[Federal Register Volume 78, Number 121 (Monday, June 24, 2013)]
[Notices]
[Pages 37814-37817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14923]


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FEDERAL TRADE COMMISSION

[File No. 131 0052]


Tesoro Corporation and Tesoro Logistics Operations LLC; Analysis 
of Proposed Agreement Containing Consent Orders to Aid Public Comment

AGENCY: Federal Trade Commission.

[[Page 37815]]


ACTION: Proposed Consent Agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint and the terms of the consent order--embodied in the consent 
agreement--that would settle these allegations.

DATES: Comments must be received on or before July 19, 2013.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/tesorochevronconsent online or on paper, 
by following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Tesoro/Chevron, File 
No. 131 0052'' on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/tesorochevronconsent by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, mail or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex 
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Philip M. Esienstat (202-326-2769), 
FTC, Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned 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 thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement, and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
from the FTC Home Page (for June 17, 2013), on the World Wide Web, at 
http://www.ftc.gov/os/actions.shtm. A paper copy can be obtained from 
the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue NW., 
Washington, DC 20580, either in person or by calling (202) 326-2222.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before July 19, 2013. 
Write ``Tesoro/Chevron, File No. 131 0052'' on your comment. Your 
comment--including your name and your state--will be placed on the 
public record of this proceeding, including, to the extent practicable, 
on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to 
remove individuals' home contact information from comments before 
placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which . . . is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/tesorochevronconsent by following the instructions on the web-based 
form. If this Notice appears at http://www.regulations.gov/#!home, you 
also may file a comment through that Web site.
    If you file your comment on paper, write ``Tesoro/Chevron, File No. 
131 0052'' on your comment and on the envelope, and mail or deliver it 
to the following address: Federal Trade Commission, Office of the 
Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue NW., 
Washington, DC 20580. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before July 19, 2013. You can find more information, 
including routine uses permitted by the Privacy Act, in the 
Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Analysis of Agreement Containing Consent Order to Aid Public Comment

I. Introduction

    The Federal Trade Commission (the ``Commission''), subject to its 
final approval, has accepted for public comment an Agreement Containing 
Consent Orders (``Consent Agreement'') with Tesoro Corporation and 
Tesoro Logistics Operations LLC (``Respondents''). On December 6, 2012, 
Respondents executed related Asset Sale and Purchase Agreements with 
the Northwest Terminalling Company and Chevron Pipeline Company, 
subsidiaries of Chevron Corporation, to acquire the Northwest Products 
Pipeline system and Chevron's associated terminals, including a 
terminal in Boise, Idaho, for a total of $355 million (the 
``Acquisition''). Respondents already own and operate a terminal in 
Boise, Idaho (the ``Tesoro Terminal'').
    The Commission's Complaint alleges that Respondents have entered 
into an acquisition agreement that constitutes a violation of Section 5 
of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, and 
which, if consummated, would violate Section 7 of the Clayton Act, as 
amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission 
Act, by substantially lessening competition in terminaling services for 
light petroleum products in the Boise, Idaho Metropolitan Statistical 
Area (``Boise MSA''). The Acquisition would reduce the competitive 
options

[[Page 37816]]

for terminaling services in the Boise MSA from three to two, with 
Respondents owning the two largest terminals. The proposed Consent 
Agreement effectively remedies the Acquisition's possible 
anticompetitive effects by requiring Respondents to divest its own 
terminal in Boise, the Tesoro Terminal.

II. Respondents and Other Relevant Entities

A. Tesoro Corporation

    Tesoro Corporation is a publically traded corporation principally 
engaged in the refining and marketing of petroleum products in the 
United States.

B. Tesoro Logistics Operations LLC

    Tesoro Logistics Operations LLC, a limited liability company, is a 
wholly owned subsidiary of Tesoro Logistics LP, a publically traded 
limited partnership. Respondent Tesoro Corporation individually and 
through its subsidiaries owns Tesoro Logistics GP, LLC, the general 
partner of Tesoro Logistics LP. Tesoro Logistics GP, LLC manages the 
operations and employs the personnel of Tesoro Logistics LP, and owns a 
two percent general partner interest in the partnership. Tesoro 
Corporation directly owns 37.6% of limited partner interest in Tesoro 
Logistics LP.
    Tesoro Logistics Operations LLC directly or indirectly owns a 
number of petroleum products terminals, including the Tesoro Terminal 
in Boise, Idaho, that receive light petroleum products off the 
Northwest Pipeline. The Tesoro Terminal in Boise stores product it 
receives off the pipeline and provides facilities to load the product 
onto tank trucks for local distribution.

C. Chevron Corporation

    Chevron Corporation (``Chevron'') is a publically traded 
corporation principally engaged in fully integrated petroleum 
operations in the United States, including the exploration, production, 
manufacture, transportation, and sale of petroleum products. Chevron, 
through Chevron Pipeline Company, owns and operates the Northwest 
Pipeline, a 760-mile interstate common-carrier pipeline that transports 
petroleum products from Salt Lake City to the states of Idaho, and 
Washington. Chevron, through Northwest Terminalling Company owns 
petroleum terminals along the Northwest Pipeline in Idaho and 
Washington, including one in Boise, Idaho.

III. Distribution of Petroleum Products and Competitive Effects

    Pipelines and terminals play a key role in the distribution of 
refined light petroleum products, a product category that includes 
gasoline, diesel fuel, and jet fuel. Pipelines are the least expensive 
means of moving bulk quantities of light petroleum products across 
land. The alternatives, rail transportation and truck transportation, 
are not cost competitive when pipeline transportation is available.
    Terminals provide a critical connection between bulk supply through 
pipelines and local distribution of light petroleum products. The 
efficient operation of pipelines requires continuous shipment of large 
volumes of light petroleum products. Efficient local distribution 
utilizes tank trucks to pick up product from the terminal and deliver 
it to customers.
    Terminals have specialized truck-loading facilities, known as 
``truck racks,'' to transfer light petroleum products from storage 
tanks to individual tank trucks. Terminal services provided to 
suppliers of light petroleum products include storage, dispensing, and 
ethanol and additive blending. Suppliers of light petroleum products 
trying to reach a particular local market have no economically viable 
alternative to terminals.
    The Acquisition would reduce the competitive options for 
terminaling services in Boise from three to two, with Tesoro owning the 
two largest terminals. Currently, in the Boise MSA, there are three 
terminals and one storage facility lacking truck racks. Tesoro, 
Chevron, and United Oil Company each own and operate terminals. Holly 
Energy Partners and Sinclair Corporation jointly own a storage facility 
under the name Boise Petroleum. This facility cannot load light 
petroleum products into tank trucks because it lacks a truck rack. 
Companies storing light petroleum products at Boise Petroleum must move 
the products to another terminal to load it onto tank trucks for 
delivery to the Boise market.
    Of the three terminals in Boise, the Tesoro Terminal and the 
Chevron terminal together account for the most of the terminal 
capacity. The United Oil terminal is the smallest terminal in Boise. 
Tesoro's control of most of the terminal capacity in Boise may 
substantially lessen competition in the relevant market. It increases 
the likelihood that Tesoro would exercise market power unilaterally by 
raising the terminaling fees or denying access to terminaling services 
for light petroleum products in the Boise MSA.

IV. The Proposed Agreement Containing Consent Orders

    Under the Proposed Agreement Containing Consent Orders, Respondents 
have one hundred and eighty (180) days from the issuance of the 
Decision and Order (``Order'') to divest the Tesoro Terminal, to a 
Commission-approved buyer. Pursuant to the Order, Respondents may 
complete the Acquisition of Chevron's Northwest Pipeline and associated 
terminals immediately upon issuance of the Order. The required 
divestiture of the Tesoro Terminal will maintain the level of 
competition that existed in the market for terminaling services in the 
Boise MSA prior to the Acquisition. The Order to Maintain Assets 
(discussed in the next section) will protect the competitive status quo 
until Respondents are able to find a suitable buyer of the Tesoro 
Terminal.
    The Order contains an ``open season'' provision. Respondents agree 
to let any customer at the Chevron Boise terminal terminate its 
contract without penalties for a period of six months after the 
divestiture sale of the Tesoro Terminal. Respondents agree to notify 
customers at the Chevron Boise terminal of their right to terminate 
their existing contracts. These provisions will ensure that the new 
owner of the Tesoro Terminal can compete for new business to replace 
Respondents' current business at the Tesoro Terminal. Respondents are 
the only customer of the Tesoro Terminal and they could move their 
business to the Chevron Boise terminal when the divestiture is 
completed.
    The Order requires Respondents to provide transitional assistance 
and support services to the buyer of the Tesoro Terminal. Respondents 
must also license any key software and intellectual property to the 
buyer. The Order allows the buyer to recruit Respondents' employees who 
work at the Tesoro Terminal. For a period of two years after the 
divestiture of the Tesoro Terminal, Respondents may not solicit the 
employees that accept employment offers from the buyer, to rejoin 
Respondents. The Order also limits Respondents' access to, and use of, 
confidential business information pertaining to the Tesoro Terminal.
    If Respondents fail to fully divest the Tesoro Terminal within the 
one hundred and eighty (180) day time period, the Order grants the 
Commission power to appoint a divestiture trustee to complete the 
divestiture. The Commission may also

[[Page 37817]]

appoint a divestiture trustee, if it brings an action against 
Respondents pursuant to Section 5(l) of the FTC Act. The Order also 
governs the divestiture trustee's duties, privileges, and powers.
    The Order requires Respondents, or the divestiture trustee, if 
appointed, to file periodic reports detailing efforts to divest the 
Tesoro Terminal and the status of that undertaking. Commission 
representatives may gain reasonable access to Respondents' business 
records related to compliance with the consent agreement. The Order 
terminates ten (10) years after its issuance.

V. The Order to Maintain Assets

    The Order to Maintain Assets seeks to preserve the Tesoro Terminal 
as a viable, competitive, ongoing business, and to ensure that 
Respondents do not access the confidential business information 
belonging to this business. Respondents agree to preserve the Tesoro 
Terminal in substantially the same condition existing at the time when 
Respondents executed the Consent Agreement. Pursuant to the Order to 
Maintain Assets, Respondents will provide the Tesoro Terminal with 
sufficient financial and other resources to maintain current operation 
levels and carry already planned capital and improvement projects.
    The Order to Maintain Assets also empowers the Commission to 
appoint a monitor to oversee Respondents' compliance with their 
obligations under the Order. The Order to Maintain Assets outlines the 
rights, duties, and responsibilities of the monitor, including access 
to business records, hiring necessary consultants and attorneys, and 
any other thing reasonably necessary to carry out their duties. The 
Order to Maintain Assets further prohibits Respondents from interfering 
with the monitor's obligations and requires them to indemnify the 
monitor.
    The monitor shall submit periodic reports to the Commission 
concerning compliance with the Order to Maintain Assets. The Commission 
may appoint a different monitor if the original monitor fails to carry 
out his duties. The Order to Maintain Assets terminates either (1) 
three days after the Commission withdraws its acceptance of the Consent 
Agreement or (2) three days after the monitor completes its final 
report required by Paragraph V.C.(ii) of this Order to Maintain Assets.

VI. Opportunity for Public Comment

    The proposed Consent Agreement has been placed on the public record 
for thirty (30) days for receipt of comments by interested persons. The 
Commission has also issued its Complaint in this matter. Comments 
received during this comment period will become part of the public 
record. After thirty (30) days, the Commission will again review the 
proposed Consent Agreement and the comments received and will decide 
whether it should withdraw from the Consent Agreement, modify it, or 
make final the proposed Order.
    By accepting the proposed Consent Agreement subject to final 
approval, the Commission anticipates that the competitive problems 
alleged in the Complaint will be resolved. The purpose of this analysis 
is to invite public comment on the proposed Order to aid the Commission 
in its determination of whether it should make final the proposed Order 
contained in the Agreement. This analysis is not intended to constitute 
an official interpretation of the proposed Order, nor is it intended to 
modify the terms of the proposed Order in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2013-14923 Filed 6-21-13; 8:45 am]
BILLING CODE 6750-01-P