Export Trade Certificate of Review

DEPARTMENT OF COMMERCE

Export Trade Certificate of Review

ACTION: Notice of issuance of an export trade certificate of review,

application no. 91-00002

-----------------------------------------------------------------------

SUMMARY: The Department of Commerce has issued an Export Trade

Certificate of Review to the Automotive Service Industry Association

(ASIA) effective March 1, 1994. This notice summarizes the conduct for

which certification has been granted.

FOR FURTHER INFORMATION CONTACT: Friedrich R. Crupe, Acting Director,

Office of Export Trading Company Affairs, International Trade

Administration, 202-482-5131. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: Title III of the Export Trading Company Act

of 1982 (15 U.S.C. 4001-21) authorizes the Secretary of Commerce to

issue Export Trade Certificates of Review. The regulations implementing

Title III are found at 15 CFR part 325 (1991) (50 FR 1804, January 11,

1985).

The Office of Export Trading Company Affairs is issuing this notice

pursuant to 15 CFR 325.6(b), which requires the Secretary 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

Export Trade

1. Products

Automotive aftermarket products including replacement parts,

accessories, tools and equipment.

2. Services

Engineering, design and related services related to Products and to

contracts that substantially incorporate Products; servicing of

Products; and training with respect to the use of Products.

3. Technology Rights

Proprietary rights to all kinds of technology associated with

Products or Services including but not limited to patents, trademarks,

service marks, trade names, copyrights (including neighboring rights),

trade secrets, know-how, semiconductor mask works, utility models

(including petty patents), industrial designs and computer software

protection.

4. Export Trade Facilitation Services (as they relate to the export of

Products, Services, and Technology Rights)

Marketing, selling, brokering, shipping, handling, common marking

and identification, consulting, international market research,

advertising and sales promotion, trade show participation, insurance,

product research and design, legal assistance services related to

compliance with Customs requirements, transportation, trade

documentation and freight forwarding, communication and processing of

sales leads and export orders, warehousing, foreign exchange,

financing, taking title to goods and liaison with foreign government

agencies, trade associations and banking institutions.

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); and Canada.

Export Trade Activities and Methods of Operation

1. ASIA and/or one or more of its Members may:

a. Engage in joint bidding or other joint selling arrangements for

Products and/or Services in Export Markets and allocate sales resulting

from such arrangements;

b. Establish export prices for sales of Products and/or Services by

the Members in Export Markets, with each Member being free to deviate

from such prices by whatever amount it sees fit;

c. Discuss and reach agreements relating to the interface

specifications and engineering requirements demanded by specific

potential customers for Products for Export Markets;

d. Refuse to quote prices for, or to market or sell in, Export

Markets with respect to Products and/or Services;

e. Solicit Member Suppliers to sell their Products and/or Services

and/or offer Export Trade Facilitation Services through the certified

activities of ASIA and/or its Members;

f. Coordinate with respect to the installation and servicing of

Products in Export Markets, including the establishment of joint

warranty, service, and training centers in such markets;

g. Engage in joint promotional activities, such as advertising and

trade shows, aimed at developing existing or new Export Markets; and

h. 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.

2. Members may license associated Technology Rights in Export

Markets to non-Members 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 such non-Member customer

without coordination with ASIA or any other Member.

3. ASIA and/or its Members may enter into agreements wherein ASIA

and/or one or more Members agree to act in certain countries or markets

as the Members' exclusive or non-exclusive Export Intermediary for

Products and/or Services in that country or market. In such agreements,

(i) ASIA or the Member(s) acting as an exclusive Export Intermediary

may agree not to represent any other non-Member Supplier for sale in

the relevant country or market, and (ii) Members may agree that they

will export for sale in the relevant country or market only through

ASIA or the Member(s) acting as exclusive Export Intermediary, and that

they will not export independently to the relevant country or market,

either directly or through any other Export Intermediary. ASIA and/or

any Member when acting as an Export Intermediary shall make its

services available to any Member on non-discriminatory terms.

4. Except as set forth in paragraph 8, ASIA and/or its Members may

exchange and discuss the following types of information solely about

Export Markets:

a. Information (other than information about the costs, output,

capacity, inventories, domestic prices, domestic sales, domestic

orders, terms of domestic marketing or sale, or United States business

plans, strategies or methods) that is already generally available to

the trade or public;

b. Information about sales and marketing efforts for Export

Markets; activities and opportunities for sales of Products and

Services in Export Markets; selling strategies for Export Markets;

pricing in Export Markets; projected demands in Export Markets;

customary terms of sale in Export Markets; the types of Products

available from competitors for sale in particular Export Markets, and

the prices for such Products; and customer specifications for Products

in Export Markets;

c. Information about the export prices, quality, quantity, source,

and delivery dates of Products available from Members for export,

provided, however, that exchanges of information and discussions as to

export prices, Product quantity, source, and delivery dates are on a

transaction-by-transaction basis only;

d. Information about terms and conditions of contracts for sales in

Export Markets to be considered and/or bid on by ASIA and its Members;

e. information about joint bidding, selling, or servicing

arrangements for Export Markets and allocation of sales resulting from

such arrangements among the Members;

f. Information about expenses specific to exporting to and within

Export Markets, including, without limitation, transportation,

intermodal shipments, insurance, inland freight to port, port storage,

commissions, export sales, documentation, financing, customs, duties,

and taxes;

g. Information about U.S. and foreign legislation and regulations

affecting sales in Export Markets; and

h. Information about ASIA's or its Members' export operations,

including without limitation sales and distribution networks

established by ASIA or its Members in Export Markets, and prior export

sales by Members (including prior export price information).

5. ASIA may provide the Members the benefit of any Export Trade

Facilitation Service to facilitate the export of Products to Export

Markets. This may be accomplished by ASIA itself, or by agreement with

Members or other parties.

6. Except as set forth in paragraph 8, ASIA and/or its Members may

meet to engage in the activities described in paragraphs 1 through 4

above.

7. ASIA and/or its Members may 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.

8. Restricted Information Exchanges

In the case of engine bearings, any exchange or discussion of, as

well as any meeting pursuant to paragraph 6 to exchange or discuss, the

types of information set forth in paragraph 4 (not including

subparagraphs (f) and (g) thereof) shall be subject to the following

restrictions:

a. Participation in any price discussion is limited to those

instances in which the prices are discussed and determined solely in

the following manner: a Neutral Third Party, hereinafter defined,

acting independently, will obtain price information concerning engine

bearings from the Members which intend to participate in a joint bid

and will incorporate that price information into the joint bid or other

sales agreement. For purposes of this provision, ``acting

independently'' means that the Neutral Third Party who obtains from and

negotiates price information on behalf of the Members will not disclose

the price information of one Member to any other Member intending to

participate in a joint undertaking with regard to engine bearings.

b. The limitation set forth in (a) above shall also apply to

instances where more than one Member intends to participate, but the

participation of a Member is solely as an Export Intermediary for the

Export Trade Activity or Method of Operation.

c. Neither ASIA nor any Member participating in the Export Trade

Activity or Method of Operation shall disclose the engine bearing price

information of one Member to any other Member that produces engine

bearings.

d. As used in this paragraph, the term ``Neutral Third Party''

means an individual, partnership, corporation (profit or non-profit),

or any representative thereof which is not engaged in the manufacture,

distribution, or sale of engine bearings.

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. Supplier means a person who produces, provides, or sells a

Product, Service, Technology Rights and/or Export Trade Facilitation

Services, whether a Member or non-Member.

Members (Within the Meaning of Section 325.2(l) of the Regulations)

The member companies of ASIA are listed in Attachment A to this

Certificate, which is incorporated by reference.

Terms and Conditions of Certificate

(a) Except as expressly authorized in paragraph 4(f), in engaging

in Export Trade Activities and Methods of Operation, neither ASIA 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, capacity, inventories,

domestic prices, domestic sales, 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 ASIA and/or its

Members may discuss standardization of Products and Services for

purposes of making bona fide recommendations to foreign governmental or

private 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 or Services in specific export transactions. A

Member may withdraw from coverage under this Certificate at any time by

giving written notice to ASIA, a copy of which ASIA shall promptly

transmit to the Secretary of Commerce and the Attorney General.

(d) ASIA and its 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 or 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 ASIA, its Members and their directors,

officers, and employees acting on their behalf 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.

Effective Period of Certificate

This Certificate continues in effect from the effective date (March

1, l994) until it is relinquished, modified, or revoked as provided in

the Act and the Regulations.

Other Conduct

Nothing in this Certificate prohibits ASIA 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 ASIA 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 ASIA or its Members or (b) the legality of such business plans

of ASIA 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

U.S. Government is the buyer or where the U.S. 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 FR 1786 (January

11, 1985).

Attachment A

Berryman Products, Inc.

Federal Mogul Corporation.

A.E. Clevite, Inc.

JS Products, Inc.

KSG Industries, Inc.

Kwik-Way Manufacturing, Inc.

Sealed Power Division of Sealed Power Technologies Limited Partnership.

Standard Motor Products, Inc.

Triangle Auto Parts Co., Inc.

Truck-Lite Co., Inc.

Dated: March 3, 1994.

Friedrich R. Crupe,

Acting Director, Office of Export Trading Company Affairs.

[FR Doc. 94-5884 Filed 3-11-94; 8:45 am]

BILLING CODE 3510-DR-P