03-451. Export Trade Certificate of Review

ACTION:

Notice of issuance of an Export Trade Certificate of Review, application No. 02-00003.

SUMMARY:

The Department of Commerce has issued an Export Trade Certificate of Review to Corn Refiners Association (“CRA”). 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 [phone] (this is not a toll-free number), or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Title III of the Export Trading Company Act of 1982 (15 U.S.C. sections 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 (2001). 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

Export Trade

High fructose corn syrup (“HFCS”) in the following two forms: 42 percent fructose and 55 percent fructose and enriched HFCS (greater than 55 percent fructose).

Export Markets

HFCS for which tariff-rate quota (TRQ) rights are allocated will be exported only to Mexico.

Export Trade Activities and Methods of Operation

Purpose

The CRA will manage the system as set forth below for allocating rights to ship under tariff-rate quotas (TRQs) permitting duty-free entry of U.S. HFCS into Mexico.

The CRA shall permit any producer of HFCS in the United States to become a member of the association for purposes of receiving TRQ rights under this system and shall seek an amendment of this Certificate to make such a producer a member under this Certificate.

TRQ Administrator

The CRA will contract with an independent third-party administrator who will bear responsibility for administering the TRQ System, subject to general oversight and supervision by the Board of Directors of the CRA. The administrator may not be otherwise related to the CRA or any member or in any way engaged in the production, distribution or sale of HFCS.

TRQ System

The administrator shall allocate TRQ rights based on the share each member's U.S. HFCS production capacity represents of total U.S. HFCS production capacity. The administrator may advise each member individually of the quantity of TRQ rights allocated to that member. In accordance with those allocations, the administrator shall, upon the request of a member, issue to the member evidence of TRQ rights to ship a specified quantity of U.S. HFCS duty-free to Mexico up to the outstanding total of the member's allocation.

Evidence of TRQ rights issued by the administrator shall be freely transferable. Transfers of TRQ rights are subject to the normal application of the antitrust laws.

Confidential Information

Each member may provide to the administrator information regarding its capacity to produce HFCS in the United States for the purpose of calculating the member's allocation of TRQ rights.

Any non-public, company-specific business information or data submitted by an applicant for membership, by a member, or by any other person in connection with the TRQ System shall be marked “confidential” and submitted to the administrator, who shall maintain its confidentiality. The administrator shall not disclose such confidential information to any member other than the submitter, or to any officers, agents, or employees of any member other than the submitter, and shall not disclose such confidential information to any other person except to another neutral third party as necessary to make the determination for which the information was submitted, to allocate TRQ quantities, or in connection with reports to the U.S. Department of Commerce as required by the Certificate or the arbitration of a dispute.

Cooperation with the U.S. and Mexican Governments

The CRA will provide to the U.S. Government and the Government of Mexico whatever information and consultations may be useful in order to facilitate cooperation between the governments concerning the implementation and operation of the TRQ System. Furthermore, directly or through the U.S. Government, the CRA will endeavor to accommodate any information requests from the Government of Mexico (while protecting confidential information entrusted to the administrator), and will consult with the Government of Mexico as appropriate. All such information and consultations shall be subject to the provision on Confidential Information (above) and the Terms and Conditions (below).

Definition

Neutral third-party, as used in this Certificate of Review, means a party not related to CRA or any member and who is not engaged in the production, distribution or sale of HFCS.

Members (Within the Meaning of Section 325.(1) of the Regulations)

Members (in addition to the CRA): A.E. Staley Manufacturing Company, Decatur, Illinois (subsidiary of Tate & Lyle plc, London, United Kingdom); Archer Daniels Midland Company, Decatur, Illinois; Cargill, Incorporated, Minneapolis, Minnesota; Corn Products International, Inc., Westchester, Illinois; National Starch and Chemical Company, Bridgewater, New Jersey (subsidiary of ICI plc, London, United Kingdom); Penford Corporation, Bellevue, Washington; and Roquette America, Inc., Keokuk, Iowa (subsidiary of Roquette Frères, Lestrem, France).

Protection Provided by Certificate

This Certificate protects the CRA, its members, and directors, officers, and employees acting on behalf of the CRA and its members from private treble damage actions and government 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.

Terms and Conditions of Certificate

1. In engaging in export trade activities and methods of operation, neither CRA, any member, the administrator, nor any neutral third-party shall intentionally disclose, directly or indirectly, to any member (including parent companies, subsidiaries, or other entities related to any member) any information regarding any other member's costs, production, inventories, domestic prices, domestic sales, domestic customers, capacity to produce HFCS for domestic sale, domestic orders, terms of domestic marketing or sale, or U.S. business plans, strategies, or methods, unless such information is already generally available to the trade or public.

2. CRA and its 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 of Commerce 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.

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.

Other Conduct

Nothing in this Certificate prohibits the CRA 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.

Disclaimer

The issuance of this Certificate of Review to CRA 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 by the Attorney General concerning either (a) the viability or quality of the business plans of CRA or its members or (b) the legality of such business plans of CRA 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).

In accordance with the authority granted under the Act and the Regulations, this Certificate of Review is hereby issued to the Corn Refiners Association, Inc.

The effective date of the Certificate is December 30, 2002. 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 30, 2002.

Jeffrey C. Anspacher,

Director, Office of Export Trading Company Affairs.