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Export Trading Company Affairs (ETCA)

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

Sample 8

Applicant, a California corporation, has applied to the Secretary of Commerce for an amended Certificate of Review under Title III of the Export Trading Company Act of 1982, 15 U.S.C. && 4011-4021, (the Act), and its implementing regulations, 15 C.F.R. pt. 325 (1999), (the Regulations).

The application was deemed submitted on XXXX, and a summary of the application was published in the Federal Register on XXXX.

The Secretary of Commerce and the Attorney General have reviewed the application and other information in their possession. Based on analysis of this information, the Secretary of Commerce has determined, and the Attorney General concurs, that the Export Trade and Export Trade Activities and Methods of Operation set forth below meet the four standards set forth in Section 303(a) of the Act.

Accordingly, under the authority of the Act and the Regulations, Applicant is certified to engage in the Export Trade Activities and Methods of Operation described below in the following Export Trade and Export Markets.

Export Trade

1. Product
Frozen bull semen.

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), Canada, Mexico, the Caribbean Islands and all of Central and South America.

Export Activities and Methods of Operation

(1) Applicant may enter into exclusive agreements with one or more Members wherein:

(a) Applicant will purchase frozen bull semen from such Members, and such Members will sell the same to Applicant, at prices set by each individual Member, for resale by Applicant in the Export Markets, and wherein Applicant will market and sell the frozen bull semen in the Export Markets directly or through foreign representatives at prices and on such terms as Applicant shall set; and/or

(b) each Member is prohibited from exporting independently of Applicant, either directly or indirectly, and selling, either directly or indirectly, through any other export intermediaries into the Export Markets in which Applicant exclusively represents the Members, or to any of Applicant's competitors in Export Trade; and/or

(c)Applicant agrees to sell in the Export Markets only the frozen bull semen that it obtains from Members and to purchase from Members all frozen bull semen required by Applicant for sale in the Export Markets; Applicant also agrees not to represent any competitors of such Members in any Export Market, unless authorized by the Members.

(2) The exclusive agreements described in paragraph 1 may have provisions which permit Applicant or a Member to terminate said agreement and withdraw there from at the end of a period but exceeding three (3) years after giving notice of intent to terminate and to withdraw. Such exclusive agreements may have provisions which require Applicant to purchase a minimum amount of frozen bull semen from a Member giving notice of termination during the period commencing with the giving of notice and ending with the effective date of termination. Such exclusive agreements may also have provisions which require Applicant and at least a majority of the other Members to such agreement to consent before a Member which gave notice of termination to be readmitted to the group, or before additional Members may be admitted to the group.

(3) Applicant may enter into exclusive agreements in which Applicant appoints foreign representatives as sales agents, brokers, distributors for frozen bull semen in the Export Markets, wherein:

(a) Applicant agrees to deal in any portion of the Export Markets only through such foreign representatives; and/or

(b) foreign representatives may agree not to represent Applicant's competitors in the Export Markets, unless authorized by Applicant.

(4) Periodically, Applicant and its Members may meet to discuss general matters specific to exporting (not related to price and supply arrangements between Applicant and individual Members) such as relevant facts concerning the Export Markets (e.g. demand conditions in the Export Markets, prices in the Export Markets, transportation costs to the Export Markets), policies and procedures between S and its Members, health standards, and changes in import regulations in the Export Markets, subject to Term and Condition "(a)" below. Such discussions may be summarized in written form and provided to Members.

(5) In addition to the activities described in paragraph (4) above, Applicant may hold annual meetings with its Members to advise Members of Applicant's sales results and orders shipped for the previous fiscal year in each Export Market, the amount of frozen bull semen purchased by Applicant from each of its Members, the identity of the bull that produced each unit of semen, and the price paid per unit by Applicant for such semen. At the annual meetings, Applicant and its Members may discuss strategies related to making sales for the Export Markets during the next fiscal year, and discuss issues related to making sales for the Export Markets, subject to Term and Conditions "(a)" below. At such meetings, the Members may act as a group, or appoint a coordinator to deal with Applicant.

Terms and Conditions of Certificate

(a)  Applicant and its Members shall not intentionally disclose, directly and indirectly, to any Member any information about any Member's costs, production, capacity, inventories, domestic prices, domestic sales, domestic orders, terms of domestic marketing or sale, or United States business plans, strategies, or methods that is not already generally available to the trade or public.

(b) Applicant and its Members will comply with requests made by the Department 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.

Protection Provided by Certificate

This certificate protects Applicant, and its directors, officers, and employees acting on its 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.

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 Regulations.

Other Conduct

Nothing in this Certificate prohibits Applicant from engaging in conduct not specified in this Certificate, but such conduct is subject to the normal application of the antitrust laws.

Disclaimer

The issuance of this Certificate of Review to Applicant 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 Applicant or its Members or (b) the legality of such business plans of Applicant or its Members under the law 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 U.S. Government is the buyer or where the U.S. 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 F.R. 1786 (January 11,1985).

In accordance with the authority granted under the Act and Regulations, this Certificate of Review is hereby issued to Applicant.