PERU’S EXPERIENCE OF CERTIFICATION IN THE PERU-US FTA

peru

Excerpts from documents relating to certification of Peru’s compliance with US interpretations of Peru’s obligations under the US Peru FTA.

These excerpts are from documents released under the US Freedom of Information Act.[1] They involve communications within the USTR unless otherwise indicated.

June 2008: The USTR met with Peruvian officials to “discuss modifications to the Wildlife and Forestry Law … . These modifications became DL 1090.”[2]

26 September 2008: “Today is the last day of our discussions with the Peruvians this week. Yesterday we agreed to send them comments on the regulations to DL 1090 (Forestry and Wildlife Decree) as soon as possible … . [T]he Peruvians need to have our comments as soon as possible so they can make the necessary changes to the regulations. We also agreed to return to Lima the week of October 27 for a week of meetings … The purpose of this trip is to finalize all of the revisions to the regulations.”[3]

27 October 2008: A member of the House Ways and Means committee wanted to discuss with the Deputy Assistant USTR “implementation and in particular the status of the provision that Peru added to 1090 without telling USTR that you have now asked them to remove”.[4]

29 October 2008: “My colleagues from the Forest Service and USAID (forest experts) are going to put together language on DL 1090. … All in all if the Peruvians accept our language as we propose it we still have the possibility of wrapping everything up the week of November 10. If the Peruvians try to negotiate then all bets are off.”[5]

11 November 2008: “ … The Peruvians included a modification authorizing No-Bid Concessions (the government could award a concession to an individual/company without going through a competitive bidding process). We expressed concern about including this provision … We agreed to include this provision only after we were assured that it would be applied in these limited circumstances and would be subject to the same open and transparent process as other concession bidding processes.”[6]

 18 November 2008: Talking points prepared by USTR staff for Ambassador Schwab to convey to Peruvian officials:

“We need to confirm that the concession by private initiative in DL 1090 – as expanded now to apply to all forestry concessions — will through the law or its regulations meet Peru’s obligations to have a transparent and competitive system for awarding forestry concessions.

We also need to analyze a number of other regulations, but your team keeps sending us revised draft regulations to review, even as of this week. These additional changes have delayed the process.”[7]

18 November 2008: “We still have outstanding issues in the other regs -small issues. The biggest issue is the law DL 1090 and the private concession issue. We have to redraft the regs and the law – Peru needs to accept them w/o changes.”[8]

December 2008: From the Deputy Assistant USTR to an official in Peru’s Trade Ministry: “We think it is important for DL 1090 to include the hectare amounts for each mechanism. The hectare amount should be included in DL 1090 for private initiative before it goes to your Congress.”[9]

5 December 2008: communications between Peru official and Deputy Assistant USTR “Do we understand that with this amendment, the proposal for modifying DL 1090 is OK with you?”  … “Could you send me the final version of the law?  It would be helpful to review it one last time before you send it forward.” … “Of course …, I’m attaching hereto the final version of the law in Spanish. I will request the correspondent translation and send it you as soon as I get it.”[10]

 7 January 2009: “Peru made additional changes to DL 1090 that the US never agreed to or saw and then published it as a done deal in July. We told Peru that the changes they made were unacceptable as they undermined the letter and spirit of the Forest Sector Annex. They agreed to make changes and we agreed to those specific changes in November. We gave them the go ahead to move DL 1090 through their Congress weeks ago. I do not understand why this has been delayed and why we weren’t notified of the delay.

They need to move the modifications to DL 1090 through their Congress asap but we also need to make sure additional changes are not made to DL 1090. I am not sure the Peruvians can assure us that their Congress will not make additional changes.”[11]

8 January 2009: “The Peruvians told us that President Garcia sent DL 1090 as well as the other outstanding legislative items to the Peruvian Congress today. Their Congress has scheduled a special session for Monday, Jan. 12, to deal with all US-Peru TPA legislative issues. They could not guarantee that there would be no changes to DL 1090 but said they would contact us if there were any significant changes so we could weigh in before the law was passed.”[12]

12 January 2009: from US embassy in Lima to USTR staff: “I wanted to make sure you have the attached versions (in Spanish) of the Forestry (1090) Bill and Omnibus Bill as introduced to Peru’s Congress for approval (hopefully) tomorrow afternoon. Although the message that changes should be avoided has been clearly delivered, we’ll do our best to quickly report any changes that do emerge.”[13]

13 January 2009: from US embassy in Lima to USTR staff: “Enviro law passed with 58-7 votes (apparently only need majority of those present, sorry for earlier error) with president of congress stressing ‘as presented by executive’. We watched the whole debate, and there were no changes.”[14]

13 January 2009: USTR Official to Peru trade official: “We just learned that several of the Supreme Decrees were recently published. While we appreciate the need to move quickly it is very important that our technical experts have time to review the final decrees before they are published. If a significant problem arises after publication, it could impede entry-into-force of the agreement. Our technical teams are reviewing the decrees as quickly as possible. We will be communicating with you as those reviews progress.”[15]

February 2009: The US-Peru FTA took effect after the US government granted its unilateral certification that Peru had made the desired changes to its domestic laws.

 

 

[1]Email communications between staff of the Office of the U.S. Trade Representative, the U.S. Embassy in Lima, other U.S. government officials, and officials of Peru’s Trade Ministry (MINCETUR), July 2008 – January 2009.  Obtained via U.S. Freedom of Information Act request, March 2010.

[2]Mara Burr (Deputy Assistance USTR for Environment and Natural Resources) to other USTR staff, 11 November 2008

[3]Mara Burr (Deputy Assistance USTR for Environment and Natural Resources) to USTR and other staff from the inter-agency team, 26 September 2008

[4]Alex Perkins, House Ways and Means Committee to Mara Burr (Deputy Assistance USTR for Environment and Natural Resources), 27 October 2008

[5]Mara Burr (Deputy Assistance USTR for Environment and Natural Resources) to USTR staff, 29 October 2008

[6]Mara Burr (Deputy Assistance USTR for Environment and Natural Resources) to other USTR staff, 11 November 2008

[7]Talking points prepared for Ambassador Schwab “on Peru FTA Implementation”, 18 November 2008

[8]Mara Burr (Deputy Assistance USTR for Environment and Natural Resources) to USTR staff, 18 November 2008

[9]Mara Burr (Deputy Assistance USTR for Environment and Natural Resources) to Peru’s Trade Ministry, December 2008 [Identity of the recipient and exact date were redacted]

[10]Emails between Jaime Dupuy, Vice-Minister of Trade, Peru and Mara Burr (Deputy Assistance USTR for Environment and Natural Resources), 5 December 2008

[11]Mara Burr (Deputy Assistance USTR for Environment and Natural Resources) to other USTR staff, 7 January 2009

[12]Mara Burr (Deputy Assistance USTR for Environment and Natural Resources) to other USTR staff, 8 January 2009

[13]Marcos Mandojana (Economic Section, US Embassy in Lima) to USTR staff, 12 January 2009

[14]Marcos Mandojana (Economic Section, US Embassy in Lima) to USTR staff, 13 January 2009

[15]Everett Eissenstat (Assistant USTR for the Americas) to Silvia Hooker (Peru’s Trade Ministry), 13 January 2009