Export Trading Company Act FAQ

Here are some frequently asked questions about the program that you may find useful.

A Certificate of Review is a legal document issued by the Department of Commerce with the concurrence of the Department of Justice that provides antitrust protection for the export activities specified in the certificate. It is available to any U.S. exporter that demonstrates that the proposed export activities sought to be certified will not result in a substantial lessening of competition within the United States.

For specified export activities, a Certificate of Review provides immunity from federal and state antitrust suits. In private antitrust actions it:

• Shortens the statute of limitations covering the certificate holder’s conduct;
• Alters the burden of proof to the advantage of the certificate holder;
• Provides for recovery of legal expenses in cases where the certificate holder prevails; and
• Reduces liability from treble to single damages.

This protection allows U.S. exporters to work together without fear of antitrust liability. Such a cooperative effort means greater profits because two or more exporters can lower their costs by:

• Sharing export market information;
• Negotiating high volume freight rate discounts;
• Operating joint sales and warehouse facilities; and,
• Generally, engaging in other joint export activities that will result in economies of scale and minimize individual risk.

Who can apply for a Certificate of Review? 

• Any individual who is a U.S. resident;
• Partnerships or corporations formed under U.S. laws;
• State and local government entities;
• Associations; or
• Combinations among these entities may also apply.

Many trade associations have taken advantage of the program as a way of providing antitrust protection for their member firms.

There is a standard application form available online or from Export Trading Company Act (ETCA), U.S. Department of Commerce, Washington, DC 20230, (202) 482-5131.

There is no fee of any kind. You can reach out to Export Trading Company Act Trade Specialists who are available to:

• Provide free counseling to applicants;
• Assist in preparation of the application; and
• Answer any questions you may have.

The Commerce Department is required to issue the certificate or to deny the application within 90 days, unless the review process requires additional research.

The main categories of certificate holders are:

• Trade associations and their members in various manufacturing and service industries;
• Agricultural associations and cooperatives representing producers;
• Trade intermediaries such as export companies;
• Export associations; and
• Entities affiliated with states, counties, and port authorities.

Both U.S. and foreign entities involved in exporting or facilitating exports from the United States can be protected by a Certificate of Review.

Yes. Banks and bank holding companies can apply for Certificates of Review and can be members of a group operating under the protection of a Certificate.

Regulations on bank holding companies that wish to take equity in export trading companies are distinct from the eligibility requirements of the Export Trade Certificate of Review program.

EXPORT TRADING COMPANY GUIDEBOOK 

The Export Trading Company Guidebook is available through the U.S. Government Publishing Office. This guidebook can help you consider the various ways to organize for exporting as encouraged by the ETC Act. It will also facilitate your review of the ETC Act and serve as a planning tool for your business by showing you what it takes to export profitably and how to start doing it. 

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