“United States – Korea Free Trade Agreement”

“United States – Korea Free Trade Agreement”

石塚幾太郎さんから:

?2011年暮れ、USTR(米通商代表部)のカトラー代表補は、「TPPでは米韓FTAと同じか
、それ以上の高いレベルの自由化を求める」と言っていました。米韓FTAを見れば、ど
れだけ恐ろしい協定であるかご理解いただけるでしょう。これまで、米韓FTAの条文を
見ることができないと言って、韓国情報に頼る学者、評論家が、「毒素条項」「ラチェ
ット規定」など一面的な表現をして解説していますが、それ以上です。

例えば、第5章の医薬品と医療機器では、韓国における医療費および償還を「米韓合同
委員会」で決定する。第18章の知的財産権では、最初に米国法に準拠すると書かれてい
ます。また、環境問題では鯨の混獲を防ぐため、合同の漁業委員会を設置して指導する
。(本文1344頁) このように、ほとんどの領域において米国が韓国の政策に介入可能
で、属国扱いになっています。法的には、合衆国憲法>連邦法>州法>条約>韓国国内
法になっています。

米国議会に提出し、審議後批准された「米韓FTA実施法(条文+実施法+付属文書+解
説書」が、ほぼ一年前にUSTRのHPで公表されました。昨年夏頃までアクセス出来ました
が、今は私のPCから見ることができません。昨年夏にダウンロードしたPDFファイルを
このグループの「ファイル」に保存しました。
「South Korea Full.pdf」英文1413頁
条文  1~1084頁
実施法 1084~1171頁
付属文書 1172~1413頁
Summary 1245~1273頁(29頁)

条文を読むのは大変なので、Summaryだけでも読んでいただければ、ご理解が進むと思
います。概略を理解することができるようにテキスト化しました。(機械翻訳利用可能

出来れば、このグループに参加されている方々で、ボランティアがいらっしゃいました
ら、分担して、Summaryの概要版作成をお願いしたいのですが。
なお、2009年Summaryを長谷川さんが翻訳しています。それと見比べて下さい。
長谷川さん翻訳
http://ameblo.jp/free-and-obligation/theme-10044779660.html

“United States – Korea Free Trade Agreement”
“Implementing Legisilation and Supporting Documentation”
(P1245-P1273)

THE UNITED STATES -KOREA FREE TRADE AGREEMENT
Summary of the Agreement
This summary briefly describes key provisions of the United States-Korea Free
Trade Agreement (“Agreement”) that the United States has concluded with the
Republic of Korea (“Korea”) and represents an authoritative expression of Ad
ministration views regarding the interpretation of the Agreement both for purp
oses of U.S. international obligations and domestic law.

The Agreement was signed on June 30, 2007. On December 3, 2010, Korea and the
United States resolved outstanding issues related to the Agreement. As part of
this resolution, the United States negotiated important new commitments on ta
riffs, nontariff barriers such as Korea’s automotive safety standards, transp
arency, and a special automotive safeguard to protect U.S. workers from potent
ial import surges. Where relevant, these new commitments, which are principall
y embodied in an exchange of letters between Korea and the United States dated
February 10, 2011 (“February 10, 2011 Exchange of Letters”), are discussed
further below.

Preamble

The Preamble to the Agreement provides the Parties’underlying objectives in e
ntering into the Agreement and provides context for the provisions that follow
. It includes the following statement:

“Agreeing that foreign investors are not hereby accorded greater substantive
rights with respect to investment protections than domestic investors under do
mestic law where, as in the United States, protections of investor rights unde
r domestic law equal or exceed those set forth in this Agreement.”

This statement clarifies that, as provided in the Bipartisan Trade Promotion A
uthority Act of 2002, under the Agreement foreign investors in the United Stat
es are not to be accorded greater substantive rights with respect to investmen
t protections than U.S. investors in the United States.

Chapter One: Initial Provisions and Definitions

Section A of Chapter One sets out provisions establishing a free trade area an
d affirming the Parties’existing rights and obligations with respect to each
other under the Marrakesh Agreement Establishing the World Trade Organization
(WTO) and other agreements to which
they are party.

Section B defines certain terms that recur in various chapters of the Agreemen
t.

Chapter Two: National Treatment and Market Access for Goods

Chapter Two and its relevant annexes and appendices set out the Agreement’s p
rincipal rules governing trade in goods. Each Party must treat products from t
he other Party in a nondiscriminatory manner, provide for the phase-out and el
imination of tariffs on “originating” goods (as defined in Chapter Six) trad
ed between the Parties, and eliminate a wide variety of non-tariff trade barri
ers that restrict or distort trade flows.

Tariff Elimination. Chapter Two provides for the elimination of customs duties
on originating goods traded between the Parties. Duties on most trade in indu
strial and consumer goods will be eliminated within five years after the Agree
ment enters into force. Duties on almost all other goods will be phased out wi
thin 10 years. Some footwear, fishery, and agricultural goods will have longer
periods for elimination of duties or be subject to other provisions, includin
g, in some cases, the application of preferential tariff-rate quotas (TRQs). A
nnex 2-B and the General Notes to the U.S. and Korean Schedules to Annex 2-B i
nclude detailed provisions on staging of tariff reductions and application of
TRQs for certain fishery products and agricultural goods. The chapter provides
that the Parties may agree to speed up tariff phase-outs on a product-byprodu
ct basis after the Agreement takes effect.

Pursuant to the February 10, 2011 Exchange of Letters, the United States will
maintain its tariff on Korean cars until the fifth year after the Agreement en
ters into force, while Korea will reduce its tariff on U.S. cars by one half o
n the date that the Agreement enters into force and eliminate it at the same t
ime the U.S. auto tariff is eliminated. Korea and the United States will accel
erate the elimination of tariffs on electric cars, phasing them out in equal a
nnual increments until they are eliminated in the fifth year (with Korea reduc
ing its tariff by one half on the date that the Agreement enters into force).
The United States will maintain its 25 percent U.S. truck tariff
until the eighth year and then phase it out in three equal increments until it
is eliminated in year ten. (Korea will eliminate its tariff on trucks immedia
tely as agreed in 2007.) In addition, Korea will delay for two years, until Ja
nuary 1, 2016, the elimination of its tariffs on U.S. pork classified in one t
ariff line.

Waiver of Customs Duties. The Parties may not adopt new duty waivers or expand
existing duty waivers conditioned on the fulfillment of a performance require
ment. Chapter Two defines the term “performance requirements”so as not to re
strict a Party’s ability to provide duty drawback on goods imported from the
other Party.

Temporary Admission. The Parties will provide duty-free temporary admission fo
r certain products. Such items include professional equipment, goods for displ
ay or demonstration, and commercial samples. Chapter Two also includes specifi
c provisions on transit of containers used in international traffic.

Import/Export Restrictions, Fees, and Formalities. The chapter clarifies that
restrictions prohibited under the Agreement and the General Agreement on Tarif
fs and Trade (GATT) 1994 include export and import price requirements (except
under antidumping and countervailing duty orders and undertakings) and import
licensing conditioned on the fulfillment of a performance requirement. In addi
tion, a Party must limit all fees and charges imposed on or in connection with
importation or exportation to the approximate cost of services rendered. Neit
her Party may apply a merchandise processing fee on imports of “originating”
goods. In addition, Korea will amend its Special Consumption Tax and Annual Ve
hicle Tax on motor vehicles to reduce overall tax rates and decrease the tax d
isparity between different categories of motor vehicles. In the February 10, 2
011 Exchange of Letters, Korea agreed to adhere to additional transparency obl
igations in the event that it adopts new automotive taxes based on greenhouse
gas emissions or fuel economy.

Distinctive Products. Korea will recognize Bourbon Whiskey and Tennessee Whisk
ey as “distinctive products”of the United States, meaning that Korea will no
t permit the sale of any product as Bourbon Whiskey or Tennessee Whiskey unles
s it was manufactured in the United States in accordance with applicable laws
and regulations. Similarly, the United States will recognize Andong Soju and G
yeongju Beopju as “distinctive products”of Korea.

Committee on Trade in Goods. The Parties will establish a Committee on Trade i
n Goods to consider matters arising under Chapters Two, Six (Rules of Origin a
nd Origin Procedures), and Seven (Customs Administration and Trade Facilitatio
n). The committee’s functions include promoting trade in goods and addressing
barriers to trade in goods between the Parties.

Chapter Three: Agriculture

Chapter Three contains special provisions covering trade in agricultural goods
.

TRQs. Under Chapter Three each government must administer its tariff-rate quot
as in a manner that is transparent, non-discriminatory, responsive to market c
onditions, and minimally burdensome on trade. The chapter requires the Parties
to make every effort to administer TRQs in a manner that allows importers to
fully utilize import quotas. In addition, the chapter provides that the Partie
s may not condition application for, or utilization of, quota allocations on t
he reexport of a good.

Safeguards. Chapter Three also sets out a safeguard mechanism that will permit
Korea to impose an additional duty on specified agricultural products if impo
rts of those products from the United States exceed an established volume “tr
igger.”The list of products as well as trigger volumes and duty rates are set
out in Annex 3-A of the Agreement. A safeguard measure will remain in force u
ntil the end of the year in which the measure applies. Korea may not apply an
agricultural safeguard on a good after the period specified for that product i
n Annex 3-A.

Korea may not apply a safeguard measure on a good that is already the subject
of a safeguard measure under either Chapter Ten (Trade Remedies) of the Agreem
ent or the WTO Agreement on Safeguards. All agricultural safeguard measures mu
st be implemented in a transparent
manner and, on request, Korea must consult with the United States regarding an
y measure it applies.

Chapter Three prohibits both Parties from imposing safeguard duties pursuant t
o the WTO Agreement on Agriculture on “originating”goods.

Additional Provisions. Chapter Three provides for the creation of a Committee
on Agricultural Trade. The committee will be established within 90 days after
the Agreement enters into force and will provide a forum for promoting coopera
tion in the implementation and administration of the chapter as well as for co
nsultations on agricultural trade.

Chapter Four: Textiles and Apparel

Chapter Four contains special provisions covering trade in “originating”text
ile and apparel goods.

Safeguards. The chapter establishes a transitional safeguard procedure for tex
tile and apparel goods, under which the importing Party may temporarily impose
additional duties up to the level of the normal trade relations most-favored-
nation (NTR/MFN) duty rates on imports of textile or apparel goods that cause,
or threaten to cause, serious damage to a domestic industry as a result of th
e elimination or reduction of duties under the Agreement. An importing Party m
ay impose a textile safeguard measure only once on the same textile or apparel
good. The measure may not be in place for more than two years, or four years
if the measure is extended. A Party may not take or maintain a textile safegua
rd against a good beyond ten years after the date the Party must eliminate its
customs duties on the good pursuant to the Agreement. A Party may not apply a
textile safeguard measure to a good while the good is subject to a safeguard
measure under (i) Chapter Ten (Trade Remedies) or (ii) Article XIX of the GATT
1994 and the WTO Agreement on Safeguards.

A Party imposing a safeguard measure under Chapter Four must provide the expor
ting Party with mutually agreed compensation in the form of trade concessions
for textile or apparel goods that have substantially equivalent trade effects
or that are equivalent to the increased duties resulting from application of t
he safeguard measure. If the Parties cannot agree on compensation, the exporti
ng Party may raise duties on any goods from the importing Party in an amount t
hat has a value substantially equivalent to the increased duties resulting fro
m application of the safeguard measure.

Rules of Origin and Related Matters. A textile or apparel good will generally
qualify as an “originating”good eligible to receive preferential treatment u
nder the Agreement only if all processing from the yarn stage to the final pro
duct (e.g., yarn-spinning, fabric production, cutting, and assembly) takes pla
ce in the United States, Korea, or both, or if there is an applicable change i
n tariff classification under the specific rules of origin contained in Annex
4-A of the Agreement.

Chapter Four sets out special rules for determining whether a textile or appar
el good is an “originating”good, including a de minimis exception for non-or
iginating yarns or fibers, a process for designating inputs not available in c
ommercial quantities, a rule for treatment of sets, and consultation provision
s.

The de minimis rule applies to goods that ordinarily would not be considered
“originating”goods because certain of their fibers or yarns do not undergo a
n applicable change in tariff classification. Under the rule, the Parties will
consider a good to be “originating”if those fibers or yarns constitute seve
n percent or less of the total weight of the component of the good that determ
ines the classification. This special rule does not apply to goods containing
elastomeric yarns in the component of the good that determines the classificat
ion.

Annex 4-B of the Agreement sets out a process for creating a list of fabrics,
yarns, and fibers that a Party determines are not available in commercial quan
tities in a timely manner from producers in its territory. A textile or appare
l good that includes the fabrics, yarns, or fibers included in this list will
be treated as if it is “originating”for purposes of the specific rules of or
igin in Annex 4-A of the Agreement. A Party may remove a fabric, yarn, or fibe
r from the list if it determines that the fabric, yarn, or fiber has become av
ailable in commercial quantities.

Customs Cooperation. Chapter Four commits the Parties to cooperate in enforcin
g their laws affecting trade in textile and apparel goods, to ensure the accur
acy of claims of origin, and to prevent circumvention of international agreeme
nts affecting trade in textile and apparel goods. The chapter also requires Ko
rea to provide the United States specified information concerning entities eng
aged in the production of textile or apparel goods in its territory, including
any potential circumvention.

Chapter Four provides that, at the request of the importing Party, the exporti
ng Party must conduct a verification to determine that a claim of origin for a
textile or apparel product is accurate. In addition, the chapter provides tha
t under certain circumstances the exporting Party must conduct a verification
of an enterprise in its territory to determine whether it is complying with th
e Parties’customs laws applicable to textile trade. A verification may includ
e visits to the premises of the exporter or producer of the goods in question.
If there is insufficient information to make the relevant determination, or i
f an enterprise provides incorrect information, the importing Party may take a
ppropriate action, which may include denying application of preferential tarif
f treatment to the goods in question or to similar textile or apparel goods ex
ported or produced by the person subject to the verification.

Chapter Four also establishes a Committee on Textile and Apparel Trade Matters
to consider issues arising under the chapter.

Chapter Five: Pharmaceutical Products and Medical Devices

Chapter Five sets out provisions related to the pricing and reimbursement of p
harmaceutical products and medical devices. The chapter recognizes the Parties
’shared commitment to promoting and facilitating access to high-quality paten
ted and generic pharmaceutical products and medical devices, and affirms the i
mportance of several key principles in pursuing these objectives.

Access to Innovation: Chapter Five calls for the Parties to apply fair, reason
able, and nondiscriminatory procedures when they operate national-level listin
g and reimbursement regimes for pharmaceutical products and medical devices. I
n operating such a system, a Party must base reimbursement determinations on m
arket prices or appropriately recognize the value of patented products and dev
ices. A Party must also permit manufacturers to apply for increased reimbursem
ent amounts, including for additional medical indications, based on evidence o
f a product’s or device’s safety or efficacy.

Transparency: The chapter also commits each Party to ensure that its measures
governing pricing and reimbursement for pharmaceutical products and medical de
vices are transparent and predictable. An exchange of letters appended to the
Agreement calls for Korea to establish and maintain an independent body to rev
iew pricing and reimbursement decisions on pharmaceutical products and medical
devices.

Dissemination of Information: Each Party must allow pharmaceutical manufacture
rs to publish certain information regarding their approved products on the Int
ernet.

Ethical Business Practices: Chapter Five also calls for the Parties to maintai
n and enforce measures to prohibit manufacturers and suppliers from providing
improper inducements to health care professionals or institutions for listing,
purchasing, or prescribing their devices or products.

Cooperation: Chapter Five establishes a Medicines and Medical Devices Committe
e, co-chaired by health and trade officials from each Party, to monitor and su
pport implementation of the chapter and to provide for continued dialogue betw
een the Parties on emerging health care policy issues. The chapter also calls
for each Party to facilitate consideration of requests from manufacturers to r
ecognize the results of conformity assessment procedures that bodies in the ot
her Party’s territory have conducted.

Chapter Six: Rules of Origin and Origin Procedures

To benefit from various trade preferences provided under the Agreement, includ
ing reduced duties, a good must qualify as an “originating”good under the ru
les of origin set out in Chapter Six and Annex 6-A. These rules ensure that th
e preferential tariff treatment and other benefits of the Agreement accrue pri
marily to firms or individuals that produce or manufacture goods in the Partie
s’territories.

Key Concepts. Chapter Six provides general criteria under which a good may qua
lify as “originating:”

-When the good is wholly obtained or produced in Korea, the United States, or
both (e.g.,crops grown or minerals extracted in the United States); or

-When the good is produced entirely in the territory of Korea, the United Stat
es, or both and: (1) non-originating materials used in the production of the g
ood undergo a specified change in tariff classification in Korea, the United S
tates, or both; or (2) meets any applicable “regional value content”requirem
ent (see below); and (3) satisfies all other requirements of Chapter Six, incl
uding Annex 6-A; or

-When the good is produced in Korea, the United States, or both, exclusively f
rom “originating”materials.

De Minimis. Even if a good does not undergo a specified change in tariff class
ification, it will be treated as an originating good if the value of non-origi
nating materials that have been used in the production of the good and do not
undergo the required change in tariff classification does not exceed ten perce
nt of the adjusted value of the good, and the good otherwise meets the chapter
’s criteria. This de minimis exception does not apply to certain agricultural
and fisheries goods, and the Agreement includes a separate de minimis excepti
on for textile and apparel goods.

Regional Value Content. Some origin rules under the Agreement require that cer
tain goods meet a “regional value content”test in order to qualify as “orig
inating,”meaning that a specified percentage of the value of the good must be
attributable to originating materials. In general, the Agreement provides two
methods for calculating that percentage: (1) the “build-down method” (based
on the value of non-originating materials used); and (2) the “build-up metho
d”(based on the value of originating materials used). The regional value cont
ent of certain automotive goods may also be calculated on the basis of their n
et cost. Finally, standard accessories, spare parts, and tools delivered with
a good are considered part of the material making up the good so long as these
items are not separately classified or invoiced and their quantities and valu
es are customary. The de minimis rule does not apply in calculating regional v
alue content.

Claims for Preferential Treatment. Under Chapter Six, importers who wish to cl
aim preferential tariff treatment for a particular good must be prepared to su
bmit, on the request of the importing Party’s customs authority, a statement
explaining why the good qualifies as an originating good. A Party may only den
y a claim for preferential treatment through a written determination that the
claim is invalid as a matter of fact or law. The chapter establishes a procedu
re for filing claims for preferential treatment for up to one year after a goo
d is imported and for seeking a refund of any excess duties paid. The chapter
also prohibits a Party from penalizing an importer if the importer promptly an
d voluntarily corrects an incorrect claim and pays any duties owed.

Verification. Each Party must ensure that its customs authority is empowered t
o conduct verifications for purposes of determining whether a good is an origi
nating good. Where an importing Party determines through a verification that a
n importer, exporter, or producer has engaged in a pattern of conduct in provi
ding false or unsupported statements, declarations, or certifications that a g
ood is an originating good, the Party may suspend preferential tariff treatmen
t to identical goods from that importer, exporter, or producer until the impor
ting Party
determines that the importer, exporter, or producer is in compliance with the
rules set out in the chapter.

Additional Rules. Chapter Six provides specific rules with respect to the trea
tment of (1) packing materials and containers; (2) indirect materials; (3) fun
gible goods; and (4) sets of goods for purposes of determining origin. The cha
pter provides that a Party may not treat a good as originating if the good und
ergoes any operation in a third country other than being unloaded, reloaded, o
r preserved in good condition, or if it is shipped through a third country and
does not remain under the control of customs authorities there. The chapter a
lso provides that the Parties will meet to discuss whether to develop common g
uidelines for interpreting, applying, and administering Chapters Six and Seven
.

(後略)

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