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Date

Tags:

Rule
802.50; 802.51
Staff
Evan Storm
Response/Comments

Informal 0307004 is superseded by Premerger Notification Practice Manual (5th ed.) #152.  “Sales in or into” are the same for both 802.50 and 802.51.

Question

[REDACTED]

Informal 0307004 is superseded by PNPM 152.  “Sales in or into” are the same for both 802.50 and 802.51.

Regards

Evan

From: [REDACTED]
Sent: Friday, September 2, 2016 4:25 PM
To: kwalsh@ftc.gov; 'Whitehead, Nora' <nwhitehead@ftc.gov>
Subject: Ocean Shipping Sales "in or into" the US

Kate and Nora –

I am conducting a couple of HSR filing analyses and have two questions on which I would appreciate your advice.  I am sending as two separate e-mails (and would appreciate two separate responses) because I may forward the responses to different clients and both issues are not relevant to both clients.

I am having trouble reconciling the attached interpretation from the PNPM and this informal interpretation: https://www.ftc.gov/enforcement/premerger-notification-program/informal-interpretations/0307004 and I am hoping that you might be able to help me sort it out.

I read the PNPM interpretation as saying that the PNO’s position for a foreign flagged vessel is that sales in or into the US would be:

  •          Revenues from US imports, regardless of who paid, PLUS
  •          Revenues from US exports, regardless of who paid.

I read the informal interpretation as saying sales in or into the US would be:

  •          Revenues from US imports only if the recipient is paying, PLUS
  •          Revenues from US exports only if the shipper is paying.

Am I misreading one or the other?  Also, I note that the PNPM interpretation is specifically about 802.50(a) and the informal interpretation about 802.51(b).  It is not evident to me why “sales in or into” would have a different meaning in the two sections, but I would be glad to learn.

Any guidance you can provide would be helpful as I actually get this question fairly frequently.

Thanks,

[REDACTED]

About Informal Interpretations

Informal interpretations provide guidance from previous staff interpretations on the applicability of the HSR rules to specific fact situations. You should not rely on them as a substitute for reading the Act and the Rules themselves. These materials do not, and are not intended to, constitute legal advice.

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