[Federal Register Volume 61, Number 180 (Monday, September 16, 1996)]
[Notices]
[Pages 48697-48704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23558]


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FEDERAL TRADE COMMISSION

[File No. 961-0046]


NGC Corporation; Proposed Consent Agreement With Analysis To Aid 
Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting 
unfair or deceptive acts or practices and unfair methods of 
competition, this consent agreement, accepted subject to final 
Commission approval, would require, among other things, the Houston, 
Texas-based corporation to resign as operator of two Mont Belvieu, 
Texas natural gas fractionation plants in which it has an interest. The 
agreement resolves charges that NGC's acquisition of certain natural 
gas transportation and processing assets from Chevron Corporation would 
have left only two companies operating four fractionating plants and 
would have extended NGC's control to three of those plants. The 
Commission alleged that the acquisition would substantially reduce 
competition in violation of federal antitrust laws and, ultimately, 
could have led to higher fees for fractionating of natural gas liquids.

DATES: Comments must be received on or before November 15, 1996.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th St. and Pa. Ave., N.W., Washington, D.C. 20580.

FOR FURTHER INFORMATION CONTACT:
George Cary, Federal Trade Commission, H-374, 6th & Pennsylvania Ave, 
NW, Washington, DC 20580. (202) 326-3741.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 2.34 of the 
Commission's Rules of Practice (16 CFR 2.34), notice is hereby given 
that the following consent agreement containing a consent order to 
cease and desist, having been filed with and accepted, subject to final 
approval, by the Commission, has been placed on the public record for a 
period of sixty (60) days. Public comment is invited. Such comments or 
views will be considered by the Commission and will be available for 
inspection and copying at its principal office in accordance with 
Sec. 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR 
4.9(b)(6)(ii)).

Agreement Containing Consent Order

    The Federal Trade Commission (``Commission'') having initiated an 
investigation of the proposed combination involving NGC Corporation 
(``NGC'') and certain assets of Chevron Corporation, and it now 
appearing that NGC, hereinafter sometimes referred to as ``proposed 
respondent,'' is willing to enter into an agreement containing an Order 
to divest certain assets, and to cease and desist from certain acts:
    It is hereby agreed by and between proposed respondent, by its duly 
authorized officers and attorneys, and counsel for the Commission that:
    1. Proposed respondent NGC is a corporation organized, existing and 
doing business under and by virtue of the laws of the state of 
Delaware, with its office and principal place of business located at 
13430 Northwest Freeway, Suite 1200, Houston, Texas 77040.
    2. Proposed respondent admits all the jurisdictional facts set 
forth in the draft of complaint.
    3. Proposed respondent waives:
    a. any further procedural steps;
    b. the requirement that the Commission's decision contain a 
statement of findings of fact and conclusions of law;
    c. all rights to seek judicial review or otherwise to challenge or 
contest the validity of the Order entered pursuant to this agreement; 
and
    d. any claim under the Equal Access to Justice Act.
    4. This agreement shall not become part of the public record of the 
proceeding unless and until it is accepted by the Commission. If this 
agreement is accepted by the Commission, it, together with the draft of 
complaint contemplated thereby, will be placed on the public record for 
a period of sixty (60) days and information in respect thereto publicly 
released. The Commission thereafter may either withdraw its acceptance 
of

[[Page 48698]]

this agreement and so notify the proposed respondent, in which event it 
will take such action as it may consider appropriate, or issue and 
serve its complaint (in such form as the circumstances require) and 
decision, in disposition of the proceeding.
    1. This agreement is for settlement purposes only and does not 
constitute an admission by proposed respondent that the law has been 
violated as alleged in the draft of complaint, or that the facts as 
alleged in the draft complaint, other than jurisdictional facts, are 
true.
    2.This agreement contemplates that, if it is accepted by the 
Commission, and if such acceptance is not subsequently withdrawn by the 
Commission pursuant to the provisions of Sec. 2.34 of the Commission's 
Rules, the Commission may, without further notice to the proposed 
respondent, (1) issue its complaint corresponding in form and substance 
with the draft of complaint and its decision containing the following 
Order to divest and to cease and desist in disposition of the 
proceeding and (2) make information public with respect thereto. When 
so entered, the Ordered to divest and to cease and desist shall have 
the same force and effect and may be altered, modified, or set aside in 
the same manner and within the same time provided by statute for other 
orders. The Order shall become final upon service. Delivery by the 
United States Postal Service of the complaint and decision containing 
the agreed-to Order to proposed respondent's address as stated in this 
agreement shall constitute service. Proposed respondent waives any 
right it may have to any other manner of service. The complaint may be 
used in construing the terms of the Order, and no agreement, 
understanding, representation, or interpretation not contained in the 
Order or the agreement may be used to vary or contradict the terms of 
the Order.
    3. Proposed respondent has read the proposed complaint and Order 
contemplated hereby. Proposed respondent understands that, once the 
Order has been issued, it will be required to file one or more 
compliance reports showing that it has fully compiled with the Order. 
Proposed respondent further understands that it may be liable for civil 
penalties in the amount provided by law for each violation of the Order 
after it becomes final.

Order

I

    It is ordered That, as used in this Order, the following 
definitions shall apply:
    A. ``Combination'' means the transactions contemplated by the 
Combination Agreement and Plan of Merger, dated as of May 22, 1996, 
among NGC Corporation, Chevron U.S.A. Inc., and Midstream Combination 
Corp.
    B. ``Commercial Operator'' means the person or entity with the 
legal authority to enter into contracts on behalf of a Fractionation 
Facility to provide third parties with the service of fractionation for 
a fee ans to set the prices offered to third parties for such service.
    C. ``Facility Operator'' means any person or entity with the legal 
authority to engage in any activity involved in the routine management, 
supervision or operation of a Fractionation Facility, including, but 
not limited to: the receipt, measurement, handling and storage of raw 
natural gas liquids delivered to the Fractionation Facility; the 
maintenance, repair and operation of any equipment, machinery or other 
assets used in the course of the operation of the Fractionation 
Facility; the handling, storage and movement of Specification Products 
produced at the Fractionation Facility prior to receipt by a third 
party; the purchase and use of material and supplies in connection with 
the operation, maintenance and repair of the Fractionation Facility; 
the provision of accounting, billing and scheduling functions necessary 
for the processing of transactions with Fractionation customers; the 
provision of engineering services necessary for operation of the 
Fractionation Facility; preparation and submission of any necessary 
reports to governmental authorities; the procurement of any necessary 
licenses and permits on behalf of the Fractionation Facility; the 
purchase of services necessary for the Fractionation Facility's 
operation; and the supervision of the implementation of any decision to 
expand or modify, repair or maintain the Fractionation Facility.
    D. ``Fractionation'' means the process of separating raw natural 
gas liquids into specification products.
    E. ``Fractionation Facility'' means a facility that separates raw 
natural gas liquids into specification products.
    F. ``GCF means Gulf Coast Fractionators, a Texas general 
partnership.
    G. ``GCF'' Expansion Project'' means any current or future project 
involving an expenditure for equipment or other capital assets 
reasonably necessary to increase the capacity of the GCF Fractionation 
Facility beyond its effective capacity level at the time the 
expenditure is undertaken.
    H. ``GCF Fractionation Facility'' means the Fractionation Facility 
owned by GCF located at 1.5 miles west of Highway 146 on FM 1942, Mont 
Belvieu, Chambers County, Texas.
    I. ``GCF Partnership Agreement'' means the Amended and Restated 
Partnership Agreement between Trident NGL, Inc. and Liquid Energy 
Corporation and Conoco Inc., effective December 1, 1992.
    J. ``MB I'' means Mont Belvieu I, a Fractionation Facility, 
originally constructed by Cities Service Company in 1970, located at 
9900 FM 1942, Mont Belvieu, Chambers County, Texas.
    K. ``MB I Ownership Agreement'' means the Agreement for the 
Construction, Ownership and Operation of the Mont Belvieu I 
Fractionation Facility between Trident NGL, Inc. and Union Pacific 
Fuels, Inc., dated November 17, 1993, and any subsequent amendments 
thereof.
    L. ``NGC'' means NGC Corporation, its directors, officers, 
employees, agents and representatives, predecessors, successors and 
assigns; its subsidiaries, divisions, and groups and affiliates 
controlled by NGC, and the respective directors, officers, employees, 
agents, representatives, successors and assigns of each.
    M. ``Property to be Divested'' means NGC's interest in (1) MB I; 
and (2) all assets, title, properties, interest, rights and privileges, 
of whatever nature, tangible and intangible, and other property of 
whatever description and location used in the business of MB I 
including, without limitation:
    1. All buildings, machinery, fixtures, equipment, vehicles, 
pipelines, storage facilities, furniture, tools, supplies, spare parts 
and other tangible personal property located in Mont Belvieu, Texas;
    2. All rights, title and interest in and to real property located 
in Mont Belvieu, Texas, together with appurtenances, licenses, and 
permits;
    3. All books, records and files;
    4. All rights under warranties and guarantees for equipment, 
express or implied;
    5. All technical information and drawings for equipment;
    6. All vendor lists, catalogs, sales promotion literature, and 
advertising materials;
    7. All inventory of finished goods, work in progress, raw materials 
and supplies;

[[Page 48699]]

    8. All the option of the Acquirer all rights, title and interests 
in and to the contracts and leases entered into in the ordinary course 
of business with suppliers, measurement equipment operators, storage 
facility operators, transmission pipeline operators, Fractionation 
customers and personal property lessors and licensors, pertaining to 
the operation of MB I, provided that where third party consent is 
required to complete the transfer described in this subparagraph, NGC 
shall use best efforts to obtain such third party's consent.
    N. ``Specification products'' mean ethane, propane, ethane-propane 
mix, iso-butane, normal-butane and natural gasoline.

II

    It is further ordered That:
    A. Within six (6) months after the signing of the Agreement 
Containing Consent Order, NGC shall divest, absolutely and in good 
faith, the Property to be Divested. The Property to be Divested shall 
be divested only to an acquirer or acquirers that receive the prior 
approval of the Commission, and only in a manner that receives the 
prior approval of the Commission. The purpose of the divestiture 
required by this Order is to ensure the continued operation of MB I in 
the Fractionation business in the same manner as conducted by MB I at 
the time of the proposed divestiture and to remedy the lessening of 
competition alleged in the Commission's complaint.
    B. Upon the signing of the Agreement Containing Consent Order, NGC 
shall immediately give the requisite six (6) months notice under the MB 
I Ownership Agreement of its intent to cease serving as the Commercial 
and Facility Operator at MB I. Within thirty (30) days after the 
signing of the Agreement Containing Consent Order, NGC shall cease to 
serve as the Commercial Operator of MB I, provided the other party to 
the MB I Ownership Agreement agrees to be installed as the Commercial 
Operator of MB I by that date. In the event that the other party to the 
MB I Ownership Agreement has not elected to become the Commercial 
Operator within said thirty (30) day period, NGC may continue to serve 
as the Commercial Operator of MB I, but shall do so: (i) Under the 
provisions of Paragraph 3 of the Hold Separate Agreement (``Hold 
Separate''), attached hereto and made a part hereof as Appendix I; and 
(ii) only until divestiture contemplated in Paragraph II.A. of this 
Order is achieved, provided such divestiture occurs within the six-
month period described therein. If such divestiture does not occur 
within said six-month period, NGC shall cease to serve as the 
Commercial Operator of MB I by the date on which that six-month period 
expires and the provisions of Paragraph III.C. of this Order shall 
apply. NGC may continue to serve as Facility Operator of MB I until the 
divestiture contemplated in Paragraph II.A. of this Order is achieved, 
provided such divestiture occurs within the six-month period described 
therein. If such divestiture does not occur within that six-month 
period, NGC shall cease to serve as the Facility Operator of MB I by 
the date on which that six-month period expires and the provisions of 
Paragraph III.C. of this Order shall apply.
    C. NGC shall do nothing to prevent, impede or interfere with the 
person or entity that succeeds NGC as either the Commercial Operator or 
the Facility Operator of MB I in undertaking reasonable efforts to 
offer employment to any NGC employee who assists in the performance of 
any activities that NGC engages in as the Commercial Operator or 
Facility Operator at MB I, respectively.
    D. Pending divestiture of the Property to be Divested, NGC shall 
take no action impairing the validity and marketability of the Property 
to be Divested and shall not cause or permit the destruction, removal, 
or impairment of any assets or business of the Property to be Divested, 
except in the ordinary course of business and except for ordinary wear 
and tear.
    E. NGC shall comply with the Agreement to Hold Separate attached to 
this Order and made a part thereof (``Hold Separate''). Said Hold 
Separate shall continue in effect until NGC has divested the Property 
to be Divested or until such other time as the Hold Separate provides.

III

    It is further ordered That:
    A. If NGC has not divested, absolutely and in good faith and with 
the Commission's prior approval, the Property to be Divested as 
required by Paragraph II of this Order within six (6) months after the 
signing of the Agreement Containing Consent Order, the Commission may 
appoint a trustee to divest the Property to be Divested. In the event 
the Commission or the Attorney General brings an action pursuant to 
Section 5(l) of the Federal Trade Commission Act, or any other statute 
enforced by the Commission, NGC shall consent to the appointment of a 
trustee in such action. Neither the appointment of a trustee nor a 
decision not to appoint a trustee under this Paragraph shall preclude 
the Commission or the Attorney General from seeking civil penalties or 
any other relief available to it, including a court-appointed trustee, 
pursuant to Section 5(l) of the Federal Trade Commission Act, or any 
other statute enforced by the Commission, for any failure by NGC to 
comply with this Order.
    B. If a trustee is appointed by the Commission or a court pursuant 
to Paragraph III.A. of this Order, NGC shall consent to the following 
terms and conditions regarding the trustee's powers, authorities, 
duties and responsibilities:
    1. The Commission shall select the trustee, subject to the consent 
of NGC, which consent shall not be unreasonably withheld. The trustee 
shall be a person with experience and expertise in acquisitions and 
divestitures. If NGC has not opposed, in writing, the selection of any 
proposed trustee within ten (10) days after notice by the staff of the 
Commission to NGC of the identity of any proposed trustee, NGC shall be 
deemed to have consented to the selection of the proposed trustee.
    2. Subject to the prior approval of the Commission, the trustee 
shall have the exclusive power and authority to divest the Property to 
be Divested.
    3. Within ten (10) days after appointment of the trustee, NGC shall 
execute a trust agreement that, subject to the prior approval of the 
Commission and, in the case of a court-appointed trustee, of the court, 
transfers to the trustee all rights and powers necessary to permit the 
trustee to effect the divestiture required by this Order.
    4. The trustee shall have twelve (12) months from the date the 
Commission approves the trust agreement described in Paragraph III.B.3 
to accomplish the divestiture, which shall be subject to the prior 
approval of the Commission. If, however, at the end of the twelve-month 
period the trustee has submitted a plan of divestiture or believes that 
divestiture can be accomplished within a reasonable time, the 
divestiture period may be extended by the Commission, or in the case of 
a court-appointed trustee, by the court; provided, however, that the 
Commission may extend the divestiture period only two (2) times.
    5. NGC shall provide the trustee with full and complete access to 
the personnel, books, records and facilities relating to the Property 
to be Divested, or any other relevant information, as the trustee may 
request. NGC shall develop such financial or other information as such 
trustee may request and shall cooperate with the trustee. NGC shall 
take no action to interfere with or impede the trustee's accomplishment 
of the divestiture. Any delays in

[[Page 48700]]

divestiture caused by NGC shall extend the time for divestiture under 
this Paragraph in an amount equal to the delay, as determined by the 
Commission or for a court-appointed trustee, the court.
    6. The trustee shall make reasonable efforts to negotiate the most 
favorable price and terms available in each contract that is submitted 
to the Commission, subject to NGC's absolute and unconditional 
obligation to divest at no minimum price. The divestiture shall be made 
in the manner and to the acquires or acquires as set out in Paragraph 
II of this Order; provided, however, if the trustee receives bona fide 
offers from more than one acquiring entity, and if the Commission 
determines to approve more than one such acquiring entity, the trustee 
shall divest to the acquiring entity or entities selected by NGC from 
among those approved by the Commission.
    7. The trustee shall serve, without bond or other security, at the 
cost and expense of NGC, on such reasonable and customary terms and 
conditions as the Commission or the court may set. The trustee shall 
have authority to employ, at the cost and expense of NGC, such 
consultants, accountant, attorneys, investment bankers, business 
brokers, appraisers, and other representatives and assistants as are 
reasonably necessary to carry out the trustee's duties and 
responsibilities. The trustee shall account for all monies derived from 
the divestiture and all expenses incurred. After approval by the 
Commission and, in the case of a court-appointed trustee, by the court, 
of the account of the trustee, including fees for his or her services, 
all remaining monies shall be paid at the direction of NGC and the 
trustee's power shall be terminated. The trustee's compensation shall 
be based at least in a significant part on a commission arrangement 
contingent on the trustee's divesting the Property to be Divested.
    8. NGC shall indemnify the trustee and hold the trustee harmless 
against any losses, claims, damages, liabilities, or expenses arising 
out of, or in connection with, the performance of the trustee's duties, 
including all reasonable fees of counsel and other expenses incurred in 
connection with the preparation for, or defense of any claim, whether 
or not resulting in any liability, except to the extent that such 
liabilities, losses, damages, claims, or expenses result from 
misfeasance, gross negligence, willful or wanton acts, or bad faith by 
the trustee.
    9. If the trustee ceases to act or fails to act diligently, a 
substitute trustee shall be appointed in the same manner as provided in 
Paragraph III.A. of this Order.
    10. The Commission or, in the case of a court-appointed trustee, 
the court, may on its own initiative or at the request of the trustee 
issue such additional orders or directions as may be necessary or 
appropriate to accomplish the divestine required by this Order.
    11. The trustee shall have no obligation or authority to operate or 
maintain the Property to be Divested.
    12. The trustee shall report in writing to NGC and to the 
Commission every sixty (60) days concerning the trustee's efforts to 
accomplish divestiture.
    C. If NGC has not divested, absolutely and in good faith and with 
the Commission's prior approval, the Property to be Divested as 
required by Paragraph II of this Order within six (6) months after the 
signing of the Agreement Containing Consent Order, NGC shall, by such 
date: (i) Cease to serve as the Commercial Operator of MB I (assuming 
NGC is then serving as Commercial Operator under the provisions of 
Paragraph 3 of the Hold Separate); (ii) cease to serve as the Facility 
Operator of MB I; and (iii) take all necessary steps under the MB I 
Ownership Agreement to install the other party to said Ownership 
Agreement as the Commercial Operator and the Facility Operator of MB I.

IV

    It is further ordered That:
    A. Upon the signing of the Agreement Containing Consent Order, NGC 
shall immediately give the requisite six (6) month notice under the GCF 
Partnership Agreement of its intent to cease serving as the Commercial 
and Facility Operator at GCF. Within thirty (30) days after the signing 
of the Agreement Containing Consent Order, NGC shall cease to serve as 
the Commercial Operator of GCF, provided a replacement agrees to be 
installed as the Commercial Operator of GCF by that date. Within one 
hundred and twenty (120) days after the signing of the Agreement 
Containing Consent Order, NGC shall cease to serve as the Facility 
Operator of GCF, provided a replacement agrees to be installed as the 
Facility Operator of GCF by that date. In the event that a replacement 
has not elected to assume the activities of the Commercial Operator of 
GCF within the thirty (30) day period provided or that a replacement 
has not elected to assume the activities of the Facility Operator of 
GCF within the one hundred and twenty (120) day period provided, then 
the provisions of Paragraph 4 of the Hold Separate shall apply, but 
only until six (6) months after the signing of the Agreement Containing 
Consent Order. NGC shall, by the end of said six (6) month period: (i) 
Cease to serve as the Commercial Operator of GCF (assuming NGC is then 
serving as Commercial Operator under the provisions of Paragraph 4 of 
the Hold Separate); (ii) cease to serve as the Facility Operator of 
GCF; and (iii) take all necessary steps under the GCF Partnership 
Agreement to install one of the other parties to said Partnership 
Agreement as the Commercial Operator and the Facility Operator of GCF.
    B. NGC shall do nothing to prevent, impede or interfere with the 
person or entity that succeeds NGC as either the Commercial Operator or 
the Facility Operator of GCF in undertaking reasonable efforts to offer 
employment to any NGC employees who assist in the performance of any 
activities that NGC engages in as the Commercial Operator or as the 
Facility Operator at GCF, respectively.
    C. In its capacity as a GCF partner, GCF shall sponsor and support 
an amendment to the GCF Partnership Agreement to allow any two partners 
(together holding at least a 50% ownership interest in GCF) to commit 
GCF to undertake a GCF Expansion Project, while providing that a 
partner may choose to limit its participation in the costs and benefits 
of such Project. Until such time as the GCF Partnership Agreement is so 
amended, NGC shall vote in favor of any GCF Expansion Project proposed 
by another GCF partner, and furthermore NGC shall take no action to 
prevent, block, delay or impede in any way any GCF Expansion Project, 
but rather shall provide all reasonable cooperation necessary to 
facilitate any such Project sought by other GCF partner or partners; 
provided however, that this provision does not obligate NGC to accept 
any financial burden or legal responsibility with respect to such GCF 
Expansion Project to the extent that such burden or responsibility is 
out of proportion to NGC's ownership interest in GCF.
    D. Except as permitted in the Hold Separate, NGC shall not 
participate in any matter or negotiations pertaining to fractionation 
fees or other terms pursuant to which customers other than NGC obtain 
fractionation services at GCF.

V

    It is further ordered That, for a period of ten (10) years from the 
date this Order becomes final, NGC shall not, without providing advance 
written notification to the Commission, directly or indirectly, through 
subsidiaries,

[[Page 48701]]

partnerships, or otherwise: (i) Acquire any stock, share capital, 
equity, or other interest in any concern, corporate or non-corporate, 
engaged at the time of such acquisition, or within the two years 
preceding such acquisition, in the Fractionation business within ten 
(10) miles of Mont Belvieu, Texas, or (ii) become the Commercial 
Operator or Facility Operator of any Fractionation Facility within ten 
(10) miles of Mont Belvieu, Texas, other than the Fractionation 
Facility currently operated by Chevron U.S.A. Inc. Said notification 
shall be given on the Notification and Report Form set forth in the 
Appendix to Part 803 of Title 16 of the Code of Federal Regulations as 
amended (hereinafter referred to as ``the Notification''), and shall be 
prepared and transmitted in accordance with the requirements of that 
part, except that: no filing fee will be required for any such 
notification, notification shall be filed with the Office of the 
Secretary of the Commission, notification need not be made to the 
United States Department of Justice, and notification is required only 
of NGC and not of any other party to the transaction. NGC shall provide 
the Notification to the Commission at least thirty (30) days prior to 
acquiring any such interest (hereinafter referred to as the ``first 
waiting period''). If, within the first waiting period, representatives 
of the Commission make a written request for additional information, 
NGC shall not consummate the acquisition until twenty (20) days after 
substantially complying with such request for additional information. 
Early termination of the waiting periods in this paragraph may be 
requested and, where appropriate, granted by letter from the 
Commission's Bureau of Competition.
    Provided, however, that prior notification shall not be required by 
this Paragraph V of this Order for:
    A. The construction or development by NGC of a new Fractionation 
Facility or the installation of NGC as the Commercial Operator or 
Facility Operator of any such facility; or
    B. The expansion or enhancement of an existing Fractionation 
Facility owned by NGC in whole or in part; or
    C. Any transaction for which notification is required to be made, 
and has been made, pursuant to Section 7A of the Clayton Act, 15 U.S.C. 
18a.

VI

    It is further ordered That:
    A. Within sixty (60) days after the date the Agreement Containing 
Consent Order is signed and every sixty (60) days thereafter until NGC 
has fully complied with the provisions of Paragraphs II or III of this 
Order, NGC shall submit to the Commission a verified written report 
setting forth in detail the manner and form in which it intends to 
comply, is complying, and has complied with Paragraphs II and III of 
this Order. NGC shall include in its compliance reports, among other 
things that are required from time to time, a full description of the 
efforts being made to comply with Paragraphs II and III of the Order, 
including a description of all substantive contacts or negotiations for 
the divestiture and the identity of all parties contacted. NGC shall 
include in its compliance reports, subject to any legally recognized 
privilege, copies of all written communications to and from such 
parties, all internal memoranda, and all reports and recommendations 
concerning divestiture.
    B. One (1) year from the date this Order becomes final, annually 
for the next nine (9) years on the anniversary of the date this Order 
becomes final, and at other times as the Commission may require, NGC 
shall file a verified written report with the Commission setting forth 
in detail the manner and form in which it has complied and is complying 
with Paragraphs IV and V of this Order. Such reports shall include, but 
not be limited to, a listing by name and location of all Fractionation 
Facilities in the Mont Belvieu, Texas, in which NGC has any ownership 
interest, including but not limited to ownership interest obtained due 
to default, foreclosure proceedings or purchases in foreclosure, made 
by NGC during the twelve (12) months preceding the date of the report.

VII

    It is further ordered That, for a period of ten (10) years from the 
date this Order becomes final, NGC shall notify the Commission at least 
thirty (30) days prior to any proposed change in its organization that 
may affect compliance obligations under this Order, such as 
dissolution, assignment or sale resulting in the emergence of a 
successor, or the creation or dissolution of subsidiaries, or any other 
change that may affect compliance obligations under this Order.

VIII

    It is further ordered That, for the purpose of determining or 
securing compliance with this Order, subject to any legally recognized 
privilege, upon written request with reasonable notice to NGC made to 
its principal officer, NGC shall permit any duly authorized 
representative or representatives of the Commission:
    A. Access, during the office hours of NGC and in the presence of 
counsel, to inspect and copy all books, ledgers, accounts, 
correspondence, memoranda and other records and documents in the 
possession or under the control of NGC relating to any matters 
contained in this Order; and
    B. Upon five (5) days' notice to NGC and without restraint or 
interference therefrom, to interview officers or employees of NGC, who 
may have counsel present, regarding such matters.

IX

    It is further ordered That this Order shall terminate twenty (20) 
years from the date this Order becomes final.

Appendix I

Agreement To Hold Separate

    This Agreement to Hold Separate (``Hold Separate'') is by and 
between NGC Corporation (``NGC''), a corporation organized and existing 
under the laws of the state of Delaware, with its office and principal 
place of business located at 13430 Northwest Freeway, Suite 1200, 
Houston, Texas 77040, and the Federal Trade Commission (the 
``Commission''), an independent agency of the United States Government, 
established under the Federal Trade Commission Act of 1914, as amended, 
15 U.S.C. 41, et seq. (collectively, the ``Parties'').

Premises

    Whereas, on or about May 22, 1996, NGC entered into a Combination 
Agreement and Plan of Merger with Chevron U.S.A. Inc., a subsidiary of 
Chevron Corporation (``Chevron''), and Midstream Combination Corp., 
which contemplates certain transactions (hereinafter, such transactions 
collectively referred to as ``the Proposed Combination''); and
    Whereas, NGC and Chevron both operate fractionation facilities in 
Mont Belvieu, Texas; and
    Whereas, the Commission is now investigating the Proposed 
Combination to determine whether it would violate any of the statutes 
enforced by the Commission; and
    Whereas, if the Commission accepts the Agreement Containing Consent 
Order (``Consent Agreement''), the Commission must place the Consent 
Agreement on the public record for public comment for a period of at 
least sixty (60) days and may subsequently withdraw such acceptance 
pursuant to the provisions of Section 2.34 of the Commission's Rules; 
and
    Whereas, the Commission is concerned that if an understanding is 
not reached preserving competition

[[Page 48702]]

during the period prior to the final issuance of the Consent Agreement 
by the Commission (after the 60-day public notice period), there may be 
interim competitive harm, and relief resulting from a proceeding 
challenging the legality of the Proposed Combination might not be 
possible, or might be less than an effective remedy; and
    Whereas, the Commission is concerned that if the Proposed 
Combination is consummated, it will be necessary to preserve the 
Commission's ability to require the divestiture of the Properties to be 
Divested as described in Paragraph I of the Consent Order and the 
Commission's right to seek to restore the NGC and Chevron fractionation 
businesses at Mont Belvieu, Texas as independent, viable competitors; 
and
    Whereas, the purpose of this Hold Separate and the Consent 
Agreement is to:
    (i) preserve the Property to be Divested as a viable independent 
business pending its divestiture as a viable and ongoing enterprise;
    (ii) remedy any anticompetitive effects of the Proposed 
Combination; and
    (iii) preserve the Property to be Divested as an ongoing, 
competitive entity engaged in the same business in which it is 
presently employed until divestiture is achieved; and
    Whereas, NGC's entering into this Hold Separate shall in no way be 
construed as an admission by NGC that the Proposed Combination 
constitutes a violation of any statute; and
    Whereas, NGC understands that no act or transaction contemplated by 
this Hold Separate shall be deemed immune or exempt from the provisions 
of the antitrust laws or the Federal Trade Commission Act by reason of 
anything contained in this Agreement.
    Now, therefore, the parties agree, upon the understanding that the 
Commission has not yet determined whether the Proposed Combination will 
be challenged, and in consideration of the Commission's agreement that, 
at the time it accepts the Consent Agreement for public comment it will 
grant early termination of the Hart-Scott-Rodino waiting periods for 
any transactions that are part of the Proposed Combination and are 
subject to any Hart-Scott-Rodino waiting period that has not yet 
expired, and unless the Commission determines to reject the Consent 
Agreement, it will not seek further relief from NGC with respect to the 
Proposed Combination, except that the Commission may exercise any and 
all rights to enforce this Hold Separate, the Consent Agreement to 
which it is annexed and made a part thereof, and the Order contained 
therein, once it becomes final, and in the event that the required 
divestiture is not accomplished, to seek divestiture of the Property to 
be Divested, and other relief, as follows:
    1. NGC agrees to execute and be bound by the Consent Agreement;
    2. NGC agrees that from the date of its signing of the Consent 
Agreement until the earliest of the dates listed in subparagraphs 2.a-
2.c, it will comply with the provisions of paragraphs 3, 4, 5 and 6 of 
this Hold Separate:
    a. three business days after the Commission withdraws its 
acceptance of the Consent Agreement pursuant to the provisions of 
Section 2.34 of the Commission's Rules;
    b. 120 days after publication in the Federal Register of the 
Consent Agreement, unless by that date the Commission has finally 
accepted such Agreement;
    c. the day after the divestitures required by the Consent Agreement 
have been completed.
    3. With respect to the Fractionation Facility located in the city 
of Mont Belvieu, Chambers County, Texas, partially owned by NGC and 
known as Mont Belvieu I (``MB I''), NGC agrees to cease serving as the 
Commercial Operator within thirty days (30) after signing the Consent 
Agreement, provided that the other party to the MB I Ownership 
Agreement agrees to be installed as the Commercial Operator of MB I by 
that date. In the event that the other party to the MB I Ownership 
Agreement has not elected to become the Commercial Operator within said 
thirty (30) day period, NGC will hold its interests in the assets and 
business of MB I separate and apart on the following terms and 
conditions;
    a. NGC's rights, obligations and duties as the Commercial Operator 
of MB I shall be exclusively administered by David Rook. All NGC 
employees who are necessary to perform, or in any way assist in the 
performance of, any of the activities of the Commercial Operator of MB 
I shall report to Mr. Rook, and NGC shall provide the Commission with a 
list of all such employees, together with a full description of the 
assigned duties of each listed employee and an explanation of how such 
duties are necessary for the effective functioning of the Commercial 
Operator of MB I, which list shall be updated whenever its membership 
or any member's assigned duties change. NGC shall have no authority to 
remove Mr. Rook nor any other NGC employee thus assigned to report to 
him, except for cause.
    b. Except as provided by this Hold Separate, neither Mr. Rook nor 
any employee of NGC named in the list required in Paragraph 3.a. above 
shall disclose any confidential information concerning MB I to an NGC 
employee not named on any such list or use confidential information for 
any purpose other than in the performance of that employee's assigned 
duties enumerated in the list required in Paragraph 3.a. above. Said 
employees shall enter a confidentiality agreement prohibiting 
disclosure of confidential information. Neither Mr. Rook nor any NGC 
employee assigned to report to him pursuant to this Hold Separate shall 
participate in any business decision or attempt to influence any such 
decision involving any other Fractionation Facility in which NGC has an 
interest. Neither Mr. Rook nor any NGC employees assigned to report to 
him pursuant to this Hold Separate shall have access to any 
confidential information concerning any other Fractionation Facility in 
which NGC has an interest. Meetings of the MB I Management Committee 
during the term of this Hold Separate shall be stenographically 
transcribed and the transcripts retained for two (2) years after the 
termination of this Hold Separate; and
    c. NGC shall do nothing to prevent, impede or interfere with the 
person or entity that succeeds NGC as either the Commercial Operator or 
the Facility Operator of MB I in undertaking reasonable efforts to 
offer employment to any NGC employees who assist in the performance of 
any activities that NGC engages in as the Commercial Operator at MB I 
or as the Facility Operator at MB I, respectively.
    4. With respect to the Fractionation Facility located in the city 
of Mont Belvieu, Chambers County, Texas, and owned by a partnership 
known as Gulf Coast Fractionators (``GCF'') in which NGC is a partner, 
NGC agrees to cease serving as the Commercial Operator within thirty 
(30) days after signing the Consent Agreement, provided a replacement 
agrees to be installed as the Commercial Operator of GCF by that date. 
Within one hundred and twenty (120) days after the signing of the 
Consent Agreement, NGC shall cease to serve as the Facility Operator of 
GCF, provided a replacement agrees to be installed as the Facility 
Operator of GCF by that date. In the event that a replacement has not 
elected to assume the activities of the Commercial Operator of GCF 
within the thirty (30) day period provided or that a replacement has 
not elected to assume the activities of the Facility Operator of GCF 
within the one hundred and twenty (120) day period provided, NGC will 
hold its interests in the assets and

[[Page 48703]]

business of GCF separate and apart on the following terms and 
conditions:
    a. NGC's rights, obligations and duties as the Commercial Operator 
of GCF, in the first instance, and as the Facility Operator, of GCF, in 
the second instance, shall be exclusively administered by an NGC 
designee. In either instance, all NGC employees who are necessary to 
perform, or in any way assist in the performance of, any of the 
activities being administered by said designee shall report to said NGC 
designee, and NGC shall provide the Commission with a list of all such 
employees, together with a full description of the assigned duties of 
each listed employee and an explanation of how such duties are 
necessary for the effective functioning of, in the first instance, the 
Commercial Operator of GCF, and in the second instance, the Facility 
Operator of GCF, which list shall be updated whenever its membership or 
any member's assigned duties changes. NGC shall have no authority to 
remove its designee or any other NGC employee thus assigned to report 
to said designee, except for cause.
    b. Except as provided by this Hold Separate, neither the NGC 
designee to be identified pursuant to Paragraph 4.a. above nor any 
employee of NGC named in the list required by Paragraph 4.a. above 
shall disclose any confidential information concerning GCF to an NGC 
employee not named on any such list or use confidential information for 
any purpose other than in the performance of that employee's assigned 
duties enumerated in the list required in Paragraph 4.a. above. Said 
employees shall enter a confidentiality agreement prohibiting 
disclosure of confidential information. Neither the NGC designee nor 
any NGC employee assigned to report to this individual pursuant to this 
Hold Separate shall participate in any business decision or attempt to 
influence any such decision involving any other Fractionation Facility 
in which NGC has an interest. Neither the NGC designee nor any NGC 
employees assigned to report to him pursuant to this Hold Separate 
shall have access to any confidential information concerning any other 
Fractionation Facility in which NGC has an interest. Meetings of the 
GCF Management Committee during the term of this Hold Separate shall be 
stenographically transcribed and the transcripts retained for two (2) 
years after the termination of this Hold Separate.
    5. With respect to GCF, NGC further agrees:
    a. To do nothing to prevent, impede or interfere with the person or 
entity that succeeds NGC as either the Commercial Operator or the 
Facility Operator of GCF in undertaking reasonable efforts to offer 
employment to any NGC employees who assist in the performance of any 
activities that NGC engages in as the Commercial Operator at GCF or as 
the Facility Operator at GCF, respectively; and
    b. In its capacity as a GCF partner, NGC shall sponsor and support 
an amendment to the GCF Partnership Agreement to allow any two partners 
(together holding at least a 50% ownership interest in GCF) to commit 
GCF to undertake a GCF Expansion Project, while providing that a 
partner may choose to limit its participation in the costs and benefits 
of such Project. Until such time as the GCF Partnership Agreement is so 
amended, NGC shall vote in favor of any GCF Expansion Project proposed 
by another GCF partner, and furthermore NGC shall take no action to 
prevent, block, delay or impede in any way any GCF Expansion Project, 
but rather shall provide all reasonable cooperation necessary to 
facilitate any such Project sought by other GCF partner or partners, 
provided however, that this provision does not obligate NGC to accept 
any financial burden or legal responsibility with respect to such GCF 
Expansion Project to the extent that such burden or responsibility is 
out of proportion to NGC's ownership interest in GCF; and
    c. Except as permitted in this Hold Separate, NGC shall not 
participate in any matter or negotiations pertaining to fractionation 
fees or other terms pursuant to which customers other than NGC obtain 
fractionation services at GCF.
    6. From the date of the signing of the Consent Agreement, NGC shall 
take no action impairing the viability and marketability of the 
Property to be Divested and shall not cause or permit the destruction, 
removal, or impairment of any asset or business of the Property to be 
Divested, except in the ordinary course of business and except for 
ordinary wear and tear. From the date of the signing of the Consent 
Agreement, NGC shall take no action that would in any manner impair, 
impede or restrict its ability to comply with any provision of the 
Consent Agreement.
    7. NGC waives all rights to contest the validity of this Hold 
Separate.
    8. For the purpose of determining or securing compliance with this 
Hold Separate, subject to any legally recognized privilege, and upon 
written request with reasonable notice to NGC made to its principal 
office, NGC shall permit any duly authorized representative or 
representative of the Commission.
    a. Access, during the office hours of NGC and in the presence of 
counsel, to inspect and copy all books, ledgers, accounts, 
correspondence, memoranda, and other records and documents in the 
possession or under the control of NGC relating to compliance with this 
Hold Separate; and
    b. Upon five (5) days' notice to NGC and without restraint or 
interference from it but in the presence of its counsel, to interview 
officers or employees of it regarding any such matters.
    9. Should the Federal Trade Commission seek in any proceeding to 
compel NGC to divest itself of the Property to be Divested under the 
Consent Agreement, or any other assets that it may hold, or to seek any 
other injunctive or equitable relief, NGC shall not raise any objection 
based upon the expiration of the applicable Hart-Scott-Rodino Antitrust 
Improvements Act waiting period or the fact that the Commission has 
permitted the Proposed Combination. NGC also waives all rights to 
contest the validity of this Hold Separate.
    10. This Hold Separate shall be binding upon NGC upon the signing 
of the Consent Agreement. NGC agrees that should it violate any of the 
provisions of this Hold Separate, it is subject to the payment of up to 
ten thousand dollars ($10,000) for each such violation. NGC also agrees 
that the violation of any of the provisions of this Hold Separate may 
subject NGC to such other and further equitable relief as a United 
States district court may deem appropriate to grant.

NGC Corporation.
C.L. Watson,
President and Chief Executive Officer.

Federal Trade Commission.
Stephen Calkins,
General Counsel.

Analysis To Aid Public Comment on the Provisionally Accepted 
Consent Order

    The Federal Trade Commission has accepted for public comment from 
NGC Corporation (``NGC''), an agreement containing a consent order. The 
agreement is designed to remedy any anticompetitive effects stemming 
from NGC's acquisition of certain assets from Chevron Corporation 
(``Chevron'').
    This agreement has been placed on the public record for sixty (60) 
days for reception of comments from interested persons. Comments 
received during this period will become part of the public record. 
After sixty (60) days, the Commission will again review the agreement 
and the comments received, and will decide whether it should

[[Page 48704]]

withdraw from the agreements or make final the order contained in the 
agreement.
    The Commission's Complaint charges that on or about May 22, 1996, 
NGC agreed to acquire certain assets owned by Chevron's subsidiary, 
Chevron U.S.A. Inc. (``Chevron USA''). Among the Chevron assets that 
NGC agreed to acquire is the fractionation facility at Mont Belvieu, 
Texas operated by the Warren Petroleum Company division (``Warren'') of 
Chevron USA. The Commission has reason to believe that the acquisition, 
as well as the agreement to enter into the acquisition, may have 
anticompetitive effects and be in violation of Section 7 of the Clayton 
Act and Section 5 of the Federal Trade Commission Act.
    According to the Commission's Complaint, NGC and Chevron are direct 
competitors in the market for the fractionation of natural gas liquids 
at Mont Belvieu, Texas. The Complaint alleges that this market is 
highly concentrated and entry is difficult or unlikely. The Commission 
was concerned that the acquisition may reduce competition in the Mont 
Belvieu fractionation market, by eliminating the direct competition 
between NGC and Chevron, by increasing the likelihood that NGC will 
unilaterally exercise market power, and by increasing the likelihood 
of, or facilitating, collusive or coordinated interaction among the few 
remaining significant competitors. Consequently, the acquisition may 
lead to anticompetitive increases in fractionation prices.
    Typically, in the purification of natural gas (i.e., methane), a 
liquefied stream of certain heavier hydrocarbon compounds, called raw 
mix natural gas liquids, is also produced. Fractionation is the process 
of separating raw mix natural gas liquids into certain discrete, 
highly-marketable chemical commodities (i.e., ethane, propane, ethane-
propane mix, iso-butane, normal-butane and natural gasoline), called 
natural gas liquids specification products. Natural gas liquids 
specification products are ultimately used in the manufacture of 
petrochemicals, in the refining of gasoline, and as bottled fuel, among 
other uses.
    The Commission's investigation of this matter found potential 
anticompetitive problems for producers of raw mix who obtain 
fractionation services at Mont Belvieu, Texas. Mont Belvieu is the 
nation's hub for the fractionation of raw mix natural gas liquids and 
the subsequent sale of fractionated specification products. Producers 
of raw mix natural gas liquids throughout much of Texas, New Mexico, 
western Wyoming and western Colorado have no good alternative to Mont 
Belvieu for their fractionation needs. There are only a few facilities 
providing fractionation services in Mont Belvieu, among them are 
Chevron's Warren facility and two partially owned by NGC--Mont Belvieu 
I (``MB I'') and Gulf Coast Fractionators (``GCF'').
    The agreement containing consent order is designed to remedy the 
Commission's competitive concern about the acquisition. Under the terms 
of the proposed order, NGC must divest its interest in MB I within six 
months to a purchaser approved by the Commission. If NGC fails to 
complete the divestiture within the six months, the Commission may 
appoint a trustee to undertake the task. With respect to GCF, NGC is 
required to give up its management role and to refrain from 
participating in future decisions on pricing or capital expansion. 
Since NGC will be permitted to retain its minority interest in GCF, 
after the acquisition NGC will still own interests in two fractionation 
facilities. However, NGC will have little incentive to operate Warren 
in a less-than-competitive manner in the expectation of benefitting 
from higher prices at GCF. Because most of GCF's capacity is already 
accounted for by long-term contracts at fixed formula prices and by 
NGC's captive production, GCF will have little opportunity to raise its 
prices. The proposed divestitures of MB I and of management 
responsibility at GCF will actually increase from three to four the 
number of plant operators in this market, thus increasing the number of 
independent decision makers.
    To minimize the possibility of competitive harm in the period prior 
to the divestiture, the proposed order requires that NGC terminate all 
its commercial and facility operator activities at both MB I and GCF 
within six months. In the interim, NGC must transfer all its commercial 
operator activities at both MB I and GCF to third parties within 30 
days or assign those activities to NGC employees who would then serve 
under the terms of a Hold Separate Agreement designed to ensure that MB 
I and GCF function as independent, competitive businesses. To further 
ensure that MB I and GCF function independently, the proposed order 
requires NGC to transfer all its facility operator activities at MB I 
to a third party within 120 days or assign those activities to 
employees who would then serve under this Hold Separate Agreement.
    Furthermore, the proposed order requires that NGC not prevent, 
impede or interfere with efforts by the successor operators at MB I and 
GCF from hiring the current NGC employees who perform any of the 
commercial or facility operator duties at the two plants. The proposed 
order also requires that, NGC in its ongoing role as a partner in GCF: 
(i) Obtain an amendment to the GCF partnership agreement allowing any 
two partners (with at least 50% ownership interest in GCF) to undertake 
a capacity expansion of GCF; and (ii) abstain from participation in any 
matter involving the terms of fractionation service contracts offered 
to third-party customers. For a period of ten (10) years from the date 
that the order becomes final, the order would require prior Commission 
notification before NGC could acquire any interest in, or operatorship 
of, an existing fractionation facility within ten (10) miles of Mont 
Belvieu, Texas.
    The purpose of this analysis is to invite public comment concerning 
the consent order. This analysis is not intended to constitute an 
official interpretation of the agreement and order or to modify their 
terms in any way.
Donald S. Clark,
Secretary.
[FR Doc. 96-23558 Filed 9-13-96; 8:45 am]
BILLING CODE 6750-01-M