Korea allow the use of foreign rayon filament yarn; Panama does not All three FTAs allow foreign silk and linen fabrics in originating apparel articles

6 Single transformation Colombia Colombia gets the worst single transformation deal Only brassieres can be cut and sewn with foreign fabric and get originating treatment All other apparel articles are subject to some form of yarn forward, subject to exceptions for silk and linen fabrics

7 Single transformation Panama Panama enjoys single transformation for the same apparel articles originally provided for under CAFTA: brassieres, men s woven boxer shorts, men s and boys woven pajamas, women s and girls woven pajamas and negligees, and certain girls dresses But Panama does not enjoy this treatment for apparel articles added by the so-called pocketing letters under CAFTA

8 Single transformation Korea Korea does not get single transformation treatment for brassieres Korea enjoys single transformation for man-made fiber knitted women s and girls jackets and, just as in NAFTA, circular knit cotton pajamas, nightwear and women s and girls panties and briefs of cotton yarns of more than 100 metric number

9 Single Transformation Korea Korea also enjoys single transformation for men s and boys shirts of certain specified cotton and MMF woven fabrics and all woven apparel of cotton velveteen, cotton corduroy of more than 7.5 wales per centimeter, Harris tweed, lightweight wool/mmf blends and certain polyester batiste (all of the foregoing copied from NAFTA)

10 Chapter rules All three FTAs include the visible lining rule, requiring visible linings of some fabrics in some classifications of apparel to be wholly formed in the FTA country Colombia and Panama are saddled with chapter rules, like CAFTA s, regarding narrow elastic fabric, sewing thread and pocketing, although Panama enjoys exceptions for boxers, pajamas and nightwear

11 Chapter rules Korea is spared the chapter rules regarding narrow elastic fabric, sewing thread and pocketing One can only speculate whether domestic interests will try to close the alleged loophole allowing foreign single yarn sewing thread for apparel produced in Colombia and Panama, as provided in the proposed CAFTA fixes

12 De minimis Like CAFTA, Colombia and Panama have a ten percent de minimis rule, meaning that foreign fibers or yarns that would otherwise disqualify an apparel article will be permitted if they do not exceed 10 percent by weight of the component determining classification Also like CAFTA, Colombia and Panama do not allow de minimis treatment of spandex

13 De minimis The stingier Korean FTA only allows de minimis treatment of fibers and yarns not more than 7 percent by weight of the component determining classification Seven percent comes from NAFTA Spandex is also barred from de minimis treatment under the Korean FTA

14 Short supply Both Colombia and Panama have short supply designation rules similar to CAFTA s Both pick up short supply designations under CBTPA, ATPDEA and AGOA But only Panama picks up designations made under other free trade agreements (thereby picking up the NAFTA provisions for Harris tweed, for example), so Colombia does not pick up CAFTA designations

15 Short supply Korea short supply is similar, but with some big differences Either party can make designations, so each country s list could be different Neither party picks up existing designations from trade preference programs or FTAs Short supply goods will be subject to an annual cap of 100 million SME for the first five years

16 Short supply Fortunately, the short supply features of the three FTAs do not contain the defect concerning spandex that awaits correction under CAFTA But neither do they provide the language exclusive of collars, cuffs and waistbands contemplated by the CAFTA fixes for sweatshirts and similar upper body apparel articles with waistbands

17 Expected CAFTA Changes Close the single yarn sewing thread loophole Allow short supply yarns and fabrics for more than just the outer shell exclusive of collars and cuffs of apparel goods, and expand exclusion to waistbands Change short supply to allow designations of fabrics containing foreign elastomeric yarn Extend single transformation to certain sleep pants Increase the cumulation limits (regarding inputs from Mexico) by 25 percent to allow for the Dominican Republic s participation in cumulation

18 Short supply troubles CBP exams based on laboratory tests of single garments If the sample doesn t pass, short supply is denied Precise specifications issue Recipe issue Should documents matter? Should shipment pass if the lab test results are reasonably consistent with the claimed designation?

19 QE2 and Manipulation The U.S. Fed announced a second round of quantitative easing (QE2), in November 2010, to buy $600 billion in long term treasuries with newly printed money, lowering long term yields and spurring alternative investments Three intended effects: (1) spur borrowing and lending, (2) boost publicly traded securities share prices, and (3) lower the Dollar to help exports Is it ironic that QE 2 has some of the same effects on the Dollar that China s policy has on the RMB?

20 Continuing FTA uncertainty Chief of staff Bill Daley said on July 14 that the President planned to submit the FTAs to Congress the week of July 18 (this week) There is no time to waste fighting politics as usual If we do not act before the August recess, American business will suffer

21 Delay But yesterday, July 19, the White House decided not to send the FTAs to Congress until the fall (after the August recess) Senate leaders McConnell and Harry Reid (D-NV) have not reached accord on how to move TAA It is hoped that negotiations will continue because there is little time after the August recess and much else to do

22 Real danger of further delay 2012 is an election year Conventional wisdom (with recent historical exceptions) is that trade legislation is unlikely in an election year This could realistically push back adoption until sometime in 2013 This would be particularly difficult for competition with the EC for exports to Korea and Colombia s competition for access to the U.S. apparel market

23 Preoccupation with debt ceiling crisis The unresolved debt ceiling and budget issues have taken valuable time as Congress moves closer in time to the August recess Further complicating matters is the President s apparent plan to place the renewal of Trade Adjustment Assistance (TAA) in the Korea legislation

24 Debt ceiling and budget Budget and debt ceiling issues have nothing to do with trade, but both Steve Lamar of AAFA and Auggie Tantillo of AMTAC warned last spring they would suck the oxygen out of the room in Washington vote yesterday in the House passed bill to slash and cap spending and advance a balanced budget amendment to the Constitution 4-page outline from the Gang of 6, rejoined Monday by Sen. Tom Coburn (R-OK), gained ground and a tentative endorsement from President Obama yesterday; but it will be hard to flesh out by August 2

25 Presidential candidates silent

26 Opposition tied to TAA Senate minority leader Mitch McConnell (R-KY) has said he would vote against the Korea FTA implementing bill if it contained TAA renewal We can t let differences over processes and procedures hold back these agreements any longer American jobs and American standing in the world are on the line U.S. Chamber of Commerce President Thomas Donohue

27 Put TAA with Colombia FTA? One alternative suggested by contentious Democrats would be to put the TAA renewal in the Colombia implementing bill rather than in the Korea bill More Republican votes will be necessary for Colombia, because more Democrats oppose it on labor grounds, and Republicans would take the blame But Speaker John Boehner (R-OH) could separate Colombia and TAA in the House, because the Colombia FTA does not have fast track protection there

28 Will they pass? Powerful incentive: Korea- EU FTA went into effect on July 1, threatening U.S. market share in Korea Two dangers: Republicans who would prefer that the President fail even at the cost of the FTAs and failure of the President to fight more strongly for passage

29 Handicapping FTAs this year Since Spring, looked like about a 65 percent probability that the FTAs would pass this year The delay beyond the August recess has to reduce the probability Maybe 55 percent?

30 Jon Fee Alston & Bird LLP 950 F Street, N.W. Washington, D.C jon.fee@alston.com