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

[Federal Register: December 1, 2003 (Volume 68, Number 230)]

[Notices]

[Page 67150-67152]

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

[DOCID:fr01de03-43]

DEPARTMENT OF COMMERCE

International Trade Administration

Export Trade Certificate of Review

ACTION: Notice of application.

SUMMARY: The Office of Export Trading Company Affairs (``OETCA''),

International Trade Administration, U.S. Department of Commerce, has

received an application for an Export Trade Certificate of Review. This

notice summarizes the conduct for which certification is sought and

requests comments relevant to whether the Certificate should be issued.

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

of Export Trading Company Affairs, International Trade Administration,

(202) 482-5131 (this is not a toll-free number) or 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. An Export Trade Certificate

of Review protects the holder and the members identified in the

Certificate from state and federal government antitrust actions and

from private treble damage antitrust actions

[[Page 67151]]

for the export conduct specified in the Certificate and carried out in

compliance with its terms and conditions. Section 302(b)(1) of the

Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the

Secretary to publish a notice in the Federal Register identifying the

applicant and summarizing its proposed export conduct.

Request for Public Comments

Interested parties may submit written comments relevant to the

determination whether a Certificate should be issued. If the comments

include any privileged or confidential business information, it must be

clearly marked and a nonconfidential version of the comments

(identified as such) should be included. Any comments not marked

privileged or confidential business information will be deemed to be

nonconfidential. An original and five (5) copies, plus two (2) copies

of the nonconfidential version, should be submitted no later than 20

days after the date of this notice to: Office of Export Trading Company

Affairs, International Trade Administration, U.S. Department of

Commerce, Room 1104H, Washington, DC 20230. Information submitted by

any person is exempt from disclosure under the Freedom of Information

Act (5 U.S.C. 552). However, nonconfidential versions of the comments

will be made available to the applicant if necessary for determining

whether or not to issue the Certificate. Comments should refer to this

application as ``Export Trade Certificate of Review, application number

03-00008.'' A summary of the application follows.

Summary of Application

Applicant: California Pistachio Export Council, LLC (``CPEC''),

5497 E. Olive Avenue, Fresno, California 93727.

Contact: Carter Brown, Esquire, Consultant to the applicant,

Telephone: (202) 543-4455.

Application No.: 03-00008.

Date Deemed Submitted: November 19, 2003. Expedited Review of the

application has been requested.

Members (in addition to applicant): A&P Growers Cooperative, Inc.,

Tulare, CA; Gold Coast Pistachios, Inc., Fresno, CA; Keenan Farms,

Inc., Avenal, CA; Monarch Nut Company, Delano, CA; Nichols Pistachio,

Hanford, CA; Primex Farms, LLC, Wasco, CA; and Setton Pistachio of

Terra Bella, Inc., Terra Bella, CA.

CPEC seeks a Certificate to cover the following specific Export

Trade, Export Markets, and Export Trade Activities and Methods of

Operation:

Export Trade

1. Products: California in-shell and shelled pistachios, raw and

roasted. Included within this definition are organically produced

pistachios and flavored pistachios.

2. Export Trade Facilitation Services (as they Relate to the Export

of Products): All export trade-related facilitation services, including

but not limited to: development of trade strategy; sales, marketing,

and distribution; foreign market development; promotion; and all

aspects of foreign sales transactions, including export brokerage,

freight forwarding, transportation, insurance, billing, collection,

trade documentation, and foreign exchange; customs, duties, and taxes;

and inspection and quality control.

Export Markets

The Export Markets include all parts of the world except the United

States (the fifty states of the United States, the District of

Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American

Samoa, Guam, the Commonwealth of Northern Mariana Islands, and the

Trust Territory of the Pacific Islands).

Export Trade Activities and Methods of Operation

1. CPEC, on its own behalf or on behalf of all or less than all of

its Members, through CPEC or through Export Intermediaries (to the

extent provided in section 1.g) may:

a. Export Sales Price. Establish sales price, minimum sales price,

target sales price and/or minimum target sales price, and other terms

of sale;

b. Marketing and Distribution. Conduct marketing and distribution

of Products;

c. Promotion. Conduct joint promotion of Products;

d. Quantities. Agree on quantities of Products to be sold, provided

each Member shall be required to dedicate only such quantity or

quantities as each such Member shall independently determine;

e. Market and Customer Allocation.Allocate geographic areas or

countries in the Export Markets and/or customers in the Export Markets

among Members;

f. Refusals to Deal. Refuse to quote prices for Products, or to

market or sell Products, to or for any customers in the Export Markets,

or any countries or geographical areas in the Export Markets;

g. Exclusive and Nonexclusive Export Intermediaries. Enter into

exclusive and nonexclusive agreements appointing one or more Export

Intermediaries (as defined under ``Definitions'' paragraph 1) for the

sale of Products with price, quantity, territorial and/or customer

restrictions as provided in sections 1.a through 1.f, inclusive, above;

h. Non-Member Activities. Purchase Products from non-Members to

fulfill specific sales obligations, provided that CPEC and/or its

Members shall make such purchases only on a transaction-by-transaction

basis and when the Members are unable to supply, in a timely manner,

the requisite Products at a price competitive under the circumstances.

In no event shall a non-Member be included in any deliberations

concerning any Export Trade Activities; and

i. Transportation Activities. Negotiate favorable transportation

rates (volume discounts) and consolidate shipments.

2. CPEC and its Members may exchange and discuss the following

information:

a. Information about sales and marketing efforts for the Export

Markets, activities and opportunities for sales of Products in the

Export Markets, selling strategies for the Export Markets, sales for

the Export Markets, contract and spot pricing in the Export Markets,

projected demands in the Export Markets for Products, customary terms

of sale in the Export Markets, prices and availability of Products from

competitors for sale in the Export Markets, and specifications for

Products by customers in the Export Markets; b. Information about the

price, quality, quantity, source, and delivery dates of Products

available from the Members to export;

c. Information about terms and conditions of contracts for sale in

the Export Markets to be considered and/or bid on by CPEC and its

Members;

d. Information about joint bidding or selling arrangements for the

Export Markets and allocations of sales resulting from such

arrangements among the Members;

e. Information about expenses specific to exporting to and within

the Export Markets, including without limitation, transportation,

trans-or intermodal shipments, insurance, inland freight to port, port

storage, commissions, export sales, documentation, financing, customs,

duties, and taxes;

f. Information about U.S. and foreign legislation and regulations,

including federal marketing order programs, affecting sales for the

Export Markets;

g. Information about CPEC or its Members' export operations,

including without limitation, sales and distribution networks

established by

[[Page 67152]]

CPEC or its Members in the Export Markets, and prior export sales by

Members (including export price information); and

h. Information about export customer credit terms and credit

history.

3. CPEC and its Members may prescribe the following conditions for

admission of Members to CPEC and termination of membership in CPEC:

a. Membership shall be limited to Handlers as defined under

``Definitions'' paragraph 3.

b. Membership shall terminate on the occurrence of one or more of

the following events:

i. Withdrawal or resignation of a Member;

ii. Expulsion approved by a majority of all Members;

iii. Death or permanent disability of a Member who is an

individual, or the dissolution of a Member other than an individual;

and

iv. The bankruptcy of a Member as provided in CPEC's Operating

Agreement.

c. Members may be added to the Certificate, if the action is

i. Approved by a majority of the members, and

ii. Approved by the Secretary of Commerce, with the concurrence of

the Attorney General, pursuant to an appropriately filed application to

amend the Certificate; and

iii. Any new member must pay a pro-rata share of the start-up costs

for the CPEC. This payment will be equally divided amongst the members

who paid the initial start-up costs.

4. CPEC and its Members may meet to engage in the activities

described in paragraphs 1 through 3 above.

Definitions

1. ``Export Intermediary'' means a person (including a Member) who

acts as a distributor, sales representative, sales or marketing agent,

or broker, or who performs similar functions, including providing, or

arranging for the provision of Export Trade Facilitation Services.

2. ``Handle'' means engage in: (a) receiving pistachios; (b)

hulling and drying pistachios; and/or (c) further preparing pistachios

by sorting, sizing, shelling, roasting, cleaning, salting, and/or

packaging for marketing in or transporting to any and all markets in

the course of interstate or foreign commerce; provided, however, that

transportation within the Production Area between Handlers and from the

orchard to the processing facility is not handling.

3. ``Handler'' means a person who handles Pistachios grown in

California.

4. ``Member'' means a person who has membership in the CPEC Export

Trade Certificate of Review, and who has been certified as a ``Member''

within the meaning of Sec. 325.2(1) of the Regulations (15 CFR

325.2(1) (2003).

5. ``Product'' means in-shell or shelled pistachios, roasted or raw

produced in the Production Area.

6. ``Production Area'' means the State of California.

Dated: November 24, 2003.

Jeffrey C. Anspacher,

Director, Office of Export Trading Company Affairs.

[FR Doc. 03-29779 Filed 11-28-03; 8:45 am]

BILLING CODE 3510-DR-P

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