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:

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 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.

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 04-00002.” A summary of the application follows.

Summary of the Application

Applicant: Export Trade Association of the Americas (“ETAA”), 561 Ragan Road, Wapato, Washington 98951.

Contact: Chris E. Svendsen, Attorney, Telephone: (509) 453-1319.

Application No.: 04-00002.

Date Deemed Submitted: July 19, 2004.

Members (in addition to applicant): E.W. Brandt & Sons, Inc., Wapato, Washington; and ETAA Distributing, LLC, Wapato, Washington.

ETAA seeks a Certificate to engage in the Export Trade Activities and Methods of Operation described below in the following Export Trade and Export Markets:

Export Trade

1. Products

Fresh tree fruits, primarily apples.

2. Technology Rights

Technology Rights, including, but not limited to, patents, trademarks, copyrights and trade secrets owned and/or controlled by ETAA and Members that relate to Products.

3. Export Trade Facilitation Services (as they relate to the export of Products, and Technology Rights)

All export trade-related services, including, but not limited to, professional services and assistance relating to: government relations; state and federal export programs; foreign trade and business protocol; consulting; international market research and analysis; collection of information on trade opportunities; marketing; negotiations; joint ventures; brokering; handling; export management; export licensing; patent and trademark licensing; common marking and identification; advertising and sales promotion; communication and processing of foreign orders to and for Members; trade documentation and services related to compliance with customs requirements; insurance and financing; trade show exhibitions; organizational development; management and labor strategies; transfer of technology; transportation services, including shipping and warehousing; the formation of shippers' associations; legal assistance; foreign exchange and taking title to goods.

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

With respect to the export sale of fresh tree fruits, the licensing of Technology Rights, and the provision of Export Trade Facilitation Services, ETAA and/or one or more Members may:

1. Participate in negotiations and enter into agreements with foreign buyers (including governments and private persons) regarding:

(a) The quantities, time periods, prices, and terms and conditions, in connection with actual or potential bona fide export opportunities;

(b) non-tariff trade barriers in the Export Markets; and

(c) the sale, license and/or use of Technology Rights relating to the Products.

2. Advise and cooperate with the United States and foreign governments in:

(a) Establishing procedures pertaining to the regulating of the export of the Member's Products, for example: quantity standards, marketing orders, and the imposition and lifting of tariffs; and

(b) fulfilling the phytosanitary, quality and/or funding requirements pertaining to the export of the Member's products, for example: tariffs, weighing fees and inspections imposed by foreign governments.

3. Allocate export sales among Members in connection with actual or potential bona fide export opportunities.

4. Agree on quantities of Products to be sold.

5. Allocate geographic areas or countries in Export Markets and/or customers in Export Markets among Members.

6. Conduct marketing, promotion and distribution of fresh tree fruits in Export Markets.

7. Conduct quality control studies and inspections of goods for export at point of shipment, point of arrival, and through the retail level in Export Markets.

8. Negotiate and enter into agreements, whether or not exclusive, with providers of Export Trade Facilitation Services for the export of Products.

9. Establish and operate fumigation facilities and administer phytosanitary protocols to qualify the Products for Export Markets.

10. Operate foreign offices and companies to facilitate the sale and distribution of fresh tree fruits in Export Markets.

11. Recover administrative expenses and costs through fees and assessments allocated to each Member on a pro rata share basis or any other non-discriminatory method. Any Member objecting to the method of allocating expenses and costs will be charged based on actual expenses incurred.

12. Products to be exported will be primarily supplied by the ETAA and Members, with instances of Products supplied from non-Member entities. For example: to fill export sales orders, contracts and spot sales, as required.

13. ETAA and Members may exchange and discuss information on the following:

(a) Information about sales and marketing efforts for the Export Markets, activities and opportunities for sales of fresh tree fruits 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 Export Markets for fresh tree fruits, customary terms of sale in the Export Markets, prices and availability of fresh tree fruits from competitors for sale in the Export Markets, and specifications for fresh tree fruits by customers in the Export Markets;

(b) Information about the export price, quality, quantity, source, and delivery dates of fresh tree fruits 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 ETAA and 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, in-land freights to port, port storage, commissions, export sales, documentation, financing, customs duties and taxes;

(f) Information about United States and foreign legislation and regulations, including federal marketing order programs that may affect sales for the Export Markets;

(g) Information about ETAA or Members' export operations, including without limitation, sales and distribution networks established by ETAA or Members in the Export Markets, and prior export sales by Members (including export price information);

(h) Exchange information with and among the Members as necessary to carry out the Export Trade Facilitation Services, Export Trade Activities and Methods of Operation; and

(i) Information about export customer credit terms and credit history.