Premerger Notification; Reporting and Waiting Period Requirements, 35995-36007 [06-5638]
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35995
Rules and Regulations
Federal Register
Vol. 71, No. 121
Friday, June 23, 2006
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 110
The effective date of June 27,
2006, is confirmed by this direct final
rule.
DATES:
Documents related to this
rulemaking may be examined at the
NRC Public Document Room, 11555
Rockville Pike, Rockville, MD. These
same documents may also be viewed
and downloaded electronically via the
rulemaking Web site (https://
ruleforum.llnl.gov). For information
about the interactive rulemaking Web
site, contact Ms. Carol Gallagher (301)
415–5905; e-mail CAG@nrc.gov.
ADDRESSES:
For the Nuclear Regulatory Commission.
Michael T. Lesar,
Chief, Rules and Directives Branch, Division
of Administrative Services, Office of
Administration.
[FR Doc. E6–9922 Filed 6–22–06; 8:45 am]
BILLING CODE 7590–01–P
FEDERAL TRADE COMMISSION
16 CFR Part 803
Premerger Notification; Reporting and
Waiting Period Requirements
Federal Trade Commission.
Final rule amendments.
FOR FURTHER INFORMATION CONTACT:
RIN 3150–AH89
Revision of NRC Form 7, Application
for NRC Export/Import License,
Amendment, or Renewal
Nuclear Regulatory
Commission.
ACTION: Direct final rule: Confirmation
of effective date.
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AGENCY:
SUMMARY: The Nuclear Regulatory
Commission (NRC) is confirming the
effective date of June 27, 2006, for the
direct final rule that appeared in the
Federal Register of April 13, 2006 (71
FR 19102). This direct final rule
amended the NRC’s regulations that
govern the export and import of nuclear
material and equipment concerning the
use of NRC Form 7, ‘‘Application for
NRC Export/Import License,
Amendment, or Renewal.’’ Recently, the
Commission revised NRC Form 7 to
consolidate all license requests (i.e.,
applications for export, import,
combined export/import, amendments
and renewals) in one application form.
Previously, NRC Form 7 was used only
for applications for export of nuclear
material and equipment. Import license
applications, and production or
utilization facility export applications,
and license amendment and renewal
applications were filed by letter. As a
result of the revision, these requests,
previously made by letter, now will be
made using NRC Form 7. The purpose
of this rule change is to amend the
regulations that govern export and
import of nuclear material and
equipment to reflect the consolidation
of all license requests in one
application, NRC Form 7, as revised.
This document confirms the effective
date.
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AGENCY:
Brooke G. Smith, International Policy
Analyst, Office of International
Programs, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001, telephone (301) 415–2490, e-mail
bgs@nrc.gov.
ACTION:
On April
13, 2006 (71 FR 19102), the NRC
published in the Federal Register a
direct final rule amending its
regulations in 10 CFR part 110
concerning the use of NRC Form 7,
‘‘Application for NRC Export/Import
License, Amendment, or Renewal.’’
Recently, the Commission revised NRC
Form 7 to consolidate all license
requests (i.e., applications for export,
import, combined export/import,
amendments and renewals) in one
application form. Previously, NRC Form
7 was used only for applications for
export of nuclear material and
equipment. Import license applications,
and production or utilization facility
export applications, and license
amendment and renewal applications
were filed by letter. As a result of the
revision, these requests, previously
made by letter, now will be made using
NRC Form 7. The purpose of this rule
change is to amend the regulations that
govern export and import of nuclear
material and equipment to reflect the
consolidation of all license requests in
one application, NRC Form 7, as
revised. In the direct final rule, the NRC
stated that if no significant adverse
comments were received, the direct
final rule would become final on the
date noted above. The NRC did not
receive any comments. Therefore, this
rule is effective as scheduled.
SUPPLEMENTARY INFORMATION:
Dated at Rockville, Maryland, this 19th day
of June, 2006.
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SUMMARY: The Commission is amending
the premerger notification rules (‘‘the
rules’’) that require the parties to certain
mergers and acquisitions to file reports
with the Federal Trade Commission
(‘‘the Commission’’ or ‘‘FTC’’) and the
Assistant Attorney General in charge of
the Antitrust Division of the Department
of Justice (‘‘the Assistant Attorney
General’’ or ‘‘DOJ’’) and to wait a
specified period of time before
consummating such transactions. The
reporting and waiting period
requirements are intended to enable
these enforcement 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. These amendments will
update and improve the effectiveness of
the rules by allowing submission of
notification and report forms
electronically via the Internet.
DATES: These final rules are effective on
June 23, 2006.
FOR FURTHER INFORMATION CONTACT:
Comments or questions may be directed
to Robert L. Jones, Deputy Assistant
Director, Premerger Notification Office,
Bureau of Competition, Room 302,
Federal Trade Commission,
Washington, DC 20580. Telephone:
(202) 326–2740. E-mail:
HSRHelp@hsr.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 7A of the Clayton Act (‘‘the
act’’), 15 U.S.C. 18a, as added by the
Hart-Scott-Rodino Antitrust
Improvements Act of 1976, Pub. L. 94–
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435, 90 Stat. 1390, requires all persons
contemplating certain mergers or
acquisitions to file notification with the
Commission and the Assistant Attorney
General and to wait a designated period
of time before consummating such
transactions. Congress empowered the
Commission, with the concurrence of
the Assistant Attorney General, to
require ‘‘that the notification * * * be
in such form and contain such
documentary material and information
* * * as is necessary and appropriate’’
to enable the agencies ‘‘to determine
whether such acquisitions may, if
consummated, violate the antitrust
laws.’’ Congress similarly granted
rulemaking authority to, inter alia,
‘‘prescribe such other rules as may be
necessary and appropriate to carry out
the purposes of this section.’’ 15 U.S.C.
18a(d).
Pursuant to that section, the
Commission, with the concurrence of
the Assistant Attorney General,
developed the Antitrust Improvements
Act Rules (‘‘the rules’’) and the
Notification and Report Form for
Certain Mergers and Acquisitions (‘‘the
Form’’). The rules and Form have been
amended or revised on numerous
occasions. These rule changes amend
Section 803 and the Instructions to the
Form to provide the option of filing the
Form electronically.
Statement of Basis and Purpose for the
Commission’s Revision of Its Premerger
Notification Rules
The Commission, with the
concurrence of the Assistant Attorney
General, is adopting and implementing
these rule changes to allow the
submission of HSR filings electronically
via the Internet. Computer technology
has reached the level of sophistication
necessary, through the growth of the
Internet, near universal access to the
Internet, and increased speed and
sophistication of both computer
hardware and software, to allow
electronic submission of the Form.
Electronic filing will provide several
benefits to the companies filing the
Form as well as to the reviewing
agencies:
—Filing the Form electronically will
eliminate expensive and timeconsuming duplication of submitted
documents. Currently, companies
filing HSR notification must submit
five paper copies of their filing,
consisting of one original and one
copy to the FTC, and three copies to
DOJ.
—Electronic filing will ease the delivery
of completed filings to the agencies
and will facilitate circulation of
filings within the agencies, reducing
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the cost and delay associated with
traditional delivery methods.
Electronic filings may be submitted
quickly and easily at any time.
—Electronic filing will enhance the data
entry of filing information into the
information systems of the agencies.
Some filing data will be electronically
entered directly into the agency
databases rather than by the more
time-consuming method of hand data
entry by agency staff. Direct data entry
will be less prone to data entry error
and potentially more accurate.
In addition to the above benefits,
electronic filing complies with the
mandate of the Government Paperwork
Elimination Act, Pub. L. 105–277, title
XVII (Oct. 21, 1998), which requires that
agencies, to the extent practicable,
provide electronic filing and signature
options.
HSR filings are highly confidential.
Every step of the electronic filing
process has been designed to ensure the
confidentiality and security of
submitted information—from requiring
a valid electronic signature before
submission of the package and
encrypting the signed package, to
securely transmitting the package over
the Internet to a secure FTC server and
providing a return e-mail that the Form
has been received. Once an electronic
Form is received, multiple security
measures such as authentication via
digital certificates, unique permanent ID
tags, and secure storage, will maintain a
high level of security.
In order to provide maximum
flexibility, filers will now have three
options for filing: (1) Complete the Form
and all attachments in hard copy and
deliver them to the designated delivery
sites; (2) complete the electronic version
of the Form and submit the Form and
all attachments electronically; or (3)
complete the electronic version of the
Form and submit it electronically while
providing all documentary attachments
in paper copy to the FTC and DOJ as in
Option 1 above.
The individual rule modifications
necessary to implement electronic filing
are described more fully below.
Section 803.1
Form
Notification and Report
Paragraph (a) will be amended to
eliminate the outdated reference to
photostatic or equivalent reproduction
in order to apply more broadly, thus
including the electronic filing option.
The current version of the Form can be
obtained on the Commission’s Web site,
https://www.ftc.gov, or https://
www.hsr.gov.
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Section 803.2 Instructions Applicable
To Notification and Report Form
In response to Items 4(a) and (b) of the
Form, filing persons currently must
provide copies of, or direct links to,
annual reports, annual audit reports and
regularly prepared balance sheets and
certain documents, such as 10K’s, filed
with the Securities and Exchange
Commission (‘‘SEC’’). These documents
may be attached directly to the
electronic Form.
Certain formats of electronic files
cannot be viewed by the e-filing system.
To ensure the submission of compatible
files and to avoid problems and delay in
processing, a new paragraph, § 803.2(f),
has been added, requiring the use of
specific file formats when submitting
documents or attachments as part of the
electronic Form. The filing person is
responsible for ensuring that all
attachments are of an appropriate file
format and is subject to a notice of a
deficient filing if an unacceptable
format is submitted. See https://
www.hsr.gov for a current list of
acceptable file formats.
Due to technological constraints, the
e-filing system has a restriction on the
size of file that can be submitted
electronically. While this limitation is
high enough to make it unlikely to be
problematic for most filers, filers should
be aware that such a limit exists. See
https://www.hsr.gov for the current
maximum submission size. As
technology improves, the maximum
submission size will increase and
become less and less problematic. New
paragraph, § 803.2(f), requires that all
submissions fall under the size
limitation as specified at https://
www.hsr.gov.
Section 803.5 Affidavits Required
Section 803.5 requires an affidavit
from the filing person attesting to
certain facts about the proposed
acquisition. The affidavit is required to
be attached to the Form at the time of
filing. Paragraphs 803.5(a)(1), (a)(3) and
(b) and the Instructions are amended to
address attachment of the affidavit
when using the electronic filing option.
When filing electronically, the
electronic affidavit form must be used
and submitted along with the filing. The
electronic affidavit form does not
specify the wording to be used, but has
a blank field for the filer to insert the
appropriate language. Thus, as with
paper filings, persons filling out the
electronic Form are free to produce
affidavits specific to the transaction.
Section 803.10 Running of Time
Persons required by the act to file
notification must wait 30 days (or 15
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days in the case of a cash tender offer
or bankruptcy) before consummating the
transaction. This rule provides the
procedures for determining when this
waiting period begins and ends. See
§ 803.10(a) and (b). Paragraph (c)(1)
defines the ‘‘date of receipt and means
of delivery’’ concepts used in
determining when the waiting period
begins. Paragraph (c)(1) has been
amended to provide the date of receipt
for electronic filings as the date when
delivery of the electronic filing is
effected to the Federal Trade
Commission server. Paragraph (c)(1)(i)
has been updated to the current address
of the designated delivery site of the
DOJ.
A matter is ‘‘effected’’ to the server
when a complete electronic Form has
been received by the server maintained
by the FTC for the purpose of receiving
electronic filings. When receipt of a
Form is verified, the system will send
an autoreply e-mail to the filing person
to notify the person that service has
been effected. If a filing is submitted but
no autoreply e-mail is received within
24 hours, the filing person should
confirm receipt with the FTC by e-mail
at ‘‘HSRHelp@hsr.gov’’ or phone at (202)
326–3100. Electronic delivery effected
after 5 p.m. eastern time on a business
day, or at any time on any day other
than a business day, shall be deemed
effected on the next business day.
If the FTC server is unavailable, it will
not be possible to submit a notification
electronically until the server is
available. A filing person assumes the
risk of the server being unavailable. It is
important to note that confirmation of
the date and time of effected service is
not notice of the start of the HSR
Waiting Period, but analogous to getting
a copy of the filing date-stamped on a
transmittal letter for a paper filing.
Separate notice will be sent
subsequently to the parties to a
transaction informing them when the
waiting period has begun. As with paper
filings, if an electronic notification is
deemed deficient, the date of receipt
shall be the date on which a filing that
complies with the rules is received. See
§ 803.10(c)(2).
If a filing person is submitting the
Form electronically but producing hard
copies of attachments to the reviewing
agencies, delivery is not effected until
the Form is received by the FTC server
and all hard copy attachments have
been received by both agencies as
provided in § 803.10(c)(1).
In order to facilitate the disaster
preparedness of the agencies (and not
specific to electronic filing), part of
Paragraph (c)(1) has been modified to
allow for the designation of alternate
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sites for physical delivery of the Form
in the event one or both of the FTC and
DOJ offices are unexpectedly closed.
Notification of the alternate delivery
sites will be made through a press
release and, if possible, on the https://
www.ftc.gov and https://www.hsr.gov
Web sites. The Instructions have been
amended to note this.
Appendix to Part 803—Notification and
Report Form and Instructions
A number of changes have been made
to the Form and Instructions. These
changes are discussed below.
Previous Instructions for the
Notification and Report Form required
that all dollar amounts be rounded to
the nearest thousand dollars. When
entering the dollar amounts into the
Premerger tracking system, the FTC staff
rounds these numbers to one-tenth of a
million. To allow direct data entry of
electronic Form information and to
eliminate the need for rounding when
data is entered by hand into the
Premerger tracking system, the
Instructions have been amended to
require that all dollar amounts be
expressed in millions of dollars to the
nearest one-tenth of a million. For
example, the value of an acquisition
which is $76,340,870 would be
expressed as $76.3 on the Form. The
Instructions to the Form are amended to
reflect this change.
A correction to the instructions,
unrelated to the introduction of e-filing,
relates to Item 7 of the Form, which
requires dollar revenue information to
be provided. In the 2005 rulemaking
that implemented the use of 2002
NAICS codes, two NAICS subsectors
were inadvertently shifted between
subsections of Item 7(c) which requires
certain geographic information for
overlapping NAICS codes. The earlier
1997 NAICS subsectors 513
(broadcasting) and 517
(telecommunications) were referenced
in subsection 7(c)(ii), which requires a
list of states in which the person filing
notification conducts operations. The
2002 NAICS codes renumbered
subsector 513 as 515 (broadcasting) and
a drafting oversight moved it and
subsector 517 (telecommunications) to
subsection 7(c)(iv), which requires the
additional information of address, city,
county and state of each establishment
from which revenues were derived by
the person filing notification. This
correction now properly references
subsectors 515 and 517 in subsection
7(c)(ii).
The section of the Instructions
relating to the affidavit has been
amended to include the required
elements specified in § 803.5. The
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Commission has often received deficient
affidavits. Including this information in
the Instructions should assist filers in
properly preparing the affidavit.
Administrative Procedure Act
These amendments to the HSR rules
and Form fall within the category of
rules covering agency procedure and
practice that are exempt from the noticeand-comment requirements of the
Administrative Procedure Act (‘‘APA’’).
See 5 U.S.C. 553(b)(A). Because the
amendments are not substantive in
nature, they are also not subject to the
delayed effective date provisions of the
APA. See 5 U.S.C. 553(d) (substantive
rules may take effect no sooner than 30
days after publication). Accordingly, the
Commission has determined to make
these amendments effective on June 23,
2006.
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5
U.S.C. 601–612, requires that the agency
conduct an initial and final regulatory
analysis of the anticipated economic
impact of the proposed amendments on
small businesses, except where the
agency head certifies that the regulatory
action will not have a significant
economic impact on a substantial
number of small entities. 5 U.S.C. 605.
The Regulatory Flexibility Act
requirements apply, however, only to
rules or amendments that are subject to
the notice-and-comment requirements
of the APA. See 5 U.S.C. 603, 604.
Because these amendments are exempt
from those APA requirements, as noted
earlier, they are also exempt from the
Regulatory Flexibility Act requirements.
In any event, because of the size of the
transactions necessary to invoke a HartScott-Rodino filing, the premerger
notification rules rarely, if ever, affect
small businesses. Indeed, amendments
to the act in 2001 were intended to
reduce the burden of the premerger
notification program by exempting all
transactions valued at less than $50
million. Further, none of the proposed
rule amendments expands the coverage
of the premerger notification rules in a
way that would affect small business.
Accordingly, to the extent, if any, that
the Regulatory Flexibility Act applies,
the Commission certifies that these
proposed rules will not have a
significant economic impact on a
substantial number of small entities.
This document serves as notice of this
certification to the Small Business
Administration.
Paperwork Reduction Act
The rules and the Form contain
information collection requirements, as
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defined by the Paperwork Reduction
Act, 44 U.S.C. 3501–3518, that have
been reviewed and approved by OMB
under OMB Control No. 3084–0005.
Providing an electronic filing option
was contemplated by the FTC’s
Supporting Statement and OMB’s May
13, 2004 approval of the extension of
the clearance for the rules and the Form.
render the entire filing deficient within
the meaning of § 803.10(c)(2).
I 4. Amend § 803.5 by revising the text
of paragraph (a)(1) introductory text,
paragraph (a)(3), and paragraph (b) to
read as follows:
§ 803.5
Affidavits required.
§ 803.2 Instructions applicable to
Notification and Report Form.
(a)(1) Section 801.30 acquisitions. For
acquisitions to which § 801.30 applies,
the notification required by the act from
each acquiring person shall contain an
affidavit, attached to the front of the
notification, or attached as part of the
electronic submission, attesting that the
issuer whose voting securities are to be
acquired has received notice in writing
by certified or registered mail, by wire
or by hand delivery, at its principal
executive offices, of:
*
*
*
*
*
(3) The affidavit required by this
paragraph must have attached to it a
copy of the written notice received by
the acquired person pursuant to
paragraph (a)(1) of this section. For
electronic filing, an electronic copy of
the written notice must be attached as
part of the electronic submission.
(b) Non-section 801.30 acquisitions.
For acquisitions to which § 801.30 does
not apply, the notification required by
the act shall contain an affidavit,
attached to the front of the notification,
or attached as part of the electronic
submission, attesting that a contract,
agreement in principle or letter of intent
to merge or acquire has been executed,
and further attesting to the good faith
intention of the person filing
notification to complete the transaction.
*
*
*
*
*
I 5. Amend § 803.10 by revising
paragraph (c)(1) to read as follows:
*
§ 803.10
List of Subjects in 16 CFR Part 803
Antitrust.
For the reasons stated in the preamble,
the Federal Trade Commission amends
16 CFR part 803 as set forth below:
I
PART 803—TRANSMITTAL RULES
1. The authority citation for part 803
continues to read as follows:
I
Authority: 15 U.S.C. 18a(d).
2. Amend § 803.1 by revising
paragraph (a) to read as follows:
I
§ 803.1
Notification and Report Form.
(a) The notification required by the
act shall be the Notification and Report
Form set forth in the appendix to this
part (803), as amended from time to
time. All acquiring and acquired
persons required to file notification by
the act and these rules shall do so by
completing and filing the Notification
and Report Form, in accordance with
the instructions thereon and these rules.
The current version of the Form can be
obtained at https://www.ftc.gov or
https://www.hsr.gov.
*
*
*
*
*
I 3. Amend § 803.2 by adding paragraph
(f) to read as follows:
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*
*
*
*
(f) Filings made electronically,
including documents or other
attachments submitted as part of such
filings, must comply with all format and
size requirements set forth at https://
www.hsr.gov. The use of any format or
size not specified as acceptable, or any
other failure to comply with the
applicable format requirements, shall
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Running of time.
*
*
*
*
*
(c)(1) Date of receipt and means of
delivery. For purposes of this section,
these procedures shall apply.
(i) For paper copy filings, the date of
receipt shall be the date on which
delivery is effected to the designated
offices (Premerger Notification Office,
Room 303, Federal Trade Commission,
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600 Pennsylvania Avenue, NW.,
Washington, DC 20580, and Director of
Operations, Antitrust Division,
Department of Justice, 950 Pennsylvania
Avenue, NW., Room #3335,
Washington, DC 20530) during normal
business hours. Delivery should be
effected directly to the designated
offices, either by hand or by certified or
registered mail. In the event one or both
of the delivery sites are unavailable, the
FTC and DOJ may designate alternate
sites for delivery of the filing.
Notification of the alternate delivery
sites will normally be made through a
press release and, if possible, on the
https://www.ftc.gov and https://
www.hsr.gov Web sites.
(ii) For electronic filings, the date of
receipt shall be the date on which
delivery of the electronic filing package
is effected to the server maintained by
the FTC for the purpose of receiving
electronic filings.
(iii) For electronic filings with paper
copy submission of all attachments, the
date of receipt shall be either the date
on which delivery of the electronic
filing package is effected to the Federal
Trade Commission’s server or the date
on which delivery of the attachments is
effected to the designated offices as
provided in paragraph (c)(1)(i) of this
section, whichever is later.
(iv) Delivery effected after 5 p.m.
eastern time on a business day, or at any
time on any day other than a business
day, shall be deemed effected on the
next following business day. If delivery
of all required filings to all offices
required to receive such filings is not
effected on the same date, the date of
receipt shall be the latest of the dates on
which delivery is effected.
Example: * * *
*
*
*
*
*
I 6. Amend the Appendix to part 803 to
revise the instructions applicable to the
Notification and Report Form and page
1 of the Notification and Report Form to
read as follows:
Appendix to Part 803
BILLING CODE 6750–01–P
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Federal Register / Vol. 71, No. 121 / Friday, June 23, 2006 / Rules and Regulations
*
*
*
*
Details removed from the regulations
will be addressed in our corresponding
policy statement on the classification
and review program. We do not, by this
rule, intend to make any substantive
changes to the current rules or to the
classification and program review
system. We merely intend to clarify and
streamline the existing rules.
*
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 06–5638 Filed 6–22–06; 8:45 am]
BILLING CODE 6750–01–C
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 524
[BOP–1131–F]
RIN 1120–AB32
Classification and Program Review
Bureau of Prisons, Justice.
Final rule.
AGENCY:
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ACTION:
SUMMARY: In this document, the Bureau
of Prisons (Bureau) revises its
regulations on classification and
program review to remove unnecessary
regulations and to ensure that
classification and program review
procedures adequately address inmate
needs.
DATES: This rule is effective July 24,
2006.
FOR FURTHER INFORMATION CONTACT:
Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, phone (202)
307–2105, e-mail boprules@bop.gov.
SUPPLEMENTARY INFORMATION: In this
document, we revise and streamline the
regulations regarding inmate
classification and program review,
which currently describe procedure,
practice, and general statements of
policy, to remove an unnecessary level
of operational details with regard to the
classification and program review
process. A proposed rule on this subject
was published on November 3, 2005 (70
FR 66814). Because we received no
comments on the proposed rule, we
now publish the final rule without
substantive change.
For clarification, we make one minor
change to § 524.11(d). Formerly, this
paragraph stated that an inmate ‘‘may
choose not to participate in an offered
[work] program unless the program is a
work assignment or required by Bureau
policy, court order, or statute,’’ The
repetition of similar terms, such as
‘‘work program’’ and ‘‘work
assignment’’ may have been confusing.
We therefore revise this paragraph to
clarify that an inmate ‘‘must participate
in this work assignment and any other
program required by Bureau policy,
court order, or statute,’’ but that an
inmate ‘‘may choose not to participate
in other voluntary programs.’’
VerDate Aug<31>2005
17:52 Jun 22, 2006
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Executive Order 12866
This regulation has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulatory Planning and
Review’’, section 1(b), Principles of
Regulation. The Director, Bureau of
Prisons has determined that this rule is
not a ‘‘significant regulatory action’’
under Executive Order 12866, section
3(f), and accordingly this rule has not
been reviewed by the Office of
Management and Budget.
Executive Order 13132
This regulation will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on
distribution of power and
responsibilities among the various
levels of government. Therefore, under
Executive Order 13132, we determine
that this rule does not have sufficient
federalism implications to warrant the
preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Director of the Bureau of Prisons,
under the Regulatory Flexibility Act (5
U.S.C. 605(b)), reviewed this regulation
and by approving it certifies that it will
not have a significant economic impact
upon a substantial number of small
entities for the following reasons: This
rule pertains to the correctional
management of offenders committed to
the custody of the Attorney General or
the Director of the Bureau of Prisons,
and its economic impact is limited to
the Bureau’s appropriated funds.
Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by § 804 of the Small Business
Regulatory Enforcement Fairness Act of
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1996. This rule will not result in an
annual effect on the economy of
$100,000,000 or more; a major increase
in costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
List of Subjects in 28 CFR Part 524
Prisoners.
Harley G. Lappin,
Director, Bureau of Prisons.
Under rulemaking authority vested in
the Attorney General in 5 U.S.C. 301; 28
U.S.C. 509, 510 and delegated to the
Director, Bureau of Prisons in 28 CFR
0.96, we amend 28 CFR part 524 as set
forth below.
I
Subchapter B—Inmate Admission,
Classification, and Transfer
PART 524—CLASSIFICATION OF
INMATES
1. Revise the authority citation for 28
CFR part 524 to read as follows:
I
Authority: 5 U.S.C. 301; 18 U.S.C. 3521–
3528, 3621, 3622, 3624, 4001, 4042, 4046,
4081, 4082 (Repealed in part as to offenses
committed on or after November 1, 1987),
5006–5024 (Repealed October 12, 1984 as to
offenses committed after that date), 5039; 21
U.S.C. 848; 28 U.S.C. 509, 510.
I
2. Revise subpart B to read as follows:
Subpart B—Classification and Program
Review of Inmates
Sec.
524.10 Purpose.
524.11 Process for classification and
program reviews.
Subpart B—Classification and
Program Review of Inmates
§ 524.10
Purpose.
The purpose of this subpart is to
explain the Bureau of Prisons (Bureau)
process for classifying newly committed
inmates and conducting program
reviews for all inmates except:
(a) Pretrial inmates, covered in 28
CFR part 551; and
(b) Inmates committed for study and
observation.
§ 524.11 Process for classification and
program reviews.
(a) When:
(1) Newly committed inmates will be
classified within 28 calendar days of
arrival at the institution designated for
service of sentence.
(2) Inmates will receive a program
review at least once every 180 calendar
days. When an inmate is within twelve
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]]>Agencies
[Federal Register Volume 71, Number 121 (Friday, June 23, 2006)]
[Rules and Regulations]
[Pages 35995-36007]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5638]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 803
Premerger Notification; Reporting and Waiting Period Requirements
AGENCY: Federal Trade Commission.
ACTION: Final rule amendments.
-----------------------------------------------------------------------
SUMMARY: The Commission is amending the premerger notification rules
(``the rules'') that require the parties to certain mergers and
acquisitions to file reports with the Federal Trade Commission (``the
Commission'' or ``FTC'') and the Assistant Attorney General in charge
of the Antitrust Division of the Department of Justice (``the Assistant
Attorney General'' or ``DOJ'') and to wait a specified period of time
before consummating such transactions. The reporting and waiting period
requirements are intended to enable these enforcement 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. These
amendments will update and improve the effectiveness of the rules by
allowing submission of notification and report forms electronically via
the Internet.
DATES: These final rules are effective on June 23, 2006.
FOR FURTHER INFORMATION CONTACT: Comments or questions may be directed
to Robert L. Jones, Deputy Assistant Director, Premerger Notification
Office, Bureau of Competition, Room 302, Federal Trade Commission,
Washington, DC 20580. Telephone: (202) 326-2740. E-mail:
HSRHelp@hsr.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 7A of the Clayton Act (``the act''), 15 U.S.C. 18a, as
added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub.
L. 94-
[[Page 35996]]
435, 90 Stat. 1390, requires all persons contemplating certain mergers
or acquisitions to file notification with the Commission and the
Assistant Attorney General and to wait a designated period of time
before consummating such transactions. Congress empowered the
Commission, with the concurrence of the Assistant Attorney General, to
require ``that the notification * * * be in such form and contain such
documentary material and information * * * as is necessary and
appropriate'' to enable the agencies ``to determine whether such
acquisitions may, if consummated, violate the antitrust laws.''
Congress similarly granted rulemaking authority to, inter alia,
``prescribe such other rules as may be necessary and appropriate to
carry out the purposes of this section.'' 15 U.S.C. 18a(d).
Pursuant to that section, the Commission, with the concurrence of
the Assistant Attorney General, developed the Antitrust Improvements
Act Rules (``the rules'') and the Notification and Report Form for
Certain Mergers and Acquisitions (``the Form''). The rules and Form
have been amended or revised on numerous occasions. These rule changes
amend Section 803 and the Instructions to the Form to provide the
option of filing the Form electronically.
Statement of Basis and Purpose for the Commission's Revision of Its
Premerger Notification Rules
The Commission, with the concurrence of the Assistant Attorney
General, is adopting and implementing these rule changes to allow the
submission of HSR filings electronically via the Internet. Computer
technology has reached the level of sophistication necessary, through
the growth of the Internet, near universal access to the Internet, and
increased speed and sophistication of both computer hardware and
software, to allow electronic submission of the Form. Electronic filing
will provide several benefits to the companies filing the Form as well
as to the reviewing agencies:
--Filing the Form electronically will eliminate expensive and time-
consuming duplication of submitted documents. Currently, companies
filing HSR notification must submit five paper copies of their filing,
consisting of one original and one copy to the FTC, and three copies to
DOJ.
--Electronic filing will ease the delivery of completed filings to the
agencies and will facilitate circulation of filings within the
agencies, reducing the cost and delay associated with traditional
delivery methods. Electronic filings may be submitted quickly and
easily at any time.
--Electronic filing will enhance the data entry of filing information
into the information systems of the agencies. Some filing data will be
electronically entered directly into the agency databases rather than
by the more time-consuming method of hand data entry by agency staff.
Direct data entry will be less prone to data entry error and
potentially more accurate.
In addition to the above benefits, electronic filing complies with
the mandate of the Government Paperwork Elimination Act, Pub. L. 105-
277, title XVII (Oct. 21, 1998), which requires that agencies, to the
extent practicable, provide electronic filing and signature options.
HSR filings are highly confidential. Every step of the electronic
filing process has been designed to ensure the confidentiality and
security of submitted information--from requiring a valid electronic
signature before submission of the package and encrypting the signed
package, to securely transmitting the package over the Internet to a
secure FTC server and providing a return e-mail that the Form has been
received. Once an electronic Form is received, multiple security
measures such as authentication via digital certificates, unique
permanent ID tags, and secure storage, will maintain a high level of
security.
In order to provide maximum flexibility, filers will now have three
options for filing: (1) Complete the Form and all attachments in hard
copy and deliver them to the designated delivery sites; (2) complete
the electronic version of the Form and submit the Form and all
attachments electronically; or (3) complete the electronic version of
the Form and submit it electronically while providing all documentary
attachments in paper copy to the FTC and DOJ as in Option 1 above.
The individual rule modifications necessary to implement electronic
filing are described more fully below.
Section 803.1 Notification and Report Form
Paragraph (a) will be amended to eliminate the outdated reference
to photostatic or equivalent reproduction in order to apply more
broadly, thus including the electronic filing option. The current
version of the Form can be obtained on the Commission's Web site,
https://www.ftc.gov, or https://www.hsr.gov.
Section 803.2 Instructions Applicable To Notification and Report Form
In response to Items 4(a) and (b) of the Form, filing persons
currently must provide copies of, or direct links to, annual reports,
annual audit reports and regularly prepared balance sheets and certain
documents, such as 10K's, filed with the Securities and Exchange
Commission (``SEC''). These documents may be attached directly to the
electronic Form.
Certain formats of electronic files cannot be viewed by the e-
filing system. To ensure the submission of compatible files and to
avoid problems and delay in processing, a new paragraph, Sec.
803.2(f), has been added, requiring the use of specific file formats
when submitting documents or attachments as part of the electronic
Form. The filing person is responsible for ensuring that all
attachments are of an appropriate file format and is subject to a
notice of a deficient filing if an unacceptable format is submitted.
See https://www.hsr.gov for a current list of acceptable file formats.
Due to technological constraints, the e-filing system has a
restriction on the size of file that can be submitted electronically.
While this limitation is high enough to make it unlikely to be
problematic for most filers, filers should be aware that such a limit
exists. See https://www.hsr.gov for the current maximum submission
size. As technology improves, the maximum submission size will increase
and become less and less problematic. New paragraph, Sec. 803.2(f),
requires that all submissions fall under the size limitation as
specified at https://www.hsr.gov.
Section 803.5 Affidavits Required
Section 803.5 requires an affidavit from the filing person
attesting to certain facts about the proposed acquisition. The
affidavit is required to be attached to the Form at the time of filing.
Paragraphs 803.5(a)(1), (a)(3) and (b) and the Instructions are amended
to address attachment of the affidavit when using the electronic filing
option.
When filing electronically, the electronic affidavit form must be
used and submitted along with the filing. The electronic affidavit form
does not specify the wording to be used, but has a blank field for the
filer to insert the appropriate language. Thus, as with paper filings,
persons filling out the electronic Form are free to produce affidavits
specific to the transaction.
Section 803.10 Running of Time
Persons required by the act to file notification must wait 30 days
(or 15
[[Page 35997]]
days in the case of a cash tender offer or bankruptcy) before
consummating the transaction. This rule provides the procedures for
determining when this waiting period begins and ends. See Sec.
803.10(a) and (b). Paragraph (c)(1) defines the ``date of receipt and
means of delivery'' concepts used in determining when the waiting
period begins. Paragraph (c)(1) has been amended to provide the date of
receipt for electronic filings as the date when delivery of the
electronic filing is effected to the Federal Trade Commission server.
Paragraph (c)(1)(i) has been updated to the current address of the
designated delivery site of the DOJ.
A matter is ``effected'' to the server when a complete electronic
Form has been received by the server maintained by the FTC for the
purpose of receiving electronic filings. When receipt of a Form is
verified, the system will send an autoreply e-mail to the filing person
to notify the person that service has been effected. If a filing is
submitted but no autoreply e-mail is received within 24 hours, the
filing person should confirm receipt with the FTC by e-mail at
``HSRHelp@hsr.gov'' or phone at (202) 326-3100. Electronic delivery
effected after 5 p.m. eastern time on a business day, or at any time on
any day other than a business day, shall be deemed effected on the next
business day.
If the FTC server is unavailable, it will not be possible to submit
a notification electronically until the server is available. A filing
person assumes the risk of the server being unavailable. It is
important to note that confirmation of the date and time of effected
service is not notice of the start of the HSR Waiting Period, but
analogous to getting a copy of the filing date-stamped on a transmittal
letter for a paper filing. Separate notice will be sent subsequently to
the parties to a transaction informing them when the waiting period has
begun. As with paper filings, if an electronic notification is deemed
deficient, the date of receipt shall be the date on which a filing that
complies with the rules is received. See Sec. 803.10(c)(2).
If a filing person is submitting the Form electronically but
producing hard copies of attachments to the reviewing agencies,
delivery is not effected until the Form is received by the FTC server
and all hard copy attachments have been received by both agencies as
provided in Sec. 803.10(c)(1).
In order to facilitate the disaster preparedness of the agencies
(and not specific to electronic filing), part of Paragraph (c)(1) has
been modified to allow for the designation of alternate sites for
physical delivery of the Form in the event one or both of the FTC and
DOJ offices are unexpectedly closed. Notification of the alternate
delivery sites will be made through a press release and, if possible,
on the https://www.ftc.gov and https://www.hsr.gov Web sites. The
Instructions have been amended to note this.
Appendix to Part 803--Notification and Report Form and Instructions
A number of changes have been made to the Form and Instructions.
These changes are discussed below.
Previous Instructions for the Notification and Report Form required
that all dollar amounts be rounded to the nearest thousand dollars.
When entering the dollar amounts into the Premerger tracking system,
the FTC staff rounds these numbers to one-tenth of a million. To allow
direct data entry of electronic Form information and to eliminate the
need for rounding when data is entered by hand into the Premerger
tracking system, the Instructions have been amended to require that all
dollar amounts be expressed in millions of dollars to the nearest one-
tenth of a million. For example, the value of an acquisition which is
$76,340,870 would be expressed as $76.3 on the Form. The Instructions
to the Form are amended to reflect this change.
A correction to the instructions, unrelated to the introduction of
e-filing, relates to Item 7 of the Form, which requires dollar revenue
information to be provided. In the 2005 rulemaking that implemented the
use of 2002 NAICS codes, two NAICS subsectors were inadvertently
shifted between subsections of Item 7(c) which requires certain
geographic information for overlapping NAICS codes. The earlier 1997
NAICS subsectors 513 (broadcasting) and 517 (telecommunications) were
referenced in subsection 7(c)(ii), which requires a list of states in
which the person filing notification conducts operations. The 2002
NAICS codes renumbered subsector 513 as 515 (broadcasting) and a
drafting oversight moved it and subsector 517 (telecommunications) to
subsection 7(c)(iv), which requires the additional information of
address, city, county and state of each establishment from which
revenues were derived by the person filing notification. This
correction now properly references subsectors 515 and 517 in subsection
7(c)(ii).
The section of the Instructions relating to the affidavit has been
amended to include the required elements specified in Sec. 803.5. The
Commission has often received deficient affidavits. Including this
information in the Instructions should assist filers in properly
preparing the affidavit.
Administrative Procedure Act
These amendments to the HSR rules and Form fall within the category
of rules covering agency procedure and practice that are exempt from
the notice-and-comment requirements of the Administrative Procedure Act
(``APA''). See 5 U.S.C. 553(b)(A). Because the amendments are not
substantive in nature, they are also not subject to the delayed
effective date provisions of the APA. See 5 U.S.C. 553(d) (substantive
rules may take effect no sooner than 30 days after publication).
Accordingly, the Commission has determined to make these amendments
effective on June 23, 2006.
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that the
agency conduct an initial and final regulatory analysis of the
anticipated economic impact of the proposed amendments on small
businesses, except where the agency head certifies that the regulatory
action will not have a significant economic impact on a substantial
number of small entities. 5 U.S.C. 605. The Regulatory Flexibility Act
requirements apply, however, only to rules or amendments that are
subject to the notice-and-comment requirements of the APA. See 5 U.S.C.
603, 604. Because these amendments are exempt from those APA
requirements, as noted earlier, they are also exempt from the
Regulatory Flexibility Act requirements. In any event, because of the
size of the transactions necessary to invoke a Hart-Scott-Rodino
filing, the premerger notification rules rarely, if ever, affect small
businesses. Indeed, amendments to the act in 2001 were intended to
reduce the burden of the premerger notification program by exempting
all transactions valued at less than $50 million. Further, none of the
proposed rule amendments expands the coverage of the premerger
notification rules in a way that would affect small business.
Accordingly, to the extent, if any, that the Regulatory Flexibility Act
applies, the Commission certifies that these proposed rules will not
have a significant economic impact on a substantial number of small
entities. This document serves as notice of this certification to the
Small Business Administration.
Paperwork Reduction Act
The rules and the Form contain information collection requirements,
as
[[Page 35998]]
defined by the Paperwork Reduction Act, 44 U.S.C. 3501-3518, that have
been reviewed and approved by OMB under OMB Control No. 3084-0005.
Providing an electronic filing option was contemplated by the FTC's
Supporting Statement and OMB's May 13, 2004 approval of the extension
of the clearance for the rules and the Form.
List of Subjects in 16 CFR Part 803
Antitrust.
0
For the reasons stated in the preamble, the Federal Trade Commission
amends 16 CFR part 803 as set forth below:
PART 803--TRANSMITTAL RULES
0
1. The authority citation for part 803 continues to read as follows:
Authority: 15 U.S.C. 18a(d).
0
2. Amend Sec. 803.1 by revising paragraph (a) to read as follows:
Sec. 803.1 Notification and Report Form.
(a) The notification required by the act shall be the Notification
and Report Form set forth in the appendix to this part (803), as
amended from time to time. All acquiring and acquired persons required
to file notification by the act and these rules shall do so by
completing and filing the Notification and Report Form, in accordance
with the instructions thereon and these rules. The current version of
the Form can be obtained at https://www.ftc.gov or https://www.hsr.gov.
* * * * *
0
3. Amend Sec. 803.2 by adding paragraph (f) to read as follows:
Sec. 803.2 Instructions applicable to Notification and Report Form.
* * * * *
(f) Filings made electronically, including documents or other
attachments submitted as part of such filings, must comply with all
format and size requirements set forth at https://www.hsr.gov. The use
of any format or size not specified as acceptable, or any other failure
to comply with the applicable format requirements, shall render the
entire filing deficient within the meaning of Sec. 803.10(c)(2).
0
4. Amend Sec. 803.5 by revising the text of paragraph (a)(1)
introductory text, paragraph (a)(3), and paragraph (b) to read as
follows:
Sec. 803.5 Affidavits required.
(a)(1) Section 801.30 acquisitions. For acquisitions to which Sec.
801.30 applies, the notification required by the act from each
acquiring person shall contain an affidavit, attached to the front of
the notification, or attached as part of the electronic submission,
attesting that the issuer whose voting securities are to be acquired
has received notice in writing by certified or registered mail, by wire
or by hand delivery, at its principal executive offices, of:
* * * * *
(3) The affidavit required by this paragraph must have attached to
it a copy of the written notice received by the acquired person
pursuant to paragraph (a)(1) of this section. For electronic filing, an
electronic copy of the written notice must be attached as part of the
electronic submission.
(b) Non-section 801.30 acquisitions. For acquisitions to which
Sec. 801.30 does not apply, the notification required by the act shall
contain an affidavit, attached to the front of the notification, or
attached as part of the electronic submission, attesting that a
contract, agreement in principle or letter of intent to merge or
acquire has been executed, and further attesting to the good faith
intention of the person filing notification to complete the
transaction.
* * * * *
0
5. Amend Sec. 803.10 by revising paragraph (c)(1) to read as follows:
Sec. 803.10 Running of time.
* * * * *
(c)(1) Date of receipt and means of delivery. For purposes of this
section, these procedures shall apply.
(i) For paper copy filings, the date of receipt shall be the date
on which delivery is effected to the designated offices (Premerger
Notification Office, Room 303, Federal Trade Commission, 600
Pennsylvania Avenue, NW., Washington, DC 20580, and Director of
Operations, Antitrust Division, Department of Justice, 950 Pennsylvania
Avenue, NW., Room 3335, Washington, DC 20530) during normal
business hours. Delivery should be effected directly to the designated
offices, either by hand or by certified or registered mail. In the
event one or both of the delivery sites are unavailable, the FTC and
DOJ may designate alternate sites for delivery of the filing.
Notification of the alternate delivery sites will normally be made
through a press release and, if possible, on the https://www.ftc.gov and
https://www.hsr.gov Web sites.
(ii) For electronic filings, the date of receipt shall be the date
on which delivery of the electronic filing package is effected to the
server maintained by the FTC for the purpose of receiving electronic
filings.
(iii) For electronic filings with paper copy submission of all
attachments, the date of receipt shall be either the date on which
delivery of the electronic filing package is effected to the Federal
Trade Commission's server or the date on which delivery of the
attachments is effected to the designated offices as provided in
paragraph (c)(1)(i) of this section, whichever is later.
(iv) Delivery effected after 5 p.m. eastern time on a business day,
or at any time on any day other than a business day, shall be deemed
effected on the next following business day. If delivery of all
required filings to all offices required to receive such filings is not
effected on the same date, the date of receipt shall be the latest of
the dates on which delivery is effected.
Example: * * *
* * * * *
0
6. Amend the Appendix to part 803 to revise the instructions applicable
to the Notification and Report Form and page 1 of the Notification and
Report Form to read as follows:
Appendix to Part 803
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* * * * *
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 06-5638 Filed 6-22-06; 8:45 am]
BILLING CODE 6750-01-C
