611.2131/257
The Department of State
to the Colombian Embassy11
Memorandum
The memorandum of the Department of State dated August 28, 1934,12 indicated that the Government of the United States
desired to conclude a new trade agreement with the Republic of Colombia,
under the authority of the Trade Agreements Act approved by the
President on June 12, 1934, to replace the Agreement signed December 15,
1933. It was explained in the memorandum under reference that the
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Act of June 12, 1934, authorizes
the President to enter into trade agreements with foreign countries and
to make them effective by proclamation without the necessity of
obtaining a special act of Congress in each case, and requires, among
other things, that the intention to negotiate any such agreement must be
publicly announced in order that interested persons may have an
opportunity to present their views.
These requirements having been complied with, in connection with the
proposed new trade agreement with the Republic of Colombia, the
Government of the United States is now in a position to proceed with the
negotiation of an agreement based upon the provisions of the Agreement
signed December 15, 1933, and to indicate the changes in the latter
instrument which it suggests be incorporated in the proposed new
agreement.
With reference to the text of the Agreement signed December 15, 1933, it
is necessary to propose a number of changes. There is attached the text
of the proposed new agreement as it would appear if the suggested
changes were made. For convenience, there is also attached a comparative
text of the Agreement signed December 15, 1933, showing proposed
omissions and additions.13 The changes indicated are in large part only formal
and will doubtless in most cases be found to be self-explanatory.
However, certain of them seem to require some explanation and
comment.
Article III of the Agreement signed December 15, 1933, provided in effect
that the provisions regarding the customs treatment to be accorded by
each country to the products of the other should not apply to such
special duties as are, or may be required to be, imposed by the laws of
either country on importations which are not properly marked to indicate
their origin, or to anti-dumping duties. With respect to the latter
stipulation, however, the article contained an exception to the effect
that anti-dumping duties would not be applied to unroasted coffee
imported into the United States from Colombia.
When the Agreement of December 15, 1933, was signed, it was the intention
to submit it to the Congress of the United States to be enacted into
law. Under this procedure the effect of Article III, if approval of the
Agreement by the Congress had been obtained, would have been to modify
the Anti-dumping Act by statutory enactment. The situation, however, has
been altered by the fact that the proposed new agreement will be brought
into force on the part of the United States by Executive action, under
the authority of the Trade Agreements Act of June 12, 1934. It becomes
necessary, therefore, to make certain that the provisions of the
proposed agreement come clearly within the authority of that Act. The
exception above referred to regarding the non-application of the
Anti-dumping Act to coffee imported from
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Colombia has been carefully considered by the
competent legal officers of this Government, and they have expressed
grave doubt whether the Trade Agreements Act authorizes the inclusion of
this provision in the proposed agreement. For this reason it is
considered necessary to propose that it be omitted. It may be pointed
out, however, that in the thirteen years during which the Anti-dumping
Act has been in effect there has been no occasion for the application of
that Act to green coffee imported from Colombia.
The Government of the United States also desires further that the whole
of Article III of the Agreement signed December 15, 1933, be omitted
from the new agreement and that the other matters dealt with in that
article be provided for in general terms in Articles I and II, as
indicated in the attached draft of the new agreement. It is believed
that the provisions in Article III of the Agreement signed December 15,
1933, regarding additional duties on articles not marked to indicate the
country of origin and regarding anti-dumping duties are adequately dealt
with in the general clause proposed for inclusion in Articles I and II,
whereby the duty reductions on products specified in the Schedules are
confined to ordinary customs duties, and whereby such products are
exempted from any other duties, taxes, fees or charges other or higher
“than those imposed or required to be imposed by laws … in effect on the
date of the signature” of the Agreement.
With reference to Article IV of the Agreement of December 15, 1933,
relating to internal taxes, the changes suggested are based on
considerations similar to those with respect to the non-application of
anti-dumping duties to green coffee imported from Colombia. As in the
latter case, there is grave doubt whether the Trade Agreements Act of
June 12, 1934, authorizes the inclusion of any provision with regard to
the limitation of the amount of state or municipal taxes. For this
reason it is necessary to propose that the provisions of the third
paragraph of Article IV, whereby such a limitation is imposed, be
omitted from the new agreement. It will be observed that in the proposed
revision of the text the corresponding obligation on the part of the
Republic of Colombia with respect to departmental and municipal taxes
has been omitted.
On the other hand, a further study of the legal considerations involved
has led to the conclusion that it would be possible, in conformity with
constitutional provisions, to include in the proposed new agreement a
provision for national and most-favored-nation treatment with respect to
state and municipal taxes. The provisions of the second paragraph of the
proposed revised text of Article IV have been modified in accordance
with the above considerations. The Government of the United States
requests that, reciprocally, the provision for national and
most-favored-nation treatment in Colombia regarding departmental and
municipal taxes likewise be revised so as to be
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made applicable to all articles enumerated and
described in Schedule I. This would, of course, involve the omission of
Schedule III of the Agreement signed December 15, 1933.
Article IV as thus revised would provide (a) for
national and most-favored-nation treatment with respect to national or
federal internal taxes on all articles, whether or not included in the
appended Schedules; (a) a limitation on the
absolute amount of national or federal internal taxes on articles
enumerated and described in the Schedules; and (c) reciprocal national and most-favored-nation treatment with
respect to state or departmental, and municipal taxes on all articles
enumerated and described in the Schedules.
With reference to the tariff concessions set forth in Schedule II of the
Agreement signed December 15, 1933, the Government of the United States
is prepared to add the following articles to the list of products on
which customs concessions would be granted by the United States to
Colombia:
- (1)
- Paragraph 10 (Tariff Act of 193014)—Tolu balsam,
natural and uncompounded, not containing alcohol; present duty
10% ad valorem; proposed new duty, 5% ad valorem.
- (2)
- Paragraph 35 (Tariff Act of 1930)—ipecac, natural and uncompounded, but advanced in
value or condition by any process or treatment whatever beyond
that essential to proper packing and the prevention of decay or
deterioration pending manufacture, and not containing alcohol;
present duty 10% ad valorem; proposed new duty. 5% ad
valorem.
- (3)
- Paragraph 762 (Tariff Act of 1930)—castor
deems; present duty one-half of 1 cent per pound;
proposed new duty, one-fourth of 1 cent per pound.
With reference to the proposed tariff concessions by Colombia on products
of the United States included in Schedule I of the Agreement signed
December 15, 1933, the Government of the United States invites attention
to the fact that certain of the rates of duty in the Colombian tariff,
particularly those on agricultural products, are extremely high and
would remain so even if they were reduced as provided for in Schedule I
of the Agreement signed December 15, 1933. Therefore, the Government of
the United States would appreciate such consideration as the Government
of the Republic of Colombia may be disposed to give to the possibility
of granting some further reductions in such duties.
With reference to the matter of foreign exchange control, the Government
of the United States proposes that there be included in a separate
exchange of notes, to be entered into concurrently with the proposed
trade agreement, provisions on this subject designed reciprocally to
protect the interests of the two countries.
Washington
, December
10, 1934.
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[Enclosure]
Proposed New Reciprocal Trade Agreement With
Colombia
The President of the United States of America and the President of
the Republic of Colombia, desiring to promote trade between the two
countries, have arrived at the following reciprocal Agreement.
Article I
Articles the growth, produce or manufacture of the United States of
America, enumerated and described in Schedule I annexed to this
Agreement and made a part thereof, shall, on their importation into
the Republic of Colombia, be exempt from customs duties in excess of
those set forth in the said Schedule. For purposes of this article
the term “customs duties” means the duties set forth in the Tariff
Schedule of Colombian law 62 of 1931,14a as modified and in effect on the day of the
signature of this Agreement.
No other or higher duties, taxes, fees, or charges of whatever
denomination, other than customs duties, shall be imposed on or in
connection with the importation into the Republic of Colombia of
articles the growth, produce or manufacture of the United States of
America enumerated and described in Schedule I, than those imposed
or required to be imposed by laws of the Republic of Colombia in
effect on the day of the signature of this Agreement.
Article II
Articles the growth, produce or manufacture of the Republic of
Colombia, enumerated and described in Schedule II annexed to this
Agreement and made a part thereof, shall, on their importation into
the United States of America, be exempt from ordinary customs duties
in excess of those set forth in the said Schedule and from all other
duties, taxes, fees, charges or exactions, imposed on or in
connection with importation, in excess of those imposed or required
to be imposed by laws of the United States of America in effect on
the day of the signature of this agreement. The provisions of this
article shall not apply to coffee imported into Puerto Rico.
Article III
All articles the growth, produce or manufacture of the United States
of America or the Republic of Colombia, shall, after importation
into the other country, be exempt from national or federal internal
taxes, fees, charges or exactions other or higher than those payable
on
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like articles of national
origin or any other foreign origin; and articles the growth, produce
or manufacture of the United States of America, or the Republic of
Colombia enumerated and described in Schedules I and II,
respectively, shall, after importation into the other country, be
exempt from all internal taxes, fees, charges or exactions other or
higher than those payable on like articles of national origin or any
other foreign origin.
Articles the growth, produce or manufacture of the United States of
America or the Republic of Colombia enumerated and described in
Schedules I and II, respectively, shall, after importation into the
other country, be exempt from any national or federal internal
taxes, fees, charges or exactions other or higher than those imposed
or required to be imposed by laws of the United States of America
and the Republic of Colombia, respectively, in effect on the day of
the signature of this Agreement.
In so far as rates and charges for transportation services within the
United States of America or the Republic of Colombia are imposed or
controlled by the Government of the respective country, goods which
are grown, produced or manufactured in the territory of either
country shall pay within the territory of the other country
transportation rates and charges which are not discriminatory as
compared with the rates and charges on like goods of domestic origin
transported under like circumstances and conditions.
Article IV
No prohibition or restriction on importations shall be imposed by the
United States of America or the Republic of Colombia on articles the
growth, produce or manufacture of the other country with respect to
which obligations have been assumed under Articles I or II of this
Agreement: Provided, That the foregoing provision shall not apply to
prohibitions or restrictions relating to public security; imposed on
moral or humanitarian grounds; designed to protect human, animal, or
plant life; applying to prison-made goods; relating to the
enforcement of police or revenue laws; or designed to extend to
imported products a regime analogous to that affecting like or
competing domestic products.
Article V
Laws, regulations of administrative authorities and decisions of
administrative or judicial authorities of the United States of
America and the Republic of Colombia, respectively, pertaining to
the classification of articles for customs purposes or to rates of
duty shall be published promptly in such manner as to enable traders
to become acquainted with them.
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Unless otherwise provided under constitutional requirements, no
administrative ruling by the United States of America or the
Republic of Colombia effecting advances in duties or charges
applicable under an established and uniform practice to imports,
from the territory of the other country, or imposing any new
requirement with respect to such importations, shall be effective
retroactively or with respect to articles either entered for or
withdrawn for consumption prior to the expiration of thirty days
after the date of publication of notice of such ruling in the usual
official manner. The provisions of this paragraph do not apply to
administrative orders imposing antidumping duties, or relating to
sanitation or public safety, or giving effect to judicial decisions
or decisions of customs courts.
Article VI
It is agreed that the United States of America and the Republic of
Colombia will grant each other unconditional and unrestricted
most-favored-nation treatment in all matters concerning customs
duties and subsidiary charges of every kind and in the method of
levying duties, and, further, in all matters concerning the rules,
formalities and charges imposed in connection with the clearing of
goods through the customs.
Accordingly, natural or manufactured products having their origin in
the United States of America or the Republic of Colombia shall in no
case be subject, in the other country in regard to the matters
referred to above, to any duties, taxes or charges other or higher,
or to any rules or formalities other or more burdensome, than those
to which the like products of any third country are or may hereafter
be subject.
Similarly, natural or manufactured products exported from the
territory of the United States of America or the Republic of
Colombia and consigned to the territory of the other country shall
in no case be subject with respect to exportation and in regard to
the above-mentioned matters, to any duties, taxes or charges other
or higher, or to any rules or formalities other or more burdensome,
than those to which the like products when consigned to the
territory of any third country are or may hereafter be subject.
Any advantage, favor, privilege or immunity which has been or may
hereafter be granted by the United States of America or the Republic
of Colombia in regard to the above-mentioned matters, to a natural
or manufactured product originating in any third country or
consigned to the territory of any third country shall be accorded
immediately and without compensation to the like product originating
in or consigned to the territory of the Republic of Colombia or the
United States of America, respectively.
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Without prejudice to the provisions of Article IV of this Agreement,
neither the United States of America nor the Republic of Colombia
shall establish any prohibition or maintain any restriction on
imports from the territory of the other country which is not applied
to the importation of any like article originating in any third
country. Without prejudice to the provisions of Article IV of this
Agreement, any abolition of an import prohibition or restriction
which may be granted even temporarily by the United States of
America or the Republic of Colombia in favor of an article of a
third country shall be applied immediately and unconditionally to
the like article originating in the territory of the Republic of
Colombia or the United States of America, respectively.
In the event of rations or quotas being established by the United
States of America or the Republic of Colombia for the importation of
any article otherwise restricted or prohibited, it is agreed,
without prejudice to the provisions of Article IV, that in the
allocation of the quantity of restricted goods which may be
authorized for importation, the other country will be granted a
share equivalent to the proportion of the trade which it enjoyed in
a previous representative period.
Nevertheless, the advantages now accorded or which may hereafter be
accorded by the United States of America or the Republic of Colombia
to adjacent countries in order to facilitate frontier traffic, and
advantages resulting from a customs union to which either country
may become a party shall be excepted from the operation of this
Agreement; and this Agreement shall not apply to police or sanitary
regulations or to the commerce of the United States of America with
the Republic of Cuba, or to commerce between the United States of
America and the Panama Canal Zone, the Philippine Islands, or any
territory or possession of the United States of America or to the
commerce of the territories and possessions of the United States of
America with one another.
Subject to the reservations set forth in the preceding paragraph, the
provisions of this article shall apply to articles the growth,
produce or manufacture of any region under the sovereignty or
authority of the United States of America or the Republic of
Colombia imported from or exported to any region under the
sovereignty or authority of the Republic of Colombia or the United
States of America, respectively. It is understood, however, that the
provisions of this paragraph do not apply to the Panama Canal
Zone.
Article VII
In cases in which any penalty or additional duties shall be imposed
in the United States of America or the Republic of Colombia in
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respect of customs
regulations or customs formalities on merchandise arriving from the
territory of the other country, a period of at least sixty days will
be granted the importer or other party in interest, or the agent of
either of them, in which an appeal may be taken to an appropriate
authority competent to review the matter: Provided, That in the case
of merchandise liable to perish or to waste or to become greatly
reduced in value by keeping, or when the expense of preserving the
merchandise is out of proportion to the value thereof, such
merchandise may be sold, and the net proceeds obtained from such
sale shall be considered merchandise within the meaning of this
paragraph and shall be accorded all the privileges of appeal as
provided herein.
Greater than nominal penalties will not be imposed in the United
States of America or the Republic of Colombia upon importations of
products or manufactures of the territory of the other country
because of errors in documentation obviously clerical in origin or
where good faith can be established.
The Government of each country will accord sympathetic consideration
to such reasonable representations as the other Government may make
regarding the operation of customs regulations, the observance of
customs formalities, and the application of sanitary laws and
regulations for the protection of human, animal, or plant life.
Article VIII
Except as provided in Article VI the provisions of this Agreement
relating to the treatment to be accorded by the United States of
America and the Republic of Colombia, respectively, to the commerce
of the other country, shall not apply to the Philippine Islands, the
Virgin Islands, American Samoa, the Island of Guam, nor to the
Panama Canal Zone.
Article IX
On and after the day on which this Agreement comes into force,
articles the growth, produce or manufacture of the United States of
America and articles the growth, produce or manufacture of the
Republic of Colombia previously imported into the other country
shall be subject to the provisions of this Agreement, if entry
therefor has not been made, or if they have been previously entered
without payment of duty and under bond for warehousing,
transportation, or any other purpose, and without any permit of
delivery to the importer or to his agent having been issued:
Provided, That when duties are based upon the weight of merchandise
deposited in any public or private warehouse, the said duties shall,
except as may be otherwise specially provided in the tariff laws of
the respective countries
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in
force on the day of the signature of this Agreement, be levied and
collected upon the weight of such merchandise at the time of its
entry.
Article X
The United States of America and the Republic of Colombia retain the
right to apply such measures as they respectively may see fit with
respect to the control of the export or sale for export of arms,
munitions, or implements of war, and in exceptional circumstances of
other material needed in war.
Article XI
Nothing in this Agreement shall be construed in any way to affect any
of the provisions of the treaty signed at Bogotá, April 6, 1914, by
the United States of America and the Republic of Colombia.
Article XII
The Governments of the United States of America and the Republic of
Colombia declare that the purpose of this Agreement is to grant
mutual and reciprocal concessions and advantages for the promotion
of commercial relations between the two countries; and that each and
every one of the provisions contained herein shall be complied with
and interpreted in accordance with this spirit and intention.
Article XIII
The present Agreement shall come into full force on the thirtieth day
following proclamation thereof by the President of the United States
of America and the President of the Republic of Colombia, or should
the proclamations be issued on different days, on the thirtieth day
following the date of the later in time of such proclamations, and
shall remain in force for the term of two years thereafter. The
Government of each country shall notify the Government of the other
country of the date of its proclamation.
Unless at least six months before the expiration of the aforesaid
term of two years the Government of either country shall have given
to the other Government notice of intention to terminate the
Agreement upon the expiration of the aforesaid term, the Agreement
shall remain in force thereafter until six months from such time as
the Government of either country shall have given notice to the
other Government.
In witness whereof the respective Plenipotentiaries have signed this
Agreement and have affixed their seals hereto.
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Done in duplicate, in the English and Spanish languages, both
authentic, at the City of Washington this . . . . . day of . . . . .
. . ., 193 …
For the President of the United States of America;
For the President of the Republic of Colombia: