Export Trade Certificate of Review

ACTION:

Notice of application.

SUMMARY:

The Office of Export Trading Company Affairs (“OETCA”), International Trade Administration, 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:

Morton Schnabel, 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) (“the Act”) authorizes the Secretary of Commerce, with the concurrence of the Attorney General, to issue Export Trade Certificates of Review. A 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 Act and 15 CFR Section 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 copies, plus two 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, Department of Commerce, Room 1104H, Washington, DC 20230, or transmit by E-mail at oetca@ita.doc.gov. 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 00-00004.” A summary of the application follows.

Summary of the Application

Applicant: Overseas Distribution Solutions, L.L.C. (“ODS”), 531 Central Avenue, Suite D, Laurel, Mississippi, 39440.

Contact: Ronald A. Oleynik, Attorney.

Telephone: (202) 457-7183.

Application No.: 00-00004.

Date Deemed Submitted: June 29, 2000.

Members (in addition to applicant): AJC International, Inc., Atlanta, GA; Cagle's Inc., Atlanta, GA; Peterson Farms Inc. (d/b/a Crystal Lake), Decatur, AR; Fieldale Farms Corporation, Baldwin, GA; and Pilgrim's Pride Corp., Pittsburg, TX.

ODS seeks a Certificate to cover the following specific Export Trade, Export Markets, and Export Trade Activities and Methods of Operations.

Export Trade

1. Products

Poultry (chicken) meat (Boilers, Fryers, and Roaster Chickens).

2. Services

All services related to the export of Products.

3. Technology Rights

All intellectual property rights associated with Products or Services, including, but not limited to: Patents, trademarks, service marks, trade names, copyrights, neighboring (related) rights, trade secrets, know-how, and sui generis forms of protection for databases and computer programs.

4. Export Trade Facilitation Services (as they Relate to the Export of Products, Services and Technology Rights)

Export Trade Facilitation Services, including, but not limited to: Consulting and trade strategy; sales and marketing; export brokerage; foreign marketing research and analysis; foreign market development; overseas advertising and promotion; product research and design based on foreign buyer and consumer preferences; documentation and services related to compliance with customs requirements; joint ventures; inspection and quality control; transportation; shipping and export management; export licensing; insurance and financing; 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; trade show exhibitions; professional services in the area of government relations and assistance with state and federal export assistance programs, such as the Export Enhancement and Market Promotion programs.

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).

Export Trade Activities and Methods of Operation

In connection with the promotion and sale of Members' Products and Services into the Export Markets, ODS and/or one or more of its Members may:

1. Provide and/or arrange for the provision of Export Trade Facilitation Services;

2. Design and execute foreign marketing strategies for its Export Markets and collect and distribute information on trade opportunities in the Export Markets;

3. Prepare joint bids, establish export prices, and establish terms of sale in the Export Markets;

4. Design, develop and market generic corporate labels;

5. Enter into, terminate, amend or enforce exclusive or non-exclusive licensing agreements regarding its Products, Services, or Technology Rights with Export Intermediaries or other persons selling its Products in Export Markets;

6. Engage in joint promotional activities directly targeted at developing the Export Markets, such as: Arranging trade shows and marketing trips; providing advertising services; providing brochures, industry newsletters and other forms of product, service and industry information; conducting international market and product research; procuring international marketing, advertising and promotional services; and sharing the cost of these joint promotional activities among the Members;

7. Conduct product and packaging research and development exclusively for the export of the Products, such as meeting foreign regulatory requirements and foreign buyer specifications and identifying and designing for foreign buyer and consumer preferences;

8. Negotiate, enter into, and implement agreements with governments and other foreign persons regarding non-tariff trade barriers in the Export Markets, such as packaging requirements, and providing specialized packing operations and other quality control procedures to be followed by its Members in the export of Products into the Export Markets;

9. Advise and cooperate with agencies of the U.S. Government in establishing procedures regulating the export of Members' Products, Services and/or Technology Rights into the Export Markets;

10. Enter into, terminate, amend or enforce exclusive or non-exclusive sales agreements with Export Intermediaries, or other persons selling its Products for the transfer of title to Products, Services, and/or Technology Rights in the Export Markets;

11. Enter into, terminate, amend or enforce exclusive or non-exclusive pricing and/or consignment agreements for the sale and shipment of its Products and Services to Export Markets;

12. Allocate export sales, export orders and/or divide Export Markets, among Export Intermediaries, or other persons for the sale, licensing, and/or transfer of title to its Products, Services, and/or Technology Rights for sale in the Export Markets;

13. Enter into, terminate, amend or enforce territorial and customer restraints on Export Intermediaries, or other persons regarding the sale, licensing and/or transfer of title to its Products, Services, and/or Technology Rights for sale in the Export Markets;

14. Enter into, terminate, amend or enforce exclusive or non-exclusive agreements for the tying of its Products and Services, the setting of prices, and/or the distribution, shipping or handling of its Products or Services in the Export Markets;

15. Broker or take title to the Products;

16. Purchase Products from non-Members whenever necessary to fulfill specific sales obligations;

17. Solicit non-Members to become Members;

18. Communicate and process export orders;

19. Assist each Member in maintaining the quality standards necessary to be successful in the Export Markets;

20. Negotiate freight rate contracts with individual carriers and carrier conferences either directly or indirectly through shippers associations and/or freight forwarders;

21. Bill and collect from foreign buyers and provide accounting, tax, legal and consulting assistance and services;

22. Enter into exclusive agreements to provide, produce, negotiate, contract, and administer Export Trade Services and Trade Facilitation Services;

23. Apply for and utilize applicable export assistance and incentive programs which are available within the governmental and private sectors, such as the USDA Export Enhancement and Market Promotion programs;

24. Refuse to quote prices for, or to market or sell, Products or Services to an Export Market or Markets, or to non-Member distributors, buyer and/or sales representatives who directly or indirectly market or sell to an Export Market or Markets;

25. Utilize common marking and identification of Product sold in the Export Markets; and

26. Exchange information with and among the Members as necessary to carry out the Export Trade Facilitation Services and Export Trade Activities and Methods of Operation, including:

(a) Information regarding sales and marketing efforts and strategies in the Export Markets, including price, quality, quantity, and source; projected demand in the Export Markets for Products; customary terms of sale, prices and availability of Products independently committed by Members for sales in the Export Markets; prices and sales of Products in the Export Markets; and specifications by buyers and consumers in the Export Markets;

(b) Information regarding expenses specific to exporting to and within the Export Markets, including transportation, transshipments, intermodal shipments, insurance, inland freight, port storage, commissions, export sales, documentation, financing and Customs duties or taxes;

(c) Information regarding U.S. and foreign legislation and regulations, including federal marketing order programs that may affect sales to the Export Markets;

(d) Information about ODS's or its Members' export operations, including sales and distribution networks established by ODS or its Members in the Export Markets, and prior export sales by Members, including export price information; and

(e) Information about ODS's or its Members' credit and collections practices and problems, claims, and sales allowances related to Export Markets.

Definitions

1. 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.

2. Member means a person who has membership in ODS and who has been certified as a “Member” within the meaning of Section 325.2 (1) of the Regulations.