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Export Trading Company Affairs (ETCA)

The Export Trade Certificate of Review Program - The Competitive Edge for U.S. Exporters

[Federal Register: December 18, 2003 (Volume 68, Number 243)]


[Page 70490-70492]

From the Federal Register Online via GPO Access []



International Trade Administration

Export Trade Certificate of Review

ACTION: Notice of issuance of an Export Trade Certificate of Review,

Application No. 03-00006.

SUMMARY: The Department of Commerce has issued an Export Trade

Certificate of Review to Western Fruit Exporters, LLC (``WFE''). 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 (202) 482-5131 (this is not a toll-free number), or by

e-mail at

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. The regulations implementing

Title III are found at 15 CFR part 325 (2003).

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

I. Export Trade

1. Products

Brine sweet cherries in any stage of processing and finished

maraschino cherry products in any stage of packaging.

2. Services

Inspection, quality control, marketing and promotional services.

3. Technology Rights

Proprietary rights to all technology associated with Products or

Services, including, but not limited to: patents, trademarks, service

marks, trade names, copyrights, trade secrets, know-how.

4. Export Trade Facilitation Services (as They Relate to the Export of

Products, Services and Technology Rights)

All export trade-related facilitation services, including, but not

limited to: Consulting and trade strategy; sales and marketing; export

brokerage; foreign marketing research; foreign market development;

overseas advertising and promotion; product research and design based

on foreign buyer and consumer preferences; communication and processing

of export orders; inspection and quality control; transportation;

freight forwarding and trade documentation; insurance; billing of

foreign buyers; collection (letters of credit and other financial

instruments); provision of overseas sales and distribution facilities

and overseas sales staff, legal, accounting and tax assistance;

management information systems development and application; assistance

and administration related to participation in government export

assistance programs.

II. 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).

III. Export Trade Activities and Methods of Operation

In connection with the promotion and sale of Members' Products,

Services, and/or Technology Rights into the Export Markets, WFE and/or

one or more of its Members may:

1. Design and execute foreign marketing strategies for its Export


2. Prepare joint bids, establish export prices for Members'

Products and Services, and establish terms of sale in Export Markets in

connection with potential or actual bona fide opportunities;

3. Grant sales and distribution rights for the Products, whether or

not exclusive, into designated Export Markets to foreign agents or

importers (``exclusive'' meaning that WFE and/or one or more Members

may agree not to sell the Products into the designated Export Markets

through any other foreign distributor, and that the foreign distributor

may agree to represent only WFE and/or one or more Members in the

Export Markets and none of its competitors);

4. Design develop and market generic corporate labels for use in

Export Markets;

5. Engage in joint promotional activities directly targeted at

developing Export Markets, such as: arranging trade shows and marketing

trips; providing advertising services; providing brochures and industry

newsletters; providing product, service, and industry information;

conducting international market and product research; and procuring,

international marketing, advertising, and promotional services;

6. Share the cost of joint promotional activities among the


7. Conduct product and packaging research and development

exclusively for export in order to meet foreign regulatory

requirements, foreign buyer specifications, and foreign consumer


8. Negotiate and enter into agreements with governments and other

foreign persons regarding non-tariff trade barriers in Export Markets

such as packaging requirements, and providing specialized packing

operations and other quality control procedures to be followed by WFE

and Members in the export of Products into the Export Markets;

9. Assist each other in maintaining the quality standards necessary

to be successful in the Export Markets;

10. Provide Export Trade Facilitation Services with respect to

Products, Services and Technology (including such items as commodity

fumigation, refrigeration and storage techniques, and other quality

control procedures to be followed in the export of Products in Export


11. Advise and cooperate with agencies of the United States

government in establishing procedures regulating the export of the

Members' Products, Services and/or Technology Rights in Export Markets;

12. Negotiate and enter into purchase agreements with buyers in

Export Markets regarding export prices, quantities, type and quality of

Products, time periods, and the terms and conditions of sale;

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

14. Purchase Products from non-Members to fulfill specific sales

obligations, provided that WFE and/or one or more Members shall make

such purchases only on a transaction-by-transaction basis and when the

purchasing Members are unable to

[[Page 70491]]

supply, in a timely manner, the requisite Products at a price

competitive under the circumstances;

15. Solicit non-Member producers to become Members;

16. Communicate and process export orders;

17. Procure, negotiate, contract, and administer transportation

services for Products in the course of export, including overseas

freight transportation, inland freight transportation from the packing

house to the U.S. port of embarkment, leasing of transportation

equipment and facilities, storing and warehousing, stevedoring,

wharfage and handling, insurance, and freight forwarder services;

18. Arrange for trade documentation and services, customs

clearance, financial instruments, and foreign exchange;

19. Arrange financing through private financial entities,

government financial assistance and incentive programs and other


20. Bill and collect monies from foreign buyers, and arrange for or

provide accounting, tax, legal and consulting services in relation to

Export Trade Activities and Methods of Operation;

21. Enter into exclusive agreements with non-Members to provide

Export Trade Services and Export Trade Facilitation Services;

22. Open and operate overseas sales and distribution offices and

companies to facilitate the sales and distribution of Products in the

Export Markets;

23. Negotiate and enter into agreements with governments and

foreign persons to develop countertrade arrangements, provided that

this Certificate does not protect any conduct related to the sale of

goods in the United States that are imported as part of any

countertrade transactions;

24. Refuse to deal with or provide quotations to other Export

Intermediaries for sales of Members' Products into Export Markets;

25. Require common marking and identification of Members' Products

sold in Export Markets;

26. Exchange information as necessary to carry out Export Trade

Activities and Methods of Operation, including:

(a) Information about sales, marketing efforts, and sales

strategies in Export Markets, including pricing; projected demand in

Export Markets for Products; customary terms of sale; and foreign buyer

and consumer product specifications;

(b) Information about the price, quality, quantity, source and

delivery dates of Products available from WFE and its Members for


(c) Information about terms and conditions of contracts for sales

in Export Markets to be considered and/or bid on by WFE and/or Members;

(d) Information about joint bidding opportunities;

(e) Information about methods by which export sales are to be

allocated among WFE and/or Members;

(f) Information about expenses specific to exporting to and within

Export Markets, including transportation, transshipments, inter-modal

shipments, insurance, inland freight to port, port storage,

commissions, export sales, documentation, financing and customs duties

or taxes;

(g) Information about U.S. and foreign legislation and regulations,

including federal marketing order programs that may affect sales to

Export Markets;

(h) Information about WFE's or Members' export operations,

including sales and distribution networks established by WFE or Members

in Export Markets, and prior export sales by Members, including export

price information; and

(i) Information about claims or bad debts by WFE's or Members'

customers in Export Markets.

IV. Definitions

``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.

V. Members (Within the Meaning of Section 325.2(l) of the Regulations)

Eola Cherry Company, Inc., Gervais, Oregon; Diana Fruit Co., Inc.,

Santa Clara, California; Johnson Foods Co., Inc., Sunnyside,

Washington; and Oregon Cherry Growers, Inc., Salem, Oregon.

VI. Terms and Conditions of Certificate

1. Neither WFE nor any Member shall intentionally disclose,

directly or indirectly, to any other Member any information about its

or any other Member's costs, production, capacity, inventories,

domestic prices, domestic sales, terms of domestic marketing or sale,

or U.S. business plans, strategies, or methods, unless (1) such

information is already generally available to the trade or public; or

(2) the information disclosed is a necessary term or condition (e.g.,

price, time required to fill an order, etc.) of an actual or potential

bona fide sale and the disclosure is limited to the prospective

purchasing Member.

2. Each Member shall determine independently of WFE and each other

the quantity of Products each will make available for export or sell

through WFE. WFE may not require any Member to accept any offer for

sale or require any Member to export any minimum quantity of Products.

3. Any agreements, discussions, or exchanges of information under

this Certificate relating to quantities of Products available for

Export Markets, product specifications or standards, export prices,

product quality or other terms and conditions of export sales (other

than export financing) shall be in connection only with actual or

potential bona fide export transactions or opportunities and shall

include only those Members participating or having a genuine interest

in participating in such transactions or opportunities, provided that

WFE and/or the Members may discuss standardization of Products and

Services for purposes of making bona fide recommendations to foreign

governmental or private standard setting organizations.

4. Meetings at which WFE and Members allocate export sales and

establish export prices shall not be open to the public.

5. Participation by WFE and/or Members in any Export Trade Activity

or Method of Operation under this Certificate shall be entirely

voluntary as to WFE and/or the Members, subject to the honoring of

contractual commitments for sales of Products, Services or Technology

Rights in specific export transactions. A Member may withdraw from

coverage under this Certificate at any time by giving written notice to

WFE, a copy of which WFE shall promptly transmit to the Secretary of

Commerce and the Attorney General.

6. WFE and the 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 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.

VII. Protection Provided by Certificate

This Certificate protects WFE and its directors, officers, and

employees acting on its behalf, as well as its Members,

[[Page 70492]]

and their directors, officers, and employees acting on their behalf,

from private treble damage actions and governmental 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.

VIII. 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.

IX. Other Conduct

Nothing in this Certificate prohibits WFE 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.

X. Disclaimer

The issuance of this Certificate of Review to WFE 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 the Attorney

General concerning either (a) the viability or quality of the business

plans of WFE or its Members or (b) the legality of such business plans

of WFE 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) (``Guidelines'').

In accordance with the authority granted under the Act and

Regulations, this Export Trade Certificate of Review is hereby granted

to Western Fruit Exporters, L.L.C.

The effective date of the Certificate is December 8, 2003. 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 15, 2003.

Jeffrey C. Anspacher,

Director, Office of Export Trading Company Affairs.

[FR Doc. 03-31323 Filed 12-17-03; 8:45 am]


Last Updated: 8/25/15 5:46 PM

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