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Notice

Export Trade Certificate of Review

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Information about this document as published in the Federal Register.

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ACTION:

Notice of Application for an Export Trade Certificate of Review from American Sugar Export Company LLC.

SUMMARY:

Export Trading Company Affairs (“ETCA”), 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.

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FOR FURTHER INFORMATION CONTACT:

Jeffrey Anspacher, Director, Export Trading Company Affairs, International Trade Administration, by telephone at (202) 482-5131 (this is not a toll-free number) or e-mail at oetca@ita.doc.gov.

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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 7021-X H, Washington, DC 20230. 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 08-00008.” A summary of the application follows.

Summary of the Application

Applicant: American Sugar Export Company LLC (“ASEC”), 1875 Pennsylvania Avenue, NW., Washington, DC 20004.

Contact: Robert C. Cassidy, Counsel to the Applicant, Telephone: (202) 863-7282.

Application No.: 08-00008.

Date Deemed Submitted: May 29, 2008. Start Printed Page 33395

Members (in addition to applicant): Listed below.

ASEC and its Members seek a Certificate to cover the following specific Export Trade, Export Markets, and Export Trade Activities and Methods of Operations.

Export Trade

Products

U.S.-origin sugar and syrups meeting the following definitions: Harmonized Tariff Schedule of the United States (HTSUS) 1701, cane or beet sugar and chemically pure sucrose, in solid form; HTSUS 1806.10.43 through HTSUS 1806.10.75, cane or beet sugar and chemically pure sucrose, in solid form: Containing 90 percent or more by dry weight of sugar; HTSUS 2106.90.42 through HTSUS 2106.90.46, food preparations not elsewhere specified or included: Syrups derived from cane or beet sugar, containing added coloring but not added flavoring matter.

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).

Export Trade Activities and Methods of Operation

To engage in Export Trade in the Export Markets, ASEC and its Members intend to undertake the following activities:

1. With respect to the Export Markets, ASEC and/or one or more of its Members may:

a. Engage in joint bidding or selling arrangements and allocate sales resulting from such arrangements among the Members; and

b. By agreement, including agreement with Export Intermediaries:

(i) Establish the prices at which Products will be sold;

(ii) Establish standard terms of sale of Products;

(iii) Establish standard quality grades for Products;

(iv) Establish target prices for sales of Products by its Members, with each Member remaining free to deviate from such target prices in its sole discretion;

(v) Subject to the limitations set forth below, establish the quantity of Products for sales in specific Export Markets;

(vi) Allocate among the Members the Export Markets or customers in the Export Markets;

(vii) Refuse to quote prices for, or to market or sell Products; and

(viii) Engage in joint promotional activities aimed at developing existing or new Export Markets, such as advertising and trade shows;

2. With respect to Export Markets, ASEC may communicate the same information to each Member and, in the event of an over commitment of Products from Members, may communicate with Members about reductions in commitments.

3. ASEC and/or one or more of its Members may enter into agreements to act in certain Export Markets as the Members' exclusive or non-exclusive Export Intermediary(ies) for the quantity of Products dedicated by Members for sale by ASEC or any Member(s) in such Export Markets. In any such agreement (i) ASEC or the Member(s) acting as an exclusive Export Intermediary may agree not to represent any other Supplier of Products with respect to such Export Markets and (ii) Members may agree that they will export the quantity of Products dedicated for sales in such Export Markets only through ASEC or the Member(s) acting as the exclusive Export Intermediary, and that they will not export independently any of the Products dedicated to ASEC, either directly or through any other Export Intermediary.

4. ASEC and/or one or more of its Members may enter into exclusive and non-exclusive agreements appointing third parties as Export Intermediaries for the sale of Products in the Export Markets. Such agreements may contain the price, quantity, quality, terms of sales, territorial, and customer restrictions for the Export Markets contained in and subject to the restrictions of paragraph 1, above.

5. The Members may refuse to deal with Export Intermediaries other than ASEC and its Members.

6. ASEC and/or one or more of its Members may solicit individual non-Member Suppliers to sell Products and/or offer Export Trade Facilitation Services through the certified activities of ASEC and/or its Members; provided, however, that ASEC and/or one or more of its Members will make such solicitations or offers to non-Member Suppliers on a transaction-by-transaction basis only and then only when the Members have not independently committed to a total quantity of Products sufficient to cover such transaction and ASEC and/or the Member(s) does not pay non-Member domestic Suppliers more than the price to be received by ASEC and/or its Member(s) pursuant to the transaction, and provided further that ASEC and/or such Member(s) may exchange only such information with such non-Member Suppliers as is reasonably required by such transaction.

7. With respect to the sale of Products to the Export Markets only, ASEC may compile for, collect from, and disseminate to its Members, and the Members may discuss among themselves, in meetings conducted by ASEC or independently via telephone and other modes of communication as they decide appropriate, information about the following subjects:

a. Sales and marketing efforts, and activities and opportunities for sale of Products in Export Markets, including but not limited to selling strategies and pricing, projected demand for Products, standard or customary terms of sales in the Export Markets, prices and availability of Products from competitors, and specifications for Products by customers in the Export Markets;

b. Export prices, Products quality and quantity, Products source, and delivery dates for Products in the Export Markets;

c. Terms and conditions of contracts for sale in the Export Markets of Products by ASEC and its Members;

d. Joint bidding or selling arrangements in the Export Markets, and the allocation of sales resulting from such arrangements among the Members;

e. Expenses specific to exporting to and within the Export Markets, including without limitation, transportation, trans- or intermodal shipments, insurance, inland freight to port, port storage, commissions, export sales, documentation, financing, customs duties, and taxes;

f. U.S. and foreign legislation, regulations, and policies affecting export sales; and

g. ASEC's and/or its Members' export operations, including without limitation, sales and distribution networks established by ASEC or its Members in the Export Markets, and prior export sales by Members (including export price information).

8. ASEC and its Members may prescribe conditions for withdrawal of Members from and admission of Members to ASEC; provided, however, that each Member shall have the right to withdraw at any time without further liability to pay dues or assessments except to pay to the corporation any remaining amounts due under a written subscription signed by the Member agreeing to make such contribution.

9. With respect to Products for sale in the Export Markets, ASEC may, for itself or on behalf of its Members, establish and implement a quality assurance Start Printed Page 33396program for Products, including without limitation establishing, staffing, and operating a laboratory to conduct quality testing, promulgating quality standards or grades, inspecting Products samples, and publishing guidelines for and reports of the results of laboratory testing.

10. Applicant may conduct meetings of its Members, including meetings via telephone and other modes of communication as they decide appropriate, to engage in the activities described in paragraphs one through nine, above.

Definitions

“Supplier” means a person who produces, provides, or sells Products or Export Trade Facilitation Services.

“Export Intermediary” means a person who acts as a distributor, representative, sales or marketing agent, or broker, or who performs similar functions, including providing or arranging for the provision of Export Trade Facilitation Services.

“Export Trade Facilitation Services” are activities that assist the progress of exporting, such as professional services in the areas of government relations and assistance with state and federal programs; foreign trade and business protocol; consulting; market research and analysis; collection of information on trade opportunities; marketing; negotiations; joint ventures; shipping; export management; export licensing; advertising; documentation and services related to compliance with customs requirements; insurance and financing; trade show exhibitions; organizational development; management and labor strategies; transfer of technology; transportation services; and facilitating the formation of shippers' associations.

Members (Within the Meaning of 325.2(1) of the Regulations)

Suppliers of Products

The Amalgamated Sugar Company, LLC, 3184 Elder Street, Boise, ID 83705, Tel: (208)383-6500, Fax: (208)383-6688.

American Crystal Sugar Company, 101 North Third Street, Moorhead, MN 56560, Tel: 218-236-4400, Fax: 218-236-4422.

American Sugar Holdings, Inc. and American Sugar Refining, Inc. (a subsidiary of American Sugar Holdings, Inc.), 1 Federal Street, Yonkers, NY 10705, Tel: 914-963-2400, Fax: 914-476-4072.

Imperial Sugar Company, One Imperial Square, 8016 Highway 90-A, Sugar Land, TX 77478, Tel: 281-491-9181.

Michigan Sugar Company, 2600 South Euclid Avenue, Bay City, MI 48706, Tel: 989-686-0161, Fax: 989-686-3269.

Minn-Dak Farmers Cooperative, 7525 Red River Road, Wahpeton, ND 58075, Tel: 701-642-8411, Fax: 701-671-1369.

Sidney Sugars Incorporated, 101 North Third Street, Moorhead, MN 56560, Tel: 218-236-4400, Fax: 218-236-4422.

Southern Minnesota Beet Sugar Cooperative, P.O. Box 500, Renville, MN 56284, Tel: 320-329-8305, Fax: 320-329-3252.

Spreckels Sugar Company, Inc., P.O. Box 500, Renville, MN 56284, Tel: 320-329-8305, Fax: 320-329-3252.

United States Sugar Corporation, 111 Ponce de Leon Avenue, Clewiston, FL 33440, Tel: 863-983-8121, Fax: 863-983-9827.

Western Sugar Cooperative, 7555 East Hampden Avenue, Suite 600, Denver, CO 80231, Tel: 303-813-3500, Fax: 303-832-4084.

Export Intermediaries For Products

Domino Foods, Inc., 1 Federal Street, Yonkers, NY 10705-1079, Tel: 914-709-8053.

United Sugars Corporation, 7401 Metro Blvd., Suite 350, Edina, MN 55439, Tel: 952-896-0131, Fax: 952-896-0400.

ASEC has proposed that the following Terms and Conditions govern its proposed Export Trade Activities and Methods of Operation:

Terms and Conditions of Certificate

1. In engaging in Export Trade Activities and Methods of Operations, except as provided in paragraph 7, above, neither ASEC nor its Members shall intentionally disclose, directly or indirectly, to each other or any other Supplier of Product any information about its or any Supplier's costs, production, capacity, inventories, domestic prices, domestic sales, domestic orders, 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) such disclosure is a material part of the negotiations for an actual or potential bona fide sale or purchase of Product and the disclosure is limited to that prospective purchaser or seller.

2. Participation by a Member in any Export Trade Activity or Method of Operation under the Certificate shall be entirely voluntary to that Member, subject to the provisions of paragraph 8, above, and subject to the honoring of contractual commitments for sales of Product in specific export transactions. A Member may withdraw from coverage under the Certificate at any time by giving written notice to ASEC, a copy of which ASEC shall promptly transmit to the Secretary of Commerce and the Attorney General.

3. ASEC 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, or Methods of Operation of a person protected by this certificate of review continues to comply with the standards of Section 303(a) of the Act.

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Dated: June 6, 2008.

Jeffrey Anspacher,

Director, Export Trading Company Affairs.

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[FR Doc. E8-13200 Filed 6-11-08; 8:45 am]

BILLING CODE 3510-DR-P