Premerger Notification; Reporting and Waiting Period Requirements

<RULE> FEDERAL TRADE COMMISSION <CFR>16 CFR Parts 801 and 803</CFR> <RIN>RIN 3084-AB46</RIN> <SUBJECT>Premerger Notification; Reporting and Waiting Period Requirements</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Trade Commission. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Federal Trade Commission (“Commission” or “FTC”) is amending the Hart-Scott-Rodino (“HSR”) Premerger Notification Rules (“Rules”) that require the parties to certain mergers and acquisitions to file reports with the FTC and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice (“the Assistant Attorney General”) (together the “Antitrust Agencies” or “Agencies”) and to wait a specified period of time before consummating such transactions. In a separate document published elsewhere in this issue of the <E T="04">Federal Register</E> , the Commission is announcing the annual adjustment of the filing fee thresholds and amounts required by the Merger Filing Fee Modernization Act of 2022 (“2022 Amendments”), contained within the Consolidated Appropriations Act, 2023. In this document, the Commission amends Parts 801 and 803 of the Rules to make the ministerial changes required to reflect the annual adjustment of the filing fee thresholds and amounts required by the 2022 Amendments. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective March 6, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Robert Jones, Assistant Director, Premerger Notification Office, Bureau of Competition, Federal Trade Commission, 400 7th Street SW, Room CC-5301, Washington, DC 20024, or by telephone at (202) 326-3100, Email: <E T="03">rjones@ftc.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Introduction</HD> Section 7A of the Clayton Act (the “Act”) requires the parties to certain mergers or acquisitions to file with the Commission and the Assistant Attorney General and wait a specified period before consummating the proposed transaction to allow the Antitrust Agencies to conduct their initial review of a proposed transaction's competitive impact. 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. 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 section 7A of the Act. 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 appendices to Part 803, the Notification and Report Form for Certain Mergers and Acquisitions (“HSR Form”) and Instructions to the Notification and Report Form for Certain Mergers and Acquisitions (“Instructions”), to govern the form of premerger notification to be provided by merging parties. In this rulemaking, the Commission is amending Parts 801 and 803 of the Rules to make the ministerial changes required to reflect the annual adjustment of the filing fee thresholds and amounts required by the 2022 Amendments. <FP SOURCE="FP-1">Affected in Part 801, Coverage Rules:</FP> <FP SOURCE="FP1-2">§ 801.1 Definitions.</FP> <FP SOURCE="FP-1">Affected in Part 803, Transmittal Rules</FP> <FP SOURCE="FP1-2">• § 803.9 Filing fee.</FP> <FP SOURCE="FP1-2">• Appendix A to Part 803—Notification and Report Form for Certain Mergers and Acquisitions</FP> <HD SOURCE="HD1">Background</HD> In 1989, section 605 of Public Law 101-162, 103 Stat. 1031 (15 U.S.C. 18a note), first required the Federal Trade Commission to assess and collect filing fees from persons acquiring voting securities or assets under the Act. The fee was originally $20,000 and was raised twice so that by 1994 it was $45,000. In 2000, fee tiers, rather than a single fee, were established by section 630(b) of Public Law 106-553, 114 Stat. 2762, 2762A-109 so that filers were required to pay $45,000, $125,000, or $280,000 per transaction, depending on the total value of the transaction. While these fees did not change after their adoption in 2000, the relevant jurisdictional thresholds began to adjust annually in 2005 to reflect changes in the gross national product (“GNP”). <SU>1</SU> <FTREF/> This meant that the value of reportable transactions started to increase but the associated filing fees did not. <FTNT> <SU>1</SU>   <E T="03">See</E> Public Law 106-553, 114 Stat. at 2762A-109 to -110, amending Section 605 of title VI of Public Law 101-162 (15 U.S.C. 18a note). </FTNT> On December 29, 2022, the President signed into law the Consolidated Appropriations Act, 2023, which included the 2022 Amendments. The 2022 Amendments, among other things, aimed to address the disparity between the value of a transaction and its associated filing fee by amending the fees and fee tiers in the Act. <E T="03">See</E> Public Law 117-328, Div. GG, 136 Stat. 4459. The fee structure enacted by the 2022 Amendments codifies six, rather than three, filing fee tiers. In addition, the 2022 Amendments require that the filing fee tiers be adjusted annually to reflect changes in the GNP for the previous year  <SU>2</SU> <FTREF/> and that the filing fee amounts be increased annually, if the percentage increase in the consumer price index (“CPI”) for the prior year as compared to the CPI for the fiscal year ended on September 30, 2022, is greater than one percent. <SU>3</SU> <FTREF/> The 2022 Amendments specify that such adjustments to the fees will be rounded to the nearest $5,000. <FTNT> <SU>2</SU>  Public Law 117-328, 136 Stat. 4459, Div. GG, Title I. </FTNT> <FTNT> <SU>3</SU>   <E T="03">Id.</E> </FTNT> In a separate document published elsewhere in this issue of the <E T="04">Federal Register</E> , the Commission is announcing (1) the revised jurisdictional thresholds for the Hart Scott Rodino Antitrust Improvements Act of 1976 required by the 2000 amendment of Section 7A of the Clayton Act; and (2) the revised filing fee schedule for the same Act required by Division GG of the 2023 Consolidated Appropriations Act. In the instant document, the Commission, with the concurrence of the Assistant Attorney General, amends Parts 801 and 803 of the Rules to make the ministerial changes required to reflect the annual adjustment of the filing fee thresholds and amounts required by the 2022 Amendments. <HD SOURCE="HD1">I. Section 801.1 Definitions</HD> <HD SOURCE="HD2">Section 801.1(n), Definition of (as Adjusted)</HD> The Commission is making a ministerial change to the definition of “(as adjusted)” to clarify that the fee thresholds and amounts are subject to annual adjustment under the 2022 Amendments. The Commission is not making any material changes to this section. <HD SOURCE="HD1">II. Section 803.9 Filing Fee</HD> Section 803.9 describes how fees are determined and paid. The Commission is amending the eight examples in § 803.9 to conform with the changes to the fees and fee tiers required by the 2022 Amendments, to update dates and dollar values to reflect more recent adjusted jurisdictional thresholds, and to add clarity to the examples. Specifically, the Commission will amend the examples in § 803.9 as follows: • Revising Example 1 to add “(as adjusted)” to reflect the annual adjustment of the fee amounts as codified in the 2022 Amendments. • Revising Example 2 to clarify that the tiers and amounts referenced are those in effect as of April 2024 and adjust example dollar values to align with values in effect as of April 2024 to avoid confusion and improve the utility of the example. • Revising Example 3 to clarify that the tiers and amounts referenced are those in effect as of April 2024 and adjust example dollar values to align with values in effect as of April 2024 to avoid confusion and improve the utility of the example. • Revising Example 4 to clarify that the tiers and amounts referenced are those in effect as of April 2024 and adjust example dollar values to align with values in effect as of April 2024 to avoid confusion and improve the utility of the example. • Revising Example 5 to provide real (and not adjusted) asset values to avoid confusion and improve the utility of the example, and to add “(as adjusted)” to reflect the annual adjustment of the fee amounts as codified in the 2024 Amendments. • Revising Example 6 to clarify that the tiers and amounts referenced are those in effect as of April 2024 and adjust example dollar values to align with values in effect as of April 2024 to avoid confusion, improve the utility of the example, and eliminate a typographical error. • Revising Example 7 to clarify that the tiers and amounts referenced are those in effect as of April 2024 and adjust example dollar values to align with values in effect as of April 2024 to avoid confusion, improve the utility of the example, and eliminate a typographical error. • Revising Example 8 to clarify that the tiers and amounts referenced are those in effect as of April 2024 and add “(as adjusted)” ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 24k characters. 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