Company A, a limited liability company, has applied to the Secretary of Commerce for 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 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, Company A 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:
California almonds in processed and unprocessed form.
2. Export Trade Facilitation Services (as they relate to the Export of Products)
All export trade-related facilitation services, including but not limited to: development of trade strategy; sales, marketing, and distribution; foreign market development; promotion; and all aspects of foreign sales transactions, including export brokerage, freight ; forwarding, transportation, insurance, billing, collection, trade documentation, and foreign exchange; customs, duties, and taxes; and inspection and quality control.
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 Northern Mariana Islands, and the Trust Territory of the Pacific Islands).
EXPORT TRADE ACTIVITIES AND METHODS OF OPERATION
1. Company A, on its own behalf or on behalf of all or less than all of its Members, through Company A or through Export Intermediaries (to the extent provided in section 1.g) may:
Sales Prices. Establish sale prices, minimum sale prices, target sale prices and/or minimum target sale prices, and other terms of sale;
Marketing and Distribution. Conduct marketing and distribution of Products;
Promotion. Conduct promotion of Products;
Quantities. Agree on quantities of Products to be sold, provided each Member shall be required to dedicate only such quantity or quantities as each such Member shall independently determine. Company A shall not require any Member to export a minimum quantity;
Market and Customer Allocation. Allocate geographic areas or countries in the Export Markets and/or customers in the Export Markets among Members;
Refusals to Deal. Refuse to quote prices for Products, or to market or sell Products, to or for any customers in the Export Markets, or any countries or geographical areas in the Export Markets;
Exclusive and Nonexclusive Export Intermediaries. Enter into exclusive and nonexclusive agreements appointing one or more Export Intermediaries (as defined under "Definitions" paragraph 1) for the sale of Products with price, quantity, territorial and/or customer restrictions as provided in sections 1.a through 1.f, inclusive, above; and
Non-Member Activities. Purchase Products from non-Members to fulfill specific sales obligations, provided that Company A and/or its Members shall make such purchases only on a transaction-by-transaction basis and when the Members are unable to supply, in a timely manner, the requisite Products at a price competitive under the circumstances. In no event shall a non-Member be included in any deliberations concerning any Export Trade Activities.
Company A and its Members may exchange and discuss the following information:
Information about sale and marketing efforts for the Export Markets, activities and opportunities for sales of Products in the Export Markets, selling strategies for the Export Markets, sales for the Export Markets, contract and spot pricing in the Export Markets, projected demands in the Export Markets for Products, customary terms of sale in the Export Markets, prices and availability of Products from competitors for sale in the Export Markets, and specifications for Products by customers in the Export Markets;
Information about the price, quality, quantity, source, and delivery dates of Products available from the Members to export;
Information about terms and conditions of contracts for sale in the Export Markets to be considered and/or bid on by Company A and its Members;
Information about joint bidding or selling arrangements for the Export Markets and allocations of sales resulting from such arrangements among the Members;
Information about 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;
Information about U.S. and foreign legislation and regulations, including federal marketing order programs, affecting sales for the Export Markets;
Information about Company A or its Members’ export operations, including without limitation, sales and distribution networks established by Company A or its Members in the Export Markets, and prior export sales by Members (including export price information); and
Information about export customer credit terms and credit history.
Company A and its Members may prescribe the following conditions for admission of Members to Company A and termination of membership in Company A:
Membership shall be limited to Handlers as defined under "Definitions" paragraph 2.
Membership shall terminate on the occurrence of one or more of the following events:
i. Withdrawal or resignation of a Member;
Expulsion approved by a majority of all Members for a material violation of Company A’s Operating Agreement, after prior written notice to the Member proposed to be expelled and an opportunity of such Member to appear and be heard before a meeting of the Members;
Death or permanent disability of a Member who is an individual or the dissolution of a Member other than an individual; and
The bankruptcy of a Member as provided in Company A’s Operating Agreement.
Company A and its Members may meet to engage in the activities described in paragraphs 1 through 3 above.
1. "Export Intermediary" means a person (including a Member) who acts as a distributor, sales representative, sales or marketing agent, or broker, or who performs similar functions, including providing, or arranging for the provision of, Export Trade Facilitation Services.
2. "Handler" means a person who handles almonds grown in California as defined in 7 C.F.R. § 981.13, under the Order Regulating Handling of Almonds Grown in California.
3. "Member," within the meaning of section 325.2(l) of the Regulations, means the members of Company A as set out in Attachment A and incorporated by reference.
TERMS AND CONDITIONS OF CERTIFICATE
1. Except as provided in paragraph 2(b) and (e) of the Export Trade Activities and Methods of Operation above, Company A and its Members shall not intentionally disclose, directly or indirectly, to any Handler (including Members) any information about its or any other Handler’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; (2) such disclosure is a necessary term or condition of an actual or potential bona fide sale or purchase of Products and the disclosure is limited to that prospective purchaser or seller; or (3) such disclosure is made in connection with the administration of the United States Department of Agriculture marketing order for almonds grown in California.
2. Each Member shall determine independently of other Members the quantity of Products the Member will make available for export or sell through Company A. Company A may not solicit from any Member specific quantities for export or require any Member to export any minimum quantity of Products.
3. Meetings at which Company A allocates export sales among Members and establishes export prices shall not be open to the public.
4. Participation by a Member in any Export Trade Activity or Method of Operation under this Certificate shall be entirely voluntary as to that Member, subject to the honoring of contractual commitments for sales of Products in specific export transactions. A Member may withdraw from coverage under this Certificate at any time by giving a written notice to Company A, a copy of which Company A shall promptly transmit to the Secretary of Commerce and the Attorney General.
5. Any agreements, discussions, or exchanges of information under this Certificate relating to quantities of Products available for Export Markets, Product specifications or standards, export prices, Product quality or other terms and conditions of export sales (other than export financing) shall be in connection only with actual or potential bona fide export transactions or opportunities and shall include only those Members participating or having a genuine interest in participating in such transactions or opportunities; provided that Company A and/or the Members may discuss standardization of Products for purposes of making bona fide recommendations to foreign governmental or private standard-setting organizations.
6. Company A 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 believes that the information or documents are required to determine that the Export Trade, Export Trade Activities and 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.
PROTECTION PROVIDED BY CERTIFICATE
The Certificate protects Company A, its Members, 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 this 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 revoked or modified as provided in the Act and the Regulations.
Nothing in this Certificate prohibits Company A 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 Company A 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 by the Attorney General concerning either (a) the viability or quality of the business plans of Company A or its Members or (b) the legality of such business plans of Company A 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 United States Government is the buyer or where the United States 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 Fed. Reg. 1786 (Jan. 11, 1985).
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In accordance with the authority granted under the Act and Regulations, this Export Trade Certificate of Review is hereby issued to Applicant.
Members (within the meaning of section 325.2(l) of the Regulations):
8 members listed