What is an Export Trade Certificate of Review (Certificate)?
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce, with the concurrence of the Attorney General, to issue Export Trade Certificates of Review (Certificate). A Certificate protects the Certificate Holder and the Members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions.
What does this mean? Companies can engage in the export conduct described by the Certificate with U.S. antitrust law preclearance. This can reduce uncertainty and prevent frivolous lawsuits. Companies can work together to fill orders, benefit from economies of scale, reduce marketing costs, and more!
See the Title III Regulations (15 CFR Part 325) for more detail.
Disclaimer: The information and examples on this page are provided for illustrative purposes only and are not intended to constitute legal advice. Information on this page may not constitute the most up-to-date legal or other information.
Who can apply, and who is eligible for coverage under a Certificate?
Any person may submit an application for certification.
- “Person” means:
- an individual who is a resident of the United States;
- a partnership that is created under and exists pursuant to the laws of any State or of the United States;
- a State or local government entity;
- a corporation, whether it is organized as a profit for nonprofit corporation, that is created under and exists pursuant to the laws of any State or the United States; or
- any association or combination, by contract or other arrangement, between or among such persons.
A person submitting an application will specify the Certificate Holder (along with a copy of any legal instrument under which the applicant is organized or will operate) and Members that are to receive antitrust preclearance. A Member is an entity (U.S. or foreign) or a person seeking protection under the certificate under the applicant.
- “Member” may be:
- a partner in a partnership or a joint venture;
- a shareholder of a corporation; or
- a participant in an association, cooperative, or other form of profit or nonprofit organization or relationship, by contract or other arrangement.
- Examples of previous applicants: export joint ventures, trade associations (manufacturing, services), cooperatives (agriculture), and export trade intermediaries.
See the Title III Regulations (15 CFR art 325) for more detail.
Disclaimer: The information and examples on this page are provided for illustrative purposes only and are not intended to constitute legal advice. Information on this page may not constitute the most up-to-date legal or other information.
What conduct is covered under a Certificate?
A Certificate protects the Certificate Holder and the Members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions.
- “Export conduct” means:
- specified export trade activities and methods of operation carried out in specified export trade and export markets.
- “Export trade” means:
- trade or commerce in goods or services that are exported, or are in the course of being exported, from the United States or any territory of the United States to any foreign nation (e.g., banana exporter).
- “Export trade activities” means
- activities or agreements in the course of export trade (e.g., conducting marketing and arranging orders and shipments for banana sales in an export market).
- “Method of operation” means
- any method by which an applicant or member conducts or proposes to conduct export trade (e.g., applicant will form an export trading company called Bananas Co. and will contract with an Independent Third Party to reach out to banana suppliers A, B, and C to arrange combined bulk shipments abroad at a discount).
Examples of products, services, and/or rights exported with the protection of a Certificate:
- Food: rice, corn, cherries, apples, pears, citrus fruits, figs, prunes, dried fruit, pistachios, walnuts, almonds, poultry, pork, fish
- Materials: coal, timber, paint and finishes, tools, power products (vacuum, pumps, switches), scrap metal, wood products and machinery, outdoor power equipment, automotive parts
- Services: trade show services, shipping services, consulting engineering services
- Licensing/IP: movie and video distribution licensing and sales, television programming
See the Title III Regulations (15 CFR art 325) for more detail.
Disclaimer: The information and examples on this page are provided for illustrative purposes only and are not intended to constitute legal advice. Information on this page may not constitute the most up-to-date legal or other information.
Sample elements of a Certificate
Export Trade, Export markets, Export Trade Activities and Methods of Operation, Terms & Conditions
Applicants are encouraged, but not required to submit a draft Export Trade Certificate of Review (Certificate) with an application. Upon review of proposed export conduct in an application, a Certificate will be drafted and provided to the applicant for review and approval. The Certificate is then sent forward
in the application process for final review and clearance by the Departments of Commerce and Justice.
Below, we list sample elements that are included in a Certificate. This is not an exhaustive list, and the terms will vary based on the proposed and approved export conduct for any given application. Examples of approved Certificates may also be found by searching for “Export Trade Certificate of Review” through the Federal Register.
Sample Elements of a Certificate
Under the Authority of the Act and the Regulations, Certificate Holder and 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:
- Products: X, Y, Z
- Services: All services related to the export of Products
- Technology Rights: All intellectual property rights associated with Products or Services (e.g., patents, trade secrets)
- Export Trade Facilitation Services (as related to the Export of Products): All export trade-related facilitation services (trade consulting, delivery coordination, overseas marketing, legal or accounting assistance, etc.)
Export Markets:
- Unless otherwise specified, all parts of the world except the United States and any U.S. territory.
Export Trade Activities and Methods of Operation:
· Certificate Holder will provide Export Trade Facilitation Services to the Members.
· For a given transaction or prospective transaction, any or all of the Members may join to bid for the sale of, and to sell, Products to the Export Markets, provided that each Member shall determine, independently of other Members, the quantity of Products the Member will make available for export. No Member shall be required to export any minimum quantity of Products.
· For a given transaction where export quantities or price determination is needed, information may need to be submitted through an Independent Third Party (e.g., legal firm, accounting firm) who will incorporate such information into a joint sales or bid agreement, maintaining the confidentiality of all individual Member data.
· Information exchange shall be limited to X, Y, Z designated export conduct in the Export Markets. Any domestic information sharing (e.g., domestic capacity, production, prices) is prohibited unless such information is publicly available.
Export Trade Activities and Methods of Operation:
- Certificate Holder will provide Export Trade Facilitation Services to the Members.
- For a given transaction or prospective transaction, any or all of the Members may join to bid for the sale of, and to sell, Products to the Export Markets, provided that each Member shall determine, independently of other Members, the quantity of Products the Member will make available for export. No Member shall be required to export any minimum quantity of Products.
- For a given transaction where export quantities or price determination is needed, information may need to be submitted through an Independent Third Party (e.g., legal firm, accounting firm) who will incorporate such information into a joint sales or bid agreement, maintaining the confidentiality of all individual Member data.
- Information exchange shall be limited to X, Y, Z designated export conduct in the Export Markets. Any domestic information sharing (e.g., domestic capacity, production, prices) is prohibited unless such information is publicly available.
Protection Provided by the Certificate:
- The Certificate protects Certificate Holder and Members 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.
- This Certificate continues in effect from the effective date until it is relinquished, modified, or revoked as provided in the Act and the Regulations.
Disclaimer: The information and examples on this page are provided for illustrative purposes only and are not intended to constitute legal advice. Information on this page may not constitute the most up-to-date legal or other information.
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Helpful Hints About the Application Process
Pre-Application Counseling
The Office of Trade and Economic Analysis - Export Trading Company Act Team offers pre application counseling at no cost to potential applicants. Conducted in complete confidence by a team consisting of an attorney from the Office of General Counsel, a market analyst and an antitrust economist, this counseling offers potential applicant specific guidance on completing an application form. Such guidance may reduce the time it takes to obtain a certificate and may reduce or eliminate supplemental information requests.
Get Pre-Application Counseling
Supplemental Information Requests
After the application has been accepted for processing, the Commerce or Justice Department may find it necessary to request additional information in order to make a determination under the four certification standards. The regulations permit Commerce to request such information in writing if either agency finds it necessary and thereby suspend the 90 day processing period. The 90 day period begins again when Commerce receives the requested information, and the agencies deem it sufficient to continue the analysis.
Disclaimer: The information and examples on this page are provided for illustrative purposes only and are not intended to constitute legal advice. Information on this page may not constitute the most up-to-date legal or other information.
