[Federal Register Volume 61, Number 135 (Friday, July 12, 1996)]
[Notices]
[Pages 36708-36711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17731]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Export Trade Certificate of Review
AGENCY: International Trade Administration, Commerce.
ACTION: Notice of Issuance of an Export Trade Certificate of Review,
Application No. 95-00006.
-----------------------------------------------------------------------
SUMMARY: The Department of Commerce has issued an Export Trade
Certificate of Review to Water and Wastewater Equipment Manufacturers
Association. This notice summarizes the conduct for which certification
has been granted.
FOR FURTHER INFORMATION CONTACT: W. Dawn Busby, 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 (1994). 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
Export Trade
1. Products
Machinery, equipment, instrumentation, chemicals, supplies,
systems, accessories, turnkey systems, and software development (as
these items are used in the treatment of water and/or wastewarer).
Export Trade
1. Products
Machinery, equipment, instrumentation, chemicals, supplies,
systems, accessories, turnkey systems, and software development (as
these items are used in the treatment of water and/or wastewater).
2. Services
A. Identification, conceptual prefeasibility, and feasibility
assessments of residential, commercial, industrial, and municipal
Products and water and/or wastewater treatment facilities for
homeowners, businesses, companies, utilities, or foreign government
entities;
B. Engineering and architectural services related to Products and/
or to turnkey contracts that substantially incorporate Products;
C. Design and installation of water and/or wastewater treatment
facilities and/or Products;
D. Project and construction management of water and/or wastewater
treatment facilities;
E. Arranging or offering financing for investments in water and/or
wastewater treatment facilities and/or Products, including lease, loan,
shared savings arrangements, guaranteed lease or loans, and third party
financing;
F. Providing bonded performance guarantees that guarantee a certain
level of water and/or wastewater treatment as a result of the
installation of water and/or wastewater treatment Products;
G. Servicing, training, and other services related to the sale,
use, installations, maintenance monitoring, rehabilitation, or
upgrading of Products or to projects that substantially incorporate
Products;
H. All other services related to water and/or wastewater treatment.
3. Export Trade Facilitation Services (as They Relate to the Export of
Products and Services)
Consulting; international market research; insurance; legal
assistance; accounting assistance; services related to compliance with
foreign customs requirements; trade documentation and freight
forwarding; communication and processing of export orders and sales
leads; warehousing; foreign exchange; financing; liaison with U.S. and
foreign government agencies, trade associations and banking
institutions; taking title to goods; marketing and trade promotion;
trade show participation; coordination and negotiation of the terms and
[[Page 36709]]
conditions of participation in trade promotion activities such as trade
shows, expositions, exhibitions, conferences or similar events; and
negotiations with providers of transportation, insurance, exhibits and
lodging in connection with such trade promotion opportunities.
4. Technology Rights
Patents, trademarks, service marks, trade names, copyrights
(including neighboring rights); trade secrets; know-how; technical
expertise; utility models (including petty patents); computer modeling;
semiconductor mask works; industrial designs; computer software
protection associated with Products, Services, industrial designs,
first die proofs, design of die block impressions, inserts, and Export
Trade Facilitation Services.
Export Markets
The Export Markets include all parts of the world except the United
States (the 50 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).
Export Trade Activities and Methods of Operation
A. Except as set forth in Paragraph F, WWEMA and/or one or more of
its Members may:
1. Engage in joint selling arrangements for the sale of Products
and/or Services in the Export Markets, such as joint marketing, joint
negotiation, joint offering, joint bidding, and joint financing; and
allocate sales resulting from such arrangements.
2. Establish export prices of Products and/or Services by the
Members in Export Markets.
3. Discuss and reach agreements relating to the interface
specifications and engineering of Products and/or Services required by
specific export customers, potential export customers, or Export
Markets.
4. Refuse to quote prices for, or to market or sell, Products and/
or Services in Export Markets;
5. Solicit non-Member Suppliers to sell such non-Member Suppliers'
Products and/or Services, or offer such non-Member Suppliers' Export
Trade Facilitation Services through the certified activities of WWEMA
and/or its Members; provided, however, that WWEMA and/or one or more of
its Members shall make such solicitations or offers to non-Member
Suppliers on a transaction by transaction basis only and then only when
the Members are unable to supply, at a price competitive under the
circumstances, the requisite Products or Services for such transaction;
provided further that WWEMA and/or one or more of its Members may
exchange only such information with such non-Member Suppliers as is
reasonably required by such transaction.
6. Coordinate with respect to
(a) the development of water and/or wastewater treatment projects
in Export Markets, including project identification, scientific and
technical assessment, transportation and/or delivery, engineering,
design, maintenance, monitoring, construction and delivery,
installation and construction, project ownership, project operation,
and transfer of project ownership;
(b) the installation and servicing of Products in Export Markets,
including establishment of joint warranty, service, and training
centers in such markets; and
(c) the operation of and maintenance services for water and/or
wastewater treatment facilities, parts warehousing, and support
services related to the foregoing.
7. License associated Technology Rights 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 the export customer without coordination with WWEMA or any Member.
8. Engage in joint promotional activities aimed at developing
existing or new Export Markets. Such promotional activities may include
advertising, demonstrating, field trips, trade missions, reverse trade
missions, and conferences.
9. Agree on the frequency, level of, duration, or other terms and
conditions of participation in joint Export Trade Promotion activities
conducted in Export Markets. Such activities may include trade shows
for the purpose of promoting the industry's Products in Export Markets.
10. Enter into agreements wherein WWEMA and/or one or more Members
acts in certain Export Markets as the Members' exclusive or non-
exclusive Export Intermediary. The Export Intermediary shall be
responsible for coordinating the level of participation and joint
export trade promotion and facilitation activities by WWEMA and its
Members, as well as for negotiating agreements with foreign government
agencies, corporations, or trade associations concerning terms and
conditions of participation, transportation, insurance, lodging, local
transportation, and food services in connection with such joint
promotional activities. When acting as an Export Intermediary, WWEMA
and/or any one or more Members shall make its services available to any
Member on non-discriminatory terms.
11. Agree to refuse to attend any specific trade show, exposition,
exhibition, or conference conducted in the Export Markets.
12. Establish and operate jointly owned subsidiaries or other joint
venture entities owned exclusively by Members for the purposes of
engaging in the Export Trade Activities and Methods of Operation
herein, other than the licensing of associated Technology Rights
pursuant to subparagraph (7) above. WWEMA and/or one or more of its
Members may establish and operate joint ventures for operations in
Export Markets with non-Members, including public-sector foreign
corporations and other foreign government entities, and/or private
sector foreign entities such as corporations. Non-Members engaging in
such activities shall not receive protection under this Certificate of
Review.
13. Enter into exclusive arrangements with an Export Intermediary,
which arrangement may provide that such Export Intermediary may not
represent any non-Member Supplier of Products and/or Services in
specified Export Markets.
14. Agree not to export independently into specified Export
Markets, either directly or through any other Export Intermediary or
other party.
15. Agree that any information obtained pursuant to this
Certificate shall not be provided to any non- Member.
16. For the transportation of Products, act as a shippers'
association to negotiate favorable transportation rates and other terms
for the transportation of Products with individual common carriers and
individual shipping conferences.
B. Except as set forth in Paragraph F, WWEMA and/or one or more of
its Members may exchange and discuss the following types of information
as they relate solely to Export Trade and Export Markets:
1. Information (other than information about the cost, 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.
2. Information about sales and marketing efforts for Export
Markets,
[[Page 36710]]
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 (quality and
quantity), 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, customer specifications for
Products in Export Markets, and market strengths and economic and
business conditions in Export Markets.
3. Information about the export prices, quality, quantity, sources,
available capacity, and delivery dates of Products available from
Members for export, provided however that exchanges of information and
discussions as to Product quantity, sources, available capacity to
produce, and delivery dates must be on a transaction-by-transaction
basis and involve only those Members who are participating or have
genuine interest in participating in each such transaction.
4. Information about terms and conditions of contracts for sales in
Export Markets to be considered and/or bid on by WWEMA and/or its
Members.
5. Information about joint bidding, joint selling, or joint
servicing arrangements for Export Markets and allocation of sales
resulting from such arrangements among the Members.
6. 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.
7. Information about U.S. and foreign legislation, regulations and
policies and executive actions affecting the sales of Products and/or
Services in the Export Markets, such as U.S. Federal and State programs
affecting the sales of Products and/or Services in the Export Markets
or foreign policies that would affect the sale of Products and/or
Services.
8. Information about WWEMA's and/or its Members' export operations,
including without limitation, sales and distribution networks
established by WWEMA or its Members in Export Markets, and prior export
sales by Members (including export price information).
C. Except as set forth in Paragraph F, WWEMA and/or one or more of
its Members may meet to engage in the activities described in
paragraphs A through B above.
D. Except as set forth in Paragraph F, WWEMA and/or one or more of
its Members may refuse to provide Export Trade Facilitation Services to
non-Members or refuse to participate in other activities described in
paragraphs A through B above.
E. WWEMA and/or one or more of 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 (such as prices and/or costs). If such Member elects to
respond with respect to domestic activities, it shall respond directly
to the requesting foreign government or its agent with respect to such
information.
F. If an Export Trade Activity or Method of Operation described in
paragraphs A through D would involve: (a) a Product identified in
Attachment II as a ``Restricted Product'', and (b) two or more Member
Suppliers of a Restricted Product identified in Attachment II
(``Restricted Members''), then such Export Trade Activity or Method of
Operation shall be subject to the following limitations:
1. Participation in any price discussion is limited to instances in
which the prices are discussed and determined solely in the following
manner: a Neutral Third Party, as hereinafter defined, acting
independently, will obtain price information concerning each Restricted
Product for which the Restricted Members listed in conjunction
therewith intend to participate as part of a joint bid or other sales
arrangement, and will incorporate such price information into the bid
or other arrangement.
(i) For purposes of this paragraph, ``acting independently'' means
that the Neutral Third Party who obtains the price information from the
Restricted Members, and who negotiates offer prices on behalf of the
Restricted Members, will not disclose the price information of one
Restricted Member to another Restricted Member intending to participate
in a joint bid or other sales arrangement as a Supplier of the
Restricted Products.
(ii) For purposes of this paragraph, ``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 any Restricted Product. Any Member may be a
Neutral Third Party as long as it meets the requirements set out above.
2. The limitation set forth in paragraph F.1 above also shall apply
to instances where more than one Restricted Member intends to
participate in the joint bid or other sales arrangement but the
participation of one is solely as an Export Intermediary for the Export
Trade Activity or Method of Operation.
3. Neither WWEMA nor any Member participating in the Export Trade
Activity or Method of Operation shall disclose the price information of
one Restricted Member to another Restricted Member with respect to the
relevant Restricted Product.
Terms and Conditions of Certificate
1. Except as expressly authorized in Export Trade Activity and
Method of Operation B.6, in engaging in Export Trade Activities and
Methods of Operation, neither WWEMA nor any Member shall intentionally
disclose, directly or indirectly, to any other Member or Supplier
(including parent companies, subsidiaries, or other entities related to
any Member not named as a Member) any information that is about its or
any other Member's or Supplier's costs, production, inventories,
domestic prices, domestic sales, capacity to produce Products for
domestic sale, domestic orders, 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.
2. 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 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 WWEMA 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.
3. 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.
[[Page 36711]]
A Member may withdraw from coverage under this Certificate at any time
by giving written notice to WWEMA, a copy of which WWEMA shall promptly
transmit to the Secretary of Commerce and the Attorney General.
4. WWEMA 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 of Commerce
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.
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. ``Member'' means a person who has membership in WWEMA, has been
certified as a ``Member'' within the meaning of Section 325.2(1) of the
Regulations, and is listed in Attachment I.
3. ``Supplier'' means a person who produces, provides, or sells a
Product, Service, and/or Export Trade Facilitation Service, whether a
Member or non-Member.
Protection Provided by Certificate
This Certificate protects WWEMA, its Members, and directors,
officers, and employees acting on behalf of WWEMA and its Members 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
indicated below until it is relinquished, modified, or revoked as
provided in the Act and the Regulations.
Other Conduct
Nothing in this Certificate prohibits WWEMA 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 WWEMA 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 WWEMA or its Members or (b) the legality of
such business plans of WWEMA 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 United States Government is the buyer or where the United
States 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 Fed. Reg. 1786 (January 11, 1985).
In accordance with the authority granted under the Act and
Regulations, this Certificate of Review is hereby granted to WWEMA.
Dated: July 1, 1996.
W. Dawn Busby,
Director, Office of Export Trading Company Affairs.
Attachment I
ABB Kent Meters, Inc., Ocala, Florida
A.O. Smith Harvestore Products, Inc., DeKalb, Illinois
Elsag Bailey Process Automation N.V. for the activities of its unit
Bailey-Fischer & Porter Company, Warminster, Pennsylvania
Capital Controls Co., Inc., Colmar, Pennsylvania
CBI Walker, Inc., Aurora, Illinois
Dorr-Oliver Incorporated, Milford, Connecticut
Enviroquip, Inc., Austin, Texas
G.A. Industries, Inc., Mars, Pennsylvania
Galaxy Environmental Corporation, Warminster, Pennsylvania
General Signal Corporation for the activities of its unit General
Signal Pump Group, North Aurora, Illinois
Gorman-Rupp Company (The), Mansfield, Ohio
The Gorman-Rupp International Company, Mansfield, Ohio
Hycor Corporation, Lake Bluff, Illinois
I. Kruger, Inc., Cary, North Carolina
Infilco Degremont Inc., Richmond, Virginia
JCM Industries, Inc., Nash, Texas
Komline-Sanderson, Peapack, New Jersey
Parkson Corporation, Fort Lauderdale, Florida
Patterson Pump Co., Taccoa, GA
Smith & Loveless, Inc., Lenexa, Kansas
Temcor, Carson, California
Wallace & Tiernan, Inc., Belleville, New Jersey
Water Pollution Control Corp., Brown Deer, Wisconsin
Attachment II
------------------------------------------------------------------------
Restricted product Restricted members
------------------------------------------------------------------------
Gas Chlorination Systems.................. Bailey-Fischer & Porter
Company, Capital Controls
Company, Inc., Wallace &
Tiernan, Inc.
Evaporators............................... Bailey-Fischer & Porter
Company, Capital Controls
Company, Inc., Wallace &
Tiernan, Inc.
Gas Sulphonation Systems.................. Bailey-Fischer & Porter
Company, Capital Controls
Company, Inc., Wallace &
Tiernan, Inc.
------------------------------------------------------------------------
[FR Doc. 96-17731 Filed 7-11-96; 8:45 am]
BILLING CODE 3510-DS-P
