Applicant, a corporation, has applied to the Secretary of Commerce for an amendment to an Export Trade 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 and its Members are certified to engage in the Export Trade Activities and Methods of Operation described below in the following Export Trade and Export Markets.
Export Trade Facilitation Services (as they relate to the export of Products)
Procurement of Transportation Services for products exported or in the course of being exported. Transportation Services include overseas freight transportation; inland freight transportation to a U.S. export terminal, port, or gateway; packing and crating; leasing of transportation equipment and facilities; terminal or port storage; wharfage and handling; insurance; forwarder services; export sales documentation and services; and customs clearance.
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
Applicant and its Members may:
(1) Act jointly to negotiate charges and other terms and enter into contracts with providers of Transportation Services, including the chartering and space chartering of vessels, for any or all of the Members, and/or non-members;
(2) Enter into agreements among themselves on the terms of their participation in the negotiation and fulfillment of transportation contracts, including the amount of Transportation Services that each will commit to purchase under such contracts, provided that no such agreements or contracts shall contain product-specific volume commitments;
(3) Meet and exchange the following information on Transportation Services
(a) potential suppliers of Transportation Services,
(b) rates and terms,
(c) volume of products anticipated to be exported through Applicant (subject to the limitations in Term and Condition (f)),
(d) scheduling, and
(e) other information on Transportation Services necessary to analyze, negotiate for, and procure Transportation Services; and
(4) prescribe the following conditions with respect to membership in Applicant:
(a) a Member may withdraw its membership from Applicant as of the last day of any calendar year by giving 180 days prior written notice to the remaining; Members. The remaining Members shall then have; the option to terminate Applicant or to pay the; Member the value of its capital account, as adjustedon the date of its withdrawal. The withdrawing Member shall remain responsible for commitments; made by such Member and by Applicant on behalf of such Member prior; Member's withdrawal
(b) additional parties may be admitted to membership in Applicant from time to time upon
1. receiving a minimum of a two-thirds affirmative vote of Applicant's existing Members,
2. executing a counterpart of Applicant's membership agreement, and
3. making such capital contribution in cash as is determined in good faith by Applicant's Board of Directors to represent a fair allocation of the start-up and capital costs of Applicant.
Company A, Inc.; Company B, Inc.; Company C; Company D, Inc.; Company E, Inc.; Company F, Inc.; Company G, Inc.; Company H, Inc.; Company I, Inc.; Company J, Inc.; Company K, Inc.; Company L, Inc.; and Company M, Inc.
"Subsidiary" means a company wholly owned, directly or indirectly, by one of the Members.
Terms and Conditions of Certificate
(a) In engaging in any activity involving Applicant in any way, neither Applicant nor any Member shall intentionally disclose, directly or indirectly, to any other Member, or to any nonmember obtaining Transportation Services through Applicant, any information about a Member's, or about any such nonmember'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 such information is already generally available to the trade or public.
(b) Applicant and its Members will comply with requests made by the Secretary of Commerce on behalf of the Secretary of Commerce 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 continue to comply with the standards of section 303(a) of the Act.
(c) Members of Applicant shall not be prevented from assigning rights and obligations for a particular Transportation Service to another Member, group of Members, or to non-members.
(d) Members of Applicant shall not be obligated to export exclusively through Applicant.
(e) Applicant and its Members shall not use Applicant to collude on the domestic supply or price of any product and shall not use Applicant to reach agreements among themselves as to their respective export volumes of any product.
(f) Product-specific information on anticipated volumes to be exported through Applicant shall be exchanged only to the extent reasonably necessary to negotiate for and to procure Transportation Services and only at the request of a carrier or conference or in reasonable anticipation of such a request. Any such information that relates either to anticipated export shipments or to export shipments the specifics of which are not yet generally available to the trade or public shall be intentionally disseminated to personnel of another Member (employees, officers, and directors) only where the duties of such personnel are limited to the procurement of transportation services or to legal matters. No such data obtained from a competitor shall be intentionally disclosed to personnel with responsibility for production, or for domestic pricing, marketing, or planning for the product in question. Applicant and its Members shall establish appropriate procedures to ensure that the provisions of this paragraph are adhered to.
Protection Provided by Certificate
This Certificate protects Applicant, its Members, their subsidiaries, and their directors, officers, and employees acting on their 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 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 the Regulations. In accordance with section 304(a)(2) of the Act and section 325.7 of the Regulations, the amended Certificate is effective from March 1, 1999, the date on which the application for an amendment was deemed submitted.
Nothing in this Certificate prohibits Applicant and its Members from engaging in conduct not specified in this Certificate, but such conduct is subject to the normal application of the antitrust laws.
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 of the Secretary 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 laws 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 the Regulations, this amended Certificate of Review is hereby issued to Applicant.