# Export Trade Certificate of Review

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-5884

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** March 14, 1994

## Text

DEPARTMENT OF COMMERCE

Export Trade Certificate of Review

ACTION: Notice of issuance of an export trade certificate of review,
application no. 91-00002

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-5884. Public record. Not legal advice.