Christopher Hoff Data Flows and Privacy Office of Digital Services Industries

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Christopher HoffData Flows and Privacy

Office of Digital Services Industries

Nicholas EnzData Flows and Privacy

Office of Digital Services Industries

Jim RiceTextiles, Consumer Goods, and Materials

Office of Consumer Goods

Industry & Analysis Spotlight

Safe Harbor

Processed Foods

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February 5, 2014

Prepared by Office of Digital Services Industries

Industry & AnalysisSpotlight on

U.S.-EU and U.S.-Swiss Safe Harbor Frameworks

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What is Safe Harbor?

Safe Harbor is a mechanism that allows U.S. businesses to transfer personal data to the U.S. for processing in accordance with EU and Swiss data protection requirements

Personal data is any information relating to an identified or identifiable a natural person

Processing data is any operation performed on personal data, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction

History/Overview

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Google– Personal data received to register Google internet domains in EU member states, distribute

applications and products to EEA consumers, provide data services for companies that use google products, and carry out human resource functions

Facebook – Personal data received to provide web-hosting services for partners in EEA, contact corporate

customers in EEA, and process Facebook users’ data from EEA and Switzerland

WebFilings, LLC. – Personal data received to provide web-based cloud services for financial reporting and human

resources functions for customers, to manage customer relationships and contracts, and to track and ensure payments

Oclaro, Inc.– Personal data received to communicate with employees, provide employee benefits, and comply with

human resource requirements and government regulations

Safe Harbor examples

History/Overview

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History of Safe Harbor 1995: European Commission (EC) Data Protection

Directive 95/46/EC 2000: U.S.-EU Safe Harbor Framework 2009: U.S.-Swiss Safe Harbor Framework 2014: Over 4,300 U.S. organizations have participated in

Safe Harbor. Over 3,300 currently participate.

Source: Future for Privacy Forum

History/Overview

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What are the Safe Harbor Frameworks?

7Safe Harbor Privacy Principles

1. Notice2. Choice3. Onward Transfer4. Access5. Security6. Data Integrity7. Enforcement

See the Safe Harbor website for details: http://export.gov/safeharbor/

15Frequently Asked Questions and Answers

1“Adequacy” determination

History/Overview

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Benefits Improved privacy practices, consumer protection Streamlined compliance burdens for small companies

More than 60% of Safe Harbor participants are SMEs Supports largest economic relationship that accounts for half of global

economic output and one trillion dollars in goods and services trade, as well as millions of jobs on both sides of the Atlantic

EU businesses can join Safe Harbor in order to transfer personal data to subsidiaries in the U.S.

The Obligation Self-certification is voluntary, but enforceable

Enforcement More than 20 cases by Federal Trade Commission

Safe Harbor basicsHistory/Overview

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The data protection divide

Comprehensive legislation

Member state Data Protection Authority (DPA) enforcement

Sector-specific legislation

Self-regulation

Effective FTC enforcement

History/Overview

United StatesEU and Switzerland

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Who should join Safe Harbor?

Implementation

Check list:

U.S. organization

Subject to FTC or U.S. DOT jurisdiction

Receive personally identifiable data originating in one or more EU/EEA member states or Switzerland

Have not identified another basis for demonstrating “adequacy”

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How do you join Safe Harbor? Implementation

Organizations Must• Comply with the Safe Harbor Framework(s)• Publicly declare that you do so• Self-certify using the Safe Harbor website• Reaffirm self-certification annually

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How does Safe Harbor apply to the “Cloud”?

Is Safe Harbor applicable to cloud service provider agreements? – Yes, Safe Harbor and the Commission’s “adequacy” decision apply to such agreements that involve the transfer of personal data from the

EU to the U.S.

Is a cloud service provider required to enter into a contract even if it is Safe Harbor-compliant and is receiving personal data merely for processing?

– Yes, the Directive requires that EU data controllers confirm that the data processor – whether domestic or foreign – provides sufficient data protection guarantees and conclude a contract providing that the processor will act only on the controller’s instructions and in compliance with applicable data security requirements

– Safe Harbor fully acknowledges this requirement– Pursuant to Safe Harbor, the contract does not require prior DPA authorization nor must it include standard contractual clauses, which are

an alternative to Safe Harbor

The Department of Commerce released a document clarifying these issues in April 2013, which is available at export.gov/safeharbor

Implementation

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Recent Safe Harbor developmentsThe Department of Commerce will continue working to enhance Safe Harbor’s operation and conduct outreach to provide general information, updates, and clarifications regarding Safe Harbor whenever and wherever appropriate

Recent developments

DOC Operations

Dispute resolution provider updates

Clarification document publication

Increased transparency

measures

Safe Harbor database

improvement

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Proposed EU Privacy Regulation

Pending EU Privacy Regulation could impact Safe Harbor• January 2012 proposal by European Commission

grandfathered Safe Harbor and other adequacy decisions• October 2013 amendment by the Parliament places a 5-year

sunset on Safe Harbor and other adequacy decisions• European Council is still working on a revision

European Commission and U.S. commitment to Safe Harbor still strong

The proposed regulation is unlikely to enter into force before 2016

Recent developments

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European Commission Safe Harbor ReportRecent developments

European Parliament• Requested review by the European

Commission, which the European Commission has periodically done since Safe Harbor’s inception

European Commission Report (Nov 2013)• Sets forth 13 recommendations on how it

believes Safe Harbor could be improved in the areas of transparency, redress, enforcement, and access by U.S. authorities

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Safe Harbor enforcementEnforcement

FTC cases of Safe Harbor misrepresentation (2009

and 2014)• 18 cases, including the

January 2014 cases of BitTorrent, Inc; Level 3 Communications, LLC; Denver Broncos Football Club; Reynolds Consumer Products Inc.• Violations of consent

orders may result in civil penalty up to $16,000

FTC cases requiring 20 years of audits (2011-2012)

• Myspace, Facebook, Google• Consent orders requiring

20 years of third-party privacy audits

• Comprehensive privacy program defined and mandated by FTC

• Violations of consent orders may result in civil penalty up to $16,000

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Office of Digital Services Industries Staff

Krysten JenciActing Director, Office of Digital Services IndustriesPhone: 202-482-0551Email: [email protected]

Andrea DaSilvaDigital and Internet Services TeamPhone: 202-482-3686Email: [email protected]

David RitchieData Flows and Privacy TeamPhone: (202) 482-4936 Email: [email protected]

Christopher HoffData Flows and Privacy TeamPhone: 202-482-3120Email: [email protected]

Nicholas EnzData Flows and Privacy TeamPhone: 202-482-1512Email: [email protected]

Paulette HernandezActing Team Leader, Digital and Internet Services TeamPhone: 202-482-0399Email: [email protected]

Caitlin FennessyData Flows and Privacy TeamPhone: (202)657-7272Email: [email protected]

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Industry and AnalysisSpotlight on

Processed Foods and Beverages

February 5, 2014

Prepared by Office of Consumer Goods

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NEI Processed FoodsWhat are we talking about?

NAICS Code: 311 – Food Manufacturing• 3111 - Animal food manufacturing• 3112 - Grain and oilseed milling• 3113 - Sugar and confectionary manufacturing• 3114 - Fruit and vegetable preserving and specialty food manufacturing• 3115 - Dairy product manufacturing• 3116 - Meat product manufacturing• 3117 - Seafood product preparation and packaging• 3118 - Bakeries and tortilla manufacturing• 3119 - Other food manufacturing

Plus Agricultural Biotechnology and Dietary Supplements, which do not fall under industry-specific NAICS codes

NAICS Code 3121 – Beverage Manufacturing• 312111 - Soft Drinks• 312112 - Bottled Water• 31212 - Beer• 31213 - Wine• 31214 - Distilled Spirits

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NEI Processed FoodsWhy are we talking about it?

• U.S. Leadership Position: U.S. companies are leading participants in the world market

• Export Growth Potential: Significant unmet need remains worldwide• Jobs: The U.S. processed foods sector is a proven economic driver and generator

of high quality jobs• Domestic Challenges: The sector faces a changing climate over regulation and

safety concerns, as expressed in the recent food safety law• International Challenges: Developing countries creating new regulatory regimes

that may be inconsistent with U.S. practices• Established Programs: ITA can take advantage of Codex dialogues and new

multilateral fora to address foreign regulations and standards• Small and Medium Size Firms: SMEs comprise 89% of U.S. industry

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U.S. Competitiveness in Processed FoodsImport Growth 2012-13 (2.7%) - Export Growth 2012-13 6.5%

Source: U.S. International Trade Commission, Jan. 2014

Leading Export Destinations (More than $1 billion in 2012)

• Canada • Mexico • Japan • China (Up 15% 2013)

• Korea • Hong Kong (Up 21% 2013)

• Philippines • Russia (Down 49% in 2013, due to meat

issues/ractopamine)

• Taiwan (Up 18% in 2013)2009 2010 2011 2012 2012 -

Nov.2013 - Nov.

$-

$10,000,000

$20,000,000

$30,000,000

$40,000,000

$50,000,000

$60,000,000

$70,000,000

ImportExport

U.S. Trade in Processed Foods (NAICS 311 ($ Billions)

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U.S. Competitiveness in Beverage TradeImport Growth 2012-13: 4.8% - Export Growth 2012-13: 19.8%

Source: U.S. International Trade Commission, Jan. 2014

Leading Export Destinations • Canada • China (Up 100% ‘12-’13)• Mexico • Japan • United Kingdom • Australia • Germany (Up 38% ‘12-’13)• Korea • France (up 15% ‘12-’13)• Vietnam

2009 2010 2011 2012 2012 - Nov.

2013 - Nov.

$-

$2,000

$4,000

$6,000

$8,000

$10,000

$12,000

$14,000

$16,000

$18,000

$20,000

ImportExport

U.S. Trade in Beverages: NAICS 3121 ($ Billions)

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Four NEI Processed Foods Trade Facilitation and Policy Initiatives*

• APEC Public-Private Partnership on Food Safety/World Bank Global Food Safety Partnership

• APEC Multi-Year Wine Regulatory Forum/World Wine Trade Group

• Food Security/Feed the Future Initiative

• Agricultural-Biotechnology

* In all of these activities, ITA partners closely with U.S. regulatory and trade agencies

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Our APEC Partners in Food Safety

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Food Safety Challenge and Impact on Trade

• Challenge:– Complex global food supply chain– Rising levels of food trade– Differing adherence to international agreements and lack of

understanding on how to comply with them

• Trade Impact:– Losses due to port delays, duplicate testing– Disproportionate impact on SMEs– Economic losses to producers in event of food recalls– U.S. reliance on foreign suppliers for safe inputs to products– Use of competent (ILAC) labs keep ingredients and products moving across

borders and minimize spoilage of perishable products

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FSCF21 APEC

Regulators

Assuring Safety of Food Supply Chain Through Public-Private Partnership, Capacity Building & Regulatory Dialogue

Goals

• Co-chaired by China and Australia• Information Sharing/Networking• Convergence of Food Safety Standards

and Systems• Consultation to identify capacity

building needs• Regulator to Regulator Capacity

Building

FSCF PTINGovernment,

Industry, Academia,

IGOs

Goals Tri-partite approach/ Extensive Network Harness cross sectoral expertise

Develop and implement sustainable training modules, food safety

capacity building activities and approaches, and reproducible materials

to address key needs

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Impact• Public-private partnerships share food safety information• Regulatory convergence on science-based international

standards • Agreements in APEC carry over into other international fora• Fewer technical barrier to trade disputes• Prevention & management of problems in food supply chain • Entry of small farmers/producers in global food supply chains• Faster customs clearance, less time and cost wasted on

duplicate testing, more time for products to be on the shelf (critical for perishable products)

Safe food facilitates trade

APEC Food Safety Goals for 2014-15

• Build Regulatory Cooperation– Export Certificates– Pesticide maximum residue limits

• Build Food Safety Capacity Through Targeted Work Plans, Training Modules and Training Events – Risk Based Inspection– Laboratory Capacity Building– Allergens

• Establish APEC as a Premiere Platform for Building a Safe and Secure Food Supply by 2020– Food Safety/Food Security Summit September 2014 Beijing

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APEC Food Safety Agenda 2014

• February 17-19 Sub Committee on Standards and Conformance, Ningbo, China

• February 17 SRB Workshop (PTIN presentation), Ningbo, China • February 21-23 Policy Partnership on Food Security Public Private Dialogue, Ningbo, China • May 5-8 APEC Food Safety Cooperation Forum Food Allergen Management Workshop, Vancouver Canada • May 21-23 APEC FSCF Korea Risk Inspection Workshop, Seoul, Korea • Sept 15-16 Proposed date for APEC Wine Regulator Forum, Beijing, China • September 15-16 Possible date for APEC FSCF Proficiency Testing Lab Capacity Program, Beijing China, TBD • Sept 16 High Level Public Private Dialogue on Food Safety, Beijing, China • Sept 17 FSCF Special Session, Beijing, China, TBD • Sept 18-19 Agriculture and Food Ministerial, Beijing, China • October 11-12 Proposed APEC FSCF Export Certificate Meeting, Australia, on margins of Codex Committee on Food

Import and Export Inspection and Certification Systems meetings

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A Global Model

• MOU between APEC and World Bank in 2011 for five-year collaboration in capacity building

• Led to development of Global Food Safety Partnership- anchored by a multi-donor trust fund

• Included in 5 year GFSP roadmap is 3 year plan for the APEC FSCF

• Commerce serves as Administrator of the APEC PTIN and on the Communications and IT working groups for the GFSP and leads USG and US industry input into GFSP direction

• The World Wine Trade Group (WWTG) is a group of high-level government representatives with a mutual interest in facilitating the international trade in wine.

• The members of the WWTG are: Argentina, Australia, Canada, Chile, Republic of Georgia, New Zealand, South Africa, and the United States.

• WWTG Government Website: http://ita.doc.gov/td/ocg/wwtg.htm

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• The WWTG has negotiated 3 Treaty-Level wine agreements and one MOU:– Agreement on Mutual Acceptance of Oenological Practices

– Agreement on Requirements for Wine Labeling

– Protocol to the 2007 World Wine Trade Group Agreement on Requirements for Wine Labeling concerning Alcohol Tolerance, Vintage, Variety, and Wine Regions

– Memorandum of Understanding on Certification Requirements

• The United States is the Chair of the WWTG for the 2013-2014 year (March-March). An intercessional meeting of all the parties to be held April 10-11 in Brussels, Belgium.

• ITA serves as the “Electronic Depositary” and central point of contact for WWTG matters among members.

2013-2018 APEC Wine Regulatory Forum

• Multi-year proposal submitted by the United States to APEC (Jan. 2013)

• 12 Co-sponsors: Australia, Canada, Chile, Chinese Taipei, Indonesia, Korea, Mexico, New Zealand, Papua New Guinea, Peru, Russia & Viet Nam.

• The project received approval on June 14, 2013.

• US$499,921 in funding over five years.Value of wine trade in the APEC region more than tripled to $23 billion in 2012 from $7.0 billion in 2000

Asia Pacific wine trade loses $1 billion a year to red tape: APEC (Jan. 4, 2014, Bangkok Post)

China in particular tipped to become the largest wine-consuming nation within 20 years, overtaking the United States 32

2013-2018 APEC Wine Regulatory Forum

• Assist developing economies to implement specific, measurable, good regulatory practices.

• Hands-on technical assistance activities.

• Focus on capacity building.

• Laboratory ring study to determine test method accuracy.• The next APEC WRF meeting will be held on the margins of the

September ‘14 APEC Food Safety and Security Summit in China.

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Food Security

The International Trade Administration’s goal in its food security activities is to:

Create pathways for U.S. food and agricultural companies to have a role in food security trade talks, resulting in improved U.S. industry access to foreign governments

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Food Security

• ITA’s Role in Food Security: Trade Solutions to Food Insecurity (Hunger).

• ITA works through its Processed Foods NEI activities to support the Obama Administration’s Feed the Future (FTF) interagency initiative to alleviate food insecurity in developing countries.

• ITA and NOAA represent Commerce in FTF.

• ITA looks at food insecurity from trade perspective: our goal is to increase U.S. agricultural and food exports to bolster food security globally.

• OHCG Priorities: • 1) Advocacy for U.S. agri-businesses through conferences and policy making.

• 2) Missing Middle Financing: addressing the lack of financing options in $100k - million range, which is a barrier for developing countries wanting to purchase from U.S. suppliers.

- ITA’s Consumer Goods team chairs a dedicated interagency group supporting FTF. - Partner with State for conferences - upcoming one dedicated to financing, and develop webinar for CS and other partners to expand food security visibility within ITA. - Partner to create innovative buyback/leasing model in Africa. - Partner with FAST on a SME finance matching mechanism.

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Agriculture Biotechnology Industry

• Ag Biotech impacts the $2 trillion global food market and $60+ billion of U.S. processed foods exports

• Seventy percent of all food products typically found in a U.S. grocery store incorporate ag-biotechnology

• Two million farmers and 1.4 million jobs associated with the processed foods industry are supported by ag-biotech.

• The U.S. is the global headquarters for six leading companies in the ag-biotech industry, with all six of the leading companies (three U.S. companies: Dow AgroScience; Dupont-Pioneer; and Monsanto, and three EU companies: BASF; Bayer Crop Science; and Syngenta).

• The U.S. is the top producer of ag biotech products, with more than half of global production, followed by Argentina, Brazil, Canada, and China.

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U.S. Ag Biotech Industry Trade Concerns

• Not everyone in the U.S. and around the globe supports Ag Biotech and/or ag-biotech science, including many of our trading partners.

• In many countries (e.g., most members of the EU and numerous African and some Asian countries) regulation of ag biotech creates trade barriers and trade problems for U.S. exporters (e.g., seeds, ingredients for food products, such as corn and soybeans, cottonseed and other food oils, and finished products).

• The establishment of regulations on ag biotech products, labeling issues (i.e., laws that require food products to be labeled “GMO”), and de facto bans on certain food products and other trade barriers that are not based upon science.

• Regulations and laws on ag biotech that impact intellectual property rights (IPR) and results in lost royalties, lost license fees, legal costs of IPR policing and enforcement, costs of market abandonment due to lack of local IPR protection, etc.

• Regulators around the world are not considering how regulations could impact and/or impact trade of ag biotech products.

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ITA’s work with US Industry & Other USG Agencies

• As a non-regulator of Ag Biotech* DOC, ITA, and the Consumer Goods Team works with the U.S. ag-biotech industry to ensure their trade concerns are appropriately considered by other USG agencies and our trading partners.

• ITA’s Consumer Goods Team works closely with several trade associations and organizations that represent the Ag-biotech industry including: IFT (Institute of Food Technologists), GMA (Grocery Manufacturers Association), and BIO (Biotechnology Industry Association) and meets with these groups often.

• Since it is not a regulatory agency, ITA is uniquely able to work to help ensure U.S. industry concerns are considered under multilateral agreements such as the UN Cartagena Biosafety Protocol and the establishment of Codex Alimentarious voluntary standards.

* USG regulators of ag biotech include USDA-APHIS and FSIS, EPA and FDA

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ITA Consumer Goods Team’s work w/ USG Interagency on Ag-Biotech Issues

• ITA and the Consumer Goods Office represents the Department of Commerce and ITA at USG interagency meetings on ag biotech.

• The Consumer Goods Office has participated as a UN Delegate and a member of the USG Delegation at international meetings and multilateral negotiations including Codex and the UN Convention on Biodiversity’s Meetings of the Parties to the Cartagena Biosafety Protocol (COP-MOP).

• The 7th COP-MOP is scheduled to meet in South Korea in October, 2014.

• ITA works to ensure U.S. industry concerns are considered by APEC and the OECD which are producing guidance documents, hosting workshops, and doing other work that influences global regulations of ag-biotechnology.

• ISO is working on standards regarding testing and measurement methods (ISO TC 34/SC 16).

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GM/Commercial Service and the Processed Foods Industry - IBP

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Natural Products Expo West is an IBP event – March 6-9 in Anaheim, CA. http://export.gov/newyork/forms/npew2014/

Summer Fancy Foods Show 2014 is an IBP event – June 29/July 1 in New York Cityhttp://www.specialtyfood.com/fancy-food-show/summer-fancy-food-show/

CS Contacts: Amanda Ayvaz, Celeste Warf CS Contacts: Chris Nemchek, Aditi Palli

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Office of Consumer Goods StaffJim RiceDirector, Office of Consumer Goods (I&A)Phone: 202-482-1176Email: [email protected]

Megan CroweSr. Industry Analyst, Processed Foods and Food SafetyPhone: 202-482-2250Email: [email protected]

Corey WrightSr. Industry Analyst, Agricultural Biotechnology, Beer, and Non-Alcoholic BeveragesPhone: 202-482-2844Email: [email protected]

Jamie FermanSr. Industry Analyst, Wine and Distilled Beveragesand ToysPhone: 202-482-5783Email: [email protected]

Victoria KaoSr. Industry Analyst, Dairy and Food Security Phone: 202-482-0564Email: [email protected]

Charlie RastIndustry Analyst, Nutritional SupplementsPhone: 202-482-4034Email: [email protected]

John VanderwolfInternational Trade Specialist, NEI Recreational Transportation SectorPhone: 202-482-0348Email: [email protected]

Todd HiserSenior International Trade SpecialistGlobal Agri-business Team LeaderU.S. Commercial Service OhioCleveland/Akron U.S. Export Assistance CenterPhone: 216-522-4756 or [email protected]