[Federal Register Volume 82, Number 132 (Wednesday, July 12, 2017)]
[Rules and Regulations]
[Pages 32123-32134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14550]
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FEDERAL TRADE COMMISSION
16 CFR Part 803
Premerger Notification; Reporting and Waiting Period Requirements
AGENCY: Federal Trade Commission.
ACTION: Final rule.
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SUMMARY: The Commission, with the concurrence of the Assistant Attorney
General, Antitrust Division, Department of Justice, announces
ministerial changes to the Antitrust Improvements Act Notification and
Report Form (``HSR Form'') to make it conform to recently published
amendments to the associated Instructions and to reflect changes to the
noncompliance penalty and the Premerger Notification Office address.
DATES: Effective July 12, 2017.
FOR FURTHER INFORMATION CONTACT: Robert Jones, Federal Trade
Commission, Bureau of Competition, Premerger Notification Office, 400
7th Street SW., Room #5301, Washington, DC 20024, Phone (202) 326-3100.
SUPPLEMENTARY INFORMATION:
Introduction
Section 7A of the Clayton Act (the ``Act'') requires the parties to
certain mergers and acquisitions to file notifications with the Federal
Trade Commission (``the Commission'') and the Assistant Attorney
General in charge of the Antitrust Division of the Department of
Justice (``the Assistant Attorney General'') (collectively ``the
Agencies'') and to wait a specified period of time before consummating
such transactions. The reporting requirement and the waiting period
that it triggers are intended to enable the Agencies to determine
whether a proposed merger or acquisition may violate the antitrust laws
if consummated and, when appropriate, to seek a preliminary injunction
in federal court to prevent consummation, pursuant to Section 7 of the
Act.
Section 7A(d)(1) of the Act, 15 U.S.C. 18a(d)(1), directs the
Commission, with the concurrence of the Assistant Attorney General, in
accordance with the Administrative Procedure Act, 5 U.S.C. 553, to
require that premerger notification be in such form and contain such
information and documentary material as may be necessary and
appropriate to determine whether the proposed transaction may, if
consummated, violate the antitrust laws. Section 7A(d)(2) of the Act,
15 U.S.C. 18a(d)(2), grants the Commission, with the concurrence of the
Assistant Attorney General, in accordance with 5 U.S.C. 553, the
authority to define the terms used in the Act and prescribe such other
rules as may be necessary and appropriate to carry out the purposes of
Sec. 7A. Pursuant to that authority, the Commission, with the
concurrence of the Assistant Attorney General, developed the Rules,
codified in 16 CFR parts 801, 802 and 803, and the HSR Form and its
associated Instructions, codified at Part 803--Appendix. The Rules,
codified in 16 CFR parts 801, 802 and 803, and associated Forms and
Instructions, codified at Part 803--Appendix, to govern the form of
premerger notifications to be provided by merging parties. The HSR Form
is designed to provide the Commission and the Assistant Attorney
General with the information and documentary material necessary for an
initial evaluation of the potential anticompetitive impact of
significant mergers, acquisitions and certain similar transactions.
Changes to the HSR Form
The Commission is amending the HSR Form so that it will conform to
the recently published amendments to the associated Instructions and
reflect changes in the noncompliance penalty and the Premerger
Notification Office address.\1\ The changes are as follows:
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\1\ 81 FR 60257 (September 1, 2016).
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1. Fee Information--The Commission has deleted the following
language
[[Page 32124]]
(along with an attachment box) from page one of the HSR Form: ``In
cases where your filing fee would be higher if based on acquisition
price or where the acquisition price is undetermined to the extent that
it may straddle a filing fee threshold, attach an explanation of how
you determined the appropriate fee.'' The Commission eliminated this
requirement in its amended Instructions. Thus, the language and the box
have been deleted from the HSR Form.
2. Form Revised Date--The HSR Form's ``Revised Date'' on the bottom
of each page has been updated from ``(rev. 08/18/11)'' to ``(rev. 01/
02/2017)'' to reflect the ministerial revisions described in this
notice.
3. Penalty--The HSR Form, on page 10, refers to a noncompliance
penalty of $16,000 per day. By statute,\2\ the Commission is required
to adjust its civil penalty amounts for inflation every January. The
HSR Form has been amended to omit the specific dollar amount and
instead cross-reference 16 CFR 1.98(a), which lists the inflation-
adjusted civil penalty.
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\2\ Federal Civil Penalties Inflation Adjustment Act of 1990,
Public Law 101-410, 104 Stat. 890, as amended by the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015, Public
Law 114-74, sec. 701, 129 Stat. 599.
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4. PNO Address--The address of the Premerger Notification Office
(``PNO'') on page 10 of the HSR Form has been updated to reflect the
PNO's current address in Constitution Center.
5. Electronic Form Version--The Electronic Form Version has been
updated from ``1.0.1, 01/13/2012'' to ``1.0.2, 01/02/2017'' to reflect
the ministerial changes described in this notice.
Administrative Procedure Act
The Commission finds good cause to adopt these changes without
prior public comment. Under the APA, notice and comment are not
required ``when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefore in the rules issued)
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' 5 U.S.C.
553(b)(3)(B).
The Commission is updating the HSR Form so that it will conform to
the recently published amendments to the associated Instructions. This
does not involve any substantive changes in the Rules' requirements for
entities subject to the Rules. Accordingly, the Commission finds that
public comment is unnecessary.
In addition, under the APA, a substantive final rule is required to
take effect at least 30 days after publication in the Federal Register
unless an agency finds good cause that the rule should become effective
sooner. 5 U.S.C. 553(d). However, these are purely ministerial changes
and do not constitute a substantive rule change. Therefore, the
Commission finds good cause to dispense with a delayed effective date.
For these reasons, the Commission finds that there is good cause
for adopting this final rule as effective on July 12, 2017, without
prior public comment.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612,
an agency must prepare a regulatory flexibility analysis for all
proposed and final rules that describes the impact of the rule on small
entities, unless the head of the agency certifies that the rule will
not have a ``significant economic impact on a substantial number of
small entities.'' 5 U.S.C. 605(b). However, the RFA applies only to
rules for which an agency publishes a general notice of proposed
rulemaking. 5 U.S.C. 603(a), 604(a). As discussed above, the Commission
has determined for good cause that the APA does not require notice and
public comment on this rule. Accordingly, the RFA does not apply to
this final rule.
Paperwork Reduction Act
These changes 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 and Budget under the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501-3518.
List of Subjects in 16 CFR Part 803
Antitrust.
For the reasons stated above, the Federal Trade Commission amends
16 CFR part 803 as set forth below:
0
1. The authority citation for part 803 continues to read as follows:
Authority: 15 U.S.C. 18a(d).
0
2. Revise the appendix to part 803 to read as follows:
Appendix to Part 803--Notification and Report Form for Certain Mergers
and Acquisitions
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By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017-14550 Filed 7-11-17; 8:45 am]
BILLING CODE 6750-01-C