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Export Trading Company Affairs (ETCA)

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

Sample 2

Applicant, a non-profit 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

1. Products

Forging from any ferrous materials (carbon, alloy, stainless or tool steel), non-ferrous materials (aluminum, titanium, brass, copper, bronze, magnesium), or high temperature alloy materials (those designed for use at temperatures of 1000 degrees Fahrenheit or higher) that are produced by the several processes shown immediately below. Such forgings, whether machined or not machined, may be made by the following forging processes: impression die, open die, and/or seamless rolled ring, whether forged hot, warm, or cold.

2. Services

Design services related to Products and related manufacturing processes; licensing of Technology Rights concerning Products and related processes.

3. Technology Rights

Patents, trademarks, service marks, trade names, copyrights, trade secrets, know-how, industrial designs, first die proofs, design of die block impressions, inserts, and forms of computer software protection associated with the above.

4. Export Trade Facilitation Services (as they relate to the Export of Products, Services, and Technology Rights)

Consulting; international market research; marketing and trade promotion; trade show participation; insurance; legal assistance; services related to compliance with customs requirements; transportation; trade documentation and freight forwarding; communication and processing of export orders and sales leads; warehousing; foreign exchange; financing; liaison with U.S. and foreign government agencies, trade associations, and banking institutions; and taking title to goods.

Export Markets

The Export Markets include all parts of the world except (a) 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); and (b) Canada.

Export Trade Activities and Methods of Operation

Applicant and/or one or more of its Members ma

1. Engage in joint bidding or other joint selling arrangements for Products and Services in Export Markets and allocate sales resulting from such arrangements;

2. Establish export prices for sales of Products and Services by the Members in the Export Markets, with each Member being free to deviate from such prices by whatever amount it sees fit;

3. Discuss and reach agreements relating to the interface specifications and engineering requirements demanded by specific potential customers of Products for Export Markets;

4. Refuse to quote prices for, or to market or sell in, Export Markets with respect to Products and Services;

5. Solicit non-Member Suppliers to sell such Suppliers' Products and/or Services, or to offer Suppliers' Export Trade Facilitation Services through the certified activities of Applicant and/or its Members;

6. License associated Technology Rights in conjunction with the sale of Products, but in all instances the terms of such licenses shall be determined solely by negotiations between the licensor Member and the export customer without coordination with Applicant or any Member;

7. Engage in joint promotional activities, such as advertising and trade shows, aimed at developing existing or new Export Markets;

8. Bring together from time to time groups of Members to plan and discuss how to fulfill the technical Product and Service requirements of specific export customers or particular Export Markets;

9. Enter into Agreements wherein they agree to act in certain Export Markets as the Members' exclusive or non-exclusive Export Intermediary for Products or Services in the Export Markets. In exclusive Export Intermediary agreements, (i) Applicant or the Member(s) acting as an exclusive Export Intermediary may agree not to represent any other Supplier for sale in the relevant Export Market, and (ii) Members may agree that they will export for sale in the relevant Export Market only through Applicant or the Member(s) acting as exclusive intermediary, and that they will not export independently to the relevant Export Market, either directly or through any other Export Intermediary. Applicant and/or its Members, when acting as an exclusive Export Intermediary, shall not unreasonably refuse to supply its services on non-discriminatory terms to those Members that are parties to the exclusive arrangements and which request such services;

10. Exchange and discuss the following types of information solely about the Export Markets:

a. Information about sales or marketing efforts in the Export Markets; activities and opportunities for sales of Products and Services in the Export Markets; selling strategies in the Export Markets; pricing in the Export Markets; projected demand in the Export Markets; customary terms of sale in the Export Markets; the types of Products and Services available from competitors for sale in particular Export Markets, and the prices for such Products and Services; and customer specifications for Products and Services in the Export Markets;

b. Information about the export prices, quality, quantity, source, and delivery dates of Products and Services available from Members for export, provided, however, that exchanges of information and discussions as to export prices, quality, quantity, source, and delivery dates must be on a transaction by transaction basis only and involve only those Members which are participating or have a genuine interest in participating in such transaction;

c. Information about terms, conditions, and specifications of particular contracts for sale in the Export Markets to be considered and/or bid on by Applicant and its Members;

d. Information about joint bidding, selling, or servicing agreements for Export Markets and allocations of sales resulting from such arrangements among the Members;

e. Information about expenses specific to exporting to and within the Export Markets, including, without limitation, transportation, intermodal shipments, insurance, inland freight to port, port storage, commissions, export sales, documentation, financing, customs, duties, and taxes;

f. Information about U.S. and foreign legislation and regulations affecting sales in the Export Markets; and

g. Information about FIA's or its Members' export operations, including, without limitation, sales and distribution networks established by Applicant and its Members in the Export Markets, and prior export sales by Members (including export price information);

11. Forward to the appropriate individual Member requests for information received from a foreign government or its agent (including private pre-shipment inspection firms) concerning that Member's domestic or export activities (including prices and/or costs), and if such individual Member elects to respond, it shall respond directly to the requesting foreign government or its agent with respect to such information;

12. Provide Members or other Suppliers the benefit of any Export Trade Facilitation Service to facilitate the export of Products and Services to the Export Markets. This may be accomplished by Applicant itself, or by agreement with Members or other parties; and

13. Meet to engage in the activities described in the preceding paragraphs.

Definitions:

1. "Export Intermediary" means a person 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. "Member" means any member company of Applicant listed in Attachment A and subject to the provisions of this Certificate.

3. "Supplier" means a person, whether a Member or non-Member, who produces, provides, or sells a Product, Service and/or Export Trade Facilitation Services, as defined under Export Trade, paragraphs 1, 2 and 4.

Abbreviated Amendment Procedure

New  Members may be incorporated in the Certificate through an abbreviated amendment procedure. An abbreviated amendment procedure shall consist of a written notification to the Secretary of Commerce and the Attorney General identifying the   members that desire to become a Member under the Certificate pursuant to the abbreviated amendment procedure, and certifying for each such  Member so identified its sales of individual Products, Services, and/or Technology Rights in its prior fiscal year. Notice of the members so identified shall be published in the Federal Register.

However, Applicant may withdraw one or more individual members from the application for the abbreviated amendment. If 30 days or more following publication in the Federal Register, the Secretary of Commerce, with the concurrence of the Attorney General, determines that the incorporation in the Certificate of these members through the abbreviated amendment procedure is consistent with the standards of the Act, the Secretary of Commerce shall amend the Certificate of Review to incorporate such members, effective as of the date on which the application for amendment is deemed submitted. If the Secretary of Commerce does not within 60 days of publication in the Federal Register so amend the Certificate of Review, such amendment must be sought through the nonabbreviated amendment procedure.

Terms and Conditions of Certificate

(a) Except as expressly authorized in paragraph 10(e), in engaging in Export Trade Activities and Methods of Operation, neither Applicant nor any Member shall intentionally disclose, directly or indirectly, to any other Member or Supplier any information that is about its or any other Member's or Supplier's costs, production, inventories, domestic prices, domestic sales, capacity to produce Products for domestic sale, 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) the information disclosed is a necessary term or condition (e.g., price, time required to fill an order, etc.) of an actual or potential bona fide sale and the disclosure is limited to the prospective purchaser.

(b) 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, servicing, and repair arrangements) shall be in connection only with actual or potential bona fide export transactions and shall be on a transaction-by-transaction basis only and shall include only those Members participating or having a genuine interest in participating in such transactions; provided that Applicant and/or its Members may discuss standardization of Products and Services for purposes of making bona fide recommendations to foreign governments or standard-setting organizations.

(c) 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 and Services in specific export transactions. A Member may withdraw from coverage under this 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.

(d) Applicant and its Members will comply with requests made 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 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, its Members, Members' subsidiaries, and directors, officers, and employees acting on behalf of Applicant, its Members, and Members' subsidiaries, 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 condition.

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.

Other Conduct

Nothing in this Certificate prohibits FIA 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.

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 by the Attorney General concerning either (a) the viability or quality of the business plans of the 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 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 (January 11, 1985).

In accordance with the authority granted under the Act and Regulations, this amended Certificate of Review is hereby granted to the Applicant.

 

Attachment A

MEMBERS (within the meaning of Section 325.2(l) of the Regulations)

List of 9 members.



Last Updated: 7/29/13 8:31 PM