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Export Trading Company Affairs (ETCA)

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

Sample 5

Applicant, an Alaska 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 XXX and a summary of the application was published in the Federal Register on XXX.

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

Products

The following wood products originating from Alaska: Round logs, wood chips, logs, cants and flitches, and similarly processed wood products, dimensional (milled) lumber, pulp, pulpwood, wood shavings, saw dust, sawlogs, in all grades and all sizes, derived from the following species of timber: Spruce, hemlock, red cedar and other timber species found in Alaska.

Related Services

Services (consulting; international market research; advertising; marketing; insurance; project research and design, exclusively for export; legal assistance; transportation, including trade documentation and freight forwarding; communication and processing of foreign orders; warehousing; foreign exchange; financing; and taking title to goods) in connection with the foregoing Products.

Export Markets
The export markets include all parts of the world except the United States (the fifty states of the United States, 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

1. Applicant may enter into agreements with individual and multiple Suppliers of Products and Related Services whereby Applicant agrees to serve as the exclusive Export Intermediary for Products and Related Services in any Export Market and, the Supplier(s) may agree not to sell, directly or indirectly, through any other Export Intermediary, into the Export Market in which Applicant exclusively represents the Supplier(s) as an Export Intermediary. These agreements may also give Applicant the exclusive right to choose whether to respond to bids, invitations or requests for bids, or other sales opportunities, on a joint or individual basis.

2. Applicant may enter into exclusive agreements with other Export Intermediaries whereby the Export Intermediary agrees not to represent Applicant's competitors in the sale of Products and Related Services in any Export Market, and/or not to buy Products and Related Services from Applicant's competitors for resale in any Export Markets. Applicant may also enter into agreements with customers of Products and Related Services located in any Export Market whereby the customer agrees not to purchase Products and Related Services from Applicant's competitors.

The agreements described in paragraph 1 and 2 above may give Applicant the exclusive right to determine the price at which Products and Related Services will be sold in the Export Markets, and also may give Applicant the right to specify the terms for any export sale, including the quantities, territories and customers, regardless of whether a joint or individual bidding process is used.

3. For each bid, invitation or request for bid, or other sale opportunity in any Export Market, Applicant and its Suppliers may meet to negotiate and agree on the terms of their participation in the bid or sale, including, but not limited to, the prices at which the Products and Relate Services will be sold and the amount of Products or Related Services that each Supplier will commit to the sale and, in order to negotiate those terms, may exchange:

(a) information (other than information about the costs, inventories, domestic prices, domestic sales, domestic orders, terms of domestic marketing or sales, or U.S. business plans, strategies or methods of any Suppliers of the same or similar goods) that is generally available to the trade or public;

(b) information (such as selling strategies, prices, projected demand, and customary terms of sale) solely about the Export Markets, including, but not limited to, reports and forecasts of sales, prices, terms, customer needs, and product specifications by geographic area in the Export Markets and reports and forecasts of product specifications by customers in the Export Markets;

(c) information on expenses specific to exporting to the Export Markets (such as ocean freight, inland freight to the terminal or port, terminal or port storage, wharfage and handling charges, insurance, agents' commissions, export sales documentation and service, and export sales financing);

(d) information on U.S. and foreign legislation and regulation affecting sales to the Export Markets; and

(e) information on Applicant's activities in the Export Markets, including, but not limited to, customer complaints and quality problems, visits by customers in the Export Markets, reports by foreign sales representatives, selection of new foreign sales representatives, and matters concerning the contract(s) between Applicant and its Suppliers.

4. For each bid, invitation or request for bid, or sales opportunity in the Export Market, Applicant may respond individually to the bid, invitation or request for bid or other sales opportunity, and may contact and/or meet individually with its Suppliers to negotiate and agree on the terms of their participation in the bid or sale including, but not limited to, the prices of the Products and Related Services that the Supplier will commit to the sale, and may:

(a) distribute separately to each Supplier subject to Terms and Conditions (a) below, information about the bid, bid requirements, bidding dates, purchase specifications and any other information necessary in order for Applicant to compile a responsive bid; and

(b) solicit and receive, separately from each Supplier, independent quotations for the Products and Related Services, provided Applicant does not reveal to any Supplier the quotation of any other Supplier or the identity of the Supplier that provided the quotation.

Definitions

1. "Export Intermediary" means a person who acts as a distributor, sales representative, sales or marketing agent, or broker, or who performs similar functions, including by responding to bids, invitations or requests for bids, or other sales opportunities in the Export Markets and/or by providing or arranging for the provisions of Related Services for export sales of Products in the Export Markets.

2. "Supplier" means a person who produces, provides, or sells a Product and/or Related Service.

Terms and Conditions of Certificate

(a) Applicant and its Members will not intentionally disclose, directly or indirectly, to any Supplier of the same or similar Products or Related Services, any information about its Member's or any other Supplier's costs, inventories, domestic prices, domestic sales, domestic orders, terms of domestic marketing or sale, or U.S> business plans, strategies, or methods that is not already generally available to the trade or public.

(b) Applicant and its Member will comply with requests made by the Department of Commerce on behalf of itself or the Department of Justice for information or documents relevant to conduct under the certificate. The Department of Commerce will request such information or documents when either the Department of Justice or the Department of Commerce believes that it requires the information or documents to determine that the Export Trade, Export Trade Activities or Methods of Operation of the persons protected by this certificate of review continue to comply with the standards of section 303(a) of the Act.

Protection Provided by Certificate

This certificate protects Applicant, its Members, and their directors, officers, and employees acting on Applicant's behalf, from private treble damage actions and government criminal and civil suits under U.S. Federal and state antitrust laws for the export conduct specified in compliance with its terms and conditions.

Member

Member is a "member" within the meaning of Section 325.2(1) of the Regulations.

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. In accordance with section 304(a) (2) of the Act and section 325.7 of the Regulation, the amended Certificate is effective from April 22,1991, the date on which the publication for an amendment was deemed submitted.

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.