[Federal Register Volume 59, Number 49 (Monday, March 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5884]


[[Page Unknown]]

[Federal Register: March 14, 1994]


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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