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