The U.S.-Chile Free Trade Agreement: Economic and Trade Policy Issues

RL31144 -- The U.S.-Chile Free Trade Agreement: Economic and Trade Policy Issues

Updated September 10, 2003

CONTENTS

Summary

Why a U.S.-Chile FTA?

Economic Reform in Chile

Chile's Trade Policies and Relations

The U.S.-Chile Bilateral Trade Relationship

Review of Negotiations and Policy Issues

Tariffs and Market Access

Services Trade

Trade Remedies

IPR and Investment

Labor and Environment

Congress and the U.S.-Chile FTA

The U.S.-Chile FTA in Brief

Labor Dispute Settlement Provisions

Capital Controls

Temporary Business Personnel and Workers

Key Provisions

Major Points of Debate

Appendix A. Chronology of U.S.-Chile FTA

Appendix B. U.S.-Chile Merchandise Trade

Appendix C. Major U.S.-Chile Product Trade and Tariff Rates

Appendix D. Chile's Multilateral, Regional, and Bilateral Trade Agreements

Footnotes

<font size="+1">List of Tables</font>

Table 1. Chile: Selected Economic and Financial Indicators

Table 2. U.S.-Chile Merchandise Trade, 1985-2002

Table 3. Major U.S.-Chile Product Trade and Tariff Rates, 2002/2003

Summary

On June 6, 2003, the United States and Chile signed a long anticipated bilateral free trade agreement (FTA) in Miami, Florida, concluding a 14-round negotiation process that began on December 6, 2000. Following hearings before the House Ways and Means, Senate Finance, and both Judiciary Committees, the House passed the U.S.-Chile Free Trade Implementation Act (H.R. 2738) by a vote of 270 to 156, followed by the Senate one week later, 66 to 31. President George W. Bush signed the bill into law on September 3, 2003 (P.L. 108-77) and it will take effect on January 1, 2004.

Chile has now joined a select group of only five other countries that have an FTA with the United States (Canada, Mexico, Jordan, Singapore, and Israel). Although many point to the potential for trade growth between the two countries, the significance of this FTA runs deeper: 1) it is the first agreement with a South American country; 2) it is an agreement with one of the most open and reformed economies in Latin America; 3) it exemplifies how trade policy issues, including those with social and economic implications, can be resolved between a small developing country and a large developed one; and, 4) it may prove to be a step toward completing the Free Trade Area of the Americas.

The FTA allows increased market access, with 85% of bilateral trade in consumer and industrial products eligible for duty-free treatment immediately, and other product tariff rates being reduced over time. Some 75% of U.S. farm exports will enter Chile duty-free within four years and all duties will be fully phased out within 12 years after implementation of the agreement. For Chile, 95% of its export products gain duty-free status immediately and only 1.2% fall into the longest 12-year phase-out period. Other critical issues resolved included environment and labor provisions, more open government procurement rules, increased access for services trade, greater protection of U.S. investment and intellectual property, and creation of a new e-commerce chapter. The trade remedies chapter is limited to safeguards so there is no change to the antidumping and countervailing duty options currently available to both countries.

The bilateral negotiation was a challenging exercise for both countries and although a broad-based agreement was struck, a few issues were controversial for many Members of Congress, as expressed at hearings in both the House and the Senate. Overall, because there are now multiple FTAs being contemplated, there was an overarching concern that provisions in the Chile FTA might become a "template" for others that follow. In particular, attention turned to language governing dispute resolution treatment of labor provisions, and financial transfers (capital controls), as well as the temporary entry for business persons. These and other issues are discussed in this report, which provides background and analysis on Chile's economy, trade relations, and the bilateral FTA. Because Congress has completed action on this FTA and it has become law, this is the final version of the report.

On June 6, 2003, the United States and Chile signed a long anticipated bilateral free trade agreement (FTA) in Miami, Florida, concluding a 14-round negotiation process that began on December 6, 2000. Following hearings before the House Ways and Means, Senate Finance, and both Judiciary Committees, the House passed the U.S.-Chile Free Trade Implementation Act (H.R. 2738) by a vote of 270 to 156, followed by the Senate one week later, 66 to 31. President George W. Bush signed the bill into law on September 3, 2003 (P.L. 108-77) and it will take effect on January 1, 2004 (see Appendix A for a chronology and Appendix B for a summary of U.S.-Chile bilateral trade).

The bilateral negotiation was a challenging exercise for both countries and although a comprehensive agreement was struck, some issues were contentious, as expressed in debate at hearings in both the House and the Senate. Overall, because there are now multiple FTAs being considered, concern arose over the potential for the Chilean provisions to become a "template" for those in other FTAs. Specifically, immigration, investment (capital controls), and labor provisions emerged as the hot topics, and many Members of Congress effectively sent the message that language in the U.S.-Chile FTA would not be acceptable in future trade agreements. A summary of these issues appears in the back of this report. Because the FTA has been signed into law, this is the final version of the report.

Why a U.S.-Chile FTA?

Trade agreements evoke strong reactions from supporters and opponents alike. Nowhere is this debate more alive than in the U.S. Congress, which for eight years was at an impasse over passage of trade promotion authority (TPA) until it renewed TPA in August 2002 as part of the Trade Act of 2002 (P.L. 107-210). Without TPA, the politically charged nature of trade negotiations made passage of implementing legislation for multilateral and regional agreements more uncertain. In addition to complex multilateral trade arrangements, the United States has pursued simpler bilateral agreements that were expected to be less politically sensitive and therefore more likely to gain congressional approval, especially if TPA had not been renewed. On September 28, 2001, for example, President Bush signed into law the implementing legislation for the U.S.-Jordan FTA (P.L. 107-43). Bilateral FTAs with Singapore and Chile were pursued with the expectation of similar support.

Opposition to bilateral FTAs, however, has heated up for both economic and political reasons. Economists, even those who support free trade, point out that bilateral (and regional) agreements are poor substitutes for multilateral arrangements. Although both countries in a bilateral arrangement may see their welfare improve through trade creation, the agreement may also cause trade (and investment) diversion, which can negatively affect those both in and outside of the agreement. Although trade diversion is often difficult to assess, it is a real consideration in pursuing negotiations below the multilateral level.(1)

In addition to economists' questions over the trade effects of bilateral agreements, there is vehement opposition by various interest groups. Perhaps first among many are the import-competing industries that bear the brunt of the adjustment costs of a trade agreement. Despite the welfare gains to society as a whole (e.g. more efficient resource allocation, lower priced imports, greater selection of goods), those industries subject to increased competition face potentially serious pressure to adjust their operations to become more efficient, lower-cost producers. Competition is generally accepted as a tenet of doing business in a market economy, and on a national level, these adjustment costs may be small and lead to greater productivity. When the rules change because of trade agreements, however, affected workers and industries resist strongly and their concerns are an integral part of the trade liberalization debate.

Strong criticism of virtually all trade agreements also arises from groups arguing that any arrangement is unacceptable unless it includes strong provisions addressing the impact of the trade agreement on labor and environmental conditions. When joined with other groups protesting "globalization" in general, a formidable coalition is created. Collectively, these interest groups raise the question of whether trade agreements enhance the social welfare of participating countries. Given the intensity of debate and amount of effort and resources needed to consummate an FTA, some questioned whether the marginal gains from a U.S.-Chile bilateral agreement would be justified given that Chile is a small and distant U.S. trade partner, and already has a relatively open economy.

Advocates of the U.S.-Chile FTA responded that it offered both economic and political gains, with Chile seen as a potential strategic foothold in South America, a region historically linked closely with Europe and Asia. From an economic perspective, U.S. business interests considered Chile a prime target for expanding exports and repeatedly stressed the need to reduce the higher tariffs they faced relative to Canada and other countries that already had FTAs with Chile. Lower-cost U.S. imports from Chile also provided benefits to individual and business consumers. Further, some of Chile's exports to the United States have zero or low tariffs already, suggesting that the adjustment costs to import-competing firms could be low (see Appendix C). U.S. investors also saw Chile's political and economic stability as attractive for foreign investment.

From a trade strategy perspective, it was argued that a U.S.-Chile FTA would support U.S. initiatives with the Free Trade Area of the Americas (FTAA), currently under negotiation, by encouraging greater Chilean support for U.S. issues and perhaps even helping define key negotiating parameters (e.g. labor and environment provisions) that could be precedent-setting.(2) The U.S.-Chile FTA was also offered as a compelling case for passage of TPA legislation, which would serve as a signal to Latin America and the rest of the world of the U.S. commitment to pursue and complete trade agreements.

Chile also saw a logic in prioritizing an FTA with the United States because export promotion has been a building block of its growth and development strategy. Guaranteed access to the large U.S. market offers opportunities for increased and perhaps more diversified trade. Chile also envisioned increased foreign investment as an attendant benefit of the FTA, and argued that its well-established track record on economic and trade reform made it the Latin American country most ready to negotiate a bilateral FTA. In short, despite its relatively small economy, Chile presented itself as a country ready, willing, and able to negotiate a mutually beneficial FTA with the United States.

In addition to the benefits that were expected to accrue to U.S. businesses, investors, and consumers, an FTA with Chile was also seen as an opportunity for the United States to support economic and trade reform in Latin America, for which Chile had become a regional model. Trade was a big part of the economic growth and development story in Chile, and linked directly to increased productivity, higher standards of living, greater diffusion of technology, and overall modernization of the country. Therefore, the United States, it was argued, should support these gains because they are a foundation for continued economic, social, and political stability and progress in the region. Trade agreements were also presented as playing a role in development and have the added benefit of "locking in" reforms, lending a sense of permanence to economic and political conditions that is conducive to attracting and keeping foreign trade and investment.

Clearly, there were competing viewpoints on the desirability of a U.S.-Chile FTA. A look at Chile's economic development is one way of addressing many, if not all, of the issues highlighted above precisely because Chile has been an early and aggressive reformer of economic and trade policy in Latin America. In this light, to the extent that the welfare of Chilean society has improved with economic openness, it may be one indication that freer trade can support a broad array of economic and political goals. It is with this approach in mind that this report integrates a discussion of Chile's economic growth and development with trade policy issues raised in both the United States and Chile.

Economic Reform in Chile

Chile has become one of the most open, reformed, and developed economies in Latin America, a rebuilding process initiated under the military dictatorship of Augusto Pinochet (1973-90) and accelerated under civilian government following the return of democratic rule in 1990. Chile transformed its state-dominated economy into one grounded in market-based economic principles, first by stabilizing the economy and then restructuring it (e.g., lifting price controls, deregulating labor markets, privatizing state enterprises, reducing trade and exchange rate restrictions). As part of the process, Chile weathered some devastating domestic setbacks, including the 1982 economic collapse, followed by the sudden onset of the Latin American debt crisis. Chile survived it all, however, and eventually thrived economically, although not without incurring significant social costs along the way.(3)

Economic reform has continued into the 21st century and actually coincided with a period of strong economic growth that held for most of the last decade (see table 1). Currently, Chile is adjusting to the slower economic growth experienced both at home and abroad over the past two years. In 2002, Chile's gross domestic product (GDP) rose by only 1.7%, which was higher than many of its neighbors. Although, this reflects a slower growth rate compared to average economic growth of over 5% in the late 1990s, Chile's economy has proven resilient in the face a global economic downturn and contagion from the Argentine financial crisis.

Table 1. Chile: Selected Economic and Financial Indicators

| 1996  | 1997  | 1998  | 1999  | 2000  | 2001  | 2002 
GDP Growth (%) | 7.4 | 6.6 | 3.2 | -1.0 | 4.4 | 2.8 | 1.7
Inflation - CPI Avg. (%) | 7.4 | 6.1 | 5.1 | 3.3 | 3.8 | 3.6 | 2.4
Unemployment Rate (%) | 6.5 | 6.1 | 6.2 | 9.7 | 9.2 | 9.2 | 8.8
Fiscal Balance (% of GDP) | 2.4 | 1.9 | -0.1 | -2.2 | -0.9 | -0.9 | --
Current Acct Bal (% of GDP) | -5.1 | -4.5 | -5.2 | -0.1 | -1.3 | -1.4 | -1.8
Terms of Trade (% change) | -15.5 | 2.6 | -12.6 | 0.9 | -0.1 | -8.0 | --
Foreign Exchange Res. ($bil) | 15.5 | 17.8 | 16.0 | 14.7 | 14.7 | 14.4 | 15.6

Data Source: International Monetary Fund and Central Bank of Chile.

Chile's current macroeconomic management rests on three policy pillars: a flexible exchange rate; inflation-targeting monetary policy; and strict fiscal discipline aimed at generating a public sector surplus. On the positive side, tight fiscal control has kept Chile's public external debt position relatively low, helping restrain inflation to 2.4% in 2002 and leaving room for monetary policy to support economic growth as well as price stability. Productivity levels have been sufficient to see real wage growth, as well. On the negative side, unemployment has remained around 9%, a nagging problem facing Chilean policy makers.

Trade reform began in the 1970s and helped transform the economy. By dismantling its multilevel tariff schedule and reducing nontariff barriers, Chile sought to engage foreign markets more aggressively and open itself to international competition. The uniform average nominal import tariff rate fell from 105% in 1973 to 15% in 1988, and to 11% in 1991 under civilian government. Chile then reduced the tariff rate by 1 percentage point each year until it reached 6% on January 1, 2003. Although not without adjustment costs, the competitive pressures of trade reform have clearly increased productivity and economic growth.

Continuing a trend since the mid-1980s, Chile has recently made a number of simplifying capital market reforms, including abandoning its exchange rate band in favor of a floating system, eliminating most controls on foreign capital, including the one-year, non-remunerated reserve requirement, and reducing and equalizing capital gains treatment of domestic and foreign investment.(4) Changes in capital controls and exchange rate management have been essential to spurring Chile's export-led growth. Privatization and deregulation have also progressed beyond financial services to include telecommunications, energy, and selected public infrastructure, with Chile also leading Latin America in the divestiture of public-owned enterprises.

Chile's record of reform, growth, and development corresponds with increased measures of income and social well being. In 2001, Chile's per capita income level was second only to Argentina's in Latin America and will likely be first once data reflect Argentina's financial crisis. In addition, Chile's human development index (HDI) for 2002 ranked second in Latin America behind Argentina and ahead of the much larger economies of Brazil and Mexico.(5) Welfare gains for the poorer segments of Chilean society are also being seen, with a relatively low child mortality rate and absolute measures of poverty declining over the past decade and registering lower than most other Latin American countries.(6) High unemployment and a skewed income distribution in line with the rest of the region, however, point to the need to increase the quality and quantity of workforce participation, which is related to improving education, health care, and other public policies.

Chile's Trade Policies and Relations

Over the past decade, Chile's increasingly expansive and independent trade policy portrays a strategy that is commonly referred to as "open regionalism." This approach combines unilateralism with the formation of sub-regional integration groups open to future expansion, such as the Andean Community and the Southern Common Market (Mercado Comun del Sur -- Mercosur), among others, while also leaving open the possibility for bilateral and extra-regional trade agreements. As pointed out in one study, it differs from earlier, fundamentally unsuccessful, attempts at economic integration in Latin America by emphasizing trade opening rather than collective sub-regional protectionism.(7)

The "open regionalism" policy took shape in the early 1990s when Chile signed economic complementarity agreements (simplified free trade agreements) with Bolivia, Mexico, Venezuela, Colombia, and Ecuador under guidelines set out by the Latin American Integration Association (Association Latinoamericana de Integracion -- ALADI). Similar arrangements followed with Peru and Argentina. Chile has signed FTAs with Canada, Mexico, and Central America. In April and October 2002 respectively, Chile completed negotiations for an FTA with the European Union and South Korea. It is currently courting other countries including Japan, New Zealand, and Singapore, and closing in on an agreement with the European Free Trade Association (EFTA), see Appendix D. All are considered part of a strategy to open industrial economies further to Chilean exports. Chile joined Mercosur as an associate member in 1996, limiting its commitment largely because of Mercosur's higher common external tariff. Chile is also an active participant in the World Trade Organization (WTO), seeing it as the venue to settle controversial issues less suited to regional or bilateral discussions.

Figure 1. Growth in Chilean Trade with Major Partners, 1993-2001

Trade data reflect Chile's open and independent trade policy. Its exports to the world expanded by 89% over the eight years 1993-2001 (see Figure 1) and imports grew by 56%. Although Chile is not part of the Andean Community or a full partner of Mercosur, its fastest export growth has been intra-regional, a testament to Chile's trade strategy that combines unilateral reductions in tariff and nontariff barriers with an aggressive effort to enter into bilateral arrangements. From 1993 to 2001, Chilean exports expanded by 126% to Latin America, compared to 100% to the United States, 43% to Japan, 70% to the rest of Asia, and 71% to the European Union. Chile's trade with Canada points to another interesting trend. Although the dollar value of exports is very small, it grew by some 380%, an issue that was not lost on many U.S. business advocates of a U.S.-Chile FTA, who argued that the Chile-Canada FTA put U.S. firms at a competitive disadvantage until a similar or better agreement could be reached with the United States.

Figure 2. Chile Direction of Trade, 2002

As seen in Figure 2, Chile has diversified export markets, which not only increases opportunities for trade, but also reduces dependence on a few markets and thereby softens exposure to foreign shocks (e.g. Argentina). Its largest export market is the European Union, which accounted for 23% of exports in 2002, followed by the United States with 20%, and Latin America with 19%. Japan accounted for 11% of Chilean exports and the rest of Asia 17%. These figures reflect some relative change over the past decade, as seen in the growth patterns in Figure 1. There was a decrease in the European Union's and Japan's share of Chilean exports, as well as to Latin America. Although Chile's exports to Latin America had been rising during the 1990s, slow regional growth at the turn of the century reduced its export market share. The export shares to Asia and the United States, two areas that have experienced relatively faster growth, have risen recently. There was also a large increase in Chilean export share to Canada, although from a very small base.

Latin America is Chile's largest importing area, accounting for 35% of imports, followed by the EU with 18%, the United States with 15%, and Asia with 13%. Japan and Canada follow at a distance with 3% and 2%, respectively. The EU trade presence in Chile has declined over the past decade, as it did with other Latin American countries. The relative importance of the United States suggests that Chile has had a strong incentive to pursue a bilateral FTA, other than a general preference for expanding its export base.

Chile's open regionalism and export driven trade policy have been challenged, however, for not focusing enough on diversifying the country away from minimally refined agriculture and mining products (copper, fish, grapes, and wood). Manufactured products account for less than 15% of total exports, suggesting two potential problems. First, relying on traditional commodities can provide strong export earnings, but earnings are unpredictable given the volatile nature of commodity prices (see Chile's swings in its terms of trade in Table 1).(8)

Second, little movement toward a manufacture-based, value-added approach to export promotion can limit long-term economic growth, a point developed by an Inter-American Development Bank (IDB) study arguing that the relatively poor income growth performance of commodity exporting countries can be traced to this lack of export diversification. Although many Latin American countries have expanded their intra-regional trade, deepening integration with developed economies seems necessary to achieve greater export diversification.

The large gains in export manufactures of Mexico and the Central American countries in the 1990s, for example, were related, in some measure, to preferential trade arrangements with the United States. Other Latin American countries had much slower growth of manufactured exports.(9) Whether Chile will adopt export diversification as part of its long-term development strategy is unclear, but Chile's efforts to develop trade relationships with developed economies, including the U.S.-Chile FTA, would seem to be an important component of such a goal.

On Chile's import side, most from developed countries are capital goods, highlighting the link between an open trade policy (lower tariffs on capital goods) and development (capital goods form the investment base for other production). Importantly, there is strong competition in the Chilean capital goods market from firms around the world. Given Chile's many trade negotiations underway, there was pressure exerted by U.S. firms to expedite the Chile-FTA. A closer look at the structure of U.S.-Chile trade suggests there is potential for mutual benefit from strengthening trade ties between the two countries.

The U.S.-Chile Bilateral Trade Relationship

The United States is Chile's largest single-country trading partner, accounting for 20% of Chilean exports and 15% of imports in 2002. By contrast, Chile is the United States' 34th largest export destination and 36th largest import contributor, accounting for 0.3% of U.S. trade (2002 data). Chile's relatively small share of U.S. trade has actually slipped slightly in recent years, but its increasing openness to U.S. trade is evident in the numbers. In 2002, Chile's per capita imports from the United States were $163, higher than other major South American countries considered less liberalized in their trade policies such as Argentina ($44) and Brazil ($71).(10)

Figure 3. U.S.-Chile Merchandise Trade, 1992-2002

Trends in U.S.-Chile merchandise trade are shown in Figure 3 (data appear in Appendix B) and mirror the trend in Chile's economic growth. U.S. exports grew significantly in the first half of the last decade, rising by 77% from 1992 to 1997. After that, they fell precipitously for two years, coinciding with the precipitous fall in Chile's economic growth from 7.4% in both 1996 and 1997 to 3.4 % in 1998 and -1.1% in 1999 (see Table 1). As economic growth picked up again in 2000, rising to 5.4%, so too did the demand for U.S. goods, but economic and U.S. export trends faltered again in 2001 and 2002, with the United States running a merchandise trade deficit with Chile for the first time since 1988. In 2002, U.S. exports were not much above levels ten years earlier. This pattern parallels declining exports levels to Latin America, as a whole, reflecting weaker economic conditions and therefore demand for imports in general.

U.S. imports from Chile have grown steadily since 1992, reflecting continuing U.S. interest in Chilean products and the extended expansion of the U.S. economy. U.S. imports grew by 172% from 1992 to 2002, a higher rate of import growth than from either Latin America, excluding Mexico (107%), or the world (118%). The United States maintained a trade surplus with Chile from 1989 until 2000; in 2001 the trade balance turned to a deficit equal to 6% of total trade between the two countries and 18% in 2002.

Major U.S. products exported to Chile are mostly capital goods (see Appendix C). These include: machinery (31%), particularly computers, office machinery, and industrial equipment such as gas turbines and bulldozers; electrical machinery (16%) including television and radio transmission apparatus, telephone equipment, spare parts, integrated circuits, sound recording equipment and media; vehicles (8%) mostly trucks and passenger cars; aircraft and parts (5%), and optical/medical instruments (5%). In recent years, the U.S. export trends have exhibited a slowing in transportation equipment such as airplanes and automobiles, and an increase in computer and electronic equipment relative to other goods.

The top five U.S. imports from Chile are natural resource based goods that reflect some refining of the basic resource, but little value-added manufacturing activity. They account for nearly 70% of total imports from Chile and include: copper articles (19%), mostly refined alloys; edible fruits and nuts (18%), most of which are grapes; fish (15%), mostly salmon; wood (13%), various types of lumber; and beverages (4%), virtually all wine. Recent trends have seen an increase in grape and fish imports, with a steady level or slight decline in demand for copper, wood, and wine products relative to other goods.

Review of Negotiations and Policy Issues

The congressional debate over trade agreements invariably turns to their potential economic effects on the United States, including both aggregate macroeconomic, as well as, sectoral effects. Assessing these effects is the responsibility of the United States International Trade Commission (ITC), which in June 2003 released a comprehensive study as part of the congressional consultation process. The report provides both quantitative and qualitative estimates of the FTA's possible impact.

The overall estimate of the ITC study was that by 2016, when the full effect of the tariff eliminations would be felt, U.S. exports to Chile would increase in a range between 18% and 52%; U.S. imports would rise between 6% and 14%. The study noted that this would be very small relative to total U.S. trade and that the economy-wide effects on trade, production, and overall economic welfare would be small to negligible (in a range of negative 0.001% to a positive 0.003% of GDP). This is in keeping with general expectations from the outset of the negotiations that recognized the limited benefits that could be achieved by the FTA given Chile is already a relatively small open economy with a relatively small trade position with the United States. The ITC finding, however, serves as an estimate of confirmation, focusing largely on the implications of tariff reduction, which may be quantified, unlike changes in many nontariff barriers.(11)

The rest of this section briefly summarizes the major policy issues that had to be reconciled in the negotiating process and references the ITC's conclusions with respect to each major issue area, where applicable.

Tariffs and Market Access

For the United States, market access and particularly reducing tariff rates, was a central goal of the negotiations. For countries that have trade agreements with Chile, such as Canada, the uniform 6% tariff is being phased out on most goods, an advantage the United States wanted to eliminate. On the other side, the primary U.S. imports from Chile face varying levels of tariffs, although some goods enter the United States duty free under normal trade relations (see Appendix C for U.S. tariff treatment of major Chilean exports). The major U.S. imports from Chile do not qualify for duty-free treatment under the Generalized System of Preferences (GSP), a preferential trade arrangement made by developed countries for developing country imports. The United States and Chile negotiated tariff reduction phase-out schedule on a product-by-product basis that differentiated treatment for sensitive products, as was done in the North American Free Trade Agreement (NAFTA).

The ITC identified the major sectors that would likely benefit the most from the FTA based on quantitative estimates of the likely increase in U.S. exports and imports for the year 2016, when the full effect of the tariff reductions would be felt. The estimated ranges of increase in U.S. exports for the most affected sectors are: 1) motor vehicles and transportation equipment (35%-215%); 2) textiles, apparel, and leather goods (29%-101%); and 3) coal, oil, gas, and other minerals (26%-72%). For U.S. imports, the range estimates for most affected sectors are: 1) dairy products (169%-575%); 2) textiles, apparel, and leather goods (77%-372%); and other crops (55%-114%), particularly avocados when the tariff rate quota is eliminated in 12 years. In all cases, the increases are estimated to be large on a percentage basis because of relatively high tariff or tariff equivalent barriers on these goods. Because the changes are computed from relatively small bases on a dollar value basis, however, the effects on industry production are expected to be small.(12)

Services Trade

Services are an important part of U.S. exports and are a key negotiating area in trade agreements. The United States is a leading provider of financial (insurance, banking, securities), telecommunications, and management consulting services. The U.S.-Chile FTA would lower barriers and would enhance disciplines with respect to the provision of these services, but would not alter significantly U.S. imports of these services, nor would there likely be a large change in the U.S. export position. First, Chile has only a small presence in the United States with respect to these services and second, Chile is a relatively small market for U.S. services and has been relatively open for some time.(13)

Trade Remedies

In addition to tariff reductions, trade remedies presented negotiators with significant challenges. In the United States, low tariffs on most products have caused domestic industries to rely on trade remedy laws to fight import competition. Perhaps the most controversial issue was the application of U.S. antidumping statutes (investigations to determine if goods are being sold at less than fair value), which Chile expressed a desire to address in the bilateral FTA. This was not a new issue and was tackled in the Canada-Chile FTA, which provides for the "reciprocal exemption from the application of anti-dumping laws," except under "exceptional circumstances."(14) The thrust of that agreement appears not to force the elimination of antidumping remedies, but to make their use a last rather than first recourse, under WTO guidelines.

Chile's sensitivity to U.S. antidumping investigations was based on their "frequent and at times unjustified use," and Chile argued that just the filing of dumping charges initiated a process with significant unrecoverable costs regardless of the investigation's outcome. In recent years, antidumping investigations were concluded on Chilean salmon, mushrooms, grapes, and raspberries. The ITC ruled that there was reasonable indication that material injury was caused to U.S. producers in the cases of salmon, mushrooms, and raspberries, but not for grapes.(15) The United States indicated that trade remedy laws would not be negotiated unless otherwise directed by Congress and the Bush Administration, and extended an offer to Chile to make the process more transparent. Chile responded with concrete proposals to make this suggestion operational.(16) The United States also had NTB concerns over Chile's price band system used to maintain domestic agricultural prices and its sanitary and phytosanitary regulations that restrict imports of U.S. agricultural and meat products.(17)

IPR and Investment

Among the other issues of special interest to the United States were intellectual property rights (IPR) and investment provisions. Chile has signed the Trade Related Intellectual Property Rights (TRIPS), but its congress has yet to pass legislation implementing the provisions. In addition Chile has also signed two World Intellectual Property Organization (WIPO) treaties, but has failed to conform fully to these obligations, as well. The U.S.-Chile FTA reaffirms obligations under TRIPS and adds another layer of important protection for U.S. industries, which if enforced would potentially increase revenues to a number of industries including: motion picture, sound recording, business software, book publishing, pharmaceuticals, and agricultural chemicals, among others.(18)

Chile is known for its transparent and high level treatment of foreign investment and has eliminated restrictions on capital inflows that existed in the 1990s (see next section). As a WTO member, it is a signatory to both the WTO Agreement on Trade Related Investment Measures (TRIMS) and the WTO General Agreement on Trade in Services (GATS), both of which affect investment rules. The U.S.-Chile FTA goes beyond these rules and provides U.S. investors with strong protection. As important as these provisions are for the United States, the ITC estimates that because of Chile's historically open economy and small investment market, the FTA might foster increased U.S. investment in Chile, but it is unlikely to be significantly higher than would otherwise be the case.(19)

Labor and Environment

Labor and environment provisions have become accepted as legitimate, but difficult issues to resolve in trade agreements. At the heart of the matter is whether a difference in environmental and labor standards between developed and developing countries creates economic and social issues that should be addressed in trade agreements. This has led to a strong divergence of opinion, both among groups within the United States, and between developed and developing countries.

Advocates of including labor and environment provisions in trade agreements argue that developing countries enjoy an "unfair" competitive advantage because their lower standards translate into lower costs, which in turn are reflected in lower prices for goods that compete with those produced in developed countries.(20) Over time, this argument suggests that the difference in standards leads to investment and jobs moving abroad to take advantage of the lower production costs. On the other hand, many studies show that these costs are usually not high enough to determine business location, where productivity remains the primary factor.(21) There are also social concerns to the labor and environmental issue that relate directly to the human impact of diminished health and living conditions caused by pollution, poverty, and unsafe working conditions. Given countries' different levels of development and therefore capacities to address these issues, there is considerable disagreement over how far a trade agreement should go in engaging these domestic policy issues.

Developing countries, including Chile, have expressed two basic concerns regarding the inclusion of environmental and labor provisions in trade agreements: 1) that their sovereignty may be undermined if such agreements endorse higher standards; and 2) that such provisions may be used to justify disguised protectionism. Free trade advocates in the United States and other developed countries have expressed similar sentiments in opposition to placing environmental and labor provisions in trade agreements.

Labor and environment provisions in trade agreements have evolved over time. NAFTA's side agreements set a precedent in both labor and environment provisions that all parties: 1) not relax standards to attract investment or reduce costs of exports; 2) strive to improve standards over time, and; 3) enforce effectively their laws and regulations. The U.S.-Jordan bilateral FTA (the implementing legislation was signed into law by President Bush on September 28, 2001 -- P.L. 107-43) took labor and environmental provisions a step farther. It includes most key features of the NAFTA side agreements, but moved the provisions to the main body of the text, thereby placing these provisions under the dispute resolution process of the entire agreement. Significantly, this includes language stating that an affected party may take "any appropriate and commensurate measure," including trade sanctions if the dispute remains unresolved.(22)

Chile recognized the importance of labor and environment provisions when it included them in the 1996 FTA with Canada, but kept them equally general in NAFTA-like side agreements. The labor and environment provisions differ from the Jordan model by their placement in a side agreement and their reliance on less stringent dispute resolution options, emphasizing monetary assessments rather than trade sanctions.(23) During the negotiations, it was unclear whether the Chile-Canada, U.S.-Jordan, or some new or hybrid model would work for the U.S.-Chile FTA. U.S. negotiators looked to guidance in the TPA legislation and the core debate focused on dispute resolution and enforcement mechanisms, particularly the use of trade sanctions in cases of noncompliance. Chile was on record, however, as flatly rejecting inclusion of any language that allows for the use of trade sanctions.

Congress and the U.S.-Chile FTA

In recent years, the United States has signed bilateral FTAs with Jordan, Singapore, and Chile. All three have common elements, but each reflects country specific issues. A recurring question for the U.S. Congress with respect to the trade negotiation process has been, to what extent does one agreement become a model for another? For example, when the U.S.-Chile FTA was signed in December 2002, United States Trade Representative Robert Zoellick announced that it could serve as a "template" for U.S.-Central American Free Trade Agreement (CAFTA).(24)

As the 108th Congress considered the U.S.-Chile FTA implementing legislation, a few issues became highly controversial and some Members suggested that some language in this agreement should not be considered as a model for future FTAs. One or more of these issues were raised in hearings before the House Ways and Means and Senate Finance Committees, as well as both Judiciary Committees. This section provides a brief summary of the relevant provisions in the U.S.-Chile FTA and amplifies the debate over three controversial aspects of the agreement.

The U.S.-Chile FTA in Brief

With implementation of the U.S.-Chile free trade agreement, Chile joined a select group of only five other countries that have an FTA with the United States (Canada, Mexico, Jordan, Israel, and Singapore). Market access was a critical provision, with duty-free access negotiated for all goods traded between the two countries. When the agreement enters into force on January 1, 2004, fully 87% of bilateral trade in consumer and industrial products will become duty-free immediately, with the rest receiving reduced tariff treatment over time. Some 75% of U.S. farm exports will enter Chile duty-free within four years and duties on all goods will be fully phased out within 12 years. With a few exceptions, the agreement will also increase market access for a broad range of services, with new opportunities for the financial services sector, among others.(25)

Export subsidies on agricultural products will be eliminated, but either country will be able to respond in-kind if damaged by third party export subsidies. There is also a safeguards provision to address possible surges in agricultural imports from Chile.(26) Importantly, the chapter on trade remedies deals only with the safeguards provision, so there is no change to the antidumping and countervailing duty options currently available to both countries under WTO rules.

For Chile, 95% of its export products will gain immediate duty-free status and only 1.2% will fall into the longest 12-year phase-out period. Other important market access gains will include phasing out the luxury tax on automobiles over four years, less restrictive treatment of textile and apparel products that meet rules of origin criteria, and reduction over time of Chilean price bands, a provision not included in either of the FTAs Chile negotiated with Canada and the European Union.

Other achievements of importance to the United States include consolidating and stabilizing rules governing openness of services trade, telecommunications, intellectual property rights (IPR), e-commerce trade, and investment. These areas were of much greater interest to the United States than Chile and reflect gains for highly competitive U.S. industries. There are few exceptions to the new services rules, benefitting firms working in financial, telecommunications, computer, and professional services. Chile's approach to IPR is also adjusted to accommodate U.S. concerns over software, music, text, and videos. A new e-commerce chapter addresses the growing trade in digital products.

Despite these many achievements, the 108th Congress raised questions on three provisions in particular that may prove even more difficult to pass in future FTAs if language is similar to that of the U.S.-Chile FTA. These involve the treatment of labor and financial transfers in dispute settlement, and the temporary entry for business persons.

Labor Dispute Settlement Provisions

A key controversy surrounded the treatment of three labor provisions in the agreement. Labor advocates argued that they are a step backward from the provisions agreed to in the U.S.-Jordan bilateral, as well as the Generalized System of Preferences and Caribbean Basin Trade Partnership Act, which currently govern much of the U.S. trade with Latin America. Specifically, provisions: 1) requiring effective enforcement of domestic labor laws, 2) reaffirming commitments to ILO basic principles, and 3) requiring parties to strive to ensure the "non-derogation" from domestic standards (not weakening or reducing protections to encourage trade and investment) are treated differently.(27)

In the first case, failure to enforce domestic labor laws can be formally challenged in the dispute resolution process as defined in the FTA (Article 22.16(1)). In the case of the other two provisions, which are supported in principle, such recourse is not available. The USTR points to cooperative mechanisms for improving workers' rights in the FTA,(28) but labor advocates argue that unless all three are enforceable, the FTA provides "a meaningful trade discipline where -- and only where -- the country's labor laws are adequate. Otherwise we would simply lock in low and unacceptable labor standards through our trade agreements."(29) Although Chile has a sound record in support of basic labor rights, such differentiated treatment is challenged as inadequate for use in other countries, particularly those in Central America,(30) and so raises a question for some as to whether the Chile agreement does or should constitute a precedent.

In addition, in the one case where the formal dispute resolution process may be invoked, it is differentiated from disputes related to commercial issues. Ultimately, if a commercial dispute remains unsettled, the country faces the possibility of suspension of benefits under the FTA "of equivalent effect" (Article 22.15(2)), resulting in the raising of tariffs, or payment of a monetary assessment equal to 50% of what a dispute panel determines is "of equivalent effect." This article does not apply to the disputable labor provision. The difference is that the option for failing to resolve a labor dispute is a monetary assessment, which would be capped at $15 million per year, with recourse to an equivalent dollar value of suspended benefits (higher tariffs) if the monetary assessment is not paid. The monetary assessment would also be paid into a fund and expended for "appropriate labor initiatives." Labor advocates argue that by capping the assessment at $15 million and having the assessment paid into a fund in the offending country render the labor provisions ineffective. The USTR argues that for a small country like Chile, such a fine would be significant relative to the dollar value of the trade benefits it will receive.(31)

From a congressional perspective, there is an additional question of whether differences in the treatment of the three labor provisions in some way fail to meet in full the principal negotiating objectives of Congress as outlined in TPA legislation. Although the three provisions are not accorded the exact same treatment in the FTA, neither are they in the TPA language. Section 2102(b)(11) of the Trade Act of 2002 (TPA) states that among the principal labor negotiation objectives is the provision "to ensure that a party to a trade agreement with the United States does not fail to effectively enforce the environmental or labor laws." This may be contrasted with the apparently weaker objective "to strengthen the capacity of United States trading partners to promote respect for core labor standards," and, in Sec. 2102(a)(1)(7) to "strive to ensure that they do not weaken or reduce the protections afforded in domestic environmental and labor laws as an encouragement for trade."

There is a final point. Although the TPA provisions seem to differ with respect to treatment of these three labor provisions, under the dispute resolution provision (sec. 2102(b)(12)(G)), a principal negotiating objective also listed is "to seek provisions that treat United States principal negotiating objectives equally" with respect to the ability to resort to dispute settlement, the availability of equivalent procedures, and the availability of equivalent remedies. Whereas the labor groups have argued that this is not the case with labor and commercial disputes, the USTR has responded that this standard has been met since both commercial and labor disputes are subject to monetary assessments and suspension of benefits. The dispute settlement procedures do operate slightly differently, however, and it may be a matter of interpretation as to whether there is a problem in their meeting congressional negotiating objectives.(32)

Capital Controls

A second controversial provision in the agreement relates to capital controls. The relevant language is set out in the dispute settlement portion of Chapter 10 -- Investment of the FTA. During the 1990s, Chile became famous for controlling capital inflows, a policy intended to limit the real appreciation of the Chilean peso that large capital inflows can cause. This policy, some argue, helped Chile avoid the currency overvaluation problem that contributed to multiple developing country financial crises in that decade. Chile's main control policy on portfolio capital, known as the Ley de Encaje, was discontinued in 2001. While in force, however, it raised issues with respect to the U.S. position favoring the free flow of transfers and payments related to investment, which has become a standard position in both U.S. bilateral investment treaties (BITs) and other FTAs.(33) In hearings on the U.S.-Chile FTA, some Members of Congress expressed concern that U.S. negotiated positions insisting on the free flow of payments and transfers might be imprudent if they inhibit countries from using controls on capital to help maintain financial stability during times of international financial turmoil.(34)

The provisions at issue appear in two annexes of the investment chapter of the U.S.-Chile FTA that cover treatment of both long-term and short-term capital investment. The provision in Annex 10-F focuses on the treatment of long-term investments under Chile's Decree Law 600 (D.L. 600). This law provides an investment option in the form of a contract with the Government of Chile that stipulates certain rights of the investor, but also requires that foreign direct investment (FDI) remain in country for a minimal period of one year (three years at one point). Should a dispute arise, the language in the U.S.-Chile FTA would allow the investor the option to make a claim in international arbitration as opposed to having to work through the domestic Chilean court system as set out in D.L. 600. It is the less controversial provision of the two.

The more controversial provision relates to Chile's Ley de Encaje, which governs short-term portfolio capital flows, and the recourse that U.S. investors may have if faced with restrictions on the outward flow of certain payments and transfers as defined in Annex 10-C. This annex must be understood as part of the larger dispute settlement provisions related to foreign investment, as defined in Section B of Chapter 10. The U.S.-Chile FTA adopted what has become more or less of a standard provision, which states that, U.S. investors who seek to file a claim for breach of the Chapter 10 provisions can do so only after six months have lapsed from the event giving rise to the claim. This general rule applies to a broad range of potential investment disputes such as failure to observe national treatment or expropriation.

Annex 10-C, the mutually-agreed compromise developed by Chilean and U.S. negotiators, is actually an important exception to the six-month rule. Paragraph 1(a) states that claims alleging that Chile has breached an obligation under Chapter 10 from its imposition of restrictions on transfers can only be made one year after the restriction was put in place, with certain exceptions. In general, the United States wanted to make sure that Chile did not have a general "balance of payments" exception to impose capital controls.(35) Chile wanted to ensure that it would not be penalized if it were ever to reimpose its Ley de Encaje. Under Chile's Ley de Encaje, any short-term capital investment in Chile required that an additional nonremunerated deposit equal to 10%-30% of the investment value be placed in the Central Bank of Chile for one year.(36) The deposit would be forfeited if the portfolio investment were repatriated in less than one year, imposing an additional cost on capital volatility. In essence, Annex 10-C attempts to reconcile these goals by allowing for an extension from six months to one year (the life of the encaje) of the "cooling off period" before a claim can be made for dispute resolution related to restrictions on transfers and payments, and by stipulating that the encaje is not an open-ended invitation to restrict (may not substantially impede) capital movements.(37)

The important qualification relating to portfolio capital states that Chile will not incur any liability for damages:

<blockquote>arising from its imposition of restrictive measures with respect to payments and transfers that were incurred within one year from the date on which the restrictions were imposed, provided that such restrictions do not substantially impede transfers.(38)</blockquote>

There are two important thresholds that the Ley de Encaje must not exceed to avoid triggering a claim for dispute resolution. First, it cannot affect an investment for more than one year. Historically, this has been the case. Second, the encaje cannot be considered as having "substantially impeded" capital outflows. Although in any actual arbitration a panel would be empowered to determine what constitutes "substantially impede," this language was crafted with the intent that the forfeiture of the encaje not be construed as substantially impeding capital outflows and so may be viewed as unlikely to open the door to U.S. investor dispute settlement.(39)

The U.S.-Chile FTA provisions do not eliminate Chile's right to reimpose its capital control laws per se, especially the Ley de Encaje, but do extend certain additional rights to U.S. investors. In addition, they indicate that U.S. investors could pursue dispute settlement if Chile were to impose controls that substantially impeded portfolio capital from leaving the country, setting up the debate over whether such restrictions belong in FTAs. Attention to the issue has grown in the aftermath of congressional approval for the U.S.-Chile FTA, particularly in light of the number of subsequent FTAs that are heading for congressional action. Although in the U.S.-Chile case the language governing capital controls may be viewed as a compromise, it is far from clear that language adopted to fit the specific Chilean case will be able to accommodate other countries negotiating FTAs with the United States, or U.S. congressional concerns.

Temporary Business Personnel and Workers(40)

Key Provisions. Chapter 14 of the U.S.-Chile FTA creates separate categories of entry for citizens of each country to engage in a wide range of business and investment activities on a temporary basis, i.e., nonimmigrants. The FTA addresses four specific categories of temporary nonimmigrant admissions currently governed by U.S. immigration law: business visitors; treaty traders; intracompany transfers; and professional workers. These categories parallel the visa categories commonly referred to by the letter and numeral that denotes their subsection in §101(a)(15) of the Immigration and Nationality Act : B-2 visitors, E-1 treaty traders, L-1 intracompany transfers, and H-1B professional workers.(41) Neither Party would be allowed to require labor certification or other similar procedures as a condition of entry and would not be able to impose any numerical limits on these categories, with some exceptions noted for the professional workers (including an annual cap of 1,400).(42)

The FTA clearly states the desire to facilitate the temporary entry of persons fitting these categories, provided the person complies with applicable immigration measures for temporary entry (e.g., public health and safety as well as national security). Chilean citizens who are business visitors, for example, would be able to enter the United States for business purposes on the basis of an oral declaration or letter from the employer specifying the principal place of business, detailing in the FTA an admissions policy not currently specified in statute.

Title IV of the enabling legislation amends several sections of the Immigration and Nationality Act (INA, 8 U.S.C.). Foremost, it amends §101(a)(15)(H) of INA to carve out a portion of the H-1B visas -- to be designated the H-1B-1 visa -- for professional workers entering through the FTAs. In many ways the FTA professional worker visa requirements parallel the H-1B visa requirements, notably having similar educational requirements. The H-1B visa, however, specifies that the occupation require highly specialized knowledge, while the proposed FTA professional worker visa specifies that the occupation require only specialized knowledge.

The legislation also amends §212 of INA to add a labor attestation requirement for employers bringing in potential FTA professional worker nonimmigrants that is similar to the H-1B labor attestation statutory requirements. The additional attestation requirements for "H-1B dependent employers" currently specified in §212 are not included in the labor attestation requirements for employers of the proposed FTA professional worker nonimmigrants.

There are numerical limits of 1,400 new entries under the proposed FTA professional worker visa from Chile. The legislation does not limit the number of times that an alien may renew the FTA professional worker visa on an annual basis, unlike H-1B workers who are limited to a total of 6 years. It counts an FTA professional worker against the H-1B cap the first year he/she enters and again after the fifth year he/she seeks renewal. Although the foreign national holding the FTA professional worker visa would remain a temporary resident who would only be permitted to work for any employer who had met the labor attestation requirements, the foreign national with a FTA professional worker visa could legally remain in the United States indefinitely.

On July 10, 2003, the House Judiciary Committee held a "mock" mark-up of the USTR's draft language. Chairman Sensenbrenner took the lead in stating that "immigration policy does not belong in free trade agreements," citing Congress's plenary authority over immigration policy in Article 1, §8 of the U.S. Constitution. Members on both sides of the aisle expressed agreement with Chairman Sensenbrenner's position, with several Members going further to state that the draft language was an "insult to Congress." The House Judiciary Committee recommended including the FTA professional workers in the H-1B nonimmigrant visa and counting an FTA professional worker against the H-1B cap the first year he/she enters and again after the fifth year he/she seeks renewal. These recommendations are reflected in the legislation as introduced and passed.

Title IV of S. 1416/H.R. 2738 also amends the INA to include Chile citizens as E-1 treaty traders and E-2 treaty investors.

Major Points of Debate. The USTR maintains that ensuring cross-border mobility of professionals and other business persons is critical for U.S. companies in developing new markets and business opportunities abroad. The USTR further argues that the temporary business personnel provisions in the FTAs are not immigration policy because they only affect temporary entry. The USTR points out that it issued a notice of intent to negotiate provisions to facilitate the temporary entry of business persons in October 2001 and that it briefed congressional staff on the FTA provisions on numerous occasions.

Others express concern that the USTR has overreached its negotiating authority by including immigration provisions in the FTAs. Critics maintain that the USTR's assertion that temporary entry of foreign business personnel and professional workers is not immigration policy is disingenuous. More generally, some point out that these provisions would constrain current and future Congresses when they consider revising immigration law on business personnel, treaty investors and traders, intracompany transfers, and professional workers because the United States would run the risk of violating the FTA.

The specific issue of FTA professional worker is sparking the most debate. The Labor Advisory Committee, one of six private sector advisory committees for the USTR, is critical of the provisions on the temporary entry of business personnel and professional workers because it appears to enable workers from Chile who have no direct employment except a service contract to enter the United States.(43) Others have expressed concern that professional workers from Chile would be held to a less stringent standard than existing H-1B law (specialized knowledge versus highly specialized knowledge) and that the stricter attestation requirements for H-1B dependent employers would also be omitted.

The USTR argues that it is incorrect to assert that the labor attestations required under the FTA would be less rigorous than the LCA called for under current U.S. law. According to the USTR, the labor attestation required under the FTA also is to be modeled after the LCA that the Department of Labor requires under the existing H-1B visa program, and (as is the case under the H-1B program) fees may be collected along with the labor attestations.(44) The USTR states that the labor attestations, education and training fees, and numerical limits provisions have been added to the FTAs in response to congressional concerns.

Issues surrounding legal authority to enforce immigration law are also arising. Some are questioning whether §106 and §107 of the legislation would enable an international panel to overrule decisions by officials in the Department of Homeland Security or by the Attorney General to reject visa applicants from Chile and Singapore. USTR responds that the panel that would be established by the FTA would be bi-national and would only deal with cases brought by a Party to the agreement in which there is alleged to be a pattern of violations.

Appendix A. Chronology of U.S.-Chile FTA

Date  | Milestone 
November 29, 2000 | President George W. Bush notifies Congress of his intention to negotiate a free trade agreement (FTA) with Chile.
December 6, 2000 | FTA negotiations initiated.
August 6, 2002 | President Bush signs the Trade Act of 2002 (P.L.107-210), which includes Trade Promotion Authority (TPA).
August 22, 2002 | President Bush notifies Congress again of his intention to negotiate the U.S.-Chile FTA, as prescribed in TPA.
December 11, 2002 | FTA negotiations concluded.
January 29, 2003 | President Bush notifies Congress of his intention to sign the U.S.-Chile FTA.
June 6, 2003 | USTR Robert B. Zoellick for the United States and Foreign Minister Soledad Alvear for Chile sign FTA in Miami, Florida.
June 10, 2003 | House Ways and Means Committee, Subcommittee on Trade holds hearing on the implementation of the U.S.-Chile FTA.
June 17, 2003 | Senate Committee on Finance holds hearing on the implementation of the U.S.-Chile FTA.
July 3, 2003 | President Bush submits to Congress changes in U.S. law required to comply with FTA.
July 10, 2003 | Senate Finance, House Ways and Means, and House Judiciary Committees hold pre-introduction "mock mark-ups" on the draft implementing legislation submitted by the Bush Administration.
July 14, 2003 | Senate Judiciary Committee holds hearing on the temporary entry provisions of the draft implementing legislation.
July 15, 2003 | President Bush sends required supporting documents and formal legal text of U.S.-Chile Free Trade Implementation Act to Congress.
July 15, 2003 | Identical legislation introduced as H.R. 2738/S. 1416.
July 16, 2003 | House Judiciary Committee meets and orders H.R. 2738 favorably reported by voice vote.
July 17, 2003 | House Ways and Means and Senate Finance Committees consider implementing legislation. Ways and Means Committee orders H.R. 2738 favorably reported by a roll call vote of 33-5. Senate Finance Committee orders S. 1416 favorably reported by a vote of 21-0.
June 17, 2003 | Senate Judiciary Committee favorably reports out S. 1416 by a vote of 11-4.
July 21, 2003 | H.R. 2738 reported by the House Committee on Ways and Means (H.Rept. 108-224, Part I). Senate Committees on Finance and the Judiciary file joint report on S. 1416 (S.Rept. 108-116).
July 22, 2003 | H.R. 2738 reported by House Committee on the Judiciary (H.Rept. 108-224, Part II).
| House Committee on Rules provides for a closed rule for consideration of H.R. 2738 under which debate is limited to two hours and all points of order against consideration of H.R. 2738 are waived.
July 24, 2003 | H.R. 2738 agreed to in House, 270 to 156.
July 31, 2003 | H.R. 2738 agreed to in Senate, 66 to 31.
August 7, 2003 | H.R. 2738 cleared for White House.
August 22, 2003 | H.R. 2738 presented to President.
September 3, 2003 | President Bush signs H.R. 2738 into law (P.L. 108-77).
January 1, 2004 | U.S.-Chile Free Trade Agreement takes effect.

Appendix B. U.S.-Chile Merchandise Trade

Table 2. U.S.-Chile Merchandise Trade, 1985-2002

(in US $ millions)

Year  | U.S. Exports | U.S. Imports | Trade Balance | Trade Turnover | % Growth in U.S. Exports | % Growth in U.S. Imports
1985 | 682 | 745 | -63 | 1,427 | -- | --
1986 | 823 | 820 | 3 | 1,643 | 20.7% | 10.1%
1987 | 796 | 981 | -185 | 1,777 | -3.3% | 19.6%
1988 | 1,066 | 1,181 | -115 | 2,247 | 33.9% | 20.4%
1989 | 1,414 | 1,292 | 122 | 2,706 | 32.6% | 9.4%
1990 | 1,664 | 1,313 | 351 | 2,977 | 17.7% | 1.6%
1991 | 1,839 | 1,302 | 537 | 3,141 | 10.5% | -0.8%
1992 | 2,466 | 1,388 | 1,078 | 3,854 | 34.1% | 6.6%
1993 | 2,599 | 1,462 | 1,137 | 4,061 | 5.4% | 5.3%
1994 | 2,774 | 1,821 | 953 | 4,595 | 6.7% | 24.6%
1995 | 3,615 | 1,931 | 1,684 | 5,546 | 30.3% | 6.0%
1996 | 4,132 | 2,256 | 1,876 | 6,388 | 14.3% | 16.8%
1997 | 4,368 | 2,293 | 2,075 | 6,661 | 5.7% | 1.6%
1998 | 3,979 | 2,453 | 1,526 | 6,432 | -8.9% | 7.0%
1999 | 3,078 | 2,953 | 125 | 6,031 | -22.6% | 20.4%
2000 | 3,455 | 3,228 | 227 | 6,683 | 12.2% | 9.3%
2001 | 3,131 | 3,555 | -424 | 6,686 | -9.4% | 10.1%
2002 | 2,612 | 3,781 | -1,169 | 6,396 | -16.6% | 6.4%

Data Source: U.S. Department of Commerce.

Appendix C. Major U.S.-Chile Product Trade and Tariff Rates

Table 3. Major U.S.-Chile Product Trade and Tariff Rates, 2002/2003

(% of total dollar value)

Major U.S. Exports 
% of Total
Tariff Rate
Major U.S. Imports*
% of Total
NTR
Tariff Rate**
Free under GSP#

Machinery:
- Computers,
- Office mach. - parts
- gas turbines
34%
(7%)
(5%)
(5%)
(2%)
6%
Edible Fruit and Nuts:
- grapes (0806)
- fruit (0809)
20%
(12%)
(3%)

$1.13-1.80/m³
$.002-.005/kg

no
no

Electrical machinery
14%
6%
Copper:
- refined (7403)
- unref. (7402)
17%
(15%)
( 2%)

1%
free

no

Vehicles (new)
8%
6%
Fish (mostly salmon):
- fillet (0304)
- fresh (0302)
- frozen (0303)

13%
(11%)
( 1%)
(1%)

free
free
free

Aircraft
2%
6%
Wood (lumber)
- (4407, 4409, 4411)

15%
free

Medical instruments
6%
6%
Beverages:
- wine (2204)
4%
(4%)

$.063/lit.

no

Plastic
5%
6%
Organic Chemicals:
- methanol(2905)
4%
(4%)

8%

no

Organic chemicals
2%
6%
Oil:
- not crude(2710)

2%

$.525/bbl

no

Other
27%
6%
Other
25%

Total
100%

Total
100%

Data Source: U.S. Department of Commerce.

* By HTS number = Harmonized Tariff Schedule of the United States. Note, HTS numbers are not provided on U.S. exports, which are subject to Chile's 6% nominal uniform import tariff rate.

** NTR is the general or normal tariff rates (also known as most favored nation rates) applied to products not given preferential tariff treatment.

# GSP = Generalized System of Preferences or preferential tariff treatment given to select developing country imports by developed countries. Some imports receive GSP treatment only if the exporting country is considered a "least developed country." Because Chile does not qualify under this designation, most of its exports to the United States are not eligible for GSP treatment.

Appendix D. Chile's Multilateral, Regional, and Bilateral Trade Agreements

Agreement 
Date Effective  
Type  

WTO (GATT)
January 1995
multilateral free trade agreement (FTA)

APEC
November 1994
regional association

Mercosur
October 1, 1996
(associate member)
regional customs union

FTAA
negotiating (January 1, 2005 deadline)
regional FTA

LAIA
January 1980
regional association

-- Bolvia
July 1, 1993
economic complementarity agreement#, FTA to be negotiated

-- Venezuela
July 1, 1993
economic complementarity agreement

-- Colombia
January 1, 1994
economic complementarity agreement

-- Ecuador
January 1, 1995
economic complementarity agreement

-- Peru
July 1, 1998
economic complementarity agreement

-- Argentina
signed May 19, 2000
economic complementarity agreement

Canada
July 5, 1997
bilateral FTA

Mexico
1998
bilateral FTA

Central America*
signed October 18, 1999
FTA framework agreement

European Union
February 1, 2003
FTA

European Free Trade Association
under negotiation
FTA

Japan
pre-negotiation impact studies completed
bilateral FTA

Singapore
under discussion
bilateral FTA

New Zealand
under discussion
bilateral FTA

South Korea
negotiations concluded October 24, 2002
bilateral FTA

United States
January 1, 2004
bilateral FTA

# limited trade agreement negotiated under guidelines see forth by the Latin American Integration Association (LAIA), known in Spanish as the Asociación Latinoamericana de Integración (ALADI).

* Guatemala, Honduras, Nicaragua, El Salvador, and Costa Rica (ratified January 2002).

Data source: Organization of American States. Foreign Trade Information System. This may be found at: http://www.sice.oas.org and Embassy of Chile.

Footnotes

1. (back) For a discussion, see: CRS Report RL31072(pdf), Regional Trade Agreements: An Analysis of Trade-Related Impacts, by Gary J. Wells. August 3, 2001.

2. (back) The FTAA would include 34 nations of the Western Hemisphere and is scheduled for completion by January 2005. See: CRS Report RS20864, A Free Trade Area of the Americas: Status of Negotiations and Major Policy Issues, by [author name scrubbed].

3. (back) A detailed summary of this process with an emphasis on trade policy may be found in: CRS Report 97-56, Chilean Trade and Economic Reform: Implications for NAFTA Accession, by [author name scrubbed]. October 17, 1997. pp. 1-9.

4. (back) Latin American Monitor: Southern Cone. June 2001, pp. 4-5 and Central Bank of Chile, Press Release, April 16, 2001.

5. (back) The Human Development Index (HDI) is a composite measure of average achievement in human development (education, income, and life expectancy). Worldwide, Chile ranked 38 compared to Argentina (34), Uruguay (40), Costa Rica (43), Mexico (54), Venezuela (69), and Brazil (73). Argentina's rank may fall precipitously once corrected for its current financial crisis. See: United Nations, Human Development Report 2002, p. 149.

6. (back) Less than 2% of Chile's population lives on less than $1.00 per day compared to 10% in Brazil, 8% in Mexico, and 15% in Venezuela. The under-5 mortality rate for Chile is 12 per 1,000 compared to Argentina (19), Brazil (36), Mexico (29), and Venezuela (22). See: The World Bank. 2003 World Development Report, pp. 58-59 and 112-14.

7. (back) Weintraub, Sidney. Development and Democracy in the Southern Cone: Imperatives for U.S. Policy in South America. Washington, D.C. Center for Strategic and International Studies, 2000. pp. 2-3.

8. (back) Inter-American Development Bank (IDB). Integration and Trade in the Americas: Periodic Note, December 2000. Washington, D.C. p. 14. At the other end of the spectrum, manufactured goods account for 71% of Mexico's exports, reflecting the large amount of maquiladora trade with the United States.

9. (back) Ibid., pp. 12-15.

10. (back) See CRS Report 98-840, U.S.-Latin American Trade: Recent Trends, by [author name scrubbed], p. 4.

11. (back) United States International Trade Commission. U.S.-Chile Free Trade Agreement: Potential Economywide and Selected Sectoral Effects. USITC Publication 3605. June 2003. pp. xiii-xv. In addition to a review of the literature, the study bases its conclusions on a computable general equilibrium model (CGE) that estimates the "likely impact of a the U.S.-Chile FTA for 22 aggregated sectors." See pp. 2-3, 53-55, and Appendix C.

12. (back) Ibid., pp. xv-xviii and 46, 51, and 57. The report has a detailed discussion of the FTA's possible effects by sector and commodity.

13. (back) Ibid., pp. 94-101.

14. (back) Government of Canada, Canada-Chile Free Trade Agreement, February 1997. Antidumping was also addressed in the Chile-Mexico FTA.

15. (back) ITC antidumping rulings may be viewed at: http://www.usitc.gov/7ops/7opsindex.htm.

16. (back) Conversations with office of the USTR, August 17, 2001 and Embassy of Chile, May 9, 2002.

17. (back) Office of the United States Trade Representative. 2002 National Trade Estimate Report on Foreign Trade Barriers. pp. 38-39.

18. (back) USITC, op. cit., pp. 109 and 118.

19. (back) Ibid., pp. 103-108.

20. (back) The difference is that the social costs associated with environmental degradation, pollution, poor working conditions, and low wages are not captured in the production process. Through legal and regulatory measures, developed countries require that businesses bear many of these costs, which are then reflected in the final (relatively higher) price of the good or service in the market place.

21. (back) See CRS Report 98-742(pdf), Trade with Developing Countries: Effects on U.S. Workers, by [author name scrubbed]. September 2, 1998, pp 11-13. Productivity and wage levels are, however, highly correlated. See: Rodrik, Dani. Sense and Nonsense in the Globalization Debate. Foreign Policy. Summer 1997, Number 107. pp. 30-33.

22. (back) See CRS Report RS20968, Jordan-U.S. Free Trade Agreement: Labor Issues, by [author name scrubbed], pp. 2-3, and CRS Report RS20999(pdf), U.S.-Jordan Free Trade Agreement: Analysis of Environmental Provisions, by [author name scrubbed], pp. 2-3.

23. (back) Government of Canada. Canada-Chile Free Trade Agreement. Article by Article Chapter Summaries. February 1997.

24. (back) Washington Trade Daily, US, Chile Reach FTA, December 12, 2002.

25. (back) The full text of the agreement has 24 chapters filling hundreds of pages. The entire text may be found at: http://www.ustr.gov.

26. (back) CRS Agriculture Policy and Farm Bill electronic briefing book, Agriculture in the U.S.-Chile Free Trade Agreement, http://www.congress.gov/brbk/html/ebagr53.html.

27. (back) For more background on these issues, see CRS Report RS21560, Free Trade Agreements with Singapore and Chile: Labor Issues, by Mary Jane Bolle.

28. (back) USTR. Response to the Labor Advisory Committee (LAC) report on the proposed FTAs with Singapore and Chile. Undated. May be found at USTR web site.

29. (back) Polaski, Sandra. Carnegie Endowment for International Peace. Testimony Before the Senate Committee on Finance on the Implementation of the U.S. Bilateral Free Trade Agreements with Singapore and Chile. June 17, 2003. p. 2.

30. (back) Polaski, Sandra. Issue Brief: Central America and the U.S. Face Challenge -- and Chance for Historic Breakthrough -- on Workers' Rights. Carnegie Endowment for International Peace. February 2003. pp. 1-2.

31. (back) See: USTR, op. cit., and Report of the Labor Advisory Committee for Trade Negotiations and Trade Policy (LAC). The U.S.-Chile and U.S.-Singapore Free Trade Agreements. February 28, 2003. pp. 5-9 and Lee, Thea M. Testimony of the AFL-CIO Before the U.S. House of Representatives Committee on Ways and Means, Subcommittee on Trade on the Implementation of U.S. bilateral Free Trade Agreements with Singapore and Chile. June 10, 2003. pp. 2-3.

32. (back) It should also be noted that under the principal negotiating objectives with respect to labor is the provision: 1) "to recognize that parties to a trade agreement retain the right to exercise discretion" in investigating and prosecuting compliance matters; 2) that "a country is effectively enforcing its laws" if its reflects reasonable action as being taken; and 3) "no retaliation may be authorized based on the exercise of these rights or the right to establish domestic labor standards." Sec. 2102(b)(11)(B).

33. (back) See U.S. Department of State. Fact Sheet: Bilateral Investment Treaty Program. January 22, 2001, http://www.state.gov/e/eb/rls/fs/197pf.htm, and NAFTA Article 1109.

34. (back) It should be noted that there is an ongoing, and so far unresolved, debate among economists over the efficacy and wisdom of using capital controls as a tool to manage international capital volatility.

35. (back) For example, if Chile were faced with a large and prolonged trend of capital outflows and sought to have full freedom to restrict them without being held liable for any damages investors might incur.

36. (back) Encaje bancario is a Spanish financial term for reserve.

37. (back) Note, there are two exceptions allowing recourse to the six-month standard, but neither affects portfolio capital. The first exception guarantees that there are no restrictions on transfers and payments related to foreign direct investment (excluding investments designed with the purpose of gaining direct or indirect access to the financial market). The second exception guarantees that there are no restrictions on payments made on loans or bonds issued in foreign markets, including inter- and intra-company debt financing between affiliated enterprises provided such payments are related to conducting business in the affiliated enterprises. The language related to financial markets effectively prohibits portfolio capital from qualifying under these exceptions, a provision added by Chile.

38. (back) Annex 10-C, paragraph 1(e).

39. (back) Discussions with representatives of the U.S. Treasury and the Embassy of Chile. If the Ley de Encaje were, for example, reimposed with a 50% deposit, this might well be construed by a dispute settlement panel to be sufficiently high as to "substantially impede" capital flows. The specifics of any future case will be critical to determining the outcome. This issue was further clarified by U.S. Under Secretary of the Treasury for International Affairs John Taylor in a side letter to the Singapore Monetary Authority. Although the letter is not binding for Chile, it is intended to provide "interpretive guidance" for a dispute settlement panel. The term "substantially impede" was used in NAFTA Article 2104, paragraph 5(c), but not in bilateral investment treaties, and has not been tested in arbitration.

40. (back) This section was written by Ruth Ellen Wasem, Specialist in Social Legislation.

41. (back) For background, see CRS Report RS20916(pdf), Immigration and Naturalization Fundamentals, and CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions, both by [author name scrubbed].

42. (back) For a discussion of the labor market requirements for employment-based visas, see CRS Report RS21520(pdf), Labor Certification for Permanent Immigrant Admissions; CRS Report RL30498, Immigration: Legislative Issues on Nonimmigrant Professional Specialty (H-1B) Workers; and CRS Report RS21543, Immigration Policy for Intracompany Transfers (L Visas): Issues and Legislation, all by [author name scrubbed]

43. (back) Report of the Labor Advisory Committee for Trade Negotiations and Trade Policy (LAC). The U.S.-Chile and U.S.-Singapore Free Trade Agreements. February 28, 2003. p. 9-11.

44. (back) Letter. U.S. Trade Representative to Mr. George Becker, Chair, Labor Advisory Committee on Trade Negotiations and Trade Policy. c. March 2003.

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