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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: November 14, 2005 (Volume 70, Number 218)]
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 application.
SUMMARY: Export Trading Company Affairs (``ETCA''), International Trade
Administration, Department of Commerce, has received an application for
an Export Trade Certificate of Review (``Certificate''). 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 Anspacher, Director, Export
Trading Company Affairs, International Trade Administration, by
telephone at (202) 482-5131 (this is not a toll-free number) or E-mail
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 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: Export Trading Company Affairs,
International Trade Administration, U.S. Department of Commerce, Room
7021-B H, 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 05-00001.'' A
summary of the application follows.
Summary of the Application
Applicant: Central America Poultry Export Quota, Inc. (CA-PEQ), 901
New York Avenue, NW., 3rd Floor, Washington, DC 20001-4413.
Contact: Kyd D. Brenner, Partner, DTB Associates, LLP. Telephone:
Application No.: 05-00001.
Date Deemed Submitted: October 31, 2005.
Members (in addition to applicant): USA Poultry & Egg Export
Council (``USAPEEC''), Stone Mountain, Georgia; Asociacion Nacional de
Avicultores de Guatemala (``ANAVI''), Guatemala, Guatemala; Asociacion
Nacional de Avicultores de El Salvador (``AVES''), La Libertad, El
Salvador; and Asociacion Nacional de Avicultores y Productores de
Alimentos de Nicaragua (``ANAPA''), Managua, Nicaragua.
CA-PEQ seeks a Certificate to cover the following specific Export
Trade, Export Markets, and Export Trade Activities and Methods of
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
CA-PEQ seeks certification for the following conduct:
1. The conduct of an open tender process for the award of shares of
the tariff rate quota for chicken leg quarters in El Salvador,
Guatemala, Honduras and Nicaragua;
2. The award of certificates for eligibility to enter chicken leg
quarters into El Salvador, Guatemala, Honduras and Nicaragua subject to
3. The collection and management of funds bid in the open tender
4. The distribution of the proceeds of the open tender process to
support the operation and administration of CA-PEQ and to fund
promotional, educational, scientific and technical projects for the
benefit of the poultry industries of the United States of America, El
Salvador, Guatemala, Honduras and Nicaragua.
1. 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-Central American Free Trade Agreement (``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 tender process
based on exports of poultry (``the TRQ System'') for the benefit of the
poultry industries in El Salvador, Guatemala, Honduras, Nicaragua and
the United States.
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's initial members under this certificate are
the USA Poultry and Egg Export Council (``USAPEEC'') on behalf of the
U.S. poultry industry; by Asociacion Nacional de Avicultores de
Guatemala (``ANAVI'') on behalf of the Guatemalan poultry industry; by
Asociacion Nacional de Avicultores de El Salvador (``AVES'') on behalf
of the Salvadoran poultry industry; and by Asociacion 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; and (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 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 e-mail 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
G. Performance Security. The bidder shall submit with each bid a
performance bond, 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 Bids. The Administrator shall treat all bids
and their contents as confidential. The Administrator shall disclose
information about bids only to another neutral third party and only as
necessary to ensure the effective operation of the TRQ System. 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:
i. 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.
ii. Of the proceeds remaining at the end of each year of operations
after all costs described in (i) above have been paid:
1. 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.
2. 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,
including inter alia, a Member's qualification for distribution,
interpretation of documents, or of the distribution itself, 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. Confidential Information. The Administrator shall maintain as
confidential all export documentation or other business sensitive
information submitted in connection with application for CA-PEQ
membership, bidding in the open tender process or requests for
distribution of proceeds, where such documents or information has been
marked ``Confidential'' by the person making the submission. The
Administrator shall disclose such information only to another neutral
third party or authorized government official of signatories to the
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).
Q. 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
3. 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, Honduras 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.
Miscellaneous Implementing Provisions. CA-PEQ and/or its 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.
Dated: November 7, 2005.
Jeffrey C. Anspacher,
Director, Export Trading Company Affairs.
[FR Doc. E5-6253 Filed 11-10-05; 8:45 am]
BILLING CODE 3510-DR-P