This third issue of The Globe for 2007-2008 includes “Local immigration ordinances are likely unconstitutional” by Anthony E. Rothert which originally appeared in Human Rights, the newsletter of the ISBA Section on Human Rights. We also have reprinted “Your client wants to vacation outside the U.S. with the kids but the other parent fears abduction...If the destination country is a Hague signatory, here’s a possible solutions,” by Jacalyn Birnbaum which appeared in the September issue of Family Law.
Jessica DePinto, former Chair of the International and Immigration Law Section Council and Stefano M. Viola have submitted “Made in Legislation – A Brief Overview of Origin Marking Regulations in the EU and in the U.S..”
The International and Immigration Law Section Council has been approved to conduct a CLE program entitled “Ethical Boundaries For Attorneys Working With Immigrant Survivors of Domestic Violence.” The program is being co-developed by David Austin and the National Immigrant Justice Center. Further information will be included in a subsequent issue of The Globe.
The Illinois International Business Calendar is provided to us by the International Trade Association of Greater Chicago with the participation and cooperation of the Office of Trade and Investment of the Illinois Department of Commerce and Economic Opportunity and the U.S. Export Assistance Center of Chicago.
Also, the U.S. Trade World Illinois is a publication of the U.S. Department of Commerce, U.S. Commercial Service in Chicago which provided “Promoting Illinois Education Exports.”
In the last issue, we included information provided by Ambassador Karan A. Bhatia, Deputy U.S. Trade Representative of the Office of the United States Trade Representative on his recent appearance in Chicago. At that meeting he discussed among other items the negotiated Free Trade Agreement between the United States and Korea and the Office of the United States Trade Representative provided the enclosed information on the Trade Agreement.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312) 726-8787
Facsimile: (773) 279-8872
E-MAIL: lfmatuszewich@mkm-law.com
Several municipalities across the country have recently adopted laws that attempt to regulate immigration. These laws are a result of rampant frustration with perceived inequities caused by the presence of undocumented persons and the inability of Congress and the President to agree upon a comprehensive solution to a bogged-down immigration system. Hazelton, Pennsylvania; Valley Park, Missouri; Farmers Branch, Texas; Escondido, California; and Riverside, New Jersey are among the small cities that have attempted to blaze a new trail of immigration enforcement by local authorities. But each attempt has been stopped abruptly by courts that have found the regulation of immigration to be a matter within the exclusive domain of the federal government.1
The ordinances enacted by local municipalities have generally had two parts. First, they require landlords to establish that every person to whom he or she rents (and every person who will dwell within the landlords’ property) is lawfully present in the United States. Second, the ordinances would allow local governments to punish businesses who cannot affirmatively demonstrate that each of its employees and persons with whom it contracts is documented.
There are two primary objections to local immigration ordinances: they are bad policy and they are unconstitutional in any event.
A. Policy Reasons
Whatever the legal ability of local authorities to enact immigration regulations, doing so is unwise from a public policy perspective.
It is significant that the ordinances are premised on a willfully naïve blindness to the complexity of determining lawful presence in the United States. Proponents of the ordinances will surmise, Illegal is illegal.” Not quite. Until nearly the 1900s, foreign-born persons in the United States were presumed to be lawfully present. In fact, a federal crime for unauthorized entry was not established until 1929. Over the years, the federal government has struggled to define who can, and who can not, enter the country and under what terms they may do so. As the government has continued to intervene, immigration policies have become increasingly intricate and complex. Determining a person’s status can be complicated and clear-cut answers are often difficult to ascertain. Indeed, a significant number of immigrants do not know their own status. Furthermore, numerous persons who lack current legal immigration status are nevertheless permitted to live in the United States. While there are systems available to determine eligibility for government benefits, ineligibility for benefits does not equate to being unlawfully present because only a subset of lawfully present aliens may receive public benefits. Given the difficulty in determining the legal status of an immigrant, the proposed ordinances’ requirements for landlords and businesses are impractical and not at all feasible.
Proponents of immigration ordinances at the local level have attempted to blame immigrants for bringing crime and unrest to their communities. Contrary to these misinformed and biased assumptions, police and criminal justice experts agree that undocumented immigrants commit crimes at lower rates than legal immigrants and citizens. The local immigration ordinances only serve to divide communities along ethnic lines and alienate those who may look or sound “foreign.” Divided communities suffer; they do not improve. Thus, local immigration ordinances are far from the panacea for society’s ills that their promoters’ promise.
B. Legal Reasons
In addition to the policy reasons municipalities should avoid attempting to regulate immigration, there are legal ones as well. The most apparent legal challenges to local immigration ordinances are based on federal law; accordingly, cities whose ordinances are challenged face the prospect of paying not only their own but also their opponents’ costs and attorneys’ fees under the federal fee shifting statutes.
1. Conflict with Federal Law
The federal government has established an elaborate set of laws, regulations, and procedures that determine whether an individual can live in the United States. Absent advancing through the established procedures, it is generally not possible for anyone—even the federal government—to definitively determine whether an individual should be denied the ability to live in this country based on her immigration status. The local ordinances require an assessment of legal status by a landlord or business owners absent any of the procedures or resources available to the federal government. Such a mechanism conflicts with federal laws that determine who may, and who may not, live in the United States.
The housing provisions of the ordinances also conflict with federal housing regulations. The ordinances require that every occupant of a home or apartment demonstrate his or her lawful presence in the country. This directly conflicts with federal housing regulations, which permit persons who might lack lawful immigration status to live in federally subsidized housing with family members who are eligible for such benefits.
The employment provisions of the ordinance conflict with federal law in several respects. They require work-status authorization for persons who are exempt from such verification by law. They eliminate the anti-discrimination provisions of federal employment laws. They impose strict liability on employers, rather than sanction only employers who employ an individual with knowledge of her lack of work authorization. They require the use of information gleaned from federal 1-9 forms to make certifications to the local government even though federal law prohibits the use of any information from the forms for purposes other than the enforcement of federal employer-sanction provisions and certain federal criminal laws.
The ordinances further conflict with federal immigration law in their attempt to force a means of verifying employment eligibility on employers. They require employers to participate in the federal Basic Pilot Program who are not required to do so by federal law and coerce other employers to use the program by subjecting them to the risk of severe penalties if they do not. Congress established the program as a voluntary and experimental program to be implemented by the Department of Homeland Security and set forth an extremely limited list of employers required to participate in the program. Congress also specifically provided that the government could not require any other person or entity to participate.
The manner in which the ordinances envision the use of the Basic Pilot Program also conflict with federal law. For instance, an employer can correct a violation by obtaining additional information from a worker and re-verifying the worker’s status through the program. But federal law prohibits re-verification except in limited circumstances.
2. Field Preemption
The admission, continued presence, and removal of aliens in the United States is a field occupied by federal immigration law. Federal immigration law is broad and comprehensive. And the ordinances touch on particular areas about which Congress has already legislated.
The housing ordinances claim to be aimed at those who would harbor certain aliens. Federal law specifically provides fines and other criminal penalties for the harboring of illegal aliens, fully occupying the subject matter. The employer ordinances attempt to create local schemes to sanction employers, and thereby discourage the hiring of unauthorized workers, even though Congress created a comprehensive scheme to the same effect in 1996.
3. Due Process
It has often been held that the Due Process Clause of the Fourteenth Amendment applies to all “persons” within the borders of the United States, including citizens and aliens, including those who are present lawfully or unlawfully and temporarily or permanently. The ordinances violate the due process clause by failing to provide adequate notice and the opportunity to be heard before depriving them of their rights.
When a complaint is made that any given employee might be unlawfully present in the United States, the ordinances give no notice or opportunity to be heard to the employee. The employee need not be told of the complaint and can even be fired by the employer (under the ordinances) for simply being the subject of a complaint. Neither the employer nor the employee are made aware of the nature of the complaint, so they do not know what information they will need to defeat it. Finally, although the employer can theoretically resubmit the employee information for re-verification, no such process is afforded to the employee. Throughout the limited processes that are provided, the employee is not provided any of the procedural safeguards that are allowed to an alien facing federal proceeding to determine her lawful status, including the right to counsel, the right to a reasonable opportunity to examine the evidence against her, the right to present her own evidence, and the right to cross-examine witnesses.
The landlord-tenant provisions suffer from the same problems. Rather than engaging in a deliberative process with participation from all parties, the ordinances envision a summary determination by the government of whether a person is lawfully present. Again, none of the safeguards present in federal law are afforded to the individual before she loses the opportunity to rent a dwelling space.
It is sometimes objected that non-citizens ought not to expect due process. While valuable as a rhetorical device, it does not withstand minimal scrutiny. If one moves away from the housing and job contexts, then it becomes apparent that visitors, permanent residents, and others present in this country without being citizens should be afforded the due process that is vital to the American legal system. Any person charged with a crime, for instance, is provided due process before conviction. We do not ignore the due process rights of tourists or foreign students, for example, and summarily convict them of crimes of which they are accused without the procedural safeguards mandated by the due process clause. Likewise, we expect our citizens to be afforded the protections of foreign law when they travel abroad.
It is likely that local immigration ordinances will continue to be considered and passed across the country. They provide politicians with an easy mechanism for blaming problems on immigrants and purporting to solve those problems by restricting access to housing and employment. In reality, the ordinances will only divide communities making it more difficult for their members to work together to discover real solutions to real problems. Those municipalities that pass immigration ordinances are likely to see them challenged and defeated in court. Finally, the resulting costs to cities can only exacerbate the underlying problems faced by local governments in carrying on their duties.
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1. The cases regarding these ordinances are in most cases new, on appeal, or still in progress. The first final judgment was a Missouri state court decision finding Valley Park’s ordinance void on state law grounds. Reynolds v. City of Valley Park, No. 06-CC-3802 (St. Louis County, MO Circuit Court, March 12, 2007) (available at http://
clearinghouse.wustl.edu/results.php?saveRef=ck) (appeal pending in Missouri Court of Appeals – Eastern District). Next came the decision of the Federal District Court for the Middle District of Pennsylvania after a trial on the merits of the federal claims. Lozano v. City of Hazleton, 3:06-cv-01586-JMM (M.D. Pa. July 26, 2007) (available at http://
clearinghouse.wustl.edu/results.php). A preliminary injunction or temporary restraining order have been entered against enforcement of ordinances have been entered in Villas at Parkside Partners v. City of Farmers Branch, 2007 WL 1836844 (N.D.Tex.June 26, 2007), and Garrett v. City of Escondido, 465 F.Supp.2d 1043 (S.D.Cal. 2006).
Not an uncommon problem in a pending pre-decree case: One parent seeks to vacation with the children outside the country and the other parent—concerned about possible abduction—refuses to permit the vacation in the absence of an Order of Court. Assuming the Country of Destination is a Signatory to the Hague Convention, then here is a draft Agreed Order which may well solve your problem.
[Special mention and thanks to Russell Reid, Block and Block]
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT - DOMESTIC RELATIONS DIVISION
IN RE THE MARRIAGE OF: )
)
MOTHER, )
)
Petitioner, )
)
and ) No. 07 D 00000
)
FATHER , )
)
Respondent. )
AGREED ORDER FOR VACATION TIME IN
[COUNTRY, SIGNATORY TO HAGUE CONVENTION]
This cause coming on to be heard; MOTHER (“MOTHER”) appearing by her attorney [Name of Attorney, Law Firm]; FATHER (“FATHER”) appearing by his attorney [Name of Attorney, Law Firm]; the minor child of the parties appearing by his/her Child Representative, [Name of Attorney]; this cause having been set for hearing on FATHER’s Motion [or by Agreement]; the Court having jurisdiction over the subject matter and the parties and being fully advised:
THE PARTIES STIPULATE:
A. One (1) child was born to the parties as a result of this marriage, namely CHILD (“CHILD”), born March 25, 2001 and currently six (6) years of age.
B. [If applicable:] On _________________, the Honorable [Name of Judge] entered an Order awarding temporary custody of CHILD to MOTHER.
C. Based upon the recommendations of the Court, the parties and their counsel have reached agreement as to the language of the Court’s ruling, the terms of which are reduced to writing in the decretal portion of this Order.
ACCORDINGLY, IT IS HEREBY ORDERED AND DECREED:
A. Trip to [Destination Country, Signatory to Hague Convention]
Over MOTHER’s objection, FATHER is granted permission to travel with CHILD from the State of Illinois to [Destination Country, Signatory to Hague Convention], for the period from [Day of Week], [Time, Date, Month, Year] (at which time and on which date he will pick up CHILD from MOTHER’s residence) through [Day of Week], [Time, Date, Month, Year] (at which time and on which date he will return CHILD to MOTHER’s residence), subject to the following explicit conditions:
a. FATHER and CHILD will depart [Name of Airport] on [Day of Week], [Date, Month, Year] and return on [Day of Week], [Date, Month, Year], as follows:
[Set forth Complete Itinerary] OR
FATHER will tender a complete itinerary to MOTHER not later than [Date Certain], said itinerary to include airline, flight numbers, flight times, addresses and telephone numbers of the locations at which CHILD will be staying. FATHER will also provide MOTHER with the names of the individuals with whom CHILD will be staying.
b. On or by [Date Certain], MOTHER shall appear at the Consulate of [Destination Country, Signatory to Hague Convention] [City, State, Zip, Telephone Number] and there execute all required consent documents to permit FATHER to travel with the minor child from Chicago to [Destination Country, Signatory to Hague Convention]. FATHER will also execute any required documents in connection therewith.
c. MOTHER’s counsel shall investigate whether any additional consent forms or other documents are required to permit FATHER and the minor Child to travel to [Destination Country, Signatory to Hague Convention] pursuant to the terms of this Order. If any such forms and/or documents are found to be required, then same will be tendered to [Child Representative] who will timely present same to counsel for MOTHER and MOTHER shall promptly execute same.
d. Pursuant to Article III of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter “Hague Convention”), the “Habitual Residence” of MOTHER and CHILD is the United States of America, specifically the [City, Village, Town] [County] [State], United States of America. This is so, notwithstanding the fact that FATHER currently resides in [name of FATHER’s City and State of Residence].
e. FATHER and MOTHER have equal rights as parents to make decisions regarding their child’s health, education, welfare and place of residence. This current action of dissolution of marriage has not yet finally resolved any issues of custody or visitation (right of access) between the parties. Accordingly, for purposes of the Hague Convention both parties do have the right to seek a return order regarding their child.
f. For the purposes of this Order, the parties agree and stipulate that FATHER does not pose a risk of physical or psychological harm to CHILD in any way. CHILD’s return to the CHILD’s Habitual Residence would not place the CHILD in an intolerable situation, whether or not FATHER returns with the CHILD.
g. FATHER agrees and stipulates that his rationale in taking CHILD with him to [Destination Country, Signatory to Hague Convention] is solely for purposes of vacationing and that FATHER is not fleeing domestic violence against CHILD and/or himself.
h. It is in CHILD’s best interests that CHILD and FATHER return promptly from [Destination Country, Signatory to Hague Convention] in accordance with this Order.
i. Both MOTHER and FATHER agree that the appropriate jurisdiction and venue for the litigation and resolution of this current action for dissolution of marriage, including issues related to the custody, care and control of CHILD, is the Circuit Court of Cook County, State of Illinois, United States of America. Furthermore said court system and public and private agencies within the jurisdiction and venue provide substantial protection for the physical, psychological, and financial safety of the parties and their child.
j. FATHER agrees that he will not raise as a defense to a return order, if one has to be sought, that CHILD has resided in a foreign state in excess of one (1) year either prior to the commencement of a proceeding under the Hague Convention or that during a proceeding under the Hague Convention, the one (1) year anniversary of CHILD’s presence in the foreign state had passed.
k. Nothing in the order shall aver or imply that MOTHER has consented, or acquiesced to the permanent removal of CHILD to or retention in [Destination Country, Signatory to Hague Convention].
l. MOTHER has been and continues to exercise her full rights as a parent in the United States and at no time has foregone her exercise of said rights.
m. CHILD’s Home State for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act, 750 ILCS 36/101 et seq., is the State of Illinois, the United States of America.
n. For the purposes of this Order, outside of the parameters of this Order FATHER and MOTHER are restrained and enjoined from permanently removing CHILD from the State of Illinois without further Order of Court pursuant to Section 5/609 of the Illinois Marriage and Dissolution of Marriage Act.
o. In the event FATHER fails to comply with the terms of this Order and fails to return CHILD to the State of Illinois (subject to unavoidable delay(s) resulting from act(s) of God or other circumstances beyond FATHER’s control, including but not limited to weather, flight cancellations, or other verifiable, verified and emergent circumstances), then the terms of the following section shall apply.
B. Security regarding FATHER’s Trip to [Country, Signatory to Hague Convention]
For the purposes of any proceedings or litigation under the Hague Convention and/or the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), Parental Kidnapping Prevention Act (“PKPA”) or Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) resulting from FATHER’s failure to timely return the minor CHILD pursuant to the terms and conditions of this Order:
FATHER shall pay and be solely responsible for all reasonable attorneys fees, expert fees and all other related costs incurred by MOTHER in connection with the filing and prosecution of any proceedings commenced in any jurisdiction as a result of FATHER’s failure to return CHILD to the State of Illinois pursuant to the terms and conditions of this Order.
C. Other
1. MOTHER will tender CHILD’s passport to FATHER at the start of FATHER’s parenting time and FATHER will return CHILD’s passport immediately - or as soon as is practicable - following the close of his visitation under this Order.
2. CHILD shall be properly restrained in a car seat when transported in any motor vehicle.
D. This cause is hereby continued for status on pending issues to __________________, 2007 at _______ m.
For further - and more specific - information, including but not limited to relevant case law, contact
HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW Web site: www.hcch.net
1. Introduction
Generally, origin marking rules require that every imported good having a foreign origin must be marked with the name of the country of origin. The purpose is to inform the ultimate consumers of the origin of the articles. Consumers purchasing decisions may be based on the product’s country of origin and consumers may give a different commercial value to an item, depending on where it is produced. For example, a consumer may likely attribute a higher value to an expensive watch that bears the marking “Made in Switzerland.”
The major trading parties have enacted specific rules for indicating the country of origin of imported products. Surprisingly, the European Union (“EU”) has not yet implemented specific rules on this matter. Today, in the EU, it is up to the manufacturer to mark the article. Obviously, the lack of specific origin legislation does not grant manufacturers free reign to falsely mark their goods. Generally, the individual Member State’s national legislation sanctions false origin marking as a crime.1
Currently, the EU is at a disadvantage compared to its trading partners, such as the U.S., Japan and China,2 who impose specific country of origin marking requirements on imported goods. Additionally, the lack of common rules and a common definition of “origin” for marking purposes not only affect consumers, but also have a deleterious effect on the competitive strength of European industry.
2. European Union’s Proposed Origin Marking Rules
The European Union is finally recognizing the need to level the commercial playing field by proposing legislation regarding the country of origin marking on imported articles. In 2004 the Commission of European Communities initiated a consultation process concerning country of origin marking on imported products. The consultation process involved industry, trade unions, consumers and other concerned institutions. The result of this consultation was discussed in the EU’s 133 Committee of Full Members (“133 Committee”) in July 2004. The 133 Committee requested the Commission to further investigate the viability of legislation on origin marking as related to a certain number of products, and then to submit its conclusion and proposal to the Council.
In December 2005, the European Commission issued a proposal for a Council Regulation to indicate the country of origin for certain products imported from third countries. The regulation has been transmitted to the Council and it is expected to come into force by the end of 2007.
Based on the previous consultation, the Commission established that origin marking is required for certain industrial products. The proposed legislation excludes fishery and aquaculture products as well as certain “foodstuff” products from origin marking requirements. The Annex to the proposed regulation identifies those product categories that are subject to the proposed origin marking requirements:
• Tanned or Crust Hides or Skins & Finished Leather;
• Heels, Soles, Bads, Parts, Synthetics, others;
• Saddlery and harness, travel goods, handbags and similar containers, articles of animal gut (other then silkworm gut);
• Articles of apparel, clothing accessories and other articles of furskin, artificial fur and articles thereof;
• Textiles and textile articles;
• Footwear, gaiters and the like;
• Ceramic products;
• Glassware of kind used for table, kitchen, toilet, office, indoor decoration or similar purpose (other than headings 7010 or 7018) of lead crystal.
• Articles of jewelry and parts thereof, of precious metal or of metal clad with precious metal. Articles of goldsmiths’ or silversmiths’ wares and parts thereof, of precious metal or of metal clad with precious. Other articles of precious metal clad with precious metal. Articles of natural or cultured pearls, precious or semiprecious stones (natural, synthetic or reconstructed)
• Furniture, bedding, mattresses, cushions, lamps and lighting fittings, illuminated signs and the like, prefabricate buildings;
• Broom, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees);
With the exception of goods produced in the Territory of the European Communities,3 Bulgaria, Romania,4 Turkey, and the Contracting Parties of the EEA Agreement,5 the goods identified in the Annex that are imported from third-countries will be required to be marked with the country of origin. For determining a good’s country of origin, the proposed EU marking regulations refer to Articles 22 through 26 of the Communities Customs Code. For example, goods may be considered to “originate” in a country if they are wholly produced in that country. If the production takes place in more than one country, the good is considered to “originate” in the country where the last, substantial economically justified processing occurred.
Similar to the U.S. marking regulations, the EU proposal exempts from origin marking those goods that are impossible to mark for technical or commercial reasons. For example, the U.S. marking legislation exempts certain “J-list“6 articles from individual country of origin marking (on the articles themselves) and only requires that the outermost container (in which the article is imported) be marked with the country of origin. The following are included among the U.S. J-list items: works of art; bolts, nuts, and washers; buttons; playing cards; cigars and cigarettes; eggs; feathers; leather, except finished; monuments; sawed lumber; paper stock, ribbon; rivet; screw;, sponges; Christmas trees; scrap and waste.
Article 3 of the proposed Council Regulation would also implement the following marking rules, quite similar to those found in U.S. marking legislation:
• The country of origin marking must be marked on all the goods listed in the annexes. If they are packaged, the items must be marked individually. In case of goods that reach the final consumers in their packaging, the Commission may allow the origin marking on the packaging instead of directly on the goods.
• The word “made-in” with the name of the country of the origin, must indicate the origin of the good. The marking can be made in any of the twenty-three official language of the European Community.
• The marking must appear clearly, legibly and indelibly on the article. It must be visible during the normal handling and distribution of the article and the marking information must be distinguishable from other information so as not to mislead the ultimate purchaser as to the origin of the product.
• Finally the goods must be marked with their origin at the time of importation and must not be removed until they reach the consumers or final users.
Article 5 of the proposed EU Council Regulation discusses aspects of non-compliance with the proposed origin marking rules. The following goods are considered not to be in compliance with the proposed EU Council Regulations: (1) goods that do not bear the country of origin marking; (2) goods whose marking does not correspond with the origin of the goods; and (3) goods in which the origin marking has been changed or removed. Pursuant to Article 5, the individual Member States are charged with implementing measures to require documents and declarations to support an importer’s compliance with the regulations. Additionally, the individual Member States are responsible for establishing penalties for non-compliance with the EU Council marking regulations.
Article 4 of the proposed regulations provides the Commission with some level of flexibility in adopting future measures. For example, Article 4 allows the Commission to adopt more detailed form and procedures for origin marking; create a list of terms in all Community languages to clearly express that goods originate in the country indicated in the marking; agree on the cases where commonly used abbreviation unmistakably indicates the country of origin in furtherance of the proposed marking regulation; update the Annex to include or remove particular sectors; and to establish particular cases where goods can be exempt from the marking requirements.
Upon initial review, the proposed EU Council Regulation attempts to harmonize EU origin marking rules with that of its major trading partners. As currently drafted, the proposed regulation is not as detailed as, for example, the origin marking regulations of the United States.
3. Brief overview of the U.S. Country of Origin Marking Rules.
The U.S. marking statute, Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.
The U.S. origin marking statute is implemented pursuant to Part 134 of the U.S. Bureau of Customs and Border Protection Regulations. See 19 CFR Part 134. The regulations cover the various conditions regarding the origin marking of those articles that are subject to the marking requirements. The regulations also set forth measures for the marking of the goods’ containers or holders; the proper method of marking the imported article and the location of the origin marking on imported articles. Part 134 also covers exceptions to the marking requirements, such as the “J-list” exceptions, as discussed in Section 2 above.
The origin marking statute sets forth the penalties associated for failure to properly indicate the imported goods’ country of origin. Section 1304(i) imposes additional import duties (10 percent ad valorem) on goods that are not properly marked at the time of importation. Two prerequisites must be present for U.S. Customs to assess marking duties under 1304(i): (1) the merchandise was not legally marked at the time of importation; and (2) the merchandise was not subsequently exported, destroyed or marked under Customs supervision before liquidation (the finalization of the Customs’ entry). Headquarters Ruling Letter 731775, dated November 3, 1998.
Additionally, Section 1304(l) of the marking statute sets forth the penalties for persons who intentionally conceal country of origin information on imported articles (e.g., defacing, destroying, removing, altering, covering, obscuring, or obliterating a required origin marking). The penalties imposed for such conduct includes up to one year imprisonment and a monetary penalty of $250,000
The U.S. Customs Regulations set forth detailed requirements for the proper origin marking of imported articles. The next few paragraphs will discuss, in general terms, the regulations’ requirements for conspicuous marking and will also discuss the regulations’ highly detailed marking requirements for imported articles that bear a non-origin geographic location.
Under Customs Regulations (19 CFR 134.41 (b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. For example, Customs generally refuses to acknowledge the marking on the bottom of a retail box as conspicuous.
Section 134.46 considers those specific cases in which the words “U.S.A.,” “American” or “United States” or other cities or locations in the United States or the name of another country or location, other than the country of origin of the good, appear on an imported article and any such non-origin geographic reference may misinform or deceive the ultimate purchaser as to the actual country where the good is produced or manufactured. To the extent that any non-origin geographic reference on the article may mislead or deceive the ultimate purchaser, the law requires that the origin marking must then appear in close proximity to the misleading words or names, at least in similar size, preceded by the words “Made in” or “Product of.” Generally, U.S. Customs takes a broad, pro-consumer approach when determining whether a non-origin reference is likely to confuse or mislead an ultimate purchaser.
U.S. Customs generally interprets the “close proximity” requirement to mean “on the same side or surface.” For example, if a ceramic vase produced in and imported from Romania bears the name “Deruta Best” on its label, the ultimate purchaser may believe that the vase is made in Italy, in the city of Deruta. According to the detailed legislation of the United States, the Romanian producer must indicate the country of origin of the product in close proximity to the name “Deruta.” Additionally, the “Made in Romania” must appear in a comparable type or font as the word “Deruta.”
Further, Section 134.47 regulates the circumstances in which the name of a geographic location, (e.g., Chicago, “United States,” “America,” “Paris”) is indicated as part of a trademark or a trade name, or as part of a souvenir marking. The U.S. Customs Regulation provides that in these cases the item must be legibly, conspicuously, and permanently marked in close proximity or in some other conspicuous location to show the country of origin of the item. Therefore, when Section 134.47 is triggered, the origin marking requirements are slightly less stringent than when Section 134.46 is triggered. Generally, Section 134.47 does not require that the origin marking appear in the same font type as the non-origin geographic reference, nor does it require that the origin marking appear on every side or surface as the non-origin geographic reference.
Using our previous example, under Section 134.47, if the name “Deruta Best” is a trademark or trade name or part of a souvenir marking, then the vase must clearly indicate that it is made in Romania. The words “Made in” or “Product of” must precede the name of the country of origin, in this case Romania. Generally, when Section 134.47 is triggered, the “Made in Romania” need only appear in a conspicuous location and not on every side or surface as the phrase “Deruta Best.”
U.S. Customs’ determination as to whether an origin marking complies with the regulations is largely determined on a case by case basis, and may often depend on the commodity and the nature of the origin marking in comparison to other information on the product packaging. The examples discussed above serve to demonstrate that the country of origin rules of the United States are currently more comprehensive and detailed than those currently proposed by the European Commission. Whether or not the EU will decide to implement marking rules to the level of detail currently in force in the U.S. remain to be seen.
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Stefano M. Viola is an associate lawyer with the Law Firm of Balla & Ciapponi in Rome, Italy. He has recently received an L.L.M. in Global Legal Studies from the John Marshall Law School in Chicago.
Jessica DePinto is with Hodes Keating & Pilon in Chicago, Illinois, where she practices Customs and International Trade Law. She is past chair of the ISBA International & Immigration Law Section Council (2003-04) and of the Chicago Bar Association’s Committee on U.S. Customs and International Trade Law (2004-05).
1. Article 517 of the Italian Criminal Code imposes one year of imprisonment or a monetary penalty of Euro 1,032 to anybody who defrauds the consumer on the origin of a product. National customs authorities can prohibit goods having a label which does not correspond with the actual country of origin from entering the territory.
2. See Commission of the European Communities Explanatory Memorandum to the proposed regulation, Proposal for a COUNCIL REGULATION on the indication of the country of origin of certain products imported from third countries {SEC(2005) 1657}.
3. Currently, the Member States of the EU include: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
4. Bulgaria and Romania joined the EU on January, 1, 2007. At the time the regulation was proposed they were not EU Member States.
5. The European Economic Area is a 19-nation free trade area which includes certain EU Member States, as well as Switzerland, Norway, and Liechtenstein.
6. 19 C.F.R. Section 134.33.
Oct. 22-26—U.S FOREIGN COMMERCIAL SERVICE TRADE MISSION FROM WEST AFRICA. The U.S. Embassy in Cameroon will bring a delegation of 40 African business executives on a trade mission to Chicago. A broad array of business sectors will be included. For information, please contact Eric Tande at: eric@chicagomidwest.com.
Oct 22—COMPETITION IN THE TELECOMMUNICATIONS AND ENERGY MARKETS: A GERMAN PERSPECTIVE. Seminar and reception sponsored by the German American Chamber of Commerce of the Midwest and Baker & McKenzie LLP with the Rotary Club of Chicago. Presentation by Matthias Kurth, President, Bumdesnetzagentur (German Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway). 5:30-7:30 p.m., Baker & McKenzie, One Prudential Plaza, 37th Floor, Chicago. Members of sponsoring organizations - $25; Non-members - $35. For information & registration, please call 312-644-2662; e-mail: seidl@gaccom.org; or see: www.gaccom.org.
Oct. 24 – Nov. 1—U.S. HEALTHCARE TECHNOLOGlES TRADE MISSION TO TURKEY, JORDAN & EGYPT. The U.S. Department of Commerce, U.S. Commercial Service, Office of Global Trade Programs is organizing this three-stop trade mission. Collectively, these three countries are spending over $1 billion annually to provide increased healthcare to their citizens through modernization and upgrading of national and private medical systems. For participation information, please contact Thelma Young at 312/353-5097; e-mail: thelma.young@mail.doc.gov or visit: <http://www.buyusa.gov/healthcare/me_
trademission.html>.
Oct. 25—ZOOM: THE GLOBAL RACE TO FUEL THE CAR OF THE FUTURE. Program sponsored by the Young Professionals of the Chicago Council on Global Affairs. Presentation by Vijay Vaitheeswaran, Global Correspondent, The Economist, and author. 5:30 — 7:30 p.m., The James Hotel, 55 East Ontario Street, Chicago. YP Members - $10; CCGA Members - $20; Non-members -$30. For information & registration, please see: <http://www.thechicagocouncil.org/
chicago_council_event_corporate_detail.php?eventid=1791>.
Oct. 27 – Nov. 2—CHICAGO-ISRAEL BUSINESS INITIATIVE (CIBJ) THIRD ANNUAL MISSION TO ISRAEL. CIBI is a cooperative effort by the America-Israel Chamber of Commerce Chicago to bring together business, state, local and Israel governmental agencies to actively promote their businesses and Illinois’ competitive business advantages. Participants will also take part in The Annual Prime Minister’s Conference and meet with delegations from around the world, focusing on: Innovation, Research & Development as the Basis for International Cooperation and Economic Growth; Sustainable Environmental Technologies; Professional Services as a Leading Export Sector in the Global Market; Financial Conditions for International Business; Introductory Tours of the Galilee and the Negev Regions. Fee: $2,750. For information & registration, please call Michael Schmitt at 312/235-0586; e-mail: m.schmitt@americaisrael.org or see: <www.
chicago-israel.com>.
Nov. 4- 7—FOCUSED TRADE MISSION TO CHILE FOR RETAIL FOOD PRODUCTS. Event sponsored by the Food Export Association of the Midwest USA. U.S. food suppliers are invited to join in this mission to Santiago, Chile. Participants will take part in a market briefing, guided retail tours, one-on-one meetings and a tabletop reception with qualified buyers. Participants will also receive an import analysis and competitive store check for one product. Interpreters and in-country ground transportation provided. Fee: $475. For information & registration, please call Sarah Potter at 217/473-3475 or see: <www.foodexport.org>.
Nov. 4 - 8—BUSINESS DEVEL OPMENT MISSION TO VIETNAM (HANOI & HO CHI MINH CITY). U.S. Secretary of Commerce Carlos Gutierrez will lead a delegation of U.S. businesses to Vietnam. This mission aims to: assist U.S. companies already doing business with Vietnam to increase their business there; assist U.S. companies that are experienced exporters to enter Vietnam for the first time; address obstacles to trade, including transparency, rule of law, trading/distribution rights and intellectual property rights protection. For information & registration, please call 202/482-1360; e-mail: vietnaminission@doc.gov, or see: <www.export.gov/vietnammission/>.
Nov. 6—WIND ENERGY BUSINESS 2007: U.S.-GERMAN OPPORTUNITIES FOR COOPERATION IN WIND ENERGY. Conference sponsored by the German American Chamber of Commerce of the Midwest in coordination with the German Energy Agency and the German Ministry for Economics and Technology. The primary objective is to open a dialog for partnership between two of the world’s leading countries in developing and implementing new wind energy technologies. Des Moines, Iowa. For further information, please call Jens-Olaf Milberg at 312/494-2168; e-mail: Milberg@gaccom.org or see: <www.gaccom.org>.
Nov. 13—CHINESE CUL TURAL BRIEFING SERIES #3: COMMUNICATING EFFECTIVELY WITH CHINESE. Program sponsored by the Chicago Chinese Cultural Institute. This program provides insights on some of the most important communication differences between Chinese and Americans. 6:30 — 8:00 p.m., Chicago Chinese Cultural Institute, 2145-B South China Place, 2nd Floor, Chicago. Fee: $25. For information & registration, please call 312/842-1988 or e-mail: info@chicagocci.com.
Nov. 15—WORKING EFFECTIVELY WITH JAPANESE COLLEAGUES. Seminar sponsored by Japan Intercultural Consulting. Presentation by Rochelle Kopp, Managing Principal, Japan Intercultural Consulting. 8:30 — 4:00 p.m., Courtyard by Marriott Arlington Heights South, 100 West Algonquin Road, Arlington Heights, IL. Fee: $275. For information & registration, please call 773/253-4914; e-mail: seminars@japanintercultural.com: or see: <www.japanintercultural.com>.
Dec. 4—CHINESE CULTURAL BRIEFING SERIES #4: CHINESE ETIQUETTE. Program sponsored by the Chicago Chinese Cultural Institute. This presentation will offer insights on appointment making, respecting authority, business card exchanges, gift exchange, and table manners. 6:30 — 8:00 p.m., Chicago Chinese Cultural Institute, 2145-B South China Place, 2nd Floor, Chicago. Fee: $25. For information & registration, please call 312/842-1988 or e-mail: info@
chicagocci.com
Jan. 21—LATIN AMERICAN INVESTMENT SUMMIT 2008. Event sponsored by InVest Latin America, Ltd. Meet more than 30 developers and vendors representing Costa Rica, Panama, Belize and Mexico. 8:00 a.m. — 6:00 p.m., Sheraton Chicago, 301 East North Water Street, Chicago. Fee: $29. For information & registration, please see: www.bigbluemarbleproperties.com.
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About the Sponsoring Organizations...
Founded in December 1977, The International Trade Association of Greater Chicago (ITA/GC) was incorporated in January 1979 as an Illinois not-for-profit, voluntary business association dedicated to promoting international commerce in all its forms by providing a forum for the exchange of practical information and insight within the international business community.
The Office of Trade and Investment (OTI) of the Illinois Department of Commerce and Economic Opportunity (DCEO) is the State of Illinois’ lead international advocate in promoting job retention and creation in Illinois through International Trade and Investment. To contact the OTI of DCEO, please call 312-814-2828 or visit: <http://www.illinoisbiz.biz/dceo/>.
The U.S. Export Assistance Center Chicago is part of the Commercial Service of the U.S. Department of Commerce and is committed to assisting U.S. firms in realizing their export potential. To contact the U.S. Export Assistance Center, please call 312-353-8040 or visit: www.buyusa.gov/uppermidwest.
Comprised of 26 volunteers appointed by the U.S. Secretary of Commerce, the Illinois District Export Council supports, assists and advises the U.S. Export Assistance Center Chicago in its mission to increase the exports of the United States. For further information, please e-mail: info@illinoisdec.org.
The U.S. Department of Commerce, U.S. Commercial Service in Chicago publishes the U.S.A. Trade World Illinois. In their Fall 2007 issue, they included “Promoting Illinois Education Exports.”
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The U.S. Commercial Service actively seeks to increase U.S. exports, not just of manufactured goods, but also of services. Education is our nation’s 5th largest services export. CS Chicago Trade Specialist Debra Rogers works closely with Illinois colleges and universities to help them market their programs and recruit students internationally.
This past May, Ms. Rogers helped organize a series of events to raise the profile of Illinois as a premier study destination and source of quality education. Key partners in these events were the Study Illinois international education consortium, the U.S. State Department’s Education and Cultural Affairs Bureau, the Illinois Office of Trade & Investment, and the International Trade Association of Greater Chicago.
Study Illinois hosted overseas education advisors and a Commercial Specialist from Bolivia, China, Dominica, Hong Kong, the Philippines, Poland, and Russia for a week-long tour of Illinois campuses. 19 Illinois educational institutions were able to show off their campuses to the international visitors. These advisors are the first point of contact for international students interested in studying in the U.S. They provide invaluable, unbiased counseling on the U.S. educational system, application procedures, college/university selection, and visa interview preparation. Therefore, it is very beneficial to have the opportunity to familiarize them with the educational opportunities Illinois has to offer. Ms. Rogers coordinated with the State Department Bureau of Cultural and Educational Affairs (ECA) to plan the program for the advisors, who were already traveling to the U.S. for the annual NAFSA (international education) conference.
During the week in Chicago, Ms. Rogers also organized the fourth annual “Conference on Attracting International Students to Illinois”, on May 21, which featured the advisors and Commercial Specialist. The guests gave presentations on the demand for U.S., education in their home countries, their educational systems as compared to that of the U.S., and the factors and barriers that influence international students’ decisions to study abroad. The conference was sponsored by the International Trade Association of Greater Chicago.
The following week, at the national NAFSA conference, Study Illinois hosted a luncheon that was attended by overseas education advisors and Commercial Service education specialists from 75 countries around the world, and Study Illinois ad the Illinois educational institutions present has another excellent opportunity to promote Illinois education. The luncheon was generously sponsored by the Illinois Office of Trade and Investment.
It is hoped that these events and activities will result in more international students and professionals coming to study in Illinois and further globalizing our campuses.
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For more information concerning this article or to subscribe to U.S.A. Trade World Illinois, contact Debra H. Rogers at 312-353-6988 or debra.rogers@mail.doc.gov or Julie Carducci at 312-353-8490 or Julie.carducci@mail.doc.gov.
The Office of the United States Trade Representative has provided the following summary of the Free Trade Agreement between the United States and Korea on which negotiations were concluded April 1, 2007.
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The United States concluded historic free trade agreement negotiations with Korea on April 1, 2007. The KORUS FTA will be the United States’ most commercially significant FTA in 15 years. This comprehensive trade agreement will eliminate tariffs and non-tariff barriers to trade in goods and services, promote economic growth, and enhance trade between the United States and Korea.
Korea is a trillion-dollar economy and is the United States’ 7th largest trading partner. In 2006, U.S. goods exported to Korea were $32.5 billion, and increase of 16.9 percent from the previous year. In 2005, U.S. foreign direct investment in Korea totaled roughly $18.8 billion and was concentrated largely in the manufacturing, banking, and wholesale trade sectors. Korea currently enjoys broad access to the U.S. market, and the United States is Korea’s third largest market, importing 17 percent of Korea’s worldwide exported goods.
New Market Access for U.S. Consumer and Industrial Products – Under the agreement, nearly 95 percent of bilateral trade in consumer and industrial products becomes duty-free within three years of entry into force of the agreement, including many key U.S. exports such as industrial and consumer electronic machinery and parts, auto parts, power generation equipment, the majority of chemicals, medical and scientific equipment, motorcycles, and certain wood products. Most remaining tariffs will be eliminated within 10 years. Korea has also agreed to allow trade in remanufactured goods under the agreement. This will provide significant export and investment opportunities for U.S. firms involved in remanufactured products such as medical equipment, machinery, and auto parts.
Expanded Markets for U.S. Farmers and Ranchers – More than half (or $1.6 billion) of current U.S. farm exports to Korea will become duty-free immediately, including wheat, corn for feed, soybeans for crushing, hides and skins, and cotton, plus a broad range of high value agricultural products such as almonds, pistachios, bourbon whiskey, wine, raisins, grape juice, fresh cherries, frozen French fries, frozen orange juice concentrate, and pet food.
U.S. farm products benefiting from expanded market opportunities with two-year tariff phase-outs include avocados, lemons, dried prunes, and sunflower seeds. In addition, U.S. farm products benefiting from expanded market opportunities with five-year tariff phase-outs include food preparations, chocolate and chocolate confectionary, sweet corn, sauces and preparations, other fodder and forage (alfalfa), breads and pastry, grapefruit, and dried mushrooms.
Other farm products that will benefit from expanded market access opportunities through tariff rate quotas include skim and whole milk powder, whey for food use, cheese, dextrins and modified starches, barley, popcorn, and soybeans for food use. Market access was also expanded for beef and pork products, pears, apples, grapes and oranges.
Increased Access for U.S. Autos—The U.S.-Korea FTA contains an unprecedented package of provisions designed to ensure that U.S. automobiles can compete in Korea on a level playing field. Part of that package is an immediate elimination of Korean tariffs on most U.S. priority passenger vehicles and trucks. Korea has also agreed to overhaul its system for taxing cars based on “engine displacement,” including the Special Consumption Tax, the Annual Vehicle Tax, and the Subway/Regional Development Bond. In addition, under the FTA, Korea has committed to address specific auto non-tariff barriers, including current standards, to ensure they do not impede the market access of U.S. autos, and to create an Autos Working Group to serve as an early warning system to address regulatory issues that may develop in the future. Finally, the agreement contains an innovative expedited dispute settlement process for auto-related measures that violate the FTA, with a full snapback of MFN car tariffs in the case of a violation.
Textiles and Apparel: Promoting Cooperation and Benefits—Apparel products made in South Korea will qualify for preferential treatment under the agreement if they use U.S. or Korean fabric and yarn, thereby supporting U.S. fabric and yarn exports and jobs. Customs cooperation commitments between the U.S. and South Korea will allow for verification of claims of origin or preferential treatment, and denial of preferential treatment or entry of claims cannot be verified. A special textile safeguard will provide for temporary tariff relief, if imports under the agreement prove to be damaging to domestic producers.
Promoting the Competitive Process—Korea will take measures to ensure that anticompetitive practices by private parties and activities by government established monopolies or state enterprises do not undermine the benefits of the FTA, while ensuring strengthened due process protections for subjects of competition law enforcement actions, such as providing an opportunity to present evidence and to be heard, to review and rebut information, and to cross examine any persons who testify in administrative hearings of antitrust agencies. In addition, under the agreement, antitrust agencies must have the authority to enter into settlement agreements with respondents in administrative and civil enforcement actions.
Strong Protections for U.S. Investors—The agreement establishes a stable legal framework for U.S. investors operating in Korea. All forms of investment are protected under the agreement. U.S. investors will enjoy in almost all circumstances the right to establish, acquire, and operate investments in Korea on an equal footing with local investors. Investor protections will be backed by a transparent, binding international arbitration mechanism. The investment protections in this FTA are as strong as in any U.S. FTA to date.
Open Services Markets—Korea vastly improved upon its WTO commitments in services, providing meaningful market access commitments that extend across virtually all major sectors. Significant progress was made in the area of express delivery services, where Korea provided greater and more secure access to international delivery services and charted a course for future reform on domestic services. Korea also made great strides on legal services, opening up for the first time to foreign legal consulting services.
Other areas where Korea offered improved access include the following sectors: research and development, legal, accounting, maintenance and repair of equipment, education, health, environmental, telecommunications, audio-visual, and services incidental to mining.
For financial services, Korea will accord substantial market access and adopt a negative list approach to financial services regulation, as well as regulatory reform in important areas such as transparency and regional integration of data processing. In addition, the FTA contains commitments by Korea to begin the process to ensure that the same regulations apply equally to cooperative selling insurance and Korean Post and private insurers.
A More Open Broadcast Market for U.S. Audio-Visual Products—Korea agreed to make significant improvements concerning treatment of broadcasting and audiovisual services, including by allowing within three years 100% foreign ownership of program providers by U.S. firms, reducing quotas on animation and film, increasing allowable content from a single country, and locking in current content quotas in other areas.
An Open and Competitive Telecommunications Market—Korea committed to permit U.S. controlled companies to own 100 percent of Korean phone companies, up from a current cap of 49 percent, within two years. The agreement requires the parties to ensure access to telecommunications services. In addition, the agreement requires the parties to endure that dominate phone companies provide cost-based interconnection and access to essential facilities, including submarine cable landing stations. The agreement also establishes groundbreaking provisions to safeguard operators’ technology choices, particularly in wireless technologies, where U.S. service and equipment suppliers have strong competitive advantages.
E-Commerce: Free Trade in the Digital Age—Korea and the United States agreed to non-discriminatory and duty-free treatment of all digital products (e.g., software and audio-visual products), whether imported in physical form or over the Internet, and to principles promoting access to the Internet to conduct electronic commerce.
Pharmaceutical and Medical Devices—The agreement contains provisions on pharmaceutical and medical device market access issues that go far beyond those in other U.S. FTAs. The agreement includes commitments to improve access to innovative products and to endure the transparent, predictable, and non-discriminatory pricing and reimbursement of innovative and generic pharmaceutical products and medical devices. In addition, the agreement contains provisions to enhance ethical business practices, improve the predictability and transparency of the pricing and reimbursement system, and to establish a Medicines and Medical Devices Committee to monitor implementation of commitments in this area. The agreement also requires Korea to create an independent mechanism to review pricing and reimbursement decisions.
Greater Protection for Intellectual Property Rights—The agreement provides standards for protection and enforcement of a broad range of intellectual property rights, including trademarks, copyrights and patents, which are consistent with U.S. standards and will provide effective protection and enforcement for emerging technologies.
These standards include state-of-the-art protections for digital products such as U.S. software, music, text, and videos. Additionally, the agreement provides for stronger, more comprehensive protection for patents, trademarks and test data, as well as rules on civil, criminal and customs enforcement, and a commitment to establish a patent linkage system to endure adequate enforcement of pharmaceutical patent rights.
Commitments and Cooperation to Protect the Environment—The Agreement commits the parties to effectively enforce their own domestic environmental laws and adopt, maintain and implement laws, regulations, and all other measures to fulfill obligations under the seven covered multilateral environmental agreements (MEAs). All obligations under the Environmental Chapter are subject to the same dispute settlement procedures and enforcement mechanisms as commercial obligations. In addition, the agreement also requires both parties to implement a process for public submissions to ensure consideration of civil society views on the implementation of the Chapter. The agreement is complimented by an environmental cooperation agreement that provides a framework for undertaking cooperative activities on a bilateral, regional, and multilateral basis.
Internationally-recognized Labor Rights—The Agreement includes an enforceable reciprocal obligation for the countries to adopt and maintain in their laws and practice the fundamental labor rights as stated in the 1998 ILO Declaration on Fundamental Principles and Rights at Work, including a prohibition on the worst forms of child labor. Neither Party may waive or derogate from laws implementing this obligation in a manner affecting trade or investment. There is also an enforceable obligation to effectively enforce labor laws related to those rights and to working conditions. These labor obligations are subject to the same dispute settlement procedures and enforcement mechanisms as commercial obligations. The Agreement also establishes a Cooperative Mechanism for the governments to develop cooperative activities aimed at promotion and advancing fundamental labor rights.
Open and Fair Governmental Procurement—The government procurement obligations build and expand on the two countries’ obligations under the plurilateral WTO Agreement on Government Procurement (GPA). Under the FTA, Korea will provide U.S. firms with non-discriminatory access to nine Korean central government entities that are not covered under the GPA. The FTA will also expand procurement open to U.S. suppliers by setting a threshold (contract values above which procurement is opened) that is nearly half the GPA threshold. The FTA also includes improvements in procurement practices, including reductions in tendering periods for purchasing commercial goods and services, and improvements in making procurement notices and other information available electronically. The FTA provides for a working group on governmental procurement to take up any issues, in particular, those related to information technology.
Increased Transparency—The parties have committed to strong transparency obligations including commitments by their respective national governments to publish proposed regulations in advance, allow a reasonable opportunity to comment on the proposed regulations, address significant substantive comments received, and publish final regulations in an official journal of national circulation. Additional transparency obligations are included in a wide range of chapters, including National Treatment and Market Access for Goods, Customs Administration and Trade Facilitation, TBT, Cross-Border Trade in Services, Financial Services, Telecommunications, Labor, Environment, Competition-Related Matters, and Pharmaceuticals and Medical Devices.
This agreement’s dispute settlement mechanisms provide for open public hearings, public access to documents, and the opportunity for third parties to submit reviews.
Strengthened Protection against Technical Barriers to Trade—The Chapter on Technical Barriers to Trade builds upon and reinforced Korea’s commitments in the WTO Agreement on Technical Barriers to Trade. Notably, the Chapter goes beyond other TBT chapters in recent U.S. FTAs through disciplines to promote transparency in the way governments develop and apply technical regulations and related conformity assessment procedures (e.g., testing and certification). This agreement also contains commitments by the Korean government to address concerns relating to specific emissions and safety standards issues. Further, the agreement provides for the establishment of an Autos Working Group to address regulatory issues that may arise in the future. Finally, the Chapter establishes a committee mechanism to allow for quick resolutions of problems as they arise, backed by FTA dispute settlement provisions if needed.
Customs Administration and Rules of Origin—The United States and Korea have agreed on significant commitments on customs administration, rules of origin, and origin procedures that will ensure that the U.S. and Korean private sector stakeholders lock-in and maximize the benefits of the FTA, including provisions on transparency and publication, efficient release of goods, automation, express shipments, advance rulings, importer focused origin procedures, and comprehensive product-specific rules of origin.
Jefferson Mok of the National Immigrant Justice Center has pointed out to the readers of The Globe that the Office of Chief Counsel for the Chicago Immigration Court has changed its phone number. The new number is (312) 984-2400 and has already been activated. The previous number, (312) 353-7317, will no longer pick up and does not provide information about the change.
Jeff, thank you for keeping us informed.
Jefferson Mok
Pro Bono Project Coordinator
National Immigrant Justice Center
A Heartland Alliance Partner
208 S. LaSalle Street, Suite 1818
Chicago, IL 60604
Phone: 312-660-1307
Fax: 312-660-1505
www.immigrantjustice.org