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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Informal 0307004 is superseded by Premerger Notification Practice Manual (5th ed.)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Informal 0307004 is superseded by PNPM 152.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 PNO staff on the applicability of the HSR rules to specific fact situations. They do not necessarily reflect the position of the Commission. 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. 

Learn more about Informal Interpretations.