Question
February 1, 1994
By Hand Delivery
Patrick Sharpe, Esq.
Premerger Notification Office
Bureau of Competition
Room 303
Federal Trade Commission
Sixth St. and Pennsylvania Ave., N.W.
Washington, D.C. 20580
Dear Mr. Sharpe:
I am writing this letter to confirm the oral advice you provided yesterday over the telephone concerning the nonreportability of the following transaction under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the applicable regulations, 16 C.F.R. Parts 801-03 (collectively, Hart-Scott):
A, a United States person, intends to acquire assets valued at more
than $15 million from B. A and B meet applicable size-of-person tests.
The assets consist of a (redacted). No sales in or into the United States are
attributable to the (redacted) over the last several years. However, after
the acquisition, the (redacted) will be employed in the U.S., and as of the
time of the acquisition, it is presently contemplated that the (redacted) will already have been moved to the U.S.
As we discussed, the reportability of the above transaction turns upon the proper interpretation of the exemption in 16 C.F.R. 802.50(a)(1) for acquisitions of assets located outside the United States, to which no sales in or into the United States are attributable. You indicated that for assets that have been operated and used outside of the United States, the applicability of the exemption depends not on the actual physical location of the assets at the time of acquisition, but rather upon whether sales in or into the U.S. were attributable to the assets during the most recent year. Where no such U.S. sales are attributable to assets that have been operated and used outside the U.S., you advised that the exemption applies, regardless of whether the assets are physically located inside the United States at the time of the acquisition.
Staff comment: recently moved to the U.S. but generated revenues in a foreign location.
Accordingly, you advised that the transaction described above would be exempt from Hart-Scott under 16 C.F.R. 802.50(a)(1). If this letter does not accurately describe the advice you provided concerning the nonreportability of the transaction, please call me immediately.
Very truly yours,
(redacted)