[Federal Register: December 18, 2003 (Volume 68, Number 243)]
[Notices]
[Page 70490-70492]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de03-30]
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DEPARTMENT OF COMMERCE
International Trade Administration
Export Trade Certificate of Review
ACTION: Notice of issuance of an Export Trade Certificate of Review,
Application No. 03-00006.
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SUMMARY: The Department of Commerce has issued an Export Trade
Certificate of Review to Western Fruit Exporters, LLC (``WFE''). This
notice summarizes the conduct for which certification has been granted.
FOR FURTHER INFORMATION CONTACT: Jeffrey C. Anspacher, Director, Office
of 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 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. The regulations implementing
Title III are found at 15 CFR part 325 (2003).
The Office of Export Trading Company Affairs (``OETCA'') is issuing
this notice pursuant to 15 CFR 325.6(b), which requires the Department
of Commerce to publish a summary of the Certificate 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
I. Export Trade
1. Products
Brine sweet cherries in any stage of processing and finished
maraschino cherry products in any stage of packaging.
2. Services
Inspection, quality control, marketing and promotional services.
3. Technology Rights
Proprietary rights to all technology associated with Products or
Services, including, but not limited to: patents, trademarks, service
marks, trade names, copyrights, trade secrets, know-how.
4. Export Trade Facilitation Services (as They Relate to the Export of
Products, Services and Technology Rights)
All export trade-related facilitation services, including, but not
limited to: Consulting and trade strategy; sales and marketing; export
brokerage; foreign marketing research; foreign market development;
overseas advertising and promotion; product research and design based
on foreign buyer and consumer preferences; communication and processing
of export orders; inspection and quality control; transportation;
freight forwarding and trade documentation; insurance; billing of
foreign buyers; collection (letters of credit and other financial
instruments); provision of overseas sales and distribution facilities
and overseas sales staff, legal, accounting and tax assistance;
management information systems development and application; assistance
and administration related to participation in government export
assistance programs.
II. 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 the Northern Mariana Islands, and the
Trust Territory of the Pacific Islands).
III. Export Trade Activities and Methods of Operation
In connection with the promotion and sale of Members' Products,
Services, and/or Technology Rights into the Export Markets, WFE and/or
one or more of its Members may:
1. Design and execute foreign marketing strategies for its Export
Markets;
2. Prepare joint bids, establish export prices for Members'
Products and Services, and establish terms of sale in Export Markets in
connection with potential or actual bona fide opportunities;
3. Grant sales and distribution rights for the Products, whether or
not exclusive, into designated Export Markets to foreign agents or
importers (``exclusive'' meaning that WFE and/or one or more Members
may agree not to sell the Products into the designated Export Markets
through any other foreign distributor, and that the foreign distributor
may agree to represent only WFE and/or one or more Members in the
Export Markets and none of its competitors);
4. Design develop and market generic corporate labels for use in
Export Markets;
5. Engage in joint promotional activities directly targeted at
developing Export Markets, such as: arranging trade shows and marketing
trips; providing advertising services; providing brochures and industry
newsletters; providing product, service, and industry information;
conducting international market and product research; and procuring,
international marketing, advertising, and promotional services;
6. Share the cost of joint promotional activities among the
Members;
7. Conduct product and packaging research and development
exclusively for export in order to meet foreign regulatory
requirements, foreign buyer specifications, and foreign consumer
preferences;
8. Negotiate and enter into agreements with governments and other
foreign persons regarding non-tariff trade barriers in Export Markets
such as packaging requirements, and providing specialized packing
operations and other quality control procedures to be followed by WFE
and Members in the export of Products into the Export Markets;
9. Assist each other in maintaining the quality standards necessary
to be successful in the Export Markets;
10. Provide Export Trade Facilitation Services with respect to
Products, Services and Technology (including such items as commodity
fumigation, refrigeration and storage techniques, and other quality
control procedures to be followed in the export of Products in Export
Markets;
11. Advise and cooperate with agencies of the United States
government in establishing procedures regulating the export of the
Members' Products, Services and/or Technology Rights in Export Markets;
12. Negotiate and enter into purchase agreements with buyers in
Export Markets regarding export prices, quantities, type and quality of
Products, time periods, and the terms and conditions of sale;
13. Broker or take title to Products intended for Export Markets;
14. Purchase Products from non-Members to fulfill specific sales
obligations, provided that WFE and/or one or more Members shall make
such purchases only on a transaction-by-transaction basis and when the
purchasing Members are unable to
[[Page 70491]]
supply, in a timely manner, the requisite Products at a price
competitive under the circumstances;
15. Solicit non-Member producers to become Members;
16. Communicate and process export orders;
17. Procure, negotiate, contract, and administer transportation
services for Products in the course of export, including overseas
freight transportation, inland freight transportation from the packing
house to the U.S. port of embarkment, leasing of transportation
equipment and facilities, storing and warehousing, stevedoring,
wharfage and handling, insurance, and freight forwarder services;
18. Arrange for trade documentation and services, customs
clearance, financial instruments, and foreign exchange;
19. Arrange financing through private financial entities,
government financial assistance and incentive programs and other
arrangements;
20. Bill and collect monies from foreign buyers, and arrange for or
provide accounting, tax, legal and consulting services in relation to
Export Trade Activities and Methods of Operation;
21. Enter into exclusive agreements with non-Members to provide
Export Trade Services and Export Trade Facilitation Services;
22. Open and operate overseas sales and distribution offices and
companies to facilitate the sales and distribution of Products in the
Export Markets;
23. Negotiate and enter into agreements with governments and
foreign persons to develop countertrade arrangements, provided that
this Certificate does not protect any conduct related to the sale of
goods in the United States that are imported as part of any
countertrade transactions;
24. Refuse to deal with or provide quotations to other Export
Intermediaries for sales of Members' Products into Export Markets;
25. Require common marking and identification of Members' Products
sold in Export Markets;
26. Exchange information as necessary to carry out Export Trade
Activities and Methods of Operation, including:
(a) Information about sales, marketing efforts, and sales
strategies in Export Markets, including pricing; projected demand in
Export Markets for Products; customary terms of sale; and foreign buyer
and consumer product specifications;
(b) Information about the price, quality, quantity, source and
delivery dates of Products available from WFE and its Members for
export;
(c) Information about terms and conditions of contracts for sales
in Export Markets to be considered and/or bid on by WFE and/or Members;
(d) Information about joint bidding opportunities;
(e) Information about methods by which export sales are to be
allocated among WFE and/or Members;
(f) Information about expenses specific to exporting to and within
Export Markets, including transportation, transshipments, inter-modal
shipments, insurance, inland freight to port, port storage,
commissions, export sales, documentation, financing and customs duties
or taxes;
(g) Information about U.S. and foreign legislation and regulations,
including federal marketing order programs that may affect sales to
Export Markets;
(h) Information about WFE's or Members' export operations,
including sales and distribution networks established by WFE or Members
in Export Markets, and prior export sales by Members, including export
price information; and
(i) Information about claims or bad debts by WFE's or Members'
customers in Export Markets.
IV. Definitions
``Export Intermediary'' means a person who acts as 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.
V. Members (Within the Meaning of Section 325.2(l) of the Regulations)
Eola Cherry Company, Inc., Gervais, Oregon; Diana Fruit Co., Inc.,
Santa Clara, California; Johnson Foods Co., Inc., Sunnyside,
Washington; and Oregon Cherry Growers, Inc., Salem, Oregon.
VI. Terms and Conditions of Certificate
1. Neither WFE nor any Member shall intentionally disclose,
directly or indirectly, to any other Member any information about its
or any other Member's costs, production, capacity, inventories,
domestic prices, domestic sales, terms of domestic marketing or sale,
or U.S. business plans, strategies, or methods, unless (1) such
information is already generally available to the trade or public; or
(2) the information disclosed is a necessary term or condition (e.g.,
price, time required to fill an order, etc.) of an actual or potential
bona fide sale and the disclosure is limited to the prospective
purchasing Member.
2. Each Member shall determine independently of WFE and each other
the quantity of Products each will make available for export or sell
through WFE. WFE may not require any Member to accept any offer for
sale or require any Member to export any minimum quantity of Products.
3. Any agreements, discussions, or exchanges of information under
this Certificate relating to quantities of Products available for
Export Markets, product specifications or standards, export prices,
product quality or other terms and conditions of export sales (other
than export financing) shall be in connection only with actual or
potential bona fide export transactions or opportunities and shall
include only those Members participating or having a genuine interest
in participating in such transactions or opportunities, provided that
WFE and/or the Members may discuss standardization of Products and
Services for purposes of making bona fide recommendations to foreign
governmental or private standard setting organizations.
4. Meetings at which WFE and Members allocate export sales and
establish export prices shall not be open to the public.
5. Participation by WFE and/or Members in any Export Trade Activity
or Method of Operation under this Certificate shall be entirely
voluntary as to WFE and/or the Members, subject to the honoring of
contractual commitments for sales of Products, Services or Technology
Rights in specific export transactions. A Member may withdraw from
coverage under this Certificate at any time by giving written notice to
WFE, a copy of which WFE shall promptly transmit to the Secretary of
Commerce and the Attorney General.
6. WFE and the 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 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.
VII. Protection Provided by Certificate
This Certificate protects WFE and its directors, officers, and
employees acting on its behalf, as well as its Members,
[[Page 70492]]
and their directors, officers, and employees acting on their behalf,
from private treble damage actions and governmental 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.
VIII. 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.
IX. Other Conduct
Nothing in this Certificate prohibits WFE and its Members from
engaging in conduct not specified in this Certificate, but such conduct
is subject to the normal application of the antitrust laws.
X. Disclaimer
The issuance of this Certificate of Review to WFE by the 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 the Attorney
General concerning either (a) the viability or quality of the business
plans of WFE or its Members or (b) the legality of such business plans
of WFE or its Members under the laws of the United States (other than
as provided in the Act) or under the laws of any foreign country.
The application of this Certificate to conduct in Export Trade
where the United States government is the buyer or where the United
States Government bears more than half the cost of the transaction is
subject to the limitations set forth in Section V(D) of the
``Guidelines for the Issuance of Export Trade Certificates of Review
(Second Edition),'' 50 FR 1786 (January 11, 1985) (``Guidelines'').
In accordance with the authority granted under the Act and
Regulations, this Export Trade Certificate of Review is hereby granted
to Western Fruit Exporters, L.L.C.
The effective date of the Certificate is December 8, 2003. A copy
of this certificate will be kept in the International Trade
Administration's Freedom of Information Records Inspection Facility
Room 4102, U.S. Department of Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230.
Dated: December 15, 2003.
Jeffrey C. Anspacher,
Director, Office of Export Trading Company Affairs.
[FR Doc. 03-31323 Filed 12-17-03; 8:45 am]
BILLING CODE 3510-DR-P