[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]
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DEPARTMENT
OF COMMERCE
International
Trade Administration
Export
Trade Certificate of Review
ACTION:
Notice of application.
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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.
[[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