01-2674. Export Trade Certificate of Review; 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:

Vanessa M. Bachman, Acting Director, Office of Export Trading Company Affairs, International Trade Administration, [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. 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 01-00001.” A summary of the application follows.

Summary of the Application

Applicant: Ginseng Board of Wisconsin, Inc.(“GBW”), 16H Menard Plaza, Wausau, Wisconsin 54401.

Contact: Joan Eckes, Manager.

Telephone: [phone].

Application No.: 01-00001.

Date Deemed Submitted: January 16, 2001.

GBW is a non-stock, non-profit corporation established to administer the Wisconsin Ginseng Marketing Order (Chapter Ag. 148, Wis. Adm. Code). Members (in addition to applicant): Ginseng Research Institute of America, Inc. (“GRIA”), Wausau, WI; Ginseng & Herb Co-op (“GHC”), Wausau, WI; and Ms. Mechthild Handke, Dusseldorf, Germany (representative for GBW and GHC).

Export Trade:

1. Products

Ginseng and ginseng products; golden seal and golden seal products; echinacea and echinacea products.

2. Services

All services related to the export of Products.

3. Technology Rights

All intellectual property rights associated with Products or Services, including, but not limited to, patents, trademarks, service marks, trade names, copyrights, neighboring (related) rights, trade secrets, know-how, and sui generis forms of protection for databases and computer programs.

4. Export Trade Facilitation Services (as they Relate to the Export of Products, Services and Technology Rights)

Export Trade Facilitation Services, including, but not limited to: foreign market development, consulting, international market research, all product research and design, development of trade strategy, legal assistance, marketing, promotion, sales, distribution, trade documentation, trade shows, freight forwarding, consolidation of export shipments, transportation, communication and processing of export orders; warehousing, foreign exchange, financing, taking title to goods, customs, duties, taxes, insurance, billing collection, inspection and quality control.

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).

The proposed Export Trade Certificate of Review would extend antitrust protection to GBW and the Members cited above in connection with the following Export Trade related activities:

1. Design and execute foreign marketing strategies for Export Markets;

2. Establish base prices at which the Products will be sold for export, and set all or other terms of export sales;

3. Agree on quantities of Product to be sold. GHC and GBW shall not require any Product supplier to export a minimum quantity. Grower names will be in a lottery draw and as names are drawn, this is the order in which growers will be contacted to see if they want to sell. If the grower decides not to sell, his name is put at the end. Growers also have an “option out” feature with the coop, should they decide to discontinue;

4. GBW and/or Mechthild and GHC may refuse to quote prices for Products, or to market or sell Products to/or for any customers in the Export Markets, or any countries or geographical areas in the Export Markets;

5. GBW and GHC may conduct promotional activities such as: design, develop and use promotional material using trademarked seal and/or other material. GBW, GHC may design, develop and market generic or other corporate labels for use in Export Markets. GBW and GHC may arrange trade shows, marketing trips, advertising services, conduct international market and Product research;

6. GBW and GHC may conduct marketing and distribution of the Products;

7. GBW and GHC may enter into exclusive agreements appointing one or more export trade intermediaries for the sale of products with price, quantity, territory, country and/or customer restrictions. (“Exclusive” means that GBW and GHC may agree not to sell Products into designated Export Markets through any other foreign distributor and that the foreign distributor may agree to represent only GBW and GHC in the Export Markets and none of GBW and GHC competitors.);

8. Conduct product and packaging research and development exclusively for export in order to meet foreign regulatory requirements, foreign buyer specifications, and foreign consumer preferences;

9. Negotiate and enter into agreements with governments and other foreign persons regarding non-tariff barriers in Export Markets;

10. Advise and cooperate with the United States Government in establishing procedures regulating the export of the Products;

11. Participate in negotiations and enter into agreements with foreign buyers (including governments and private persons) regarding fumigating, packing and other quality control and/or phytosanitary procedures, and/or funding requirements to be followed in the export of the Products. Such procedures may include activities related to insect and disease detection, certification, inspection, storage and treatment protocols required to qualify Products for export and to meet the import requirements of the foreign government. GBW and/or its Members may establish and operate fumigation facilities for use in the export of the Products;

12. Negotiate or enter into purchase agreements with buyers in Export Markets regarding terms and conditions of sales;

13. Broker or take title to Products and research data intended for Export Markets;

14. Jointly undertake the administrative tasks of processing export orders;

15. Engage in joint promotional activities (such as advertising or trade shows) for developing existing or new markets;

16. Procure, negotiate, contract, and administer transportation services for Products in the course of export, including overseas freight transportation, inland freight transportation from portal to embarkment, leasing of transportation equipment and facilities, storing/warehousing, stevedoring, wharfage, handling, insurance, freight forwarder services;

17. Arrange for trade documentation, services, customs clearance, financial instruments, and foreign exchange;

18. Compile and discuss information regarding expenses specific to exporting the Products to and within the Export Markets, including without limitation, all modes of transportation, port storage, export sales, commissions, documentation, duties and taxes;

19. Operate and establish jointly owned subsidiaries or other joint venture entities, owned exclusively by GBW and/or its Members, to export Products to Export Markets; operate warranty, service, and training centers in Export Markets; and to provide Export Trade Facilitation Services to Members and nonmember suppliers of Products. Member and nonmember Wisconsin suppliers may ship Products through GHC;

20. Require the licensing of and license any intellectual property resulting from the research conducted by the GRIA. The use of this research data in conjunction with the sale of Products shall be determined by negotiations between the export customer, GBW and GRIA;

21. Arrange financing through private and public financial entities;

22. Bill and collect monies from foreign buyers; perform or arrange for all legal and financial services in relation to Export Trade Activities and Methods of Operation;

23. Require the use of the Wisconsin Ginseng Seal for Products sold in the Export Markets;

24. Provide marketing and/or health benefit research data to customers, distributors and other export trade intermediaries in the Export Markets for use in promotion of Products, and enter into licensing arrangements of such data with export trade intermediaries and buyers in the Export Markets;

25. Wisconsin Ginseng Seal: GBW and/or its Members can require that the seal emblem only be used to identify and signify that the product is grown in United States—Wisconsin and contains 100% pure Wisconsin Ginseng;

26. Negotiate and enter into agreements with governments and foreign persons to develop counter-trade arrangements, provided that this Certificate does not protect any conduct related to the sale of goods in the U.S. that are imported as part of any counter trade transactions;

27. Apply for and utilize applicable export assistance and incentive programs available within governmental sectors;

28. Open, operate and staff overseas sales and distribution offices to facilitate the sales and distribution of Products to and within Export Markets; and

29. Exchange information as necessary to carry out Export Trade Activities and Methods of Operation between GBW, GRIA, GHC and other entities. Bring together from time to time GBW, its Members, and export trade intermediaries in the Export Markets to discuss and plan how to fulfill the Product, Service, and/or Technology requirements of specific export customers or Export Markets.

Dated: January 26, 2001.

Vanessa M. Bachman,

Acting Director, Office of Export Trading Company Affairs.