03-1357. 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, (202) 482-5l3l (this is not a toll-free number) or e-mail at [e-mail].

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. A 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 Act 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 copies, plus two 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, Department of Commerce, Room 1104H, Washington, DC 20230, or transmit by e-mail at [e-mail]. 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 02-00005.” A summary of the application follows.

Summary of the Application

Applicant: Virginia Apple Growers Association, (“VAGA”), P.O. Box 1163, Richmond, Virginia 23218.

Contact: Richard Gilmore, President/CEO.

Telephone: [phone].

Application No.: 02-00005.

Date Deemed Submitted: January 6, 2003.

Members (in addition to applicant): Bowman Fruit Sales, L.L.C., Timberville, VA; Crown Orchard Company, LLP, Batesville, VA; Flippin-Seaman, Inc., Tyro, VA; and Glaize, L.C., Fred L., Winchester, VA.

The proposed Export Trade Certificate of Review would extend antitrust protection to VAGA, and /or one or more of its Members to conduct the following export trade activities:

I. Export Trade

A. Products

1.Fresh Apples: any variety of apples intended for human consumption including but not limited to: Red Delicious, Golden Delicious, Rome, Stayman, York, Winesap, Granny Smith, Jonathan, Red, Gala, Empire, McIntosh, Fuji, Ginger Gold, Braebur, and Cortland.

2. Processed Apples: Includes a variety of apple products used for human consumption; mainly, apple juice, apple cider, applesauce, and apple butter.

B. Export Trade Facilitation Services (As They Relate to the Export of Products)

All export-related services, including, but not limited to, international market research, marketing, advertising, sales promotion, brokering, handling, transportation, common marking and identification, communication and processing of foreign orders to and for Members, financing, export licensing and other trade documentation, warehousing, shipping, legal assistance, foreign exchange and taking title to goods.

II. Export Trade Activities and Methods of Operation

With respect to export trade activities, VAGA and/or one or more of its members may on behalf of and with the advice and assistance of its Members:

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;

2. Establish export prices and allocate export sales among its Members, in connection with actual or potential bona fide export opportunities;

3. Enter into agreements with non-Members, whether or not exclusive, to provide Export Trade Services and Trade Facilitation Services;

4. Negotiate and enter into agreements with providers of transportation services for the export of the Products;

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

a. establishing procedures regulating the export of the Products

b. fulfilling the phytosanitary and/or funding requirements imposed by foreign governments for export of the Products;

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

7. Communicate and process export orders;

8. Conduct direct sales;

9. Broker or take title to Products acquired from non-Member producers whenever necessary to fulfill specific sales obligations;

10. Operate foreign sales and distribution offices and companies to facilitate the sales and distribution of the Products in the Export Markets;

11. Refuse to deal with or provide quotations to other Export Intermediaries for sales of the Members' Products into the Export Markets;

12. Retain the option for VAGA to be the exporter of record with regard to sales conducted by and through VAGA;

13. Develop internal operational procedures and disseminate information to Members to assist the membership in meeting the criteria necessary for exporting;

14. Receive and (each Member may) supply information as to each Member's actual or intended total export shipments of certified products in any previous or future growing season or seasons. VAGA, through employees or agents of VAGA who are not also employees of a Member, may receive and each Member may supply to such employees or agents of VAGA, information as to such Member's actual or intended total export shipments in any previous growing season or seasons, provided that such information is not disclosed by VAGA to any other Member;

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

16. Provide Export Market entry and development assistance to its Members, including:

a. designing and executing foreign marketing strategies for VAGA's Export Markets

b. designing, developing, and marketing generic corporate labels

c. other related administrative and promotional services;

17. Solicit non-Members to become Members;

18. 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);

19. Apply for and utilize export assistance and incentive programs, as well as arrange financing through bank holding companies, governmental programs, and other arrangements; and

20. Bill and collect from foreign buyers and provide accounting, tax, legal, and consulting assistance and services.

III. 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).

Definition

“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.

Dated: January 16, 2003.

Vanessa Bachman,

Acting Director, Office of Export Trading, Company Affairs.