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The Export Trade Certificate of Review Program - The Competitive Edge for U.S. Exporters

[Federal Register: February 9, 2006 (Volume 71, Number 27)]

[Notices]

[Page 6753-6755]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr09fe06-36]

DEPARTMENT OF COMMERCE

International Trade Administration

Export Trade Certificate of Review

ACTION: Notice of issuance of an export trade certificate of review,

application no. 05-00001.

SUMMARY: On January 30, 2006, The U.S. Department of Commerce issued an

export trade certificate of Review to Central America Poultry Export

Quota, Inc. (``CA-PEQ''). This notice summarizes the conduct for which

certification has been granted.

FOR FURTHER INFORMATION CONTACT: Jeffrey C. Anspacher, Director, Export

Trading Company Affairs, International Trade Administration, by

telephone at (202) 482-5131 (this is not a toll-free number), or by e-

mail at oetca@ita.doc.gov.

SUPPLEMENTARY INFORMATION: Title III of the Export Trading Company Act

of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to

issue Export Trade Certificates of Review. The regulations implementing

Title III are found at 15 CFR Part 325 (2005).

Export Trading Company Affairs (``ETCA'') is issuing this notice

pursuant to 15 CFR 325.6(b), which requires the U.S. Department of

Commerce to publish a summary of the certification in the Federal

person aggrieved by the Secretary's determination may, within 30 days

of the date of this notice, bring an action in any appropriate district

court of the United States to set aside the determination on the ground

that the determination is erroneous.

Description of Certified Conduct

Export Trade

Chicken leg quarters, (or parts of chicken leg quarters, including

legs or thighs), fresh, chilled or frozen, seasoned or unseasoned,

marinated or not marinated, classifiable under HTS 0207.13.99,

0207.14.99 and 1602.32.00.

Export Markets

Chicken leg quarters for which awards will be made will be exported

to El Salvador, Guatemala, Honduras and Nicaragua.

Export Trade Activities and Methods of Operation

I. Purpose. CA-PEQ will manage on an open tender basis the tariff-

rate quotas (``TRQs'') for poultry products granted by El Salvador,

Guatemala, Honduras, and Nicaragua to the United States under the terms

of the United States--Dominican Republic--Central America Free Trade

Agreement (``DR-CAFTA'') or any amended or successor agreement

providing for Central American poultry TRQs for the United States of

America. CA-PEQ also will provide for distributions of the proceeds

received from the aforementioned tender process (``the TRQ System'')

for the benefit of the poultry industries in El Salvador, Guatemala,

Honduras, Nicaragua, and the United States.

II. Implementation. A. Administrator. CA-PEQ shall contract with a

neutral third party Administrator who is not engaged in the production,

sale, distribution or export of poultry or poultry products and who

shall bear responsibility for administering the TRQ System, subject to

general supervision and oversight by the Board of Directors of CA-PEQ.

B. Membership. CA-PEQ has been formed jointly by the USA Poultry

and Egg Export Council (``USAPEEC'') on behalf of the U.S. poultry

industry; by Asociaci[oacute]n Nacional de Avicultores de Guatemala

(``ANAVI'') on behalf of the Guatemalan poultry industry; by

Asociaci[oacute]n Nacional de Avicultores de El Salvador (``AVES'') on

behalf of the Salvadoran poultry industry; and by Asociaci[oacute]n

Nacional de Avicultores y Productores de Alimentos de Nicaragua

(``ANAPA'') on behalf of the Nicaraguan poultry industry.

C. Open Tender Process. CA-PEQ shall offer TRQ Certificates for

duty-free shipments of chicken leg quarters to El Salvador, Guatemala,

Honduras, and Nicaragua solely and exclusively through an open tender

process with certificates awarded to the highest bidders (``TRQ

Certificates''). CA-PEQ shall hold tenders in accordance with tranches

established in the relevant regulations of El Salvador, Guatemala,

Honduras or Nicaragua, or in the absence of such, at least three times

each year. The award of TRQ Certificates under the open tender process

shall be determined solely by

[[Page 6754]]

the Administrator in accordance with Section I without any

participation by the Board of Directors.

D. Persons or Entities Eligible to Bid. Any person or entity

incorporated or domiciled in the United States of America shall be

eligible to bid in the open tender process.

E. Notice. The Administrator shall publish notice (``Notice'') of

each open tender process to be held to award TRQ Certificates in the

Journal of Commerce and, at the discretion of the Administrator, in

other publications of general circulation within the U.S. poultry

industry. The Notice will invite independent bids and will specify (i)

the total amount (in metric tons) that will be allocated pursuant to

the applicable tender; (ii) the shipment period for which the TRQ

Certificates will be valid; (iii) the date and time by which all bids

must be received by the Administrator in order to be considered (the

``Bid Date''); and (iv) a minimum bid amount per ton, as established by

the Board of Directors, to ensure the costs of administering the

auction are recovered. The Notice normally will be published not later

than 30 business days prior to the first day of the shipment period and

will specify a Bid Date that is at least 10 business days after the

date of publication of the Notice. The Notice will specify the format

for bid submissions. Bids must be received by the Administrator not

later than 5:00 p.m. EST on the Bid Date.

F. Contents of Bid. The bid shall be in a format established by the

Administrator and shall state (i) the name, address, telephone and

facsimile numbers, and email address of the bidder; (ii) the quantity

of poultry bid, in an amount that is a multiple of 25 metric tons;

(iii) the bid price in U.S. dollars per metric ton; and (iv) the total

value of the bid. The bid form shall contain a provision, that must be

signed by the bidder, agreeing that (i) any dispute that may arise

relating to the bidding process or to the award to TRQ Certificates

shall be settled by arbitration administered by the American

Arbitration Association in accordance with its Commercial Arbitration

Rules; and (ii) judgment on any award rendered by the arbitrator may be

entered in any court having jurisdiction thereof.

G. Performance Security. The bidder shall submit with each bid a

performance bond, an irrevocable letter of credit drawn on a U.S. bank,

cashier's check, wire transfer or equivalent security, in a form

approved and for the benefit of an account designated by the

Administrator, in the amount of $50,000 or the total value of the bid,

whichever is less. The bidder shall forfeit such performance security

if the bidder fails to pay for any TRQ Certificates awarded within five

(5) business days. The bidder may chose to apply the performance

security to the price of any successful bid, or to retain the

performance security for a subsequent open tender process. Promptly

after the close of the open tender process, the Administrator shall

return any unused or non-forfeited security to the bidder.

H. Confidentiality of Information. The Administrator shall treat

all bids and their contents as confidential. The Administrator shall

disclose any such information only to another neutral third party or

authorized government official of the United States, El Salvador,

Guatemala, Honduras or Nicaragua, signatories to the DR-CAFTA, and only

where necessary to ensure the effective operation of the TRQ System or

where required by law (including appropriate disclosure in connection

with the arbitration of a dispute). However, after the issuance of all

TRQ Certificates from an open tender process, the Administrator shall

notify all bidders and shall disclose publicly (i) the total tonnage

for which TRQ Certificates were awarded, and (ii) the lowest price per

metric ton of all successful bids.

I. Award of TRQ Certificates. The Administrator shall award TRQ

Certificates for the available tonnage to the bidders who have

submitted the highest price conforming bids. If two or more bidders

have submitted bids with identical prices, the Administrator shall

divide the remaining available tonnage in proportion to the quantities

of their bids, and offer each TRQ Certificates in the resulting

tonnages. If any bidder declines all or part of the tonnage offered,

the Administrator shall offer that tonnage first to the other tying

bidders, and then to the next highest bidder.

J. Payment for TRQ Certificates. Promptly after being notified of a

TRQ award and within the time specified in the Notice, the bidder shall

pay the full amount of the bid, either by wire transfer or by certified

check, to an account designated by the Administrator. If the bidder

fails to make payment within five (5) days, the Administrator shall

revoke the award and award the tonnage to the next highest bidder(s).

K. Delivery of TRQ Certificates. The Administrator shall establish

an account for each successful bidder in the amount of tonnage

available for TRQ Certificates. Upon request, the Administrator will

issue TRQ Certificates in the tonnage designated by the bidder,

consistent with the balance in that account. The TRQ Certificate shall

state the delivery period for which it is valid.

L. Transferability. TRQ Certificates shall be freely transferable

except that (i) any TRQ Certificate holder who intends to sell,

transfer or assign any rights under that Certificate shall publish such

intention on a Web site maintained by the Administrator at least three

(3) business days prior to any sale, transfer or assignment; and (ii)

any TRQ holder that sells, transfers or assigns its rights under a TRQ

Certificate shall provide the Administrator with notice and a copy of

the sale, transfer or assignment within three (3) business days.

M. Deposit of Proceeds: The Administrator shall cause all proceeds

of the open tender process to be deposited in an interest-bearing

account in a financial institution approved by the CA-PEQ Board of

Directors.

N. Disposition of Proceeds. The proceeds of the open tender process

shall be applied and distributed as follows:

1. The Administrator shall pay from tender proceeds, as they become

available, all operating expenses of CA-PEQ, including legal,

accounting and administrative costs of establishing and operating the

TRQ System, as authorized by the Board of Directors.

2. Of the proceeds remaining at the end of each year of operations

after all costs described in (1) above have been paid--

(a) Fifty percent (50%) shall be distributed to fund export market

development, educational, scientific and technical projects to benefit

the United States poultry industry. CA-PEQ shall accept proposals for

the funding of projects approved by the Board of Directors of USAPEEC.

The Administrator shall disburse funds to those projects approved for

funding by the CA-PEQ Board of Directors.

(b) Fifty percent (50%) shall be distributed to fund market

development, educational, scientific and technical projects to benefit

the poultry industries of El Salvador, Guatemala, Honduras, and

Nicaragua. CA-PEQ shall accept proposals for funding of projects

approved by the Boards of Directors of ANAVI, AVES, and ANAPA, as the

case may be. The Administrator shall disburse funds to those projects

approved for funding by the CA-PEQ Board of Directors.

O. Arbitration of Disputes. Any dispute, controversy or claim

arising out of or relating to the TRQ System or the breach thereof

shall be settled by arbitration administered by the

[[Page 6755]]

American Arbitration Association in accordance with its Commercial

Arbitration Rules, and judgment on the award rendered by the arbitrator

may be entered in any court having jurisdiction thereof.

P. Annual Reports. CA-PEQ shall publish an annual report including

a statement of its operating expenses and data on the distribution of

proceeds, as reflected in the audited financial statement of the CA-PEQ

TRQ System.

III. Cooperation with the U.S. Government and with the Governments

of El Salvador, Guatemala, Honduras, and Nicaragua. CA-PEQ will provide

whatever information or consultations may be useful in order to ensure

effective consultations between the government of the United States of

America and the governments of El Salvador, Guatemala, and Nicaragua

concerning the implementation and operation of the TRQ System. In

particular, while maintaining the confidentiality of information

submitted by bidders and Members, CA-PEQ will provide its annual

report, regular reports following each tender held, reports on

distributions of tender proceeds, and any other information that might

be requested by the U.S. Government. Directly or through the U.S.

Government, CA-PEQ will endeavor to accommodate any information request

from the governments of El Salvador, Guatemala, Honduras, and

Nicaragua, while protecting confidential information; and will consult

with officials of those governments as appropriate.

IV. Miscellaneous Implementing Provisions. CA-PEQ and/or Members

may (i) meet, discuss and provide for an administrative structure to

implement the foregoing tariff-rate quota management system, assess its

operations and discuss modifications as necessary to improve its

workability; (ii) meet, exchange and discuss information regarding the

structure and method for implementing the foregoing tariff-rate quota

management system; (iii) meet, exchange and discuss the types of

information needed regarding the bidding process and distribution of

the bid proceeds, that are necessary for implementation of the system;

(iv) meet, exchange and discuss information regarding U.S. and foreign

government agreements, legislation and regulations affecting the tariff

rate quota management system; and (v) otherwise meet, discuss and

exchange information as necessary to implement the activities described

above and take the necessary action to implement the foregoing tariff-

rate quota management system.

Terms and Conditions of Certificate

1. Except as authorized in Paragraphs 2.H and 2.N of the Export

Trade Activities and Methods of Operation, in engaging in Export Trade

Activities and Methods of Operation, neither CA-PEQ, the Administrator,

any Member, nor any neutral third party shall intentionally disclose,

directly or indirectly, to any Member (including parent companies,

subsidiaries, or other entities related to any Member) any information

regarding any other Member's or bidder's costs, production,

inventories, domestic prices, domestic sales, capacity to produce

Products for domestic sale, domestic orders, terms of domestic

marketing or sale, or U.S. business plans, strategies, or methods,

unless such information is already generally available to the trade or

public.

2. CA-PEQ and Members will comply with requests made by the

Secretary of Commerce on behalf of the Secretary or the Attorney

General for information or documents relevant to conduct under the

Certificate. The Secretary of Commerce will request such information or

documents when either the Attorney General or the Secretary of Commerce

believes that the information or documents are required to determine

that the Export Trade, Export Trade Activities and Methods of Operation

of a person protected by this Certificate of Review continue to comply

with the standards of section 303(a) of the Act.

Definition

Neutral third party, as used in this Certificate of Review, means a

party not otherwise associated with CA-PEQ or any Member and who is not

engaged in the production, distribution, or sale of chicken.

Members (Within the Meaning of Section 325.2(1) of the Regulations)

Members (in addition to applicant): USA Poultry and Egg Export

Council; Asociaci[oacute]n Nacional de Avicultores de Guatemala;

Asociaci[oacute]n Nacional de Avicultores de El Salvador; and

Asociaci[oacute]n Nacional de Avicultores y Productores de Alimentos de

Nicaragua.

Protection Provided by Certificate

This Certificate protects CA-PEQ; Members; and their directors,

officers, and employees acting on their behalf from private treble

damage actions and government criminal and civil suits under U.S.

federal and state antitrust laws for the export conduct specified in

the Certificate and carried out during its effective period in

compliance with its terms and conditions.

Effective Period of Certificate

This Certificate continues in effect from the effective date

indicated below until it is relinquished, modified, or revoked as

provided in the Act and the Regulations.

Other Conduct

Nothing in this Certificate prohibits CA-PEQ and Members from

engaging in conduct not specified in this Certificate, but such conduct

is subject to the normal application of the antitrust laws.

Disclaimer

The issuance of this Certificate of Review to CA-PEQ by the Deputy

Secretary of Commerce with the concurrence of the Attorney General

under the provisions of the Act does not constitute, explicitly or

implicitly, an endorsement or opinion by the Secretary of Commerce or

by the Attorney General concerning either (a) the viability or quality

of the business plans of CA-PEQ or Members or (b) the legality of such

business plans of CA-PEQ or Members under the laws of the United States

(other than as provided in the Act) or under the laws of any foreign

country.

A copy of the certificate will be kept in the International Trade

Administration's Freedom of Information Records Inspection Facility,

Room 4100, U.S. Department of Commerce, 14th Street and Constitution

Avenue, NW., Washington, DC 20230.

Dated: February 2, 2006.

Jeffrey C. Anspacher,

Director, Export Trading Company Affairs.

[FR Doc. E6-1791 Filed 2-8-06; 8:45 am]

BILLING CODE 3510-DR-P

Last Updated: 8/25/15 5:46 PM