Search Penny Hill Press

Friday, March 11, 2011

Trade Promotion Authority and the U.S.-South Korea Free Trade Agreement

Emily C. Barbour
Legislative Attorney

On June 30, 2007, U.S. and South Korean officials signed the Korea Free Trade Agreement (KORUS FTA) for their respective countries. It is one of three free trade agreements currently awaiting submission to Congress for approval and implementing legislation. In June 2010, the Obama Administration announced plans to seek Congress’s approval for the KORUS FTA after first engaging in talks with South Korea over U.S. concerns with the agreement as signed, particularly over its provisions involving market access for U.S. autos. The results of these talks are memorialized in three February 10, 2011, documents, which have been collectively referred to as the “supplemental agreement” or “supplementary deal” to the 2007 KORUS FTA.

The Executive, in consultation with Congress, is expected to draft legislation approving and implementing the KORUS FTA and submit the resulting “implementing bill” to Congress during the first session of the 112
th Congress. This legislation will be entitled to consideration in Congress under expedited (“fast track”) legislative procedures if it satisfies the requirements of the Bipartisan Trade Promotion Authority Act of 2002 (Trade Act of 2002). In particular, the implementing bill must: (1) approve the agreement “entered into” in 2007; and (2) include provisions enacting, amending, or repealing existing U.S. laws only to the extent that the provisions are “necessary or appropriate” for the implementation of the agreement “entered into” in 2007. Each chamber of Congress, acting independently of the other, has the authority to determine for itself whether the KORUS FTA implementing bill conforms with these requirements. To the extent either the House or the Senate finds that the bill satisfies the terms of the Trade Act of 2002, the bill will be entitled to receive an up-or-down vote without amendment and with limited debate in that chamber.

It is difficult to predict with certainty how the 2010 changes might affect Congress’s decision to consider the KORUS FTA implementing bill under the fast track procedures. However, the effect of side agreements on the fast track eligibility of the implementing legislation for the North American Free Trade Agreement (NAFTA) may be instructive. In that case, the Executive concluded supplemental agreements to the trade agreement after the agreement was signed and trade promotion authority had expired. These agreements were treated as executive agreements, circumventing the need for their express approval by Congress, but the implementing bill nevertheless authorized U.S. participation in the two agreements. Arguably, the NAFTA supplemental agreements may be characterized as having received congressional approval.

Although Members expressed concern about the use of the fast track procedures to consider the NAFTA implementing bill, no Member formally challenged the bill’s eligibility for fast track consideration. To challenge the use of the fast track procedures to consider the KORUS FTA implementing bill, a Member must raise an objection. The bill’s eligibility for fast track consideration will then be resolved by the chamber in which the objection was raised. Either chamber may also decide, as an exercise of its rulemaking power, to waive, suspend, or repeal its grant of fast track authority.

If the KORUS FTA implementing bill is deemed ineligible for—or otherwise denied—fast track consideration, the bill, in its entirety, may be considered under the regular procedures of each chamber. Under these procedures, the bill, like other pieces of legislation, might not be brought up for a vote or might be passed with amendments. The Jordan Free Trade Agreement was statutorily implemented under regular procedures.

Date of Report: March 2, 2011
Number of Pages: 18
Order Number: R41544
Price: $29.95

Follow us on TWITTER at or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail
Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.