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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)]

[Notices]

[Page 69139-69142]

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

[DOCID:fr14no05-40]

 

 

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

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 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.

 

[[Page 69140]]

 

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:

(202) 661-7098.

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

Operations.

 

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

 

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

zero duties;

3. The collection and management of funds bid in the open tender

process; and

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.

2. 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'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.

 

[[Page 69141]]

 

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, 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

Directors.

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

TRQ System.

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

 

[[Page 69142]]

 

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

 



Last Updated: 7/29/13 8:31 PM