[Federal Register Volume 77, Number 120 (Thursday, June 21, 2012)]
[Notices]
[Pages 37385-37387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15120]


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DEPARTMENT OF COMMERCE

International Trade Administration

[Application 12-00004]


Export Trade Certificate of Review

ACTION: Notice of Application for an Export Trade Certificate of Review 
Colombia Poultry Export Quota, Inc. (COLOM-PEQ).

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SUMMARY: The 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 12-00004.'' A summary 
of the application follows.

Summary of the Application

    Applicant: Colombia Poultry Export Quota, Inc., c/o DTB Associates, 
LLP, 1700 Pennsylvania Avenue NW., Suite 200, Washington, DC 20006, 
(202) 684-2512.
    Application No.: 12-00003.
    Date Deemed Submitted: May 16, 2012.
    Members (in addition to applicant): Colombia Poultry Export Quota, 
Inc. (hereinafter, ``COLOM-PEQ'') was formed by USA Poultry and Egg 
Export Council (USAPEEC) representing the poultry exporting industry of 
the United States of America and by Federacion Nacional de Avicultores 
representing the Colombian poultry industry. Their respective addresses 
are:

USA Poultry & Export Council, 2300 West Park Place Boulevard, Suite 
100, Stone Mountain, GA 30087;
Federacion Nacional de Avicultores, Calle 67 No. 7-35 Oficina 610, 
Bogota, Colombia.

    COLOM-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: COLOM-PEQ plans to export poultry products as described 
in the Agricultural Tariff Schedule of the Republic of Colombia, as 
appended to the TPA, and including the following Colombian HTS Codes: 
0207.1300.A--leg quarters [fresh or chilled] curators traseros [frescos 
o refrigerados]); 0207.1400A--leg quarters [frozen] (curators traseros 
[congelados]); 1602.3200.A--leg quarters, seasoned and frozen (curators 
traseros, sazonados y congelados).

Export Markets

    Poultry products for which awards will be made will be exported to 
the Republic of Colombia.
1. Purpose
    Colombia--U.S. Poultry Export Quota, Inc. (``COLOM-PEQ'') will 
manage on an open tender basis the tariff-rate quotas (TRQs) for 
poultry products granted by the Republic of Colombia to the United 
States under the terms of the TPA or any amended or successor agreement 
providing for Colombian TRQs for poultry from the United States of 
America.
    Specifically, the TRQs for poultry products are set forth at 
Paragraph 6 of Appendix I of the General Notes of Colombia, Annex 2.3 
to the TPA. COLOM-PEQ also will provide for distributions of the 
proceeds received from the tender process based on exports of poultry 
products (``the TRQ System'') to support the operation and 
administration of COLOM-PEQ and fund market access maintenance, market 
promotion and market competitiveness improvement, educational, 
scientific and technical projects for the respective benefits of the 
poultry industry of the United States and of the Sector Representative 
Association (``sector gremial representativo'') for poultry in the 
Republic of Colombia as defined in Article 2.6 of the Colombian 
Ministry of Agriculture and Rural Development Decree No. 0728 of April 
13, 2012.
2. Implementation
    A. Administrator. COLOM-PEQ shall contract with a third party 
Administrator who shall bear responsibility for administering the TRQ 
System, subject to general supervision

[[Page 37386]]

and oversight by the Board of Directors of COLOM-PEQ.
    B. Membership. COLOM-PEQ's members under this certificate are the 
USA Poultry and Egg Export Council (USAPEEC) and Federacion Nacional de 
Avicultores, the Sector Representative Association (``sector gremial 
representativo'') for poultry in the Republic of Colombia.
    C. Open Tender Process. COLOM-PEQ shall offer TRQ Certificates for 
duty-free shipments of chicken leg quarters to the Republic of Colombia 
solely and exclusively through an open tender process with certificates 
awarded to the highest bidders (``TRQ Certificates''). COLOM-PEQ shall 
hold tenders in accordance with tranches at least four times each year. 
The award of TRQ Certificates under the open tender process shall be 
determined solely and independently by the Administrator in accordance 
with Section I without any participation by the members of COLOM-PEQ or 
the COLOM-PEQ 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 Colombia. 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; (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 tender process and will specify a Bid Date that is at least 
ten (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 5:00 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 products bid, in an amount stated in metric tons or 
fractions thereof; (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 
of 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 the 
purpose 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 Colombia and only as necessary to 
ensure the effective operation of the TRQ System. 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 
average price and lowest price per metric ton of all successful bids.
    I. 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.
    J. 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).
    K. 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.
    L. 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 holder who 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.
    M. Deposit of Proceeds. The Administrator shall cause all proceeds 
of the open tender process to be deposited into interest-bearing 
accounts in a financial institution approved by the COLOM-PEQ Board of 
Directors.
    N. 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 COLOM-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 market access, 
market promotion, educational, scientific and technical projects to

[[Page 37387]]

benefit the United States poultry industry. COLOM-PEQ shall accept 
proposals for the funding of projects approved by resolution of the 
Board of Directors of USAPEEC.
    2. Fifty percent (50%) shall be distributed to fund direct market 
development or market competitiveness improvement projects to benefit 
the Sector Representative Association (``sector gremial 
representativo'') for poultry in the Republic of Colombia in accordance 
with Article 2.6 of the Colombian Ministry of Agriculture and Rural 
Development Decree No. 0728 of April 13, 2012.
    O. 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.
    P. Confidential Information. The Administrator shall maintain as 
confidential all export documentation or other business sensitive 
information submitted in connection with application for COLOM-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 authorized government 
official of the United States or of the Republic of Colombia and only 
as 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).
    Q. Annual Reports. COLOM-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 COLOMPEQ TRQ System.

    Dated: June 15, 2012.
Joseph E. Flynn,
Director, Office of Competition and Economic Analysis.
[FR Doc. 2012-15120 Filed 6-20-12; 8:45 am]
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