EXPORT TRADE CERTIFICATE OF REVIEW

ACTION:

Notice of Issuance of an Export Trade Certificate of Review, Application No. 01-00001.

SUMMARY:

The Department of Commerce has issued an Export Trade Certificate of Review to Ginseng Board of Wisconsin (“GBW”), Wausau, Wisconsin, effective April 13, 2001. This notice summarizes the conduct for which certification has been granted.

FOR FURTHER INFORMATION CONTACT:

Vanessa M. Bachman, Acting Director, Office of Export Trading Company Affairs, International Trade Administration, 202-482-5131 (this is not a toll-free number) or by E-mail at oetca@ita.doc.gov.

SUPPLEMENTARY INFORMATION:

Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001 et seq.) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III are found at 15 CFR part 325 (2000). The Office of Export Trading Company Affairs (“OETCA”) is issuing this notice pursuant to 15 CFR 325.6(b), which requires the Department of Commerce to publish a summary of a Certificate in the Federal Register. Under Section 305 (a) of the Act and 15 CFR 325.11(a), any person aggrieved by the Secretary's determination may, within 30 days of the date of this notice, bring an action in any appropriate district court of the United States to set aside the determination on the ground that the determination is erroneous.

Description of Certified Conduct

I. Export Trade

1. Products

Cultivated ginseng and cultivated ginseng products; cultivated golden seal and cultivated golden seal products; cultivated echinacea and cultivated echinacea products.

2. Services

All services related to the export of Products.

3. Technology Rights

All intellectual property rights associated with Products or Services, including, but not limited to, patents, trademarks, service marks, trade names, copyrights, neighboring (related) rights, trade secrets, know-how, and sui generis forms of protection for databases and computer programs.

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

Export Trade Facilitation Services, including, but not limited to: foreign market development, consulting, international market research, foreign market product research and design, development of trade strategy, legal assistance, marketing, promotion, sales, distribution, trade documentation, trade shows, freight forwarding, consolidation of export shipments, transportation, communication and processing of export orders, warehousing, foreign exchange, financing, taking title to goods, customs, duties, taxes, insurance, billing collection, inspection and quality control.

II. Export Markets

The Export Markets include all parts of the world except 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).

III. Export Trade Activities and Methods of Operation

In connection with the promotion and sale of Products, Services, and/or Technology Rights into the Export Markets, GBW and/or the Members may:

1. Design and execute foreign marketing strategies for Export Markets;

2. Establish base prices at which the Products will be sold for export, and set all or other terms of export sales;

3. Agree on quantities of Products to be sold. GHC and GBW shall not require any Product Supplier to export a minimum quantity. Supplier names will be in a lottery draw and the order in which names are drawn will be the order in which Suppliers will be contacted to see if they want to sell. If a Supplier decides not to sell, his name is put at the end of the list of Suppliers;

4. GBW and/or Mechthild Handke and GHC may refuse to quote prices for Products, or to market or sell Products to/or for any customers in the Export Markets, or any countries or geographical areas in the Export Markets;

5. GBW and GHC may conduct promotional activities such as: design, develop and use promotional material using trademarked seals and/or other material. GBW and GHC may design, develop and market generic or other corporate labels for use in Export Markets. GBW and GHC may arrange trade shows, marketing trips, advertising services, and may conduct international market and Product research;

6. GBW and GHC may conduct marketing and distribution of the Products in the Export Markets;

7. GBW and GHC may enter into exclusive agreements appointing one or more export trade intermediaries for the sale of products with price, quantity, territory, country and/or customer restrictions. (“Exclusive” means that GBW and GHC may agree not to sell Products into designated Export Markets through any other foreign distributor and that the foreign distributor may agree to represent only GBW and GHC in the Export Markets and none of GBW's and GHC's competitors.);

8. Conduct product and packaging research and development exclusively for export in order to meet foreign regulatory requirements, foreign buyer specifications, and foreign consumer preferences;

9. Negotiate and enter into agreements with foreign governments and other foreign persons regarding non-tariff barriers in Export Markets;

10. Advise and cooperate with the United States Government in establishing procedures regulating the export of the Products;

11. Participate in negotiations and enter into agreements with foreign buyers (including governments and private persons) regarding fumigating, packing and other quality control and/or phytosanitary procedures, and/or funding requirements to be followed in the export of the Products. Such procedures may include activities related to insect and disease detection, certification, inspection, storage and treatment protocols required to qualify Products for export and to meet the import requirements of the foreign government. GBW and/or the Members may establish and operate fumigation facilities for use in the export of the Products;

12. Negotiate or enter into purchase agreements with buyers in Export Markets regarding terms and conditions of sales;

13. Broker or take title to Products and research data intended for Export Markets;

14. Jointly undertake the administrative tasks of processing export orders;

15. Engage in joint promotional activities (such as advertising or trade shows) for developing existing or new markets;

16. Procure, negotiate, contract, and administer transportation services for Products in the course of export, including overseas freight transportation, inland freight transportation from portal to embarkment, leasing of transportation equipment and facilities, storing/warehousing, stevedoring, wharfage, handling, insurance, and freight forwarder services;

17. Arrange for trade documentation, services, customs clearance, financial instruments, and foreign exchange;

18. Compile and discuss information regarding expenses specific to exporting the Products to and within the Export Markets, including without limitation, all modes of transportation, port storage, export sales, commissions, documentation, duties and taxes;

19. Operate and establish jointly owned subsidiaries or other joint venture entities, owned exclusively by GBW and/or the Members, to export Products to Export Markets; operate warranty, service, and training centers in Export Markets; and to provide Export Trade Facilitation Services to Members and nonmember Suppliers of Products. Member and nonmember Wisconsin Suppliers may ship Products through GHC;

20. Require the licensing of and license in the Export Markets any intellectual property rights resulting from the research conducted by the GRIA. The use of this intellectual property in conjunction with the sale of Products shall be determined by negotiations between the export customer, GBW and GRIA;

21. Arrange financing through private and public financial entities;

22. Bill and collect monies from foreign buyers; perform or arrange for all legal and financial services in relation to Export Trade Activities and Methods of Operation;

23. Require the use of the Wisconsin Ginseng Seal for Products (only ginseng and ginseng products) sold in the Export Markets;

24. Provide marketing and/or health benefit research data to customers, distributors and other export trade intermediaries in the Export Markets for use in promotion of Products, and enter into licensing arrangements of such data with export trade intermediaries and buyers in the Export Markets;

25. GBW and/or the Members can require that the Wisconsin Ginseng Seal emblem only be used to identify and signify Product (only ginseng and ginseng products) grown in Wisconsin, USA and containing 100% pure Wisconsin Ginseng;

26. Negotiate and enter into agreements with foreign governments and foreign persons to develop counter-trade arrangements, provided that this Certificate does not protect any conduct related to the sale of goods in the U.S. that are imported as part of any counter-trade transactions;

27. Apply for and utilize applicable export assistance and incentive programs available within governmental sectors;

28. Open, operate and staff overseas sales and distribution offices to facilitate the sales and distribution of Products to and within Export Markets; and

29. Exchange information as necessary to carry out Export Trade Activities and Methods of Operation between GBW, GRIA, GHC and other entities. Bring together from time to time GBW, the Members, and export trade intermediaries in the Export Markets to discuss and plan how to fulfill the Product, Service, and/or Technology Rights requirements of specific export customers or Export Markets.

IV. Definitions

“Members” (within the meaning of Section 325.2(l) of the Regulations) are: the Ginseng Research Institute of America, Inc. (“GRIA”), Wausau, WI; Ginseng & Herb Co-op (“GHC”), Wausau, WI; and Ms. Mechthild Handke, Dusseldorf, Germany (representative for GBW and GHC).

“Supplier” means a person who produces, provides, or sells any Product and/or Service.

V. Terms and Conditions of Certificate

1. Neither GBW, nor any of the Members, shall intentionally disclose, directly or indirectly, to any other Member or Supplier, any information about GBW's, any other Member's, or any Supplier's costs, production, capacity, inventories, domestic prices, domestic sales, 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.

2. Meetings at which GBW and the Members establish export prices shall not be open to the public.

3. GBW and the Members will comply with requests made by 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 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.

VI. Protection Provided by Certificate

This Certificate protects GBW and the Members, and their directors, officers, and employees acting on their behalf, from private treble damage actions and governmental 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.

A copy of the Certificate will be kept in the International Trade Administration's Freedom of Information Records Inspection Facility Room 4102, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.