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PUBLIC LAW 97-290—OCT. 8, 1982

Public Law 97-290
97th Congress

96 STAT. 1233

An Act

To encourage exports by facilitating tbe formation and operation of export trading
companies, export trade associations, and the expansion of export trade services
generally.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TITLE I—GENERAL PROVISIONS
SHORT TITLE

SEC. 101. This title may be cited as the "Export Trading Company
Act of 1982".

Oct. 8, 1982
[S. 734]

Export trade
services,
expansion.
Export Trading
Company Act of
1982.
15 u s e 4001
note.

FINDINGS; DECLARATION OF PURPOSE

SEC. 102. (a) The Congress finds that—
(1) United States exports are responsible for creating ^nd
maintaining one out of every nine manufacturing jobs in the
United States and for generating one out of every seveta dollars
of total United States goods produced;
(2) the rapidly growing service-related industries are vital to
the well-being of the United States economy inasmuch as they
create jobs for seven out of every ten Americans, provide 65 per
centum of the Nation's gross national product, and offer the
greatest potential for significantly increased industrial trade
involving finished products;
(3) trade deficits contribute to the decline of the dollar on
international currency markets and have an inflationary
impact on the United States economy;
(4) tens of thousands of small- and medium-sized United
States businesses produce exportable goods or services but do
not engage in exporting;
(5) although the United States is the world's leading agricultural exporting nation, many farm products are not marketed
as widely and effectively abroad as they could be through export
trading companies;
(6) export trade services in the United States are fragmented
into a multitude of separate functions, and companies attempting to offer export trade services lack financial leverage to
reach a significant number of potential United States exporters;
(7) the United States needs well-developed export trade intermediaries which can achieve economies of scale and acquire
expertise enabling them to export goods and services profitably,
at low per unit cost to producers;
(8) the development of export trading companies in the
United States has been hampered by business attitudes and by
Government regulations;
(9) those activities of State and local governmental authorities
which initiate, facilitate, or expand exports of goods and serv-

15 u s e 4001.

96 STAT. 1234

PUBLIC LAW 97-290—OCT. 8, 1982

ices can be an important source for expansion of total United
States exports, as well as for experimentation in the development of innovative export programs keyed to local, State, and
regional economic needs;
(10) if United States trading companies are to be successful in
promoting United States exports and in competing with foreign
trading companies, they should be able to draw on the resources, expertise, and knowledge of the United States banking
system, both in the United States and abroad; and
(11) the Department of Commerce is responsible for the development and promotion of United States exports, and especially
for facilitating the export of finished products by United States
manufacturers.
Ot)) It is the purpose of this Act to increase United States exports of
products and services by encouraging more efficient provision of
export trade services to United States producers and suppliers, in
particular by establishing an office within the Department of Commerce to promote the formation of export trade associations and
export trading companies, by permitting bank holding companies,
30 use 181 note, bankers' banks, and Edge Act corporations and agreement corporations that are subsidiaries of bank holding companies to invest in
export trading companies, by reducing restrictions on trade financing provided by financial institutions, and by modifying the application of the antitrust laws to certain export trade.
DEFINITIONS

15 use 4002.

SEC. 103. (a) For purposes of this title—
(1) the term "export trade" means trade or commerce in goods
or services produced in the United States which are exported, or
in the course of being exported, from the United States to any
other country;
(2) the term "services" includes, but is not limited to, accounting, amusement, architectural, automatic data processing, business, communications, construction franchising and licensing,
consulting, engineering, financial, insurance, legal, management, repair, tourism, training, and transportation services;
(3) the term "export trade services" includes, but is not
limited to, consulting, international market research, advertising, marketing, insurance, product research and design, legal
assistance, transportation, including trade documentation and
freight forwarding, communication and processing of foreign
orders to and for exporters and foreign purchasers, warehousing, foreign exchange, financing, and taking title to goods, when
provided in order to facilitate the export of goods or services
produced in the United States;
(4) the term "export trading company" means a person, partnership, association, or similar organization, whether operated
for profit or as a nonprofit organization, which does business
under the laws of the United States or any State and which is
organized and operated principally for purposes of—
(A) exporting goods or services produced in the United
States; or
(B) facilitating the exportation of goods or services produced in the United States by unaffiliated persons by providing one or more export trade services;

PUBLIC LAW 97-290—OCT. 8, 1982

96 STAT. 1235

(5) the term "State" means any of the several 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;
(6) the term "United States" means the several 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
(7) the term "antitrust laws" means the antitrust laws as
defined in subsection (a) of the first section of the Clayton Act
(15 U.S.C. 12(a)), section 5 of the Federal Trade Commission Act
(15 U.S.C. 45) to the extent that section 5 applies to unfair
methods of competition, and any State antitrust or unfair competition law.
(b) The Secretary of Commerce may by regulation further define
any term defined in subsection (a), in order to carry out this title.
OFFICE OF EXPORT TRADE IN DEPARTMENT OF COMMERCE

SEC. 104. The Secretary of Commerce shall establish within the 15 use 4003.
Department of Commerce an office to promote and encourage to the
greatest extent feasible the formation of export trade associations
and export trading companies. Such office shall provide information
and advice to interested persons and shall provide a referral service
to facilitate contact between producers of exportable goods and
services and firms offering export trade services.
TITLE II—BANK EXPORT SERVICES

s?r"vies''Act

SHORT TITLE

SEC. 201. This title may be cited as the "Bank Export Services
Act".

SEC. 202. The Congress hereby declares that it is the purpose of
this title to provide for meaningful and effective participation by
bank holding companies, bankers' banks, and Edge Act corporations,
in the financing and development of export trading companies in
the United States. In furtherance of such purpose, the Congress
intends that, in implementing its authority under section 4(c)(14) of
the Bank Holding Company Act of 1956, the Board of Governors of
the Federal Reserve System should pursue regulatory policies
that—
(1) provide for the establishment of export trading companies
with powers sufficiently broad to enable them to compete with
similar foreign-owned institutions in the United States and
abroad;
(2) afford to United States commerce, industry, and agriculture, especially small- and medium-size firms, a means of exporting at all times;
(3) foster the participation by regional and smaller banks in
the development of export trading companies; and
(4) facilitate the formation of joint venture export trading
companies between bank holding companies and nonbank firms
that provide for the efficient combination of complementary

12 use 1841
note.

12 use 1843
^°^^30 USe 181 note.

Post, p. 1236.
12 use 1843.

96 STAT. 1236

PUBLIC LAW 97-290—OCT. 8, 1982
trade and financing services designed to create export trading
companies that can handle all of an exporting company's needs.
INVESTMENTS IN EXPORT TRADING COMPANIES

SEC, 203. Section 4(c) of the Bank Holding Company Act of 1956
(12 U.S.C. 1843(c)) is amended—
(1) in paragraph (12XB), by striking out "or" at the end
thereof;
(2) in paragraph (13), by striking out the period at the end
thereof and inserting in lieu thereof"; or"; and
(3) by inserting after paragraph (13) the following:
"(14) shares of any company which is an export trading
company whose acquisition (including each acquisition of
shares) or formation by a bank holding company has not been
disapproved by the Board pursuant to this paragraph, except
that such investments, whether direct or indirect, in such
shares shall not exceed 5 per centum of the bank holding
company's consolidated capital and surplus.
"(AXi) No bank holding company shall invest in an export
trading company under this paragraph unless the Board
has been given sixty days' prior written notice of such
proposed investment and within such period has not issued
a notice disapproving the proposed investment or extending
for up to another thirty days the period during which such
disapproval may be issued.
"(ii) The period for disapproval may be extended for such
additional thirty-day period only if the Board determines
that a bank holding company proposing to invest in an
export trading company has not furnished all the information required to be submitted or that in the Board's judgment any material information submitted is substantially
inaccurate.
"(iii) The notice required to be filed by a bank holding
company shall contain such relevant information as the
Board shall require by regulation or by specific request in
connection with any particular notice.
"(iv) The Board may disapprove any proposed investment
only if—
"(I) such disapproval is necessary to prevent unsafe
or unsound banking practices, undue concentration of
resources, decreeised or unfair competition, or conflicts
of interest;
"(II) the Board finds that such investment would
affect the financial or managerial resources of a bank
holding company to an extent which is likely to have a
materially adverse effect on the safety and soundness
of any subsidiary bank of such bank holding company,
or
"(III) the bank holding company fails to furnish the
information required under clause (iii).
"(v) Within three days after a decision to disapprove an
investment, the Board shall notify the bank holding company in writing of the disapproval and shall provide a
written statement of the basis for the disapproval.
"(vi) A proposed investment may be made prior to the
expiration of the disapproval period if the Board issues

PUBLIC LAW 97-290—OCT. 8, 1982
written notice of its intent not to disapprove the investment.
"(B)(i) The total amount of extensions of credit by a bank
holding company which invests in an export trading company, when combined with all such extensions of credit by
all the subsidiaries of such bank holding company, to an
export trading company shall not exceed at any one time 10
per centum of the bank holding company's consolidated
capital and surplus. For purposes of the preceding sentence,
an extension of credit shall not be deemed to include any
amount invested by a bank holding company in the shares
of an export trading company.
"(ii) No provision of any other Federal law in effect on
October 1, 1982, relating specifically to collateral requirements shall apply with respect to any such extension of
credit.
"(iii) No bank holding company or subsidiary of such
company which invests in an export trading company may
extend credit to such export trading company or to customers of such export trading company on terms more favorable than those afforded similar borrowers in similar circumstances, and such extension of credit shall not involve more
than the normal risk of repayment or present other unfavorable features.
"(C) For purposes of this paragraph, an export trading
company—
"(i) may engage in or hold shares of a company
engaged in the business of underwriting, selling, or
distributing securities in the United States only to the
extent that any bank holding company which invests in
such export trading company may do so under applicable Federal and State banking laws and regulations;
and
"(ii) may not engage in agricultural production activities or in manufacturing, except for such incidental
product modification including repackaging, reassembling or extracting bj^jroducts, as is necessary to
enable United States goods or services to conform with
requirements of a foreign country and to facilitate
their sale in foreign countries.
"(D) A bank holding company which invests in an export
trading company may be required, by the Board, to terminate its investment or may be made subject to such limitations or conditions as may be imposed by the Board, if the
Board determines that the export trading company has
taken positions in commodities or commodity contracts, in
securities, or in foreign exchange, other than as may be
necessary in the course of the export trading company's
business operations.
"(E) Notwithstanding any other provision of law, an Edge
Act corporation, organized under section 25(a) of the Federal Reserve Act (12 U.S.C. 611-631), which is a subsidiary
of a bank holding company, or an agreement corporation,
operating subject to section 25 of the Federal Reserve Act
(12 U.S.C. 601-604(a)), which is a subsidiary of a bank
holding company, may invest directly and indirectly in the
aggregate up to 5 per centum of its consolidated capital and

96 STAT. 1237

96 STAT. 1238

Definitions.

Report to
congressional
committees.
12 u s e 1843
note.

PUBLIC LAW 97-290—OCT. 8, 1982

surplus (25 per centum in the case of a corporation not
engaged in banking) in the voting stock of other evidences
of ownership in one or more export trading companies.
"(F) For purposes of this paragraph—
"(i) the term 'export trading company' means a company which does business under the laws of the United
States or any State, which is exclusively engaged in
activities related to international trade, and which is
organized and operated principally for purposes of
exporting goods or services produced in the United
States or for purposes of facilitating the exportation of
goods or services produced in the United States by
unaffiliated persons by providing one or more export
trade services.
"(ii) the term 'export trade services' includes, but is
not limited to, consulting, international market
research, advertising, marketing, insurance (other than
acting as principal, agent or broker in the sale of
insurance on risks resident or located, or activities
performed, in the United States, except for insurance
covering the transportation of cargo from any point of
origin in the United States to a point of final destination outside the United.States), product research and
design, legal assist£ince, transportation, including trade
documentation and freight forwarding, communication
and processing of foreign orders to and for exporters
and foreign
purchasers, warehousing,
foreign
exchange, financing, and taking title to goods, when
provided in order to facilitate the export of goods or
services produced in the United States;
"(iii) the term 'bank holding company' shall include a
bank which (I) is organized solely to do business with
other banks and their officers, directors, or employees;
(II) is owned primarily by the banks with which it does
business; and (III) does not do business with the general
public. No such other bank, owning stock in a bank
described in this clause that invests in an export trading company, shall extend credit to an export trading
company in an amount exceeding at any one time 10
per centum of such other bank's capital and surplus;
and
"(iv) the term 'extension of credit' shall have the
same meaning given such term in the fourth paragraph
of section 23A of the Federal Reserve Act.".
SEC. 205. On or before two years after the date of the enactment of
this Act, the Federal Reserve Board shall report to the Committee
on Banking, Housing, an Urban Affairs of the Senate and the
Committee on Banking, Finance and Urban Affairs of the House of
Representatives the Board's recommendations with respect to the
implementation of this section, the Board's recommendations on any
changes in United States law to facilitate the financing of United
States exports, especially by small, medium-size, and minority business concerns, and the Board's recommendations on the effects of
ownership of United States banks by foreign banking organizations
affiliated with trading companies doing business in the United
States.

PUBLIC LAW 97-290—OCT. 8, 1982

96 STAT. 1239

GUARANTEES FOR EXPORT ACCOUNTS RECEIVABLE AND INVENTORY

SEC. 206. The Export-Import Bank of the United States is author- 12 use 635a-4.
ized and directed to establish a program to provide guarantees for
loans extended by financial institutions or other public or private
creditors to export trading companies as defined in section
4(c)(14)(F)(i) of the Bank Holding Company Act of 1956, or to other Ante, p. 1236.
exporters, when such loans are secured by export accounts receivable or inventories of exportable goods, and when in the judgment of
the Board of Directors—
(1) the private credit market is not providing adequate financing to enable otherwise creditworthy export trading companies
or exporters to consummate export transactions; and
(2) such guarantees would facilitate expansion of exports
which would not otherwise occur.
The Board of Directors shall attempt to insure that a major share of
any loan guarantees ultimately serves to promote exports from
small, medium-size, and minority businesses or agricultural concerns. Guarantees provided under the authority of this section shall
be subject to limitations contained in annual appropriations Acts.
BANKERS' ACCEPTANCES

SEC. 207. The seventh paragraph of section 13 of the Federal
Reserve Act (12 U.S.C. 372) is amended to read as follows:
12 USC 372 note.
"(7)(A) Any member bank and any Federal or State branch or
agency of a foreign bank subject to reserve requirements under
section 7 of the International Banking Act of 1978 (hereinafter in
this paragraph referred to as 'institutions'), may accept drafts or
bills of exchange drawn upon it having not more than six months'
sight to run, exclusive of days of grace—
"(i) which grow out of transactions involving the importation
or exportation of goods;
"(ii) which grow out of transactions involving the domestic
shipment of goods; or
"(iii) which are secured at the time of acceptance by a warehouse receipt or other such document conveying or securing
title covering readily marketable staples.
"(B) Except as provided in subparagraph (C), no institution shall
accept such bills, or be obligated for a participation share in such
bills, in an amount equal at any time in the aggregate to more than
150 per centum of its paid up and unimpaired capital stock and
surplus or, in the case of a United States branch or agency of a
foreign bank, its dollar equivalent as determined by the Board
under subparagraph (H).
"(C) The Board, under such conditions as it may prescribe, may
authorize, by regulation or order, any institution to accept such
bills, or be obligated for a participation share in such bills, in an
amount not exceeding at any time in the aggregate 200 per centum
of its paid up and unimpaired capital stock and surplus or, in the
case of a United States branch or agency of a foreign bank, its dollar
equivalent as determined by the Board under subparagraph (H).
"(D) Notwithstanding subparagraphs (B) and (C), with respect to
any institution, the aggregate acceptances, including obligations for
a participation share in such acceptances, growing out of domestic
transactions shall not exceed 50 per centum of the aggregate of all

97-200 O—84—pt. 1

41 : QL3

96 STAT. 1240

PUBLIC LAW 97-290—OCT. 8, 1982

acceptances, including obligations for a participation share in such
acceptances, authorized for such institution under this paragraph.
"(E) No institution shall accept bills, or be obligated for a participation share in such bills, whether in a foreign or domestic transaction, for any one person, partnership, corporation, association or
other entity in an amount equal at any time in the aggregate to
more than 10 per centum of its paid up and unimpaired capital stock
and surplus, or, in the case of a United States branch or agency of a
foreign bank, its dollar equivalent as determined by the Board
under subparagraph (H), unless the institution is secured either by
attached documents or by some other actual security growing out of
the same transaction as the acceptance.
"(F) With respect to an institution which issues an acceptance, the
limitations contained in this paragraph shall not apply to that
portion of an acceptance which is issued by such institution and
which is covered by a participation agreement sold to another
institution.
"(G) In order to carry out the purposes of this paragraph, the
Board may define any of the terms used in this paragraph, and, with
respect to institutions which do not have capital or capital stock, the
Board shall define an equivalent measure to which the limitations
contained in this paragraph shall apply.
"(H) Any limitation or restriction in this paragraph based on paidup and unimpaired capital stock and surplus of an institution shall
be deemed to refer, with respect to a United States branch or agency
of a foreign bank, to the dollar equivalent of the paid-up capital
stock and surplus of the foreign bank, as determined by the Board,
and if the foreign bank has more than one United States branch or
agency, the business transacted by all such branches and agencies
shall be aggregated in determining compliance with the limitation
or restriction.".
TITLE III—EXPORT TRADE CERTIFICATES OF REVIEW
EXPORT TRADE PROMOTION DUTIES OF SECRETARY OF COMMERCE

15 use 4011.

SEC. 301. To promote and encourage export trade, the Secretary
may issue certificates of review and advise and assist any person
with respect to applying for certificates of review.
APPLICATION FOR ISSUANCE OF CERTIFICATE OF REVIEW

15 use 4012.

Notice;
F^derar^'^ "^
Register.

SEC. 302. (a) To apply for a certificate of review, a person shall
submit to the Secretary a written application which—
(1) specifies conduct limited to export trade, and
(2) is in a form and contains any information, including
information pertaining to the overall market in which the
applicant operates, required by rule or regulation promulgated
under section 310.
(b)(1) Within ten days after an application submitted under subsection (a) is received by the Secretary, the Secretary shall publish
^^ the Federal Register a notice that announces that an application
for a certificate of review has been submitted, identifies each person
submitting the application, and describes the conduct for which the
application is submitted.

PUBLIC LAW 97-290—OCT. 8, 1982

96 STAT. 1241

(2) Not later than seven days after an application submitted under
subsection (a) is received by the Secretary, the Secretary shall
transmit to the Attorney General—
(A) a copy of the application,
(B) any information submitted to the Secretary in connection
with the application, and
(C) any other relevant information (as determined by the
Secretary) in the possession of the Secretary, including information regarding the market share of the applicant in the line of
commerce to which the conduct specified in the application
relates.
ISSUANCE OF CERTIFICATE

SEC. 303. (a) A certificate of review shall be issued to any applicant
that establishes that its specified export trade, export trade activities, and methods of operation will—
(1) result in neither a substantial lessening of competition or
restraint of trade within the United States nor a substantial
restraint of the export trade of any competitor of the applicant,
(2) not unreasonably enhance, stabilize, or depress prices
within the United States of the goods, wares, merchandise, or
services of the class exported by the applicant,
(3) not constitute unfair methods of competition against competitors engaged in the export of goods, wares, merchandise, or
services of the class exported by the applicant, and
(4) not include any act that may reasonably be expected to
result in the sale for consumption or resale within the United
States of the goods, wares, merchandise, or services exported by
the applicant.
(b) Within ninety days after the Secretary receives an application
for a certificate of review, the Secretary shall determine whether
the applicant's export trade, export trade activities, and methods of
operation meet the standards of subsection (a). If the Secretary, with
the concurrence of the Attorney General, determines that such
standards are met, the Secretary shall issue to the applicant a
certificate of review. The certificate of review shall specify—
(1) the export trade, export trade activities, and methods of
operation to which the certificate applies,
(2) the person to whom the certificate of review is issued, and
(3) any terms and conditions the Secretary or the Attorney
General deems necessary to sissure compliance with the standards of subsection (a).
(c) If the applicant indicates a special need for prompt disposition,
the Secretary and the Attorney General may expedite action on the
application, except that no certificate of review may be issued
within thirty days of publication of notice in the Federal Register
under section 3O20t)Xl).
(dXD If the Secretary denies in whole or in part an application for
a certificate, he shall notify the applicant of his determination and
the reasons for it.
(2) An applicant may, within thirty days of receipt of notification
that the application has been denied in whole or in part, request the
Secretary to reconsider the determination. The Secretary, with the
concurrence of the Attorney General, shall notify the applicant of
the determination upon reconsideration within thirty days of receipt
of the request.

15 USC 4013.

96 STAT. 1242

PUBLIC LAW 97-290—OCT. 8, 1982

(e) If the Secretary denies an application for the issuance of a
certificate of review and thereafter receives from the applicant a
request for the return of documents submitted by the applicant in
connection with the application for the certificate, the Secretary and
the Attorney General shall return to the applicant, not later than
thirty days after receipt of the request, the documents and all copies
of the documents available to the Secretary and the Attorney
General, except to the extent that the information contained in a
document has been made available to the public.
(f) A certificate shall be void ab initio with respect to any export
trade, export trade activities, or methods of operation for which a
certificate was procured by fraud.
REPORTING R E Q U I R E M E N T ; AMENDMENT OF CERTIFICATE; REVOCATION
OF CERTIFICATE

15 use 4014.

Notice.

Investigations.

28 use 1927.

SEC. 304. (a)(1) Any applicant who receives a certificate of
review—
(A) shall promptly report to the Secretary any change relevant to the matters specified in the certificate, and
(B) may submit to the Secretary an application to amend the
certificate to reflect the effect of the change on the conduct
specified in the certificate.
(2) An application for an amendment to a certificate of review
shall be treated as an application for the issuance of a certificate.
The effective date of an amendment shall be the date on which the
application for the amendment is submitted to the Secretary.
(b)(1) If the Secretary or the Attorney General has reason to
believe that the export trade, export trade activities, or methods of
operation of a person holding a certificate of review no longer
comply with the standards of section 303(a), the Secretary shall
request such information from such person as the Secretary or the
Attorney General deems necessary to resolve the matter of compliance. Failure to comply with such request shall be grounds for
revocation of the certificate under paragraph (2).
(2) If the Secretary or the Attorney General determines that the
export trade, export trade activities, or methods of operation of a
person holding a certificate no longer comply with the standards of
section 303(a), or that such person has failed to comply with a
request made under paragraph (1), the Secretary shall give written
notice of the determination to such person. The notice shall include
a statement of the circumstances underlying, and the reasons in
support of, the determination. In the 60-day period beginning 30
days after the notice is given, the Secretary shall revoke the certificate or modify it as the Secretary or the Attorney General deems
necessary to cause the certificate to apply only to the export trade,
export trade activities, or methods of operation which are in compliance with the standards of section 303(a).
(3) For purposes of carrying out this subsection, the Attorney
General, and the Assistant Attorney General in charge of the
antitrust division of the Department of Justice, may conduct investigations in the same manner as the Attorney General and the
Assistant Attorney General conduct investigations under section 3
of the Antitrust Civil Process Act, except that no civil investigative
demand may be issued to a person to whom a certificate of review is
issued if such person is the target of such investigation.

PUBLIC LAW 97-290—OCT. 8, 1982

96 STAT. 1243

JUDICIAL R E V I E W ; A D M I S S I B I L I T Y

SEC. 305. (a) If the Secretary grants or denies, in whole or in part,
an application for a certificate of review or for an amendment to a
certificate, or revokes or modifies a certificate pursuant to section
3040t)), any person aggrieved by such determination may, within 30
days of the determination, bring an action in any appropriate
district court of the United States to set aside the determination on
the ground that such determination is erroneous.
(b) Except as provided in subsection (a), no action by the Secretary
or the Attorney General pursuant to this title shall be subject to
judicial review.
(c) If the Secretary denies, in whole or in part, an application for a
certificate of review or for an amendment to a certificate, or revokes
or amends a certificate, neither the negative determination nor the
statement of reasons therefor shall be admissible in evidence, in any
administrative or judicial proceeding, in support of any claim under
the antitrust laws.

15 USC 4015.

PROTECTION CONFERRED BY CERTIFICATE OF REVIEW

SEC. 306. (a) Except as provided in subsection (b), no criminal or
civil action may be brought under the antitrust laws against a
person to whom a certificate of review is issued which is based on
conduct which is specified in, and complies with the terms of, a
certificate issued under section 303 which certificate was in effect
when the conduct occurred.
OJXD Any person who has been injured as a result of conduct
engaged in under a certificate of review may bring a civil action for
injunctive relief, actual damages, the loss of interest on actual
damages, and the cost of suit (including a reasonable attorney's fee)
for the failure to comply with the standards of section 303(a). Any
action commenced under this title shall proceed as if it were an
action commenced under section 4 or section 16 of the Clayton Act,
except that the standards of section 303(a) of this title and the
remedies provided in this paragraph shall be the exclusive standards and remedies applicable to such action.
(2) Any action brought under paragraph (1) shall be filed within
two years of the date the plaintiff has notice of the failure to comply
with the standards of section 303(a) but in any event within four
years after the cause of action accrues.
(3) In any action brought under paragraph (1), there shall be a
presumption that conduct which is specified in and complies with a
certificate of review does comply with the standards of section
303(a).
(4) In any action brought under paragraph (1), if the court finds
that the conduct does comply with the standards of section 303(a),
the court shall award to the person against whom the claim is
brought the cost of suit attributable to defending against the claim
(including a reasonable attorney's fee).
(5) The Attorney General may file suit pursuant to section 15 of
the Clayton Act (15 U.S.C. 25) to enjoin conduct threatening clear
and irreparable harm to the national interest.

15 USC 4016.

15 USC 15, 26.

96 STAT. 1244

PUBLIC LAW 97-290—OCT. 8, 1982
GUIDEUNES

15 use 4017.

SEC. 307. (a) To promote greater certainty regarding the application of the antitrust laws to export trade, the Secretary, with the
concurrence of the Attorney General, may issue guidelines—
(1) describing specific t3T)es of conduct with respect to which
the Secretary, with the concurrence of the Attorney General,
has made or would make, determinations under sections 303
and 304, and
(2) summarizing the factual and legal bases in support of the
determinations.
(b) Section 553 of title 5, United States Code, shall not apply to the
issuance of guidelines under subsection (a).
ANNUAL REPORTS

15 use 4018.

SEC. 308. Every person to whom a certificate of review is issued
shall submit to the Secretary an annual report, in such form and at
such time as the Secretary may require, that updates where necessary the information required by section 302(a).
DISCLOSURE OF INFORMATION

15 use 4019.

SEC. 309. (a) Information submitted by any person in connection
with the issuance, amendment, or revocation of a certificate of
review shall be exempt from disclosure under section 552 of title 5,
United States Code.
(b)(1) Except as provided in paragraph (2), no officer or employee
of the United States shall disclose commercial or financial information submitted in connection with the issuance, amendment, or
revocation of a certificate of review if the information is privileged
or confidential and if disclosure of the information would cause
harm to the person who submitted the information.
(2) Paragraph (1) shall not apply with respect to information
disclosed—
(A) upon a request made by the Congress or any committee of
the Congress,
(B) in a judicial or administrative proceeding, subject to appropriate protective orders,
(C) with the consent of the person who submitted the information,
(D) in the course of making a determination with respect to
the issuance, amendment, or revocation of a certificate of
review, if the Secretary deems disclosure of the information to
be necessary in connection with making the determination,
(E) in accordance with any requirement imposed by a statute
of the United States, or
(F) in accordance with any rule or regulation promulgated
under section 310 permitting the disclosure of the information
to an agency of the United States or of a State on the condition
that the agency will disclose the information only under the
circumstances specified in subparagraphs (A) through (E).

PUBLIC LAW 97-290—OCT. 8, 1982

96 STAT. 1245

RULES AND REGULATIONS

SEC. 310. The Secretary, with the concurrence of the Attorney 15 use 4020.
Gteneral, shaill promulgate such rules and regulations as are necessary to CEirry out the purposes of this Act.
DEFINITIONS

SEC. 311. As used in this title—
15 use 4021.
(1) the term "export trade" means trade or commerce in
goods, wares, merchandise, or services exported, or in the course
of being exported, from the United States or any territory
thereof to any foreign nation,
(2) the term "service" means intangible economic output,
including, but not limited to—
(A) business, repair, and amusement services,
(B) management, legal, engineering, architectural, and
other professional services, and
(C) financial, insurance, transportation, informationsil
and any other data-based services, and communication services,
(3) the term "export trade activities" means activities or
agreements in the course of export trade,
(4) the term "methods of operation" means any method by
which a person conducts or proposes to conduct export trade,
(5) the term "person" means an individual who is a resident of
the United States; a partnership that is created under and
exists pursuant to the laws of any State or of the United States;
a State or local government entity; a corporation, whether
oi^anized as a profit or nonprofit corporation, that is created
under and exists pursuant to the laws of any State or of the
United States; or any association or combination, by contract or
other arrangement, between or among such persons,
(6) the term "antitrust laws" means the antitrust laws, as
such term is defined in the first section of the Clayton Act (15
U.S.C. 12), and section 5 of the Federal Trade Commission Act
(15 U.S.C 45) (to the extent that section 5 prohibits unfair
methods of competition), and any State antitn^st or unfair
competition law,
(7) the term "Secretary" nleans the Secretary of Commerce or
his designee, and
(8) the term "Attorney General" means the Attorney General
of the United States or his designee.
EFFECTIVE DATES

SEC. 312. (a) Except as provided in subsection (b), this title shall 15 use 4011
take effect on the date of the enactment of this Act.
"°*®(b) Section 302 and section 303 shall take effect 90 days after the
effective date of the rules and regulations first promulgated under
section 310.

96 STAT. 1246
Foreign Trade
Antitrust
Improvements
Act of 1982.

15 use 1 note.

PUBLIC LAW 97-290—OCT. 8, 1982
TITLE IV—FOREIGN TRADE ANTITRUST IMPROVEMENTS
SHORT TITLE

SEC. 401. This title may be cited as the "Foreign Trade Antitrust
Improvements Act of 1982".
AMENDMENT TO SHERMAN ACT

15 use 6a.

SEC. 402. The Sherman Act (15 U.S.C. 1 et seq.) is amended by
inserting after section 6 the following new section:
"SEC. 7. This Act shall not apply to conduct involving trade or
commerce (other than import t ^ e or import commerce) with foreign nations unless—
"(1) such conduct has a direct, substantial, and reasonably
foreseeable effect"(A) on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import
commerce with foreign nations; or
"(B) on export trade or export commerce with foreign
nations, of a person engaged in such trade or commerce in
the United States; and
"(2) such effect gives rise to a claim under the provisions of
this Act, other than this section.
If this Act appUes to such conduct only because of the operation of
paragraph (1)(B), then this Act shall apply to such conduct only for
injury to export business in the United States.".
AMENOBIENT TO FEDERAL TRADE COMMISSION ACT

SEC. 403. Section 5(a) of the Federal Trade Commission Act (15
U.S.C. 45(a)) is amended by adding at the end thereof the following
new paragraph:
"(3) This subsection shall not apply to unfair methods of competition involving commerce with foreign nations (other than import
commerce) unless—
"(A) such methods of competition have a direct, substantial,
and reasonably foreseeable effect—
"(i) on conmierce which is not commerce with foreign
nations, or on import commerce with foreign nations; or
"(ii) on export conmierce with foreign nations, of a person
engaged in such commerce in the United States; and

PUBLIC LAW 97-290—OCT. 8, 1982

96 STAT. 1247

"(B) such effect gives rise to a claim under the provisions of
this subsection, other than this paragraph.
If this subsection applies to such methods of competition only
because of the operation of subparagraph (A)(ii), this subsection
shall apply to such conduct only for injury to export business in the
United States.".
Approved October 8, 1982.

LEGISLATIVE HISTORY—S. 734 (H.R. 1799, H.R. 6016):
HOUSE REPORTS: No. 97-924 (Coram, of Conference), No. 97-637, pt. 1 accompanying H.R. 1799 (Comm. on Foreign Affairs), pt. 2 (Coram, on the
Judiciary) and No. 97-629 accorapanying H.R. 6016 (Comm. on
Banking, Finance and Urban Affairs).
SENATE REPORTS: No. 97-27 (Comra. on Banking, Housing and Urban Affairs) and
No. 97-644 (Comra. of Conference).
CONGRESSIONAL RECORD:
Vol. 127 (1981): Apr. 7, 8, considered and passed Senate.
Vol. 128 (1982): July 27, H.R. 1799 and H.R. 6016 considered and passed House;
S. 734, amended, passed in lieu.
Oct. 1, Senate and House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS:
Vol. 18, No. 41 (1982): Oct. 8, Presidential statement.