PART 325—EXPORT TRADE CERTIFICATES OF REVIEW Authority: Title III of the Export Trading Company Act, Pub. L. 97-290 (96 Stat. 1240-1245, 15 U.S.C. 4011-4021). Source: 50 FR 1806, Jan. 11, 1985, unless otherwise noted. § 325.1 Scope. This part contains regulations for issuing export trade certificates of review under title III of the Export Trading Company Act, Pub. L. 97-290. A holder of a certificate of review and the members named in the certificate will have specific protections 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 conditions. § 325.2 Definitions. As used in this part: (a) Act (b) Antitrust laws (c) Applicant (d) Application (e) Attorney General (f) Certificate (g) Control (h) Controlling entity (i) Export conduct (j) Export trade (k) Export trade activities (l) Member (m) Method of operation (n) Person (o) Secretary (p) Services (1) business, repair, and amusement services, (2) management, legal, engineering, architectural, and other professional services, and (3) financial, insurance, transportation, informational and any other data-based services, and communication services. (q) United States § 325.3 Applying for a certificate of review. (a) Place of filing. (b) Contents of application. (1) Name and principal address of the applicant and of its controlling entity, if any. Include the name, title, address, telephone number, and relationship to the applicant of each individual to whom the Secretary should address correspondence. (2) The name and principal address of each member, and of each member's controlling entity, if any. (3) A copy of any legal instrument under which the applicant is organized or will operate. Include copies, as applicable, of its corporate charter, bylaws, partnership, joint venture, membership or other agreements or contracts under which the applicant is organized. (4) A copy of the applicant's most recent annual report, if any, and that of its controlling entity, if any. To the extent the information is not included in the annual report, or other documents submitted in connection with the application, a description of the applicant's domestic (including import) and export operations, including the nature of its business, the types of products or services in which it deals, and the places where it does business. This description may be supplemented by a chart or table. (5) A copy of each member's most recent annual report, if any, and that of its controlling entity, if any. To the extent the information is not included in the annual report, or other documents submitted in connection with the application, a description of each member's domestic (including import) and export operations, including the nature of its business, the types of products or services in which it deals, and the places where it does business. This description may be supplemented by a chart or table. (6) The names, titles, and responsibilities of the applicant's directors, officers, partners and managing officials, and their business affiliations with other members or other businesses that produce or sell any of the types of goods or services described in paragraph (b)(7) of this section. (7)(i) A description of the goods or services which the applicant exports or proposes to export under the certificate of review. This description should reflect the industry's customary definitions of the products and services. (ii) If it is reasonably available, an identification of the goods or services according to the Standard Industrial Classification (SIC) number. Goods should normally be identified according to the 7-digit level. Services should normally be identified at the most detailed SIC level available. (iii) The foreign geographic areas to which the applicant and each member export or intend to export their goods and services. (8) For each class of the goods, wares, merchandise or services described in paragraph (b)(7) of this section: (i) The principal geographic area or areas in the United States in which the applicant and each member sell their goods and services. (ii) For their previous two fiscal years, the dollar value of the applicant's and each member's (A) total domestic sales, if any; and (B) total export sales, if any. Include the value of the sales of any controlling entities and all entities under their control. (9) For each class of the goods, wares, merchandise or services described in paragraph (b)(7) of this section, the best information or estimate accessible to the applicant of the total value of sales in the United States by all companies for the last two years. Identify the source of the information or the basis of the estimate. (10) A description of the specific export conduct which the applicant seeks to have certified. Only the specific export conduct described in the application will be eligible for certification. For each item, the applicant should state the antitrust concern, if any, raised by that export conduct. (Examples of export conduct which applicants may seek to have certified include the manner in which goods and services will be obtained or provided; the manner in which prices or quantities will be set; exclusive agreements with U.S. suppliers or export intermediaries; territorial, quantity, or price agreements with U.S. suppliers or export intermediaries; and restrictions on membership or membership withdrawal. These examples are given only to illustrate the type of export conduct which might be of concern. The specific activities which the applicant may wish to have certified will depend on its particular circumstances or business plans.). (11) If the export trade, export trade activities, or methods of operation for which certification is sought will involve any agreement or any exchange of information among suppliers of the same or similar products or services with respect to domestic prices, production, sales, or other competitively sensitive business information, specify the nature of the agreement or exchange of information. Such information exchanges are not necessarily impermissible and may be eligible for certification. Whether or not certification is sought for such exchanges, this information is necessary to evaluate whether the conduct for which certification is sought meets the standards of the Act. (12) A statement of whether the applicant intends or reasonably expects that any exported goods or services covered by the proposed certificate will re-enter the United States, either in their original or modified form. If so, identify the goods or services and the manner in which they may re-enter the U.S. (13) The names and addresses of the suppliers of the goods and services to be exported (and the goods and services to be supplied by each) unless the goods and services to be exported are to be supplied by the applicant and/or its members. (14) A proposed non-confidential summary of the export conduct for which certification is sought. This summary may be used as the basis for publication in the Federal Register. (15) Any other information that the applicant believes will be necessary or helpful to a determination of whether to issue a certificate under the standards of the Act. (16) (Optional) A draft proposed certificate. (c) The applicant must sign the application and certify that (1) Each member has authorized the applicant to submit the application, and (2) To the best of its belief the information in the application is true, correct, and fully responsive. (d) Conformity with regulations. (e) Review and acceptance. (f) Withdrawal of application. (g) Supplemental information. § 325.4 Calculating time periods. (a) When these regulations require action to be taken within a fixed time period, and the last day of the time period falls on a non-working day, the time period shall be extended to the next working day. (b) The day after an application is deemed submitted shall be deemed the first of the days within which the Secretary must make a determination on the application. § 325.5 Issuing the certificate. (a) Time period. (b) Determination. (1) Result in neither a substantial lessening of competition or restraint of trade within the United States nor a substantial restraint of the export trade of any competitor of the applicant; (2) Not unreasonably enhance, stabilize, or depress prices within the United States of the class of the goods, wares, merchandise or services exported by the applicant; (3) Not constitute unfair methods of competition against competitors who are engaged in the export of goods, wares, merchandise or services of the class exported by the applicant; and (4) Not include any act that may reasonably be expected to result in the sale for consumption or resale within the United States of the goods, wares, merchandise, or services exported by the applicant. (c) Concurrence of the Attorney General. (2) Not later than thirty days before the day a determination on the application is due, the Secretary shall deliver a proposed certificate to the Attorney General for discussion and comment. If the Attorney General does not agree that the proposed certificate may be issued, he shall, not later than ten days before the day a determination on the application is due, so advise the Secretary and state the reasons for the disagreement. The Secretary with the concurrence of the Attorney General, may modify or revise the proposed certificate to resolve the objections and problems raised by the Attorney General, or deny the application. (3) If the Attorney General receives the proposed certification by the date specified in the preceding paragraph and does not respond within the time period specified in that paragraph, he shall be deemed to concur in the proposed certificate. (d) Content of certificate. (e) Certificate obtained by fraud. ab initio (f) Minimum thirty-day period. Federal Register. § 325.6 Publishing notices in the Federal Register. (a) Within ten days after an application is deemed submitted, the Secretary shall deliver to the Federal Register Federal Register, (b) If a certificate is issued, the Secretary shall publish a summary of the certification in the Federal Register. (c) If the Secretary initiates proceedings to revoke or modify a certificate, he shall publish a notice of his final determination in the Federal Register. (d) If the applicant requests reconsideration of a determination to deny an application, in whole or in part, the Secretary shall publish notice of his final determination in the Federal Register. § 325.7 Amending the certificate. An application for an amendment to a certificate shall be treated in the same manner as an original application. The application for an amendment shall set forth the proposed amendment(s) and the reasons for them. It shall contain any information specified in § 325.3(b) that is relevant to the determination on the application for an amendment. The effective date of an amendment will be the date on which the application for the amendment was deemed submitted. § 325.8 Expediting the certification process. (a) Request for expedited action. (2) The Secretary shall advise the applicant within ten days after the application is deemed submitted whether it will receive expedited action. The Secretary may grant the request in whole or in part and process the remainder of the application through the normal procedures. Expedited action may be granted only if the Attorney General concurs. (b) Time period. Federal Register. (c) Concurrence of the Attorney General. (2) If the Attorney General receives the proposed certificate by the date specified in the preceding paragraph and does not respond within the time period specified in that paragraph, he shall be deemed to concur in the proposed certificate. § 325.9 Reconsidering an application that has been denied. (a) If the Secretary determines to deny an application in whole or in part, he shall notify the applicant in writing of his decision and the reasons for his determination. (b) Within thirty days after receiving a notice of denial, the applicant may request the Secretary to reconsider his determination. (1) The request for reconsideration shall include a written statement setting forth the reasons why the applicant believes the decision should be reconsidered, and any additional information that the applicant considers relevant. (2) Upon the request of the applicant, the Secretary and the Attorney General will meet informally with the applicant and/or his representative to discuss the applicant's reasons why the determination on the application should be changed. (c) The Secretary shall consult with the Attorney General with regard to reconsidering an application. The Secretary may modify his original determination only if the Attorney General concurs. (d) The Secretary shall notify the applicant in writing of his final determination after reconsideration and of his reasons for the determination within thirty days after the request for reconsideration has been received. § 325.10 Modifying or revoking a certificate. (a) Action subject to modification or revocation. (1) The export conduct of a person or entity protected by the certificate no longer complies with the requirements set forth in § 325.4(b); (2) A person or entity protected by the certificate fails to comply with a request for information under paragraph (b) of this section; or (3) The certificate holder fails to file a complete annual report. (b) Request for information. (c) Proceedings for the revocation or modification of a certificate Notification letter. (2) Answer. (3) Resolution of factual disputes. (4) Final determination. Federal Register (d) Investigative information. § 325.11 Judicial review. (a) Review of certain determinations. Federal Register, Federal Register (b) For purposes of judicial review, determinations of the Secretary are final when notice is published in the Federal Register. (c) Record for judicial review. (d) Limitation of judicial review. § 325.12 Returning the applicant's documents. (a) Upon the denial or withdrawal of an application for a certificate in its entirety, the applicant may request the return of all copies of the documents submitted by the applicant in connection with the application to the Department of Commerce or the Department of Justice. The applicant shall submit this request in writing to both the Secretary and the Attorney General. (b) The Secretary and the Attorney General shall return the documents to the applicant within thirty days after they receive the applicant's request. § 325.13 Nonadmissibility in evidence. If the Secretary denies, in whole or in part, an application for a certificate or for an amendment to a certificate, or revokes or amends a certificate, neither the negative determination nor the statement of reasons therefor shall be admissible in evidence in any administrative or judicial proceeding in support of any claim under the antitrust laws. § 325.14 Submitting reports. (a) Not later than each anniversary of a certificate's effective date, the Secretary shall notify the certificate holder of the information to be included in the annual report. This report shall contain any changes relevant to the matters specified in the certificate, an update of the information contained in the application brought current to the anniversary date, and any other information the Secretary considers appropriate, after consultation with the Attorney General. (b) Not later than forty-five days after each anniversary of a certificate's effective date, a certificate holder shall submit its annual report to the Secretary. The Secretary shall deliver a copy of the annual report to the Attorney General. (c) Failure to submit a complete annual report may be the basis for modification or revocation of a certificate. § 325.15 Relinquishing a certificate. A certificate holder may relinquish a certificate at any time through written notice to the Secretary. The certificate will cease to be effective on the day the Secretary receives the notice. § 325.16 Protecting confidentiality of information. (a) Any information that is submitted by any person under the Act is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). (b)(1) Except as authorized under paragraph (b)(3) of this section, no officer or employee of the United States shall disclose commercial or financial information submitted under this Act if the information is privileged or confidential, and if disclosing the information would cause harm to the person who submitted it. (2) A person submitting information shall designate the documents or information which it considers privileged or confidential and the disclosure of which would cause harm to the person submitting it. The Secretary shall endeavor to notify these persons of any requests or demands before disclosing any of this information. (3) An officer or employee of the United States may disclose information covered under paragraph (b)(1) of this section only under the following circumstances— (i) Upon a request made by either House of Congress or a Committee of the Congress, (ii) In a judicial or administrative proceeding subject to issuance of an appropriate protective order, (iii) With the written consent of the person who submitted the information, (iv) When the Secretary considers disclosure of the information to be necessary for determining whether or not to issue, amend, or revoke a certificate, if— (A) The Secretary determines that a non-confidential summary of the information is inadequate; and (B) The person who submitted the information is informed of the intent to disclose the information, and has an opportunity to advise the Secretary of the potential harm which disclosure may cause, (v) In accordance with any requirement imposed by a statute of the United States. (c) In any judicial or administrative proceeding in which disclosure is sought from the Secretary or the Attorney General of any confidential or privileged documents or information submitted under this Act, the Secretary or Attorney General shall attempt to notify the party who submitted the information of the request or demand for disclosure. In appropriate circumstances the Secretary or Attorney General may seek or support an appropriate protective order on behalf of the party who submitted the documents or information. § 325.17 Waiver. The Secretary may waive any of the provisions of this part in writing for good cause shown, if the Attorney General concurs and if permitted by law.