[Federal Register Volume 83, Number 214 (Monday, November 5, 2018)]
[Notices]
[Pages 55368-55370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24078]


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FEDERAL TRADE COMMISSION

[File No. 181 0152]


Marathon Petroleum Corp.; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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

DATES: Comments must be received on or before November 26, 2018.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write: ``Marathon Petroleum 
Corp.; File No. 1810152'' on your comment, and file your comment online 
at https://ftcpublic.commentworks.com/ftc/marathonpetroleumcorpconsent 
by following the instructions on the web-based form. If you prefer to 
file your comment on paper, write ``Marathon Petroleum Corp.; File No. 
1810152'' on your comment and on the envelope, and mail your comment to 
the following address: Federal Trade Commission, Office of the 
Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex D), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 
20024.

FOR FURTHER INFORMATION CONTACT: Helder G. Agostinho (202-326-3415), 
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 October 25, 2018), on the World Wide Web, 
at https://www.ftc.gov/news-events/commission-actions.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before November 26, 
2018. Write ``Marathon Petroleum Corp.; File No. 1810152'' 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 website, at https://www.ftc.gov/policy/public-comments.
    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/marathonpetroleumcorpconsent/ 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 website.
    If you prefer to file your comment on paper, write ``Marathon 
Petroleum Corp.; File No. 1810152'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Because your comment will be placed on the publicly accessible FTC 
website at https://www.ftc.gov, you are solely responsible for making 
sure that your comment does not include any sensitive or confidential 
information. In particular, your comment should not

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include any sensitive personal information, such as your or anyone 
else'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, such as 
medical records or other individually identifiable health information. 
In addition, your comment should not include any ``trade secret or any 
commercial or financial information which . . . is privileged or 
confidential''--as provided by 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)--including in 
particular competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). 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). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on the public FTC website--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from the FTC website, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under FTC Rule 4.9(c), and the General Counsel 
grants that request.
    Visit the FTC website 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 November 26, 2018. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Proposed Consent Order to Aid Public Comment

I. Introduction

    The Federal Trade Commission (``Commission'') has accepted for 
public comment, subject to final approval, an Agreement Containing 
Consent Orders (``Consent Agreement'') from Marathon Petroleum 
Corporation (``Marathon'') and Express Mart Franchising Corp., Petr-All 
Petroleum Consulting Corporation, and REROB, LLC (``Express Mart'' and 
collectively, the ``Respondents''). The Consent Agreement is designed 
to remedy the anticompetitive effects that likely would result from 
Marathon's proposed acquisition of retail fuel outlets and other 
interests from Express Mart.
    Under the terms of the proposed Consent Agreement, Marathon must 
divest to the upfront buyer Sunoco LP (``Sunoco'') retail fuel outlets 
and related assets in five local markets in New York. Marathon must 
complete the divestiture within 90 days after the closing of Marathon's 
acquisition of Express Mart. The Commission and Respondents have agreed 
to an Order to Maintain Assets that requires Respondents to operate and 
maintain each divestiture outlet in the normal course of business 
through the date Sunoco acquires the outlet.
    The Commission has placed the proposed Consent Agreement on the 
public record for 30 days to solicit comments from interested persons. 
Comments received during this period will become part of the public 
record. After 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 it 
final.

II. The Respondents

    Respondent Marathon, a publicly traded company headquartered in 
Findlay, Ohio, operates a vertically integrated refining, marketing, 
retail, and transportation system. Marathon's wholly owned subsidiary, 
Speedway LLC (``Speedway''), owns and operates 2,740 convenience stores 
located in 21 states, making it the second-largest chain of company-
owned and -operated gasoline and convenience stores in the United 
States. In addition, independent entrepreneurs own and operate 5,600 
Marathon-branded retail fuel outlets in 20 states and the District of 
Columbia.
    Respondent Express Mart is a collection of closely held New York 
State S Corporations and limited liability companies headquartered in 
Syracuse, New York. Express Mart owns and operates convenience stores 
and retail fuel outlets stations primarily along the I-90 corridor in 
the Syracuse-Rochester-Buffalo region of upstate New York. Express 
Mart's network includes 77 convenience stores with attached fuel 
stations, as well as 11 franchise locations owned by independent 
contract dealers operating under the Express Mart banner. Express 
Mart's convenience stores operate under the Express Mart name, while 
its retail fuel stations operate primarily under the Sunoco banner.

III. The Proposed Acquisition

    On April 13, 2018, Marathon, through its wholly owned subsidiary 
Speedway, entered into an agreement to acquire certain retail fuel 
outlets and other interests, from Express Mart (the ``Transaction''). 
The Transaction would expand Speedway's presence across upstate New 
York.
    The Commission's Complaint alleges that the Transaction, if 
consummated, would violate Section 7 of the Clayton Act, as amended, 15 
U.S.C. 18, and that the Transaction agreement constitutes a violation 
of Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 
45, by substantially lessening competition for the retail sale of 
gasoline and the retail sale of diesel in five local markets in New 
York.

IV. The Retail Sales of Gasoline and Diesel

    The Commission's Complaint alleges that the relevant product 
markets in which to analyze the Transaction are the retail sale of 
gasoline and the retail sale of diesel. Consumers require gasoline for 
their gasoline-powered vehicles and can purchase gasoline only at 
retail fuel outlets. Likewise, consumers require diesel for their 
diesel-powered vehicles and can purchase diesel only at retail fuel 
outlets. The retail sale of gasoline and the retail sale of diesel 
constitute separate relevant markets because the two are not 
interchangeable--vehicles that run on gasoline cannot run on diesel and 
vehicles that run on diesel cannot run on gasoline.
    The Commission's Complaint alleges the relevant geographic markets 
in which to assess the competitive effects of the Transaction include 
five local markets within the following cities: Farmington, 
Fayetteville, Johnson City, Rochester, and Whitney Point in New York.
    The geographic markets for retail gasoline and retail diesel are 
highly localized, ranging up to a few miles, depending on local 
circumstances. Each relevant market is distinct and fact-dependent, 
reflecting a number of

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considerations, including commuting patterns, traffic flows, and outlet 
characteristics. Consumers typically choose between nearby retail fuel 
outlets with similar characteristics along their planned routes. The 
geographic markets for the retail sale of diesel may be similar to the 
corresponding geographic markets for retail gasoline as many diesel 
consumers exhibit the same preferences and behaviors as gasoline 
consumers.
    The Transaction would substantially increase the market 
concentration in each of the five local markets, resulting in five 
highly concentrated markets for the retail sale of gasoline and the 
retail sale of diesel. In four of the five local gasoline retail 
markets, the Transaction would reduce the number of competitively 
constraining independent market participants from three to two. In the 
fifth local gasoline retail market, the Transaction would reduce the 
number of competitively constraining independent participants from four 
the three. In three of the five retail diesel markets, the Transaction 
would result in a merger to monopoly. In the fourth diesel market, the 
Transaction would reduce the number of competitively constraining 
independent participants from three to two. In the fifth diesel market, 
the Transaction would reduce the number of competitively constraining 
independent participants from four to three.
    The Transaction would substantially lessen competition for the 
retail sale of gasoline and the retail sale of diesel in these local 
markets. Retail fuel outlets compete on price, store format, product 
offerings, and location, and pay close attention to competitors in 
close proximity, on similar traffic flows, and with similar store 
characteristics. The combined entity would be able to raise prices 
unilaterally in markets where Marathon and Express Mart are close 
competitors. Absent the Transaction, Marathon and Express Mart would 
continue to compete head to head in these local markets.
    Moreover, the Transaction would enhance the incentives for 
interdependent behavior in local markets where only two or three 
competitively constraining independent market participants would 
remain. Two aspects of the retail fuel industry make it vulnerable to 
such coordination. First, retail fuel outlets post their fuel prices on 
price signs that are visible from the street, allowing competitors to 
observe each other's fuel prices without difficulty. Second, retail 
fuel outlets regularly track their competitors' fuel prices and change 
their own prices in response. These repeated interactions give retail 
fuel outlets familiarity with how their competitors price and how 
changing prices affect their sales.
    Entry into each relevant market would not be timely, likely, or 
sufficient to deter or counteract the anticompetitive effects arising 
from the Acquisition. Significant entry barriers include the 
availability of attractive real estate, the time and cost associated 
with constructing a new retail fuel outlet, and the time associated 
with obtaining necessary permits and approvals.

V. The Proposed Consent Agreement

    The proposed Consent Agreement would remedy the Acquisition's 
likely anticompetitive effects by requiring Marathon to divest certain 
Speedway and Express Mart retail fuel outlets and related assets to 
Sunoco in five local markets.
    The proposed Consent Agreement requires that the divestiture be 
completed no later than 90 days after Marathon consummates the 
Acquisition. This Agreement protects the Commission's ability to obtain 
complete and effective relief given the small number of outlets to be 
divested. The proposed Consent Agreement further requires Marathon and 
Express Mart to maintain the economic viability, marketability, and 
competitiveness of each divestiture asset until the divestiture to 
Sunoco is complete. For up to twelve months following the divestiture, 
Marathon and Express Mart must make available transitional services, as 
needed, to assist the buyer of each divestiture asset.
    In addition to requiring outlet divestitures, the proposed Consent 
Agreement also requires Respondents to provide the Commission notice 
before acquiring designated outlets in the five local areas for ten 
years. The prior notice provision is necessary because acquisitions of 
the designated outlets likely raise competitive concerns and may fall 
below the HSR Act premerger notification thresholds.
    Presently, in Rochester, New York, one local market of concern, 
Sunoco serves as the wholesale supplier to a retail fuel outlet that is 
an independent competitor to Speedway and Express Mart. By purchasing 
the Speedway outlet, Sunoco will also become a competitor to the outlet 
for which it is currently a wholesale supplier. To address this 
concern, Sunoco has agreed to implement a firewall between its 
wholesale and retail fuel pricing businesses in that local market. The 
firewall will restrict Sunoco retail pricing personnel's access to 
wholesale information, prohibiting Sunoco retail from knowing, among 
other information, how its pricing decisions affect the competing 
location's volumes.
    The proposed Consent Agreement contains additional provisions 
designed to ensure the effectiveness of the proposed relief. For 
example, Respondents have agreed to an Order to Maintain Assets that 
will issue at the time the proposed Consent Agreement is accepted for 
public comment. The Order to Maintain Assets requires Respondents to 
operate and maintain each divestiture outlet in the normal course of 
business, through the date the Respondents' complete divestiture of the 
outlet. During this period, and until such time as the buyer no longer 
requires transitional assistance, the Order to Maintain Assets 
authorizes the Commission to appoint an independent third party as a 
Monitor to oversee the Respondents' compliance with the requirements of 
the proposed Consent Agreement.
    The purpose of this analysis is to facilitate public comment on the 
proposed Consent agreement, and the Commission does not intend this 
analysis to constitute an official interpretation of the proposed 
Consent Agreement or to modify its terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2018-24078 Filed 11-2-18; 8:45 am]
BILLING CODE 6750-01-P