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Export Trading Company Affairs (ETCA)

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

Sample 7

Applicant, a Washington nonprofit 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
Surimi. Surimi is processed and/or blended seafood product that consists of minced fish meat which has been washed to remove fate and undesirable matter (such as blood, pigment and odorous substances) and then mixed with cryoprotectants such as sugar and/or sorbitol, to ensure good frozen shelf life. Surimi may blended with additional ingredients and additives such as natural shellfish meat, shellfish flavoring, salt and water, and heat processed into fibrous, flaked, chunked or composite-molded consumer products which may or may not resemble specific types of seafood, and may or may not be frozen and/or breaded.

2. Export Trade Facilitation Services (as they relate to the export of Product)

Consulting; international market research; advertising; marketing; insurance; product research and design; legal assistance; transportation; trade documentation and freight forwarding; communication and processing of foreign orders; warehousing; foreign exchange; financing; and taking title to goods.

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, Applicant and its Members may undertake the following activities:

1. With respect to the Export Markets, Applicant 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. including by agreement with Export Intermediaries:

i) establish the prices at which Product will be sold;

ii) establish standard terms of sale of Product;

iii) establish standard quality grades for Product;

iv) establish target prices for sales of Product 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 Product for sales in specific Export Markets;

vi) allocate among the Members the Export Markets or customer in the Export Markets;

vii) refuse to quote prices for, or to market or sell Product; and

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

provided, however, that:

1) each  Member shall independently, without any assistance from any Member, nor solicit any Member to a greater or lesser extent or with different information than any other Member,  may communicate simultaneously with all Members asking the Members to decide independently to commit, dedicate, or subscribe additional Product for export; and

2) in the event of an overcommitment of Product from the Members, Applicant may have subsequent individual communications with Members who have made commitments to reduce the quantities committed to meet the amount of Product needed, and Applicant will make any adjustments in quantity of Product on a pro rata basis among the Members that made commitments.

2. Applicant 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 Product dedicated by each Member for sale by Applicant or any Member(s) in such Export Markets. In any such agreement (i) Applicant or the Member(s) acting as an exclusive Export Intermediary may agree not to represent any other Supplier of Product with respect to such Export Markets and (ii) Members may agree that they will export the quantity of Product dedicated for sales in such Export Markets only through Applicant or the Member(s) acting as the exclusive Export Intermediary, and that they will not export independently any of the Product dedicated to Applicant, either directly or through any other Export Intermediary.

3.Applicant 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 Product 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.

4. The Members may refuse to deal with Export Intermediaries other than Applicant and its Members.

5. Applicant may, for itself and on behalf of its Members, contact non-Member Suppliers of Product to elicit information relating to price, volume, delivery schedules, terms of sale, and other matters relating solely to such Suppliers' sales or prospective sales in the Export Markets.

6. Applicant and/or one or more of its Members may solicit individual non-Member Suppliers to sell Product and/or offer Export Trade Facilitation Services through the certified activities of Applicant and/or its Members; provided, however, that Applicant and/or one or more of its Members shall 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 Product sufficient to cover such transaction and Applicant and/or the Member(s) does not pay non-Member domestic Suppliers more than the price to be received by Applicant and/or its Member(s) pursuant to the transaction, and provided further that Applicant 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 Product to the Export Markets only, Applicant may compile for, collect from, and disseminate to its Members, and the Members may discuss among themselves, wither in meetings conducted by Applicant 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 Product in Export Markets, including but not limited to selling strategies and pricing, projected demand for Product, standard or customary terms of sales in the Export Markets, prices and availability of Product from competitors, and specifications for Product by customers in the Export Markets;

b. export prices, Product quality and quantity, Product source, and delivery dates for Product;

c. terms and conditions of contracts for sale of Product by Applicant and its Members;

d. joint bidding or selling arrangements, 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. Applicant's and/or its Members' export operations, including without limitation, sales and distribution networks established by Applicant or its Members in the Export Markets, and prior export sales by Members (including export price information).

8. Applicant and its Members may prescribe conditions for withdrawal of Members from and admission of Members to Applicant; 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 Product for sale in the Export Markets Applicant may, for itself or on behalf of its Members, establish and implement a quality assurance program for Product, including without limitation establishing, staffing and operating al laboratory to conduct quality testing, promulgating quality standards or grades, inspecting Product samples, and publishing guidelines for and reports of the results of laboratory testing.

10. Applicant may conduct meetings of its Members to engage in the activities described in paragraphs one through nine, above.

Definitions

1. "Supplier" means a person who produces, provides, or sells Product or Export Trade Facilitation Services.

2."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.

Members (within the meaning of 325.2(1) of the Regulations)

(Members listed here.)

Terms and Conditions of Certificate

1. Except as provided in paragraph 7, above, neither Applicant 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 Applicant, a copy of which Applicant shall promptly transmit to the Secretary of Commerce and the Attorney General.

3. Applicant 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.

Protection Provided by Certificate

This certificate protects Applicant, and its Members and their 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.