[Federal Register Volume 68, Number 243 (Thursday, December 18, 2003)]
[Notices]
[Pages 70490-70492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31323]


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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 [email protected].

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