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Export Trading Company Affairs (ETCA)
The Export Trade Certificate of Review Program - The Competitive Edge for U.S. Exporters
[Federal Register: February 9, 2006 (Volume 71, Number 27)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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 email@example.com.
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
Register. Under section 305(a) of the Act and 15 CFR 325.11(a), any
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
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.
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
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
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
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
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
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.
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
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.
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.
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
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