[Federal Register Volume 66, Number 22 (Thursday, February 1, 2001)]
[Rules and Regulations]
[Pages 8721-8722]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 01-2607]
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FEDERAL TRADE COMMISSION
16 CFR Part 2
Rules of Practice
AGENCY: Federal Trade Commission (FTC).
ACTION: Interim rule with request for comments.
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SUMMARY: The FTC is amending its Rules of Practice to incorporate
procedures for internal agency review of requests for additional
information or documentary material relating to transactions subject to
the premerger notification requirements of Section 7A of the Clayton
Act. These procedures are necessary to implement recent amendments to
Section 7A. The procedures will ensure that petitions for such review
are handled in accordance with the statute's requirements.
DATES: These rules are effective February 1, 2001. Comments should be
filed no later than March 19, 2001.
ADDRESSES: Address all comments concerning these rules to Secretary,
Federal Trade Commission, Room 159, 600 Pennsylvania Avenue, NW,
Washington, DC 20580, or by e-mail to hsr-rules@ftc.gov.
FOR FURTHER INFORMATION CONTACT: Christian S. White, Assistant General
Counsel, Room 592, Federal Trade Commission, 600 Pennsylvania Avenue,
NW, Washington, DC 20580. Telephone: (202) 326-32424.
SUPPLEMENTARY INFORMATION: On December 21, 2000, the President signed
into law certain amendments to Section 7A of the Clayton Act, 15 U.S.C.
18a, which requires that parties to certain mergers or acquisitions
file reports with the FTC and with the Department of Justice and to
wait a specified period of time before consummating such a transaction,
so that the agencies can determine whether the transaction may violate
the antitrust laws if consummated and, when appropriate, to seek a
preliminary injunction in federal court to prevent consummation. See
Pub. L. 106-553, 114 Stat. 2762 (``2000 Amendments''). The statutory
amendments are effective on February 1, 2001.
In a separate Federal Register document, the Commission is adopting
interim implementing amendments to its rules and notification form for
premerger review under Section 7A (16 CFR Parts 801, 802, and 803) and,
in another Federal Register document, is proposing additional rule
amendments.
In this Federal Register document, the Commission, in accordance
with Section 7A(e)(1)(B) of the Clayton Act, 15 U.S.C. 18a(e)(1)(B), as
added by the 2000 Amendments, is adopting administrative procedures for
persons seeking to obtain internal agency review of requests for
additional information or documentary material (``second requests'')
relating to proposed transactions for which premerger notification is
required under Section 7A. These ``second request'' review procedures
will be incorporated into previously reserved Subpart B of Part 2 of
the Commission's Rules of Practice and will implement the statute's
requirement that a senior agency official be designated for the review,
upon petition, of a ``second request'' to determine whether it is
unreasonably cumulative, unduly burdensome, or cumulative, or whether
the petitioner has substantially complied with the request.
Administrative Procedure Act
These procedures are exempt from the notice-and-comment
requirements of the Administrative Procedure Act as rules of agency
organization, procedure or practice. See 5 U.S.C. 553(b)(A).
Nonetheless, the Commission seeks public comment on these procedures
and reserves the right to amend them based on its experience and on any
comments that may be received after the procedures take effect.
Regulatory Flexibility Act
The requirements for initial and final regulatory analyses under
the Regulatory Flexibility Act, 5 U.S.C. 601-612, do not apply to these
procedural rules, because they will not have a significant economic
impact on a substantial number of small entities. 5 U.S.C. 605. Under
the recent statutory amendments to Section 7A of the Clayton Act,
transactions valued at less than $50 million are exempted, and these
``second request'' review procedures do not expand or otherwise alter
the coverage of the premerger notification rules in a way that would
affect its impact, if any, on small business. Accordingly, the
Commission certifies that these procedural rules will not have a
significant economic impact on a substantial number of small entities.
This document serves as the required notice of this certification to
the Small Business Administration.
Paperwork Reduction Act
These procedural rules do not contain any record maintenance,
reporting, or disclosure requirements that would constitute agency
``collections of information'' that would have to be submitted for
clearance and approval by the Office of Management & Budget under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3518.
List of Subjects in 16 CFR Part 2
Administrative practice and procedure.
Accordingly, for the reasons stated in the preamble, the Federal
Trade Commission amends 16 CFR part 2 as follows:
PART 2--NONADJUDICATIVE PROCEDURES
1. Revise the authority citation for part 2 to read as follows:
Authority: 15 U.S.C. 46, unless otherwise noted.
2. Add subpart B to read as follows:
Subpart B--Petitions Filed Under Section 7A of the Clayton Act, as
Amended, for Review of Requests for Additional Information or
Documentary Material
Authority: 15 U.S.C. 18a(d), (e).
Sec. 2.20 Petitions for review of requests for additional information
or documentary material.
(a) For purposes of this section, ``second request'' refers to a
request for additional information or documentary material issued under
16 CFR 803.20.
(b) Second request procedures. (1) Notice. Every request for
additional information or documentary material issued under 16 CFR
803.20 shall inform the recipient(s) of the request that the recipient
has a right to discuss modifications or clarifications of the request
with an authorized representative of the Commission. The request shall
identify the name and telephone number of at least one such
representative.
(2) Second request conference. An authorized representative of the
Commission shall invite the recipient to discuss the request for
additional information or documentary material soon after the request
is issued. At the conference, the authorized representative shall
discuss the competitive issues raised by the proposed transaction, to
the extent then known, and confer with the recipient about the most
effective way to obtain information and documents relating to the
competitive issues raised. The
[[Page 8722]]
conference will ordinarily take place within 5 business days of
issuance of the request, unless the recipient declines the invitation
or requests a later date.
(3) Modification of requests. The authorized representative shall
modify the request for additional information or documentary material,
or recommend such modification to the responsible Assistant Director of
the Bureau of Competition, if he or she determines that a less
burdensome request would be consistent with the needs of the
investigation. A request for additional information or documentary
material may be modified only in writing signed by the authorized
representative.
(4) Review of request decisions. (i) If the recipient of a request
for additional information or documentary material believes that
compliance with portions of the request should not be required and the
recipient has exhausted reasonable efforts to obtain clarifications or
modifications of the request from an authorized representative, the
recipient may petition the General Counsel to consider and rule on
unresolved issues. Such petition shall be submitted by letter to the
General Counsel with a copy to the authorized representative who
participated in the second request conference held under paragraph
(b)(3) of this section. The petition shall not, without leave of the
General Counsel, exceed 500 words, excluding any cover, table of
contents, table of authorities, glossaries, proposed form of relief and
any appendices containing only sections of statutes or regulations, and
shall address petitioner's efforts to obtain modification from the
authorized representative.
(ii) Within 2 business days after receiving such a petition, the
General Counsel shall set a date for a conference with the petitioner
and the authorized representative.
(iii) Such conference shall take place within 7 business days after
the General Counsel receives the petition, unless the request recipient
agrees to a later date or declines to attend a conference.
(iv) Not later than 3 business days before the date of the
conference, the petitioner and the authorized representative may each
submit memoranda regarding the issues presented in the petition. Such
memoranda shall not, without leave of the General Counsel, exceed 1250
words, excluding any cover, table of contents, table of authorities,
glossaries, proposed form of relief and appendices containing only
sections of statutes or regulations. Such memoranda shall be delivered
to counsel for the other participants on the same day they are
delivered to the General Counsel.
(v) The petitioner's memorandum shall include a concise statement
of reasons why the request should be modified, together with proposed
modifications, or a concise explanation why the recipient believes it
has substantially complied with the request for additional information
or documentary material.
(vi) The authorized representative's memorandum shall include a
concise statement of reasons why the petitioner's proposed
modifications are inappropriate or a concise statement of the reasons
why the representative believes that the petitioner has not
substantially complied with the request for additional information and
documentary material.
(vii) The General Counsel shall advise the petitioner and the
authorized representative of his or her decision within 3 business days
following the conference.
By direction of the Commission.
Dated: January 24, 2001.
Donald S. Clark,
Secretary.
Statement of Commissioner Orson Swindle Concerning Premerger
Notification Rules Changes File No. P989316
The Commission and its staff have worked quickly and diligently
on a package of interim rules to implement statutory changes to the
premerger notification program that will take effect shortly. Other
amendments to the premerger rules are designed to achieve needed
housekeeping improvements or spell out procedures for the appeals
process in Hart-Scott-Rodino matters. Although the interim rules
announced today take effect imminently, I look forward to--and would
encourage--any comments that members of the public care to submit
concerning the clarity, consistency, and anticipated effects of
these rules.
[FR Doc. 01-2607 Filed 1-31-01; 8:45 am]
BILLING CODE 6750-01-P