[Federal Register Volume 77, Number 71 (Thursday, April 12, 2012)]
[Notices]
[Pages 21969-21971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8759]


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DEPARTMENT OF COMMERCE

International Trade Administration

[Application 12-00001]


Export Trade Certificate of Review

ACTION: Notice of Application for an Export Trade Certificate of Review 
from Panama Poultry Export Quota, Inc.

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SUMMARY: The Export Trading Company Affairs (``ETCA'') unit, Office of 
Competition and Economic Analysis, International Trade Administration, 
Department of Commerce, has received an application for an Export Trade 
Certificate of Review (``Certificate''). 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: Joseph Flynn, Director, Office of 
Competition and Economic Analysis, International Trade Administration, 
(202) 482-5131 (this is not a toll-free number) or email 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. 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: Export Trading Company 
Affairs, International Trade Administration, U.S. Department of 
Commerce, Room 7021X, Washington, DC 20230, or transmitted by Email at 
[email protected]. Information submitted by any person is exempt from 
disclosure under the Freedom of Information Act (5 U.S.C. Sec.  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 12-00001.'' A 
summary of the application follows.

Summary of the Application

    Applicant: Panama Poultry Export Quota, Inc. (``PAN-PEQ''), 1700 
Pennsylvania Avenue NW., Suite 200, Washington, DC 20006.
    Application No.: 12-00001.
    Date Deemed Submitted: March 27, 2012.
    Members (in addition to applicant): Panama Poultry Export Quota, 
Inc. members include the following entities: USA Poultry & Egg Export 
Council (USAPEEC''), 2300 West Park Place, Boulevard, Suite 200, Stone 
Mountain, Georgia 30087, and Associacion Nacional de Avicultores de 
Panama (``ANAVIP''), Calle 75, Manuel de Jesus Quijano, San Francisco, 
Casa No. 61, Apartado Postal 0819-06190, Panama, Republic of Panama.
    PAN-PEQ seeks a Certificate of Review to engage in the Export Trade 
Activities and Methods of Operation described below in the following 
Export Trade and Export Markets:

Export Trade

Products

    PAN-PEQ plans to export Chicken leg quarters, (or parts of chicken 
leg quarters, including legs or thighs), fresh, chilled or frozen, 
seasoned or unseasoned, marinated or not

[[Page 21970]]

marinated, classifiable under HTS 0207.13.99, 0207.14.99 and 
1602.32.00.

Export Markets

    Chicken leg quarters for which awards will be made will be exported 
to the Republic of Panama.
    1. Purpose. PAN-PEQ will manage on an open tender basis the tariff-
rate quotas (TRQs) for poultry products granted by the Republic of 
Panama to the United States under the terms of the Panama Trade 
Promotion Agreement or any amended or successor agreement providing for 
Panamanian poultry TRQs for the United States of America. PAN-PEQ also 
will provide for distributions of the proceeds received from the tender 
process based on exports of poultry (``the TRQ System'') to support the 
operation and administration of PAN-PEQ and for the benefit of the 
poultry industries in the Republic of Panama and the United States.
    2. Implementation.
    A. Administrator. PAN-PEQ shall contract with a neutral third party 
Administrator who is not engaged in the production, sale, distribution 
or export of poultry or poultry products and who shall bear 
responsibility for administering the TRQ System, subject to general 
supervision and oversight by the Board of Directors of PAN-PEQ.
    B. Membership. PAN-PEQ's members under this certificate are the USA 
Poultry and Egg Export Council (``USAPEEC'') on behalf of the U.S. 
poultry industry; and the Asociaci[oacute]n Nacional de Avicultores de 
Panam[aacute] (``ANAVIP'') on behalf of the Panamanian poultry 
industry.
    C. Open Tender Process. PAN-PEQ shall offer TRQ Certificates for 
duty-free shipments of chicken leg quarters to the Republic of Panama 
solely and exclusively through an open tender process with certificates 
awarded to the highest bidders (``TRQ Certificates''). PAN-PEQ shall 
hold tenders in accordance with tranches established in the relevant 
regulations of the Republic of Panama, or in the absence of such, at 
least once each year. The award of TRQ Certificates under the open 
tender process shall be determined solely by the Administrator in 
accordance with Section I without any participation by the Board of 
Directors.
    D. Persons or Entities Eligible to Bid. Any person or entity 
incorporated or with a legal address in the United States of America 
shall be eligible to bid in the open tender process.
    E. Notice. The Administrator shall publish notice (``Notice'') of 
each open tender process to be held to award TRQ Certificates in the 
Journal of Commerce and, at the discretion of the Administrator, in 
other publications of general circulation within the U.S. poultry 
industry or in the Republic of Panama. The Notice will invite 
independent bids and will specify (i) the total amount (in metric tons) 
that will be allocated pursuant to the applicable tender; (ii) the 
shipment period for which the TRQ Certificates will be valid; and (iii) 
the date and time by which all bids must be received by the 
Administrator in order to be considered (the ``Bid Date''); and (iv) a 
minimum bid amount per ton, as established by the Board of Directors, 
to ensure the costs of administering the auction are recovered. The 
Notice normally will be published not later than 30 business days prior 
to the first day of the shipment period and will specify a Bid Date 
that is at least 10 business days after the date of publication of the 
Notice. The Notice will specify the format for bid submissions. Bids 
must be received by the Administrator not later than 5 p.m. EST on the 
Bid Date.
    F. Contents of Bid. The bid shall be in a format established by the 
Administrator and shall state (i) the name, address, telephone and 
facsimile numbers, and email address of the bidder; (ii) the quantity 
of poultry bid, in metric tons or portions of metric tons; (iii) the 
bid price in U.S. dollars per metric ton; and (iv) the total value of 
the bid. The bid form shall contain a provision, that must be signed by 
the bidder, agreeing that (i) any dispute that may arise relating to 
the bidding process or to the award to TRQ Certificates shall be 
settled by arbitration administered by the American Arbitration 
Association in accordance with its Commercial Arbitration Rules; and 
(ii) judgment on any award rendered by the arbitrator may be entered in 
any court having jurisdiction thereof.
    G. Performance Security. The bidder shall submit with each bid a 
performance bond, irrevocable letter of credit drawn on a U.S. bank, 
cashier's check, wire transfer or equivalent security, in a form 
approved and for the benefit of an account designated by the 
Administrator, in the amount of $50,000 or the total value of the bid, 
whichever is less. The bidder shall forfeit such performance security 
if the bidder fails to pay for any TRQ Certificates awarded within five 
(5) business days. The bidder may chose to apply the performance 
security to the price of any successful bid, or to retain the 
performance security for a subsequent open tender process. Promptly 
after the close of the open tender process, the Administrator shall 
return any unused or non-forfeited security to the bidder.
    H. Confidentiality of Bids. The Administrator shall treat all bids 
and their contents as confidential. The Administrator shall disclose 
information about bids only to: (a) An external auditor retained for 
purposes of auditing auction results and proceeds; (b) an authorized 
neutral third party, or, (c) an authorized government official of the 
United States or of the Republic of Panama, and only as necessary to 
ensure the effective operation of the TRQ System.
    I. However, after the issuance of all TRQ Certificates from an open 
tender process, the Administrator shall notify all bidders and shall 
disclose publicly (i) the total tonnage for which TRQ Certificates were 
awarded, and (ii) the lowest price per metric ton of all successful 
bids.
    J. Award of TRQ Certificates. The Administrator shall award TRQ 
Certificates for the available tonnage to the bidders who have 
submitted the highest price conforming bids. If two or more bidders 
have submitted bids with identical prices, the Administrator shall 
divide the remaining available tonnage in proportion to the quantities 
of their bids, and offer each TRQ Certificates in the resulting 
tonnages. If any bidder declines all or part of the tonnage offered, 
the Administrator shall offer that tonnage first to the other tying 
bidders, and then to the next highest bidder.
    K. Payment for TRQ Certificates. Promptly after being notified of a 
TRQ award and within the time specified in the Notice, the bidder shall 
pay the full amount of the bid, either by wire transfer or by certified 
check, to an account designated by the Administrator. If the bidder 
fails to make payment within five (5) days, the Administrator shall 
revoke the award and award the tonnage to the next highest bidder(s).
    L. Delivery of TRQ Certificates. The Administrator shall establish 
an account for each successful bidder in the amount of tonnage 
available for TRQ Certificates. Upon request, the Administrator will 
issue TRQ Certificates in the tonnage designated by the bidder, 
consistent with the balance in that account. The TRQ Certificate shall 
state the delivery period for which it is valid.
    M. Transferability. TRQ Certificates shall be freely transferable 
except that (i) any TRQ Certificate holder who intends to sell, 
transfer or assign any rights under that Certificate shall publish such 
intention on a Web site maintained by the Administrator at least three 
(3) business days prior to any sale, transfer or assignment; and (ii) 
any TRQ

[[Page 21971]]

holder that sells, transfers or assigns its rights under a TRQ 
Certificate shall provide the Administrator with notice and a copy of 
the sale, transfer or assignment within three (3) business days.
    N. Deposit of Proceeds: The Administrator shall cause all proceeds 
of the open tender process to be deposited in an interest-bearing 
account in a financial institution approved by the PAN-PEQ Board of 
Directors.
    O. Disposition of Proceeds. The proceeds of the open tender process 
shall be applied and distributed as follows:
    i. The Administrator shall pay from tender proceeds, as they become 
available, all operating expenses of PAN-PEQ, including legal, 
accounting and administrative costs of establishing and operating the 
TRQ System, as authorized by the Board of Directors.
    ii. Of the proceeds remaining at the end of each year of operations 
after all costs described in (i) above have been paid--
    1. Fifty percent (50%) shall be distributed to fund export market 
development, educational, scientific and technical projects to benefit 
the United States poultry industry. PAN-PEQ shall accept proposals for 
the funding of projects approved by the Board of Directors of USAPEEC. 
The Administrator shall disburse funds to those projects approved for 
funding by the PAN-PEQ Board of Directors.
    2. Fifty percent (50%) shall be distributed to fund market 
development, educational, scientific and technical projects to benefit 
the poultry industry of the Republic of Panama. PAN-PEQ shall accept 
proposals for funding of projects approved by the Board of Director of 
ANAVIP. The Administrator shall disburse funds to those projects 
approved for funding by the PAN-PEQ Board of Directors.
    P. Arbitration of Disputes. Any dispute, controversy or claim 
arising out of or relating to the TRQ System or the breach thereof, 
including inter alia, a Member's qualification for distribution, 
interpretation of documents, or of the distribution itself, shall be 
settled by arbitration administered by the American Arbitration 
Association in accordance with its Commercial Arbitration Rules, and 
judgment on the award rendered by the arbitrator may be entered in any 
court having jurisdiction thereof.
    Q. Confidential Information. The Administrator shall maintain as 
confidential all export documentation or other business sensitive 
information submitted in connection with application for PAN-PEQ 
membership, bidding in the open tender process or requests for 
distribution of proceeds, where such documents or information has been 
marked ``Confidential'' by the person making the submission. The 
Administrator shall disclose such information only to another neutral 
third party, or authorized government official of the United States or 
of the Republic of Panama, and only where necessary to ensure the 
effective operation of the TRQ System or where required by law 
(including appropriate disclosure in connection with the arbitration of 
a dispute).
    R. Annual Reports. PAN-PEQ shall publish an annual report including 
a statement of its operating expenses and data on the distribution of 
proceeds, as reflected in the audited financial statement of the PAN-
PEQ TRQ System.

    Dated: April 5, 2012.
Joseph E. Flynn,
Director, Office of Competition and Economic Analysis.
[FR Doc. 2012-8759 Filed 4-11-12; 8:45 am]
BILLING CODE P