Applicant, an Illinois 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.
(2) Consulting Services: Consulting; and market research and analysis.
(3) Transportation Services (As They Relate to the Export of Products) include: Overseas freight transportation; inland gateway; packing and crating; leasing of transportation equipment and facilities; terminal or port storage wharfage and handling; forwarder services (including but not limited to, preparing and/or processing delivery orders or dock receipts, preparing, processing, or issuing bills of lading, preparing or processing consular documents or arranging for their certification, preparing and/or sending advance notifications of shipments or other documents to banks, shippers or consignees, as required); insurance; warehousing; foreign exchange; financing and financial services; export sale and trade documentation and services; overseas distribution; paying or charging commissions; marketing; advertising; communication and processing of foreign orders; accounting; clerical services; consulting; customs services; feasibility studies; investment services; legal services; management services; and translation services.
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
Applicant, acting through its independent management, may:
1. Consolidate and distribute the freight of Applicant's Members for goods exported or in the course of being exported;
2. Negotiate, procure, provide, and administer Transportation Services to Applicant's Members;
3. Obtain and arrange for the services of Export Intermediaries for Applicant's Members. Applicant may enter into exclusive agreements with Export Intermediaries whereby:
(a) Applicant agrees to obtain Transportation Services only through the Export Intermediary(ies) in particular Export Markets, and/or
(b) the Export Intermediary(ies) agrees not to provide Transportation Services to Applicant's competitors;
4. Enter into exclusive or non-exclusive agreements not to provide Transportation Services to Applicant's competitors;
5. Negotiate charges and other terms and enter into contracts which provide for Transportation Services to Applicant's Members including, but not limited to, the chartering and space chartering of vessels, the entering into of service contracts with ocean common carriers, the negotiation and utilization of through intermodal rates with common and contract carriers for inland freight transportation for export shipments to a U.S. export terminal, port, or gateway; and the combination and consolidation of container and less than containerload shipments into full containerized shipments. Applicant may conduct this activity on behalf of Applicant's Members. For the purpose of fulfilling Applicant's volume obligations with carriers or conferences, Applicant may also accept Transportation Service shipments from other shippers' associations.
6. Meet and discuss with Applicant's Members ideas, methods and information solely concerning Export Trade, including trade opportunities, selling strategies, sales, projected demands and business growth, customary terms of sale, and legal agreements for conducting business in the Export Markets, and expenses of exporting to specific points in the Export Markets;
7. Prescribe the following conditions with respect to membership for export purposes in, and withdrawal and expulsion from, Applicant:
(a) Membership in Applicant shall be initiated by application and shall be restricted to responsible firms whose shipping activities and products are of such a nature as to permit consolidation of shipments with other Applicant's Members without impeding the purposes of shipping economies and efficiencies intended by the formation of Applicant;
(b) All Applicant's Members shall be approved by the Board of Directors (or by a committee thereof);
(c) Applicant shall have four classes of Members: (1) regular members; (2) NVOCC members; (3) transportation members; and (4) shippers' association members, and may prescribe the eligibility requirements for each class of member;
(d) The Board of Directors may expel any Member at any duly convened meeting for failing to patronize Applicant for a continuous period of six months;
(e) The Board of Directors may expel any Member for failure to comply with the Articles of Incorporation, the by-laws, or any rules or regulations of Applicant, provided Applicant supplies that Member with prior notice and the opportunity to appear before the Board of Directors;
(f) The privileges of any Member may be suspended by the Board of Directors if the Members does not pay all freight charges on its freight charges on its freight shipments within the credit terms allowed by Applicant; if upon suspension and notification to the Member of the action the charges remain unpaid, then such Member shall be automatically expelled from membership; and
(g) Any Member may withdraw from membership by written notice to the principal office of Applicant, but such withdrawal shall not affect the existing liabilities of the withdrawing Member to Applicant.
Provided, however, that the right of each Member to obtain Consulting Services and Transportation Services from other than Applicant is at all times guaranteed. However, Members may be required to commit to tendering a specified volume through Applicant prior to Applicant's negotiating with a carrier or conference or under a volume contract Applicant has in effect with a carrier or conference, and further provided that the specified volume of the Member is not so large as to represent a total or near total commitment of the Member's transportation volume.
(a) " Members" means those entities who are members within the meaning of the by-laws of Applicant.
(b) "Independent management" means officers, employees and agents of Applicant who are not directors, officers or employees of any company which buys or sells goods for which Applicant provides Transportation Services.
(c) "Export Intermediary" means an entity who, for the export of Products, acts as a distributor, sales representative, sales or marketing agent, or broker, or who performs similar functions, including arranging for the provision of Transportation Services.
(d) "Regular members" include any firm, or affiliate thereof, engaged in a business other than transportation in the course of which such entity ships or receives cargo in interstate, intrastate, or foreign commerce.
(e) "NVOCC members" include any non-vessel operating common carrier under the Shipping Act of 1984, and which shall maintain a tariff on file with the Federal Maritime Commission and post a surety bond as required by regulations of the Federal Maritime Commission.
(f) "Transportation members" include any firm, or affiliate thereof, engaged primarily in the transportation business as an intermediary, direct carrier, or service organization.
(g) "Shippers' association must maintain a list containing the names of its members and compliance data if any such member shall be a non-vessel operating common carrier as defined in the Shipping Act of 1984.
Terms and Conditions of Certificate
(a) Except as provided in paragraph 6 above, neither Applicant nor any Member shall intentionally disclose, directly or indirectly, to any Member or any other shipper any information about any other Member's or shipper'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, provided that this paragraph shall not be construed as preventing Applicant from establishing and disseminating information relating to Applicant's
transportation charges for prospective or present Members
(b) Applicant 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 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
This Certificate protects Applicant and Applicant's 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.
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 XXXX, the date on which the application for an amendment was deemed submitted.
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.
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.