Question
February 5, 2004
ByFacsimile Transmission
Mr. Michael Verne'
Premerger Notification Office
Bureau of Competition
Room 303
Federal Trade Commission
6th Street & Pennsylvania Avenue, N.W.
Washington, D.C. 20580
DearMr. Verne:
This correspondence is a follow up to the discussions(redacted) and I had with you on January 30, 2004.
The factual circumstancesdescribed in the conversation were as follows. Entity A is a corporation whichowns, indirectly, 100 percent of the membership interests in Entity B, alimited liability company. Entity H, in turn, is the sole general partner ofEntity C, a master limited partnership, certain of the units of which arepublicly traded. Entity B also owns an approximate 76 percent limitedpartnership interest in Entity C.
Entity A, the ultimateparent of Entities B and C, recently acquired through a wholly owned subsidiaryof Entity A an oil refinery and certain related assets including ship docks,truck and rail loading racks, crude oil and refined product storage tanks andcrude oil and refined product pipelines (collectively, the "LogisticAssets") from a third party. That transaction (the "RefineryTransaction") was the subject of an HSR filing (the "HSRFiling") which involved a second request and an extensive investigationwhich was ultimately closed with no further action required.
Entity A now proposes totransfer the Logistic Assets to Entity C (the "Transfer"), suchTransfer having been disclosed in public statements made by both Entity A andEntity C since the original announcement of the potential Refinery Transactionand such Transfer not resulting in a change of the ultimate parent entity ofthe Logistic Assets.
Thequestion presented in our telephone conference was whether an HSR filing wouldbe needed with respect to the Transfer, given the fact that the chain ofownership from Entity A to Entity C is not solely in the form of "votingsecurities" within the meaning of the intraperson exemption in 16 C.F.R.802.30, but rather involves membership interests in a limited liability companyand partnership interests.
After consultation with yourcolleagues, we understood your advice to be that in the specific factualcircumstances presented, including the fact that Entity A's ownership of theLogistic Assets was already the subject of an extensive antitrust analysis inconnection with the HSR Filing, it is not necessary for another HSR filing tobe made in connection with the Transfer.