Premerger Notification; Reporting and Waiting Period Requirements, 60257-60272 [2016-20950]
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Federal Register / Vol. 81, No. 170 / Thursday, September 1, 2016 / Rules and Regulations
Washington, DC 20024. Telephone:
(202) 326–3100, Email: rjones@ftc.gov.
SUPPLEMENTARY INFORMATION:
PART 772—[AMENDED]
22. The authority citation for 15 CFR
part 772 is revised to read as follows:
■
Authority: 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025,
3 CFR, 2001 Comp., p. 783; Notice of August
4, 2016, 81 FR 52587 (August 8, 2016).
PART 774—[AMENDED]
23. The authority citation for 15 CFR
part 774 is revised to read as follows:
■
Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C.
1701 et seq.; 10 U.S.C. 7420; 10 U.S.C.
7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et
seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15
U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201
et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR
58767, 3 CFR, 1996 Comp., p. 228; E.O.
13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of August 4, 2016, 81 FR 52587
(August 8, 2016).
Dated: August 26, 2016.
Kevin J. Wolf,
Assistant Secretary for Export
Administration.
[FR Doc. 2016–21031 Filed 8–31–16; 8:45 am]
BILLING CODE 3510–33–P
FEDERAL TRADE COMMISSION
16 CFR Part 803
Premerger Notification; Reporting and
Waiting Period Requirements
Federal Trade Commission.
Final rule.
AGENCY:
ACTION:
The Commission is amending
the Hart-Scott-Rodino (‘‘HSR’’)
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’’) (together the ‘‘Antitrust
Agencies’’ or ‘‘Agencies’’) and to wait a
specified period of time before
consummating such transactions. These
amendments update the Rules to allow
for submission of the Premerger
Notification and Report Form (‘‘Form’’)
and accompanying documents (together
the ‘‘HSR Filing’’) on digital video/
versatile disc (‘‘DVD’’), and clarify the
Instructions to the Form.
DATES: Effective September 1, 2016.
FOR FURTHER INFORMATION CONTACT:
Robert L. Jones, Assistant Director,
Premerger Notification Office, Bureau of
Competition, Room 5301, Federal Trade
Commission, 400 7th Street SW.,
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SUMMARY:
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Introduction
Section 7A of the Clayton Act (the
‘‘Act’’) requires the parties to certain
mergers or acquisitions to file with the
Commission and DOJ to allow the
Agencies to conduct their initial review
of a proposed transaction’s competitive
impact and requires the parties 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 Antitrust 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 Section 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 Form
and its associated Instructions, codified
at part 803—appendix, to govern the
form of premerger notifications to be
provided by merging parties.
HSR Filings provide the Agencies
with the information and documentary
material necessary for an initial
evaluation of the potential
anticompetitive impact of significant
mergers, acquisitions and certain similar
transactions. Currently, all HSR Filings
are submitted in paper. Through these
amendments to the Rules, the Agencies
will allow the submission of HSR
Filings digitally on DVD (‘‘DVD
filings’’). The acceptance of DVD filings
requires certain conforming changes to
the Instructions to the Form, so the
Commission is also taking this
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opportunity to clarify the Instructions
and make them easier to use.
Statement of Basis and Purpose for the
Commission’s Revision of Its Premerger
Notification Form, Instructions and
Rules
Since the inception of the HSR
program, the HSR Form and its
attachments have been submitted in
paper. In 2006, an electronic filing
option was introduced that would allow
filers to upload HSR Filings directly to
the Agencies but that option failed to
gain traction due to the limitations of
the underlying technology, and it was
soon discontinued. While the Agencies
continue to explore an electronic filing
option, they have decided to accept the
submission of HSR Filings digitally on
DVD. Accordingly, the Commission
amends part 803 to delete references to
the discontinued electronic filing option
and revises these sections and the
Instructions to the Form found in the
appendix to part 803 to allow for DVD
filings. Documents submitted by the
parties with the filing are typically
created and stored in digital format.
Allowing parties to submit these digital
files on electronic media will be more
efficient and cost-effective, providing
benefits to filing parties as well as the
Agencies:
—Currently, those submitting HSR
Filings must provide five paper copies
of their Form, consisting of one
original and one copy to the FTC, and
three copies to DOJ, as well as one set
of Documentary Attachments to each
Agency. DVD filing will eliminate the
expensive and time-consuming
printing and duplication of
documents, and allow for a more
efficient filing process for filing
parties.
—DVD filing will ease the physical
delivery of voluminous HSR Filings to
the Agencies, and facilitate the
processing and review of filings
within each Agency.
—DVD filing will allow for more
efficient and less costly storage
options for the Agencies
To provide maximum flexibility,
filing parties will still have the
traditional option of submitting HSR
Filings in paper. Submitting an HSR
Filing partially on DVD and partially in
paper will not be permitted, however.
Additionally, DVD submissions must be
accompanied by original hard copies of
the cover letter, certification and
affidavit. The individual rule
amendments associated with DVD filing
are described more fully below.
Additionally, this rulemaking makes
minor changes to the Form Instructions,
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many of which are unrelated to DVD
filing, to reduce the burden on filing
parties by making it easier to prepare
the Form and comply with the HSR
Filing requirements. These changes are
not substantive in nature, and involve
formatting, clarification, and
simplification, as well as the deletion of
immaterial language, with the goal of
eliminating confusion for filing parties,
as noted below.
Section 803.1 Notification and Report
Form
The internet portal established in
2006, www.hsr.gov, to allow the
electronic filing of HSR Filings is no
longer technologically viable, and
references to HSR.gov are removed from
all Rules in which they appear and the
Instructions.
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Section 803.2 Instructions Applicable
to Notification and Report Form
Section 803.2(e)(1) currently allows
filers to forego the physical production
of documents responsive to Item 4(b) by
incorporating by reference documents
previously filed with the Agencies in
other transactions. The purpose of the
rule was to avoid the costly duplication
of responsive documents that were
already in the possession of the
Agencies. However, given § 803.2(e)(2),
which allows parties to cite to an
Internet address rather than provide
hard copies of responsive documents,
and the ease of copying documents onto
a DVD without any expensive hard copy
duplication, § 803.2 is being amended to
delete § 803.2(e)(1). The existing,
current, § 803.2(e)(2) will be
renumbered to § 803.2(e), and the new
§ 803.2(e) has been amended for clarity.
To ensure the submission of
compatible and readable electronic files,
and to avoid problems and delays in
processing HSR Filings, paragraph (f) of
§ 803.2 has been amended to require the
use of specific formatting when
submitting an HSR Filing on DVD, and
to remove the reference to www.hsr.gov.
The filing person is responsible for
ensuring that the formatting
requirements are observed and is subject
to a notice of deficient filing if an
unacceptable format is submitted. See
https://www.ftc.gov/enforcement/
premerger-notification-program for all
current DVD Filing format requirements.
Section 803.3 Statement of Reasons
for Noncompliance
Section 803.3 identifies the specific
information that a filing person must
provide when not responding to an Item
on the Form. Paragraph (d) identifies the
specifics of making a claim of privilege.
Paragraph (d) is amended to require the
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titles and/or positions of the author of
a document, the addressee, and all
recipients of the document being
withheld or redacted under a claim of
privilege to enable the Agencies to
better assess if the privilege applies.
Section 803.5 Affidavits Required
Section 803.5 requires an affidavit
from the filing person attesting to the
good faith intention of the person filing
to proceed with the transaction. The
affidavit must be attached to the Form
at the time of filing. Paragraphs (a)(1),
(a)(3), and (b) are amended to address
inclusion of the affidavit when using the
DVD filing option. If only a scanned
version of the signed affidavit is
available at the time of filing, it must be
submitted on the DVD, and the original
signed hard copy should be provided to
the FTC as soon as possible.
Section 803.10 Running of Time
Persons required by the Act to submit
HSR Filings must comply with specified
statutory waiting periods before
consummating the transaction. Section
803.10(c)(1)(i) is amended to define the
‘‘date of receipt and means of delivery’’
for purposes of determining when the
waiting period begins for filings
submitted on DVD. Delivery is to be
effected by providing a DVD filing
directly to the designated agency offices,
by either hand or certified or registered
mail, FedEx or UPS, during normal
business hours.
References and paragraphs relating
exclusively to ‘‘electronic’’ filing, as
well as references to www.hsr.gov, have
been deleted to avoid confusion, as the
submission of filings electronically is
not currently available.
Appendix to Part 803—Notification and
Report Form and Instructions
A number of changes have been made
to the Form Instructions, including
changes unrelated to DVD filing, that are
intended to clarify the Instructions and
simplify the process of completing an
HSR Form. Many of these changes
involve new formatting or the
substitution or deletion of a word,
sentence or paragraph. The more
significant changes entail the following
amendments:
‘‘Filing’’
Accounts for the option of filing using
a DVD, including specific formatting
and submission requirements.
‘‘Responses’’
Clarifies that estimated financial
information provided in the Form
should include an ‘‘est.’’ notation. Also
specifies that additional pages should be
included within the Form, not with the
Documentary Attachments.
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‘‘Amount Paid’’
Eliminates the requirement for an
explanatory attachment regarding
valuation.
‘‘Payer Identification’’ and ‘‘Method of
Payment’’
Clarifies the process and requirements
for submitting HSR filing fees.
‘‘Item 1(g)’’
Specifies that identification of a
second contact person is required.
‘‘Item 2(d)’’
Clarifies how to respond where a
transaction involves a mixed deal
including voting securities, and/or noncorporate interests, and/or assets.
‘‘Item 3(a)’’
Reorganized and reworded for clarity.
Clarifies that the description of the
transaction should include a brief and
simple description of the relevant assets
or business operation(s) to be acquired.
Deletes requirement for identification of
expected dates of major events and
deletes paragraph discussing
acquisitions ‘‘from a holder other than
the issuer or unincorporated entity’’ to
reduce confusion.
‘‘Item 3(b)’’
Clarifies that agreement schedules are
not required unless they represent some
agreement between the parties (e.g., a
non-compete). Specifies that parties
filing on a letter of intent may also
submit a draft of the definitive
agreement, if one exists.
‘‘Item 4(b)’’
Reorganized and amended to clarify
the types of reports that are acceptable
(e.g., unaudited reports that are relied
upon by the board are permitted), and
from which entities reports are required.
‘‘Items 4(c) and 4(d)’’
Clarifies that document title, date, and
author information is required for both
4(c) and 4(d) documents. Additionally
amended to clarify the proper labeling
convention for these documents, as well
as the privilege log requirements
outlined in § 803.3(d).
‘‘Item 5(a)’’
Simplifies the instructions.
‘‘Item 6(b)’’
Amended to clarify that only
shareholders with 5% or more, but less
than 50% must be identified.
‘‘Item 6(c)’’
Clarifies the instructions.
‘‘Item 7’’
Amended to clarify that all six-digit
NAICS industry code overlaps must be
reported, regardless of whether there is
a ten-digit NAICS overlap.
‘‘Item 7(b)’’
Amended to clarify which entities
should be listed.
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‘‘Item 7(c)’’
Amended to change the order and
organization of the NAICS codes for
clarity, and renumbered the subsections. Amended to clarify that
geographic information should be
provided by state postal code
abbreviations, including identifying the
number of states reported, and that a
response of ‘‘national’’ is acceptable in
certain cases in lieu of listing every
state.
‘‘Item 7(c)(iv)’’
Amended to more clearly state that
county and city/town information is
required for the specific NAICS codes
outlined in this section. Reformatted for
readability.
‘‘Item 8’’
Amended to clarify that Item 8 is
related to codes reported in Item 5.
Administrative Procedure Act
The Commission finds good cause to
adopt these changes without prior
public comment. Under the
Administrative Procedure Act (‘‘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
Rules, Form and Instructions to provide
the option of submitting HSR Filings on
DVD, and to clarify the Form
Instructions. Paper copy submission
will remain available. 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 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).
For these reasons, the Commission
finds that there is good cause for
adopting this final rule as effective on
September 1, 2016 without prior public
comment.
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 an HSR
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 (as adjusted annually).
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
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. 3501–3521.
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:
PART 803—TRANSMITTAL RULES
1. The authority citation for part 803
continues to read as follows:
■
Authority: 15 U.S.C. 18a(d).
2. Amend § 803.1 by revising
paragraph (a) to read as follows:
■
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Regulatory Flexibility Act
§ 803.1
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
(a) The notification required by the
act shall be the Notification and Report
Form set forth in the appendix to this
part, 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,
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Notification and Report Form.
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in accordance with the instructions
thereon and these rules. The current
version of the Form can be obtained at
https://www.ftc.gov.
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■ 3. Amend § 803.2 by revising
paragraphs (e) and (f) to read as follows:
§ 803.2 Instructions applicable to
Notification and Report Form.
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(e) For documents required by item
4(b) of the Notification and Report
Form, a person filing the notification
may, instead of submitting a document,
provide a cite to an operative Internet
address directly linking to the
document, if the linked document is
complete and payment is not required to
access the document. If an Internet
address becomes inoperative during the
waiting period, or the document is
otherwise rendered inaccessible or
incomplete, upon notification by the
Commission or Assistant Attorney
General, the parties must make the
document available to the agencies by
either referencing an operative Internet
address where the complete document
may be accessed or by providing paper
copies to the agencies as provided in
§ 803.10(c)(1) by 5 p.m. on the next
regular business day. Failure to make
the document available, by the Internet
or by providing paper copies, by 5 p.m.
on the next regular business day, will
result in notice of a deficient filing
pursuant to § 803.10(c)(2).
(f) Filings made via DVD must comply
with all format requirements set forth at
the Premerger Notification Office pages
at https://www.ftc.gov. The use of any
format 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 § 803.10(c)(2).
■ 4. Amend § 803.3 by revising
paragraph (d) to read as follows:
§ 803.3 Statement of reasons for
noncompliance.
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(d) Where noncompliance is based on
a claim of privilege, a statement of the
claim of privilege and all facts relied on
in support thereof, including the
identity of each document, its author,
the author’s title/position, addressee,
the addressee’s title/position, date,
subject matter, all recipients of the
original and of any copies, the
recipients’ titles/positions, the
document’s present location, and who
has control of it.
■ 5. Amend § 803.5 by revising
paragraphs (a)(1) introductory text,
(a)(3), and (b) to read as follows:
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Affidavits required.
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(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 with the DVD
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:
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(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 DVD
filings, the written notice (in a form
specified in the instructions) must be
included on the DVD.
(b) Non-section 801.30 acquisitions.
For acquisitions to which § 801.30 does
not apply, the notification required by
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the act shall contain an affidavit,
attached to the front of the notification,
or with the DVD 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.
■ 6. Amend § 803.10 by revising
paragraph (c)(1)(i), removing paragraphs
(c)(1)(ii) and (iii), and redesignating
paragraph (c)(1)(iv) as paragraph
(c)(1)(ii) to read as follows:
§ 803.10
Running of time.
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(c)(1) * * *
(i) For paper copy filings and DVD
filings, the date of receipt shall be the
date on which delivery is effected to the
designated offices (Premerger
Notification Office, Federal Trade
Commission, Room 5301, 400 7th Street
SW., Washington, DC 20024, and
Director of Civil Enforcement, Office of
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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 (including FedEx and UPS). 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 Web site.
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7. Amend the appendix to part 803 by
revising the Instructions to the Form to
read as follows:
■
Appendix to Part 803—Notification and
Report Form for Certain Mergers and
Acquisitions
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BILLING CODE 6750–01–P
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DLXXIX
ANTITRUST IMPROVEMENTS ACT
NOTIFICATION AND REPORT FORM
for Certain Mergers and Acquisitions
The Notification and Report Form ("the Form") is required to be
submitted pursuant to § 803.1 (a) of the premerger notification
rules, 16 CFR Parts 801-803 ("the Rules"). These instructions
specify the information that must be provided in response to the
items on the Form.
The Form must be a searchable PDF document. All other files
must be in searchable PDF or MS Excel spreadsheet format and
saved in color, if applicable.
Information
The central office for information and assistance concerning the
Form and the Rules is:
Label each DVD with the name of the person filing (i.e., the
ultimate parent entity ("UPE"), see§ 801.1 (a)(3)), the name of a
contact person and that person's phone number. Leave space on
the DVD for the Agencies to write the assigned transaction
number and date of receipt.
Premerger Notification Office
Federjill Trade Commission, Room 5301
400 t Street, S.W.
Washington, D.C. 20024
Phone: (202) 326-3100
Copies of the Form, Instructions and Rules as well as information
to assist in completing the Form are available at the PNO
website.
---
Definitions
The definitions used in this Form are set forth in the Rules. See
Statute. Rules and Formal Interpretations for copies of the HartScott-Rodino Act ("the Act"), the Rules, and the Federal Register
Notices issuing the Rules and Rule amendments ("Statements of
Basis and Purpose").
Filing
Parties should file the completed Form, together with all
documentary attachments, with the Premerger Notification Office
("PNO") of the Federal Trade Commission ("FTC") and the
Premerger Unit of the Antitrust Division of the Department of
Justice ("DOJ") (together, "the Agencies"). Filers have the option
of submitting a DVD filing or a paper filing. Filings should be
submitted to:
If the DVD or files contain viruses, passwords, or are not
readable, the filing will not be accepted and the waiting period will
not start.
For further instructions on DVD filing and specific DVD
requirements, go to HSR Resources on the PNO website.
Premerger Notification Office
Federjill Trade Commission, Room 5301
400 t Street, S.W.
Washington, D.C. 20024
Affidavits
Affidavit(s) are required by § 803.5 and must attest to the good
faith of the persons filing to complete the transaction. Affidavits
must be notarized or use the language found in 28 U.S.C. § 1746
relating to unsworn declarations under penalty of perjury. If an
entity is filing on behalf of the acquiring or acquired person, the
affidavit must still attest to the good faith of the UPE.
and
Office of Operations, Premerger Unit
Antitrust Division, Department of Justice
950 Pennsylvania Avenue, N.W., Room #3335
Washington, D.C. 20530
In non-§ 801.30 transactions, the affidavit(s) (submitted by
both persons filing) must attest that a contract, agreement in
principle or letter of intent to merge or acquire has been
executed, and further attest to the good faith intention of the
person filing notification to complete the transaction. (See
§ 803.5(b)).
(For FED EX airbills to the Department of
Justice, do not use the 20530 zip code; use
zip code 20004.)
In § 801.30 transactions, the affidavit (submitted 2!!]y by the
acquiring person) must attest:
1)
2)
The term "documentary attachments" refers 2!!]y to materials
submitted in response to Item 3(b), Item 4 and to submissions
pursuant to§ 803.1 (b) of the Rules.
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that the issuer whose voting securities or the
unincorporated entity whose non-corporate interests are
to be acquired has received notice, as described below,
from the acquiring person;
in the case of a tender offer, that the intention to make
DLXXIX
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If one or both delivery sites are unavailable, the Agencies may
announce alternate sites for delivery through the media and, if
possible, at the PNO website.
60262
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DLXXX
the tender offer has been publicly announced; and
3)
securities or non-corporate interests currently being acquired
the good faith intention of the person filing notification to
complete the transaction.
when their acquisition is exempt under the Act or Rules. (See
§ 803.2(c)).
Year
All references to "year'' refer to calendar year. If data are not
available on a calendar year basis, supply the requested data for
the fiscal year reporting period that most nearly corresponds to
the calendar year specified. References to "most recent year''
mean the most recent calendar or fiscal year for which the
requested information is available.
Acquiring persons in 801.30 transactions are required to
submit a copy of the notice received by the acquired person
pursuant to § 803.5(a)(3) along with the filing. This notice
must include:
1)
the identity of the acquiring person and the fact that the
acquiring person intends to acquire voting securities of
the issuer or non-corporate interests of the
unincorporated entity;
2)
the specific notification threshold that the acquiring
person intends to meet or exceed in an acquisition of
voting securities;
3)
the fact that the acquisition may be subject to the Act,
and that the acquiring person will file notification under
the Act;
4)
the anticipated date of receipt of such notification by the
Agencies; and
5)
North American Industry Classification System (NAICS) Data
The Form requests "dollar revenues" categorized by NAICS
codes for non-manufactured and manufactured products with
respect to operations conducted within the United States, and for
products manufactured outside of the United States and sold into
the United States. (See§ 803.2(d)). Filing persons must submit
data at the 6-digit NAICS national industry code level to reflect
non-manufacturing dollar revenues. To the extent that dollar
revenues are derived from manufacturing operations (NAICS
Sectors 31-33), filing persons must only submit data at the 10digit NAICS product code levels, not the 6-digit level. (See Item 5
below).
the fact that the person within which the issuer or
unincorporated entity is included may be required to file
notification under the Act. (See § 803.5(a)).
In reporting information by 6-digit NAICS industry code, refer to
the most recent North American Industry Classification System United States published by the Executive Office of the President,
Office of Management and Budget. In reporting information by
10-digit NAICS product code, refer to the most recent Numerical
List of Manufactured and Mineral Products published by the
Bureau of the Census. Information regarding NAICS is available
at www.census.gov. This site also provides assistance in
choosing the proper code(s) for reporting in Item 5 of the Form.
Responses
Enter the name of the person filing notification in Item 1(a) on
page 1 of the Form, and enter the same name and the date on
which the Form is completed at the top of each page of the Form.
If there is insufficient room on the Form for a response to a
particular item, attach "additional pages" behind that item on the
Form. Filers must submit a complete set of additional pages
within each copy of the Form.
Thresholds
Filing fee and notification thresholds are adjusted annually
pursuant to 15 U .S.C. § 18A(a)(2)(A) based on the change in
gross national product, in accordance with 15 U.S.C. § 19(a)(5).
The current threshold values can be found at Current Filing
Thresholds.
Each additional page should identify, at the top of the page, the
name of the person filing notification, the date on which the Form
is completed and the item to which it is addressed.
Voluntary submissions pursuant to§ 803.1 (b) should be identified
as V-1, V-2, etc.
END OF GENERAL SECTION
If unable to answer any item fully, provide such information as is
available and a statement of reasons for non-compliance as
required by § 803.3. If exact answers to any item cannot be
given, enter best estimates and indicate the source or basis of
such estimates. Add an endnote with the notation "est." to any
item where data are estimated.
All financial information should be expressed in millions of dollars
rounded to the nearest one-tenth of a million dollars.
Limited Response
The acquired person should limit its response:
in the case of an acquisition of assets, to the assets
being acquired;
2)
in the case of an acquisition of voting securities, to the
issuer(s) whose voting securities are being acquired and
all entities controlled by such acquired entities; and
3)
in the case of an acquisition of non-corporate interests,
to the unincorporated entity(s) whose non-corporate
interests are being acquired and all entities controlled by
such acquired entities.
Separate responses may be required where a person is both
acquiring and acquired. (See§ 803.2(b)).
Information need not be supplied regarding assets, voting
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60263
DLXXXI
Fee Information
The fee for filing the Form is based on the aggregate total value
of assets, voting securities and controlling non-corporate interests
to be held as a result of the acquisition:
Early Termination
Put an X in the "yes" box to request early termination of the
waiting period. Notification of each grant of early termination will
be published in the Federal Register, as required by 15 U.S.C.
§ 18A(b)(2), and on the PNO website. Note that if either party in
.!illY transaction requests early termination, it may be granted and
published.
Transactions Subject to International Antitrust Notification
If, to the knowledge or belief of the filing person at the time of
filing, a non-U.S. antitrust or competition authority has been or will
be notified of the proposed transaction, list the name of each such
authority. Response to this item is voluntary.
greater than $50 million (as
adjusted) but less than $100 million
(as adjusted)
$45,000
$100 million (as adjusted) or greater
but less than $500 million
(as adjusted)
$125,000
$500 million or greater
(as adjusted)
$280,000
For current thresholds and fee information, see the PNO website.
Amount Paid
Indicate the amount of the filing fee paid. This amount should be
net of any banking or financial institution charges.
Payer Identification
Provide the payer's name and 9-digit Taxpayer Identification
Number (TIN). If the payer is a natural person with no TIN,
provide the natural person's social security number.
Method of Payment
Check the box indicating the method of payment. If paying by
electronic wire transfer (EWT), provide the EWT confirmation
number and the name of the financial institution from which the
EWT is being sent. If the EWT confirmation number is not
available at the time of filing, provide this information to the PNO
within two business days of filing.
In order for the FTC to track payment, the payer must provide
information required by the Fedwire Instructions to the financial
institution initiating the EWT. A template of the Fedwire
Instructions is available at the PNO website on the Filing Fee
Information page.
If paying by certified check, include the check in the filing,
attached to the cover letter.
Corrective Filings
Put an X in the appropriate box to indicate whether the notification
is a corrective filing (i.e., an acquisition that has already taken
place without filing, in violation of the statute). See Procedures
for Submitting Post-Consummation Filings for more information
on how to proceed in the case of a corrective filing.
Bankruptcy
Put an X in the appropriate box to indicate whether the acquired
person's filing is being made by a trustee in bankruptcy or by a
debtor-in-possession for a transaction that is subject to Section
363(b) of the Bankruptcy Code (11 U.S.C. § 363).
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Cash Tender Offer
Put an X in the appropriate box to indicate whether the acquisition
is a cash tender offer.
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DLXXXII
Item 1(a)
Provide the name, headquarters address and website (if one
exists) of the person filing notification. The name of the person
filing is the name of the UPE. (See§ 801.1 (a)(3)).
Item 2(a)
Provide the names of all UPEs of acquiring and acquired persons
that are parties to the transaction, whether or not they are
required to file notification. If a person is not required to file,
check the non-reportable box.
Item 1(b)
Indicate whether the person filing notification is an acquiring
person, an acquired person, or both an acquiring and acquired
person. (See§ 801.2).
Item 2(b)
Put an X in all the boxes that apply to the transaction.
Item 1(c)
Put an X in the appropriate box to indicate whether the person in
Item 1(a) is a corporation, unincorporated entity, natural person,
or other (specify). (See§ 801.1).
Item 1(d)
Put an X in the appropriate box to indicate whether data furnished
in Item 5 is by calendar year or fiscal year. If fiscal year, specify
the time period.
Note that the 50% notification threshold is the highest threshold
and should be used for any acquisition of 50% or more of the
voting securities of an issuer, regardless of the value of the voting
securities. For instance, an acquisition of 100% of the voting
securities of an issuer, valued in excess of $500 million (as
adjusted) would cross the 50% notification threshold, not the $500
million (as adjusted) threshold.
Item 1(e)
Put an X in the appropriate box to indicate if the Form is being
filed on behalf of the UPE by another entity within the same
person authorized by it to file notification on its behalf pursuant to
§ 803.2(a), or if the Form is being filed pursuant to§ 803.4 on
behalf of a foreign person. Then provide the name and mailing
address of the entity filing notification on behalf of the filing
person named in Item 1(a) of the Form.
Item 1(f)
For the acquiring person, if an entity other than the UPE listed in
Item 1(a) is making the acquisition, provide the name and mailing
address of that entity and the percentage of its voting securities or
non-corporate interests held directly or indirectly by the person
named in Item 1(a) above.
For the acquired person, if the assets, voting securities or noncorporate interests of an entity other than the UPE listed in Item
1(a) are being acquired, provide the name and mailing address of
that entity and the percentage of its voting securities or noncorporate interests held directly or indirectly by the person named
in Item 1(a) above.
Item 2(d)
Provide the requested information on assets, voting securities
and non-corporate interests. If a combination of assets, voting
securities and/or non-corporate interests is being acquired and
allocation is not possible, note such information in an endnote.
For determining percentage of voting securities, evaluate total
voting power per§ 801.12.
For determining percentage of non-corporate interests, evaluate
the economic interests per§ 801.1 (b)(1 )(ii).
Item 2(d)(i)
State the value of voting securities already held. (See§ 801.1 0).
Item 2(d)(ii)
State the percentage of voting securities already held. (See
§ 801.12).
Item 1(g)
Provide the name and title, firm name, address, telephone
number, fax number and e-mail address of the primary and
secondary individuals to contact regarding the Form. A second
contact person is required. (See§ 803.20(b)(2)(ii)).
Item 2(d)(iii)
State the total value of voting securities to be held as a result of
the acquisition. (See§ 801.10).
Item 1(h)
Foreign filing persons must provide the name, firm name,
address, telephone number, fax number and e-mail address of an
individual located in the United States designated for the limited
purpose of receiving notice of the issuance of a request for
additional information or documentary material. (See
§ 803.20(b)(2)(iii)).
Item 2(d)(iv)
State the total percentage of voting securities to be held as a
result of the acquisition. (See § 801.12).
Item 2(d)(v)
State the value of non-corporate interests already held. (See
§ 801.10).
Item 2(d)(vi)
State the percentage of non-corporate interests already held.
(See§ 801.1 (b)(1)(ii)).
END OF ITEM 1
Item 2(d)(vii)
State the total value of non-corporate interests to be held as a
result of the acquisition. (See§ 801.1 0).
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Item 2(c)
This item should only be completed by the acquiring person
where voting securities are being acquired. If more than
voting securities are being acquired, respond to this item only
regarding voting securities. Put an X in the box to indicate the
highest applicable threshold for which notification is being filed:
$50 million (as adjusted), $100 million (as adjusted), $500 million
(as adjusted), 25% (if the value of voting securities to be held is
greater than $1 billion, as adjusted), or 50%. (See§ 801.1 (h)).
Federal Register / Vol. 81, No. 170 / Thursday, September 1, 2016 / Rules and Regulations
60265
DLXXXIII
Item 2(d)(viii)
State the total percentage of non-corporate interests to be held as
a result of the acquisition. (See§§ 801.10 and 801.1 (b)(1 )(ii)).
Item 2(d)(ix)
State the value of assets to be held as a result of the acquisition.
(See § 801.1 0).
Item 3(a)
At the top of Item 3(a), list the name and mailing address of each
acquiring and acquired person, and acquiring and acquired entity,
whether or not required to file notification.
In the Transaction Description section, briefly describe the
transaction, indicating whether assets, voting securities or noncorporate interests (or some combination) are to be acquired.
Describe the business operation(s) being acquired. If assets,
describe the assets and whether they comprise a business
operation. Also, indicate what consideration will be received by
each party and the scheduled consummation date of the
transaction.
Item 2(d)(x)
State the aggregate total value of assets, voting securities and
non-corporate interests of the acquired person to be held as a
result of the acquisition. (See §§ 801.10, 801.12, 801.13 and
801.14).
If there are additional filings, such as shareholder backside filings,
associated with the transaction, identify those. Also, identify any
special circumstances that apply to the filing, such as whether
part of the transaction is exempt under one of the exemptions
found in Part 802.
END OF ITEM 2
Item 3(b)
Furnish copies of all documents that constitute the agreement(s)
among the acquiring person(s) and the person(s) whose assets,
voting securities or non-corporate interests are to be acquired.
Also furnish agreements not to compete and other agreements
between the parties. Do not submit schedules and the like unless
they contain agreements not to compete, other agreements
between the parties, or other important terms of the transaction.
For purposes of Item 3(b), responsive documents must be
submitted; identifying an internet address or providing a link is not
sufficient.
Documents that constitute the agreement(s) (e.g., a Letter of
Intent, Merger Agreement, Purchase and Sale Agreement) must
be executed, while agreements not to compete may be provided
in draft form if that is the most recent version.
If parties are filing on an executed Letter of Intent, they may also
submit a draft of the definitive agreement, if one exists.
Note that transactions subject to § 801.30 and bankruptcies under
11 U.S. C. § 363 do not require an executed agreement or letter of
intent. For bankruptcies, provide the order from the bankruptcy
court.
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DlXXXIV
Item 4(a)
Provide the names of all entities within the person filing
notification, including the UPE, that file annual reports (Form 10-K
or Form 20-F) with the United States Securities and Exchange
Commission, and provide the Central Index Key (CIK) number for
each entity.
Item 4(b)
Provide the most recent annual reports and/or annual audit
reports (or, if audited is unavailable, unaudited) of the person
filing notification.
Privilege
Note that if the filing person withholds or redacts portions of any
document responsive to Items 4(c) and 4(d) based on a claim of
privilege, the person must provide a statement of reasons for noncompliance (a "privilege log") detailing the claim of privilege for
each withheld or redacted document. (See§ 803.3(d)).
For each document, include the:
1)
title of the document;
2)
its author;
3)
author's title/position;
4)
addressee;
5)
addressee's title/position;
6)
date;
Natural persons need only provide the most recent reports for the
highest level entity(s) they control. Do not provide personal
balance sheets or tax returns.
7)
subject matter;
8)
all recipients of the original and any copies;
If the most recent reports do not show sales or assets sufficient to
meet the size of person test, and the size of person test is
relevant given the size of the transaction, the filing person must
stipulate in Item 4(b) that it meets the test.
9)
recipients' titles/positions;
The acquiring person should also provide the most recent reports
of the acquiring entity(s) and any controlled entity whose dollar
revenues contribute to an overlap reported in Item 7.
The acquired person should also provide the most recent reports
of the acquired entity(s).
10) document's present location; and
11) who has control over it.
Note that the person filing notification may incorporate a
document by reference to an internet address directly linking to
the document. (See § 803.2(e)).
Additionally, the filing person must state the factual basis
supporting the privilege claim in sufficient detail to enable staff to
assess the validity of the claim for each document without
disclosing the protected information.
Items 4(c) and 4(d)
For each document responsive to Items 4(c) and 4(d), provide
the:
1)
document's title;
2)
date of preparation; and
3)
If a privileged document was circulated to a group, such as the
Board or an investment committee, the name of the group is
sufficient, but the filing person should be prepared to disclose the
names and titles/positions of the individual group members, if
requested. If the claim of privilege is based on advice from
outside counsel, the name of the outside counsel providing the
advice and the related law firm must be provided. If several
lawyers participated in providing advice, identifying lead counsel
is sufficient. In identifying who controls a document, the name of
the law firm is sufficient.
name and title of each individual who prepared the
document.
If a specific date is not available, indicate the month and year the
document was prepared.
When creating a privilege log, use a separate numbering system
for withheld documents, such as P-1, P-2, etc. Redacted
documents should also be listed on a separate log that complies
with § 803.3(d).
If a large group of people prepared the document, list all the
authors and their titles, identifying the principal authors.
Alternatively, it is acceptable to indicate that the document was
prepared under the supervision of the lead author and to provide
the name and title of that author. If a third party prepared the
document, the date of preparation and the name of the third party
will suffice.
When submitting a document responsive to both 4(c) and 4(d), list
it only once, under 4(c) Q[ 4(d).
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Item 4(d)
Item 4(d)(i)
Provide all Confidential Information Memoranda prepared by or
for any officer(s) or director(s) (or, in the case of unincorporated
entities, individuals exercising similar functions) of the UPE of the
acquiring or acquired person or of the acquiring or acquired
entity(s) that specifically relate to the sale of the acquired entity(s)
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Numbering
Number each document provided in response to Items 4(c) and
4(d). Number 4(c) documents 4(c)-1, 4(c)-2, 4(c)-3,
etc. Likewise, number 4(d) documents 4(d)-1, 4(d)-2, 4(d)-3, etc.,
regardless of the three sub-categories within Item 4(d). If a
document is responsive to both 4(c) and 4(d), there is no need to
cross-reference.
Item 4(c)
Provide all studies, surveys, analyses and reports which were
prepared by or for any officer(s) or director(s) (or, in the case of
unincorporated entities, individuals exercising similar functions)
for the purpose of evaluating or analyzing the acquisition with
respect to market shares, competition, competitors, markets,
potential for sales growth or expansion into product or geographic
markets.
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60267
DLXXXV
ITEMS 5 THROUGH 7
or assets. If no such Confidential Information Memorandum
exists, submit any document(s) given to any officer(s) or
director(s) of the buyer meant to serve the function of a
Confidential Information Memorandum. This does not include
ordinary course documents and/or financial data shared in the
course of due diligence, except to the extent that such materials
served the purpose of a Confidential lnfonnation Memorandum
when no such Confidential Information Memorandum exists.
Documents responsive to this item are limited to those produced
up to one year before the date of filing.
Limited response for acquired person. For Items 5 through 7,
the acquired person should limit its response in the case of an
acquisition of:
1)
2)
Item 4(d)(ii)
Provide all studies, surveys, analyses and reports prepared by
investment bankers, consultants or other third party advisors
("third party advisors") for any officer(s) or director(s) (or, in the
case of unincorporated entities, individuals exercising similar
functions) of the UPE of the acquiring or acquired person or of the
acquiring or acquired entity(s) for the purpose of evaluating or
analyzing market shares, competition, competitors, markets,
potential for sales growth or expansion into product or geographic
markets that specifically relate to the sale of the acquired entity(s)
or assets. This item requires only materials developed by third
party advisors during an engagement or for the purpose of
seeking an engagement. Documents responsive to this item are
limited to those produced up to one year before the date of filing.
Item 4(d)(iii)
Provide all studies, surveys, analyses and reports evaluating or
analyzing synergies and/or efficiencies prepared by or for any
officer(s) or director(s) (or, in the case of unincorporated entities,
individuals exercising similar functions) for the purpose of
evaluating or analyzing the acquisition. Financial models without
stated assumptions need not be provided in response to this item.
assets, to the assets to be acquired;
voting securities, to the issuer(s) whose voting securities
are being acquired and all entities controlled by such
issuer; and/or
3)
non-corporate interests, to the unincorporated entity(s)
being acquired and all entities controlled by such
unincorporated entity(s).
A person filing as both acquiring and acquired persons may be
required to provide a separate response to Items 5 through 7 in
each capacity so that it can properly limit its response as an
acquired person. (See§§ 803.2(b) and (c)).
This item requests information by NAICS code regarding dollar
revenues. (See NAICS Data section on page II). All persons
must submit data on non-manufacturing dollar revenues at the 6digit NAICS industry code level. To the extent that dollar
revenues are derived from manufacturing operations (NAICS
Sectors 31-33), only submit data at the 10-digit product code level
(NAICS-based codes).
List all NAICS codes in ascending order.
Persons filing notification should include the total dollar revenues
for all entities included within the person filing notification at the
time the Form is prepared. If no dollar revenues are reported,
check the "None" box and provide a brief explanation.
END OF ITEM 4
Item 5(a)
Provide 6-digit NAICS industry data concerning the aggregate
U.S. operations of the person filing notification for the most recent
year in all non-manufacturing NAICS Sectors in which the person
engaged. If the dollar revenues for a non-manufacturing NAICS
code totaled less than one million dollars in the most recent year,
that code may be omitted from Item 5(a).
IHh
Provide 10-digit NAICS product code data for each product code
within all manufacturing NAICS Sectors (31-33) in which the
person engaged in the U.S., including dollar revenues for each
product manufactured outside the U.S. but sold into the U.S.
Sales of any manufactured product should be reported in a
manufacturing code only, even if sold through a separate
warehouse or retail establishment.
If such data have not been compiled for the most recent year,
estimates of dollar revenues by 6-digit NAICS industry codes and
10-digit NAICS product codes may be provided.
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Check the Overlap box for a NAICS code if both parties to the
transaction generate dollar revenues in that NAICS code. If there
is .Q!l.]y a 6-digit overlap in a manufacturing code in Item 7, do not
check the Overlap box for a related 10-digit code in Item 5.
60268
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DLXXXVI
Item 5(b)
Complete only if the acquisition is the formation of a joint
venture corporation or unincorporated entity. (See §§ 801.40
and 801.50). If the acquisition is not the formation of a joint
venture, check the "Not Applicable" box.
Item 5(b)(i)
List the contributions that each person fanning the joint venture
corporation or unincorporated entity has agreed to make,
specifying when each contribution is to be made and the value of
the contribution as agreed by the contributors.
Item 5(b)(ii)
Describe fully the consideration that each person fanning the joint
venture corporation or unincorporated entity will receive in
exchange for its contribution(s).
Item 5(b)(iii)
Describe generally the business in which the joint venture
corporation or unincorporated entity will engage, including its
principal types of products or activities, and the geographic areas
in which it will do business.
Item 5(b)(iv)
Identify each 6-digit NAICS industry code in which the joint
venture corporation or unincorporated entity will derive dollar
revenues. If the joint venture corporation or unincorporated entity
will be engaged in manufacturing, also specify each 10-digit
NAICS product code in which it will derive dollar revenues.
An acquired person does not complete Item 6 if the
transaction involves only the acquisition of assets. If the
transaction involves a mix of assets along with voting securities
and/or non-corporate interests, the acquired person must
complete Item 6 as related to the voting securities and noncorporate interests.
Item 6(a)
Subsidiaries of filing person. List the name, city and
state/country of all U.S. entities, and all foreign entities that have
sales in or into the U.S., that are included within the person filing
notification. Entities with total assets of less than $10 million may
be omitted. Alternatively, the filing person may report all entities
within it.
Item 6(b)
Minority shareholders. For the acquired entity(s) and for the
acquiring entity(s) and its UPE or, in the case of natural persons,
the top-level corporate or unincorporated entity(s) within that
UPE, list the name and headquarters mailing address of each
shareholder that holds 5% or more but less than 50% of the
outstanding voting securities or non-corporate interests of the
entity, and the percentage of voting securities or non-corporate
interests held by that person. (See§ 801.1 (c))
For limited partnerships, only the general partner(s), regardless of
percentage held, should be listed.
Item 6(c)
Minority holdings. Item 6(c) requires the disclosure of holdings
of 5% or more but less than 50%, of any entity(s) that derives
dollar revenues in any 6-digit NAICS code reported by the other
person filing notification. Holdings in those entities that have total
assets of less than $10 million may be omitted.
END OF ITEM 5
The acquiring person may rely on its regularly prepared financials
that list its investments, and those of its associates that list their
investments, to respond to Items 6(c)(i) and (ii), provided the
financials are no more than three months old.
If NAICS codes are unavailable, holdings in entities that have
operations in the same industry, based on the knowledge or belief
of the acquiring person, should be listed. In responding to Items
6(c)(i) and 6(c)(ii), it is permissible for the acquiring person to list
all entities in which it or its associate(s) holds 5% or more but less
than 50% of the voting securities of any issuer or non-corporate
interests of any unincorporated entity. Holdings in those entities
that have total assets of less than $10 million may be omitted.
Item 6(c)(i)
Minority holdings of filing person. If the person filing
notification holds 5% or more but less than 50% of the voting
securities of any issuer or non-corporate interests of any
unincorporated entity, list the issuer and percentage of voting
securities held, or in the case of an unincorporated entity, list the
unincorporated entity and the percentage of non-corporate
interests held.
The acquired person should limit its response, based on its
knowledge or belief, to entities that derive dollar revenues in the
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The acquiring person should limit its response, based on its
knowledge or belief, to entities that derived dollar revenues in the
most recent year from operations in industries within any 6-digit
NAICS industry code in which the acquired entity(s) or assets
also derived dollar revenues in the most recent year.
Federal Register / Vol. 81, No. 170 / Thursday, September 1, 2016 / Rules and Regulations
60269
DLXXXVII
same 6-digit NAICS industry code as the acquiring person.
Item 6(c)(ii)
Minority holdings of associates.
This item should only be completed by the acquiring person.
Based on the knowledge or belief of the acquiring person, for
each associate (see § 801.1 (d)(2)) of the acquiring person
holding:
If, to the knowledge or belief of the person filing notification, the
acquiring person, or any associate (see§ 801.1 (d)(2)) of the
acquiring person, derived any amount of dollar revenues (even if
omitted from Item 5) in the most recent year from operations:
1)
1)
5% or more but less than 50% of the voting securities of
any issuer or non-corporate interests of any
unincorporated entity that derived dollar revenues in the
most recent year from operations in industries within any
6-digit NAICS industry code in which the acquired
entity(s) or assets also derived dollar revenues in the
most recent year;
2)
in which a joint venture corporation or unincorporated
entity will derive dollar revenues;
5% or more but less than 50% of the voting securities or
non-corporate interests of the acquired entity(s); and/or
2)
in industries within any 6-digit NAICS industry code in
which any acquired entity that is a party to the
acquisition also derived any amount of dollar revenues in
the most recent year; Q[
list the associate, the issuer or unincorporated entity and the
percentage held.
then for each such 6-digit NAICS industry code follow the
instructions below for this section.
Note that if the acquired entity is a joint venture, the only overlaps
that should be reported are those between the assets to be held
by the joint venture and any assets of the acquiring person or its
associates not contributed to the joint venture.
Item 7(a)
Industry Code Overlap Information
Provide the 6-digit NAICS industry code and description for the
industry, and indicate whether the overlap is from the person, an
associate or both.
END OF ITEM 6
Item 7(b)
Item 7(b)(i)
If the UPE of the other person(s) filing notification derived dollar
revenues in the same 6-digit industry code(s) listed in Item 7(a),
list the name of that UPE and the name of the entity(s) within that
UPE that actually derived those dollar revenues, if different from
the entity(s) listed in Item 3(a).
Item 7(b)(ii)
This item should only be completed by the acquiring person.
List the name of each associate of the acquiring person that also
derived dollar revenues through a controlled operating
company(s) in the 6-digit industry and, if different, the name of the
entity(s) that actually derived those dollar revenues.
Item 7(c)
Geographic Market Information
Use the 2-digit postal codes for states and territories and provide
the total number of states and territories at the end of the
response.
Item 7(c)(i)
NAICS Sectors 31-33
For each 6-digit NAICS industry code within NAICS Sectors 31-33
(manufacturing industries) listed in Item 7(a), list the relevant
geographic information in which, to the knowledge or belief of the
person filing the notification, the products in that 6-digit NAICS
industry code produced by the person filing notification are sold
without a significant change in their form (whether they are sold
by the person filing notification or by others to whom such
products have been sold or resold). Except for industries covered
by Item 7(c)(iv)(b), the relevant geographic information is all
states or, if desired, portions thereof.
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Note that except in the case of those NAICS industries in the
Sectors and Subsectors mentioned in Item 7(c)(iv), the person
filing notification may respond with the word "national" if business
is conducted in all 50 states.
60270
Federal Register / Vol. 81, No. 170 / Thursday, September 1, 2016 / Rules and Regulations
DLXXXVIII
519
523
Item 7(c)(ii)
NAICS Sector 42
For each 6-digit NAICS industry code within NAICS Sector 42
(wholesale trade) listed in Item ?(a), list the states or, if desired,
portions thereof in which the customers of the person filing
notification are located.
5242
525
53
54
55
56
Item 7(c)(iii)
NAICS lndustrv Group 5241
For each 6-digit NAICS industry code within NAICS Industry
Group 5241 (insurance carriers) listed in Item ?(a), list the state(s)
in which the person filing notification is licensed to write
insurance.
61
7212
Item 7(c)(iv)(a)
Other NAJCS Sectors
For each 6-digit NAICS industry code listed in item ?(a) within the
NAICS Sectors or Subsectors below, list the states or, if desired,
portions thereof in which the person filing notification conducts
such operations.
11
21
22
23
48-49
511
515
517
71
7213
813
8114
other information services
securities, commodity contracts and other
financial investments and related activities
insurance agencies and brokerages, and other
insurance related activities
funds, trusts and other financial vehicles
real estate and rental and leasing
professional, scientific and technical services
management of companies and enterprises
administrative and support and waste
management and remediation services
educational services
recreational vehicle parks and recreational
camps
rooming and boarding houses
religious, grantmaking, civic, professional, and
similar organizations
personal and household goods repair and
maintenance
Item 7(d)
This item should only be completed by the acquiring person.
Use the geographic markets listed in Items 7(c)(i) through 7(c)(iv)
to respond to this item, providing the information for associates of
the acquiring person. Provide separate responses for each
associate of the acquiring person and, if different, the controlled
operating company(s) that actually derived the dollar revenues.
agriculture, forestry, fishing and hunting
mining
utilities
construction
transportation and warehousing
publishing industries
broadcasting
telecommunications
arts, entertainment and recreation
END OF ITEM 7
Item 7(c)(iv)(b)
For each 6-digit NAICS industry code listed in item 7(a) within the
NAICS Sectors or Subsectors below, provide the address,
arranged by state, county and city or town, of each establishment
from which dollar revenues were derived in the most recent year
by the person filing notification.
2123
32512
32732
32733
44-45
512
521
522
532
62
72
811
812
nonmetallic mineral mining and quarrying
industrial gases
concrete
concrete products
retail trade, except 442 (furniture and home
furnishings stores), and 443 (electronics and
appliance stores)
motion picture and sound recording industries
monetary authorities - central bank
credit intermediation and related activities
rental and leasing services
health care and social assistance
accommodations and food services, except
7212 (recreational vehicle parks and
recreational camps), and 7213 (rooming and
boarding houses)
repair and maintenance, except 8114 (personal
and household goods repair and maintenance)
personal and laundry services
442
443
516
518
furniture and home furnishings stores
electronics and appliance stores
internet publishing & broadcasting
internet service providers
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Item 7(c)(iv)(c)
For each 6-digit NAICS industry code listed in item ?(a) within the
NAICS Sectors or Subsectors below, list the states or, if desired,
portions thereof in which the person filing notification conducts
such operations.
Federal Register / Vol. 81, No. 170 / Thursday, September 1, 2016 / Rules and Regulations
60271
DLXXXIX
See § 803.6 for requirements.
This item should only be completed by the acquiring person.
Determine each 6-digit NAICS industry code listed in Item ?(a), in
which the acquiring person derived dollar revenues of $1 million
or more in the most recent year and in which either:
1)
2)
The certification must be notarized or use the language found in
28 U.S.C. § 1746 relating to unsworn declarations under penalty
of perjury.
the acquired entity derived dollar revenues of $1 million
or more in the recent year (or in the case of the
formation of a joint venture corporation or
unincorporated entity, the joint venture corporation or
unincorporated entity reasonably can be expected to
derive dollar revenues of $1 million or more); Q.[
in the case of acquired assets, to which dollar revenues
of $1 million or more were attributable in the most recent
year.
For each such 6-digit NAICS industry code, list all acquisitions of
entities or assets deriving dollar revenues in that 6-digit NAICS
industry code made by the acquiring person in the five years prior
to the date of the instant filing, even if the transaction was nonreportable. List only acquisitions of 50% or more of the voting
securities of an issuer or 50% or more of non-corporate interests
of an unincorporated entity that had annual net sales or total
assets greater than $10 million in the year prior to the acquisition,
and any acquisitions of assets valued at or above the statutory
size-of-transaction test at the time of their acquisition.
This item pertains only to acquisitions of U.S. entities/assets and
foreign entities/assets with sales in or into the U.S., i.e., with
dollar revenues that would be reported in Item 5.
the 6-digit NAICS industry code (by number and
description) identified above in which the acquired entity
derived dollar revenues;
2)
the name of the entity from which the assets, voting
securities or non-corporate interests were acquired;
3)
the headquarters address of that entity prior to the
acquisition;
4)
whether assets, voting securities or non-corporate
interests were acquired; and
5)
Consummation of an acquisition required to be reported by the
statute cited above without having provided this information may,
however, render a person liable to civil penalties up to $40,000
per day. We also may be unable to process the Form unless you
provide all of the requested information.
Public reporting burden for this report is estimated to vary from 8
to 160 hours per response, with an average of 37 hours per
response, including time for reviewing instructions, searching
existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of
information. Send comments regarding the burden estimate or
any other aspect of this report, including suggestions for reducing
this burden to:
For each such acquisition, supply:
1)
Section 18a(a) ofTitle 15 of the U.S. Code authorizes the
collection of this information. Our authority to collect Social
Security numbers is 31 U.S.C. § 7701. The primary use of
information submitted on this Form is to determine whether the
reported merger or acquisition may violate the antitrust laws.
Taxpayer information is collected, used, and may be shared with
other agencies and contractors for payment processing, debt
collection and reporting purposes. Furnishing the information on
the Form is voluntary.
the consummation date of the acquisition.
Premerger Notification Office
Federal Trade Commission, Room 5301
400 7th Street, S.W.
Washington, D.C. 20024
and
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington, D.C. 20503
Under the Paperwork Reduction Act, as amended, an agency
may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a
currently valid OMB control number. The operative OMB control
number, 3084-0005, appears within the Notification and Report
Form and these Instructions.
END OF ITEM 8
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END OF FORM INSTRUCTIONS
60272
Federal Register / Vol. 81, No. 170 / Thursday, September 1, 2016 / Rules and Regulations
Donald S. Clark,
Secretary.
[FR Doc. 2016–20950 Filed 8–31–16; 8:45 am]
BILLING CODE 6750–01–C
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1910, 1915, and 1926
[Docket No. OSHA–2010–0034]
RIN 1218–AB70
Occupational Exposure to Respirable
Crystalline Silica; Correction
Occupational Safety and Health
Administration, Department of Labor.
ACTION: Final rule; correcting
amendment.
AGENCY:
OSHA published a final rule
on occupational exposure to respirable
crystalline silica on March 25, 2016
which became effective on June 23,
2016. This document corrects
typographical errors in the final rule by
revising these sections.
DATES: Effective September 1, 2016.
FOR FURTHER INFORMATION CONTACT:
Annette Iannucci, Directorate of
Standards and Guidance, Room N–3718,
OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington,
DC 20210; telephone (202) 693–1950;
email Iannucci.annette@dol.gov.
SUPPLEMENTARY INFORMATION: On March
25, 2016, OSHA published a final rule
entitled Occupational Exposure to
Respirable Crystalline Silica (81 FR
16285–16890). The final rule retained
the preceding permissible exposure
SUMMARY:
limits (PELs) for respirable crystalline
silica in general industry (29 CFR
1910.1000, Table Z–3), shipyards (29
CFR 1915.1000, Table Z), and
construction (29 CFR 1926.55, appendix
A), and added footnotes to make clear
that these PELs apply to any sectors or
operations where the new PEL of 50 mg/
m3 is not in effect. The preceding PELs
apply to operations that are not covered
by the new standards, such as the
processing of sorptive clays. The
preceding PELs are also applicable
during the time between publication of
the silica rule and the dates established
for compliance with the rule, as well as
in the event of regulatory delay, a stay,
or partial or full invalidation by the
Court.
This document corrects typographical
errors in the formulas for the preceding
PELs, so that they will appear as they
did prior to publication of the final rule.
List of Subjects in 29 CFR Parts 1910,
1915, and 1926
Cancer, Chemicals, Cristobalite,
Crystalline silica, Hazardous substances,
Health, Lung diseases, Occupational
safety and health, Quartz, Reporting and
recordkeeping requirements, Silica,
Silicosis, Tridymite.
Authority and Signature
This document was prepared under
the direction of David Michaels, Ph.D.,
MPH, Assistant Secretary of Labor for
Occupational Safety and Health. It is
issued under the following authorities:
Sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C.
653, 655, 657); section 107 of the
Contract Work Hours and Safety
Standards Act (the Construction Safety
Act) (40 U.S.C. 3704); section 41 of the
Longshore and Harbor Worker’s
Compensation Act (33 U.S.C. 941);
Secretary of Labor’s Order 1–2012 (77
FR 3912 (1/25/2012)); and 29 CFR part
1911.
Signed at Washington, DC, on August 5,
2016.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.
Accordingly, for the reasons set forth
in the preamble above, the Occupational
Safety and Health Administration is
amending 29 CFR parts 1910, 1915, and
1926 as follows:
PART 1910—OCCUPATIONAL SAFETY
AND HEALTH STANDARDS
1. The authority citation for part 1910
continues to read as follows:
■
Authority: 29 U.S.C. 653, 655, 657;
Secretary of Labor’s Order Numbers 12–71
(36 FR 8754), 8–76 (41 FR 25059), 9–83 (48
FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR
111), 3–2000 (65 FR 50017), 5–2002 (67 FR
65008), 5–2007 (72 FR 31159), 4–2010 (75 FR
55355), or 1–2012 (77 FR 3912), as
applicable.
Sections 1910.6, 1910.7, 1910.8 and 1910.9
also issued under 29 CFR 1911. Section
1910.7(f) also issued under 31 U.S.C. 9701,
29 U.S.C. 9a, 5 U.S.C. 553; Public Law 106–
113 (113 Stat. 1501A–222); Pub. L. 11–8 and
111–317; and OMB Circular A–25 (dated July
8, 1993) (58 FR 38142, July 15, 1993).
2. In § 1910.1000, in Table Z–3, revise
the entries for ‘‘Silica: Crystalline
Quartz (Respirable)’’, ‘‘Silica:
Crystalline Cristobalite’’, and ‘‘Silica:
Crystalline Tridymite’’ to read as
follows:
■
§ 1910.1000
*
*
Air contaminants.
*
*
*
TABLE Z–3—MINERAL DUSTS
mppcf a
Substance
Silica:
Crystalline
Quartz (Respirable) f .......................................................................................................................
mg/m 3
250b
10 mg/m3 e
% SiO2 + 5
% SiO2 + 2
Cristobalite: Use 1⁄2 the value calculated from the count or mass formulae for quartz.f
Tridymite: Use 1⁄2 the value calculated from the formulae for quartz.f
asabaliauskas on DSK3SPTVN1PROD with RULES
*
*
*
*
*
*
*
*
of particles per cubic foot of
air, based on impinger samples counted
by light-field techniques.
b The percentage of crystalline silica
in the formula is the amount determined
from airborne samples, except in those
a Millions
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*
*
instances in which other methods have
been shown to be applicable.
*
*
*
*
*
e Both concentration and percent
quartz for the application of this limit
are to be determined from the fraction
passing a size-selector with the
following characteristics:
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*
Aerodynamic diameter
(unit density sphere)
2 ......................................
2.5 ...................................
3.5 ...................................
5.0 ...................................
10 ....................................
E:\FR\FM\01SER1.SGM
01SER1
*
Percent
passing selector
90
75
50
25
0
]]>Agencies
[Federal Register Volume 81, Number 170 (Thursday, September 1, 2016)]
[Rules and Regulations]
[Pages 60257-60272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20950]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 803
Premerger Notification; Reporting and Waiting Period Requirements
AGENCY: Federal Trade Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission is amending the Hart-Scott-Rodino (``HSR'')
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'') (together
the ``Antitrust Agencies'' or ``Agencies'') and to wait a specified
period of time before consummating such transactions. These amendments
update the Rules to allow for submission of the Premerger Notification
and Report Form (``Form'') and accompanying documents (together the
``HSR Filing'') on digital video/versatile disc (``DVD''), and clarify
the Instructions to the Form.
DATES: Effective September 1, 2016.
FOR FURTHER INFORMATION CONTACT: Robert L. Jones, Assistant Director,
Premerger Notification Office, Bureau of Competition, Room 5301,
Federal Trade Commission, 400 7th Street SW., Washington, DC 20024.
Telephone: (202) 326-3100, Email: rjones@ftc.gov.
SUPPLEMENTARY INFORMATION:
Introduction
Section 7A of the Clayton Act (the ``Act'') requires the parties to
certain mergers or acquisitions to file with the Commission and DOJ to
allow the Agencies to conduct their initial review of a proposed
transaction's competitive impact and requires the parties 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 Antitrust 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
Section 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 Form and its associated Instructions,
codified at part 803--appendix, to govern the form of premerger
notifications to be provided by merging parties.
HSR Filings provide the Agencies with the information and
documentary material necessary for an initial evaluation of the
potential anticompetitive impact of significant mergers, acquisitions
and certain similar transactions. Currently, all HSR Filings are
submitted in paper. Through these amendments to the Rules, the Agencies
will allow the submission of HSR Filings digitally on DVD (``DVD
filings''). The acceptance of DVD filings requires certain conforming
changes to the Instructions to the Form, so the Commission is also
taking this opportunity to clarify the Instructions and make them
easier to use.
Statement of Basis and Purpose for the Commission's Revision of Its
Premerger Notification Form, Instructions and Rules
Since the inception of the HSR program, the HSR Form and its
attachments have been submitted in paper. In 2006, an electronic filing
option was introduced that would allow filers to upload HSR Filings
directly to the Agencies but that option failed to gain traction due to
the limitations of the underlying technology, and it was soon
discontinued. While the Agencies continue to explore an electronic
filing option, they have decided to accept the submission of HSR
Filings digitally on DVD. Accordingly, the Commission amends part 803
to delete references to the discontinued electronic filing option and
revises these sections and the Instructions to the Form found in the
appendix to part 803 to allow for DVD filings. Documents submitted by
the parties with the filing are typically created and stored in digital
format. Allowing parties to submit these digital files on electronic
media will be more efficient and cost-effective, providing benefits to
filing parties as well as the Agencies:
--Currently, those submitting HSR Filings must provide five paper
copies of their Form, consisting of one original and one copy to the
FTC, and three copies to DOJ, as well as one set of Documentary
Attachments to each Agency. DVD filing will eliminate the expensive and
time-consuming printing and duplication of documents, and allow for a
more efficient filing process for filing parties.
--DVD filing will ease the physical delivery of voluminous HSR Filings
to the Agencies, and facilitate the processing and review of filings
within each Agency.
--DVD filing will allow for more efficient and less costly storage
options for the Agencies
To provide maximum flexibility, filing parties will still have the
traditional option of submitting HSR Filings in paper. Submitting an
HSR Filing partially on DVD and partially in paper will not be
permitted, however. Additionally, DVD submissions must be accompanied
by original hard copies of the cover letter, certification and
affidavit. The individual rule amendments associated with DVD filing
are described more fully below.
Additionally, this rulemaking makes minor changes to the Form
Instructions,
[[Page 60258]]
many of which are unrelated to DVD filing, to reduce the burden on
filing parties by making it easier to prepare the Form and comply with
the HSR Filing requirements. These changes are not substantive in
nature, and involve formatting, clarification, and simplification, as
well as the deletion of immaterial language, with the goal of
eliminating confusion for filing parties, as noted below.
Section 803.1 Notification and Report Form
The internet portal established in 2006, www.hsr.gov, to allow the
electronic filing of HSR Filings is no longer technologically viable,
and references to HSR.gov are removed from all Rules in which they
appear and the Instructions.
Section 803.2 Instructions Applicable to Notification and Report Form
Section 803.2(e)(1) currently allows filers to forego the physical
production of documents responsive to Item 4(b) by incorporating by
reference documents previously filed with the Agencies in other
transactions. The purpose of the rule was to avoid the costly
duplication of responsive documents that were already in the possession
of the Agencies. However, given Sec. 803.2(e)(2), which allows parties
to cite to an Internet address rather than provide hard copies of
responsive documents, and the ease of copying documents onto a DVD
without any expensive hard copy duplication, Sec. 803.2 is being
amended to delete Sec. 803.2(e)(1). The existing, current, Sec.
803.2(e)(2) will be renumbered to Sec. 803.2(e), and the new Sec.
803.2(e) has been amended for clarity.
To ensure the submission of compatible and readable electronic
files, and to avoid problems and delays in processing HSR Filings,
paragraph (f) of Sec. 803.2 has been amended to require the use of
specific formatting when submitting an HSR Filing on DVD, and to remove
the reference to www.hsr.gov. The filing person is responsible for
ensuring that the formatting requirements are observed and is subject
to a notice of deficient filing if an unacceptable format is submitted.
See https://www.ftc.gov/enforcement/premerger-notification-program for
all current DVD Filing format requirements.
Section 803.3 Statement of Reasons for Noncompliance
Section 803.3 identifies the specific information that a filing
person must provide when not responding to an Item on the Form.
Paragraph (d) identifies the specifics of making a claim of privilege.
Paragraph (d) is amended to require the titles and/or positions of the
author of a document, the addressee, and all recipients of the document
being withheld or redacted under a claim of privilege to enable the
Agencies to better assess if the privilege applies.
Section 803.5 Affidavits Required
Section 803.5 requires an affidavit from the filing person
attesting to the good faith intention of the person filing to proceed
with the transaction. The affidavit must be attached to the Form at the
time of filing. Paragraphs (a)(1), (a)(3), and (b) are amended to
address inclusion of the affidavit when using the DVD filing option. If
only a scanned version of the signed affidavit is available at the time
of filing, it must be submitted on the DVD, and the original signed
hard copy should be provided to the FTC as soon as possible.
Section 803.10 Running of Time
Persons required by the Act to submit HSR Filings must comply with
specified statutory waiting periods before consummating the
transaction. Section 803.10(c)(1)(i) is amended to define the ``date of
receipt and means of delivery'' for purposes of determining when the
waiting period begins for filings submitted on DVD. Delivery is to be
effected by providing a DVD filing directly to the designated agency
offices, by either hand or certified or registered mail, FedEx or UPS,
during normal business hours.
References and paragraphs relating exclusively to ``electronic''
filing, as well as references to www.hsr.gov, have been deleted to
avoid confusion, as the submission of filings electronically is not
currently available.
Appendix to Part 803--Notification and Report Form and Instructions
A number of changes have been made to the Form Instructions,
including changes unrelated to DVD filing, that are intended to clarify
the Instructions and simplify the process of completing an HSR Form.
Many of these changes involve new formatting or the substitution or
deletion of a word, sentence or paragraph. The more significant changes
entail the following amendments:
``Filing''
Accounts for the option of filing using a DVD, including specific
formatting and submission requirements.
``Responses''
Clarifies that estimated financial information provided in the Form
should include an ``est.'' notation. Also specifies that additional
pages should be included within the Form, not with the Documentary
Attachments.
``Amount Paid''
Eliminates the requirement for an explanatory attachment regarding
valuation.
``Payer Identification'' and ``Method of Payment''
Clarifies the process and requirements for submitting HSR filing
fees.
``Item 1(g)''
Specifies that identification of a second contact person is
required.
``Item 2(d)''
Clarifies how to respond where a transaction involves a mixed deal
including voting securities, and/or non-corporate interests, and/or
assets.
``Item 3(a)''
Reorganized and reworded for clarity. Clarifies that the
description of the transaction should include a brief and simple
description of the relevant assets or business operation(s) to be
acquired. Deletes requirement for identification of expected dates of
major events and deletes paragraph discussing acquisitions ``from a
holder other than the issuer or unincorporated entity'' to reduce
confusion.
``Item 3(b)''
Clarifies that agreement schedules are not required unless they
represent some agreement between the parties (e.g., a non-compete).
Specifies that parties filing on a letter of intent may also submit a
draft of the definitive agreement, if one exists.
``Item 4(b)''
Reorganized and amended to clarify the types of reports that are
acceptable (e.g., unaudited reports that are relied upon by the board
are permitted), and from which entities reports are required.
``Items 4(c) and 4(d)''
Clarifies that document title, date, and author information is
required for both 4(c) and 4(d) documents. Additionally amended to
clarify the proper labeling convention for these documents, as well as
the privilege log requirements outlined in Sec. 803.3(d).
``Item 5(a)''
Simplifies the instructions.
``Item 6(b)''
Amended to clarify that only shareholders with 5% or more, but less
than 50% must be identified.
``Item 6(c)''
Clarifies the instructions.
``Item 7''
Amended to clarify that all six-digit NAICS industry code overlaps
must be reported, regardless of whether there is a ten-digit NAICS
overlap.
``Item 7(b)''
Amended to clarify which entities should be listed.
[[Page 60259]]
``Item 7(c)''
Amended to change the order and organization of the NAICS codes for
clarity, and renumbered the sub-sections. Amended to clarify that
geographic information should be provided by state postal code
abbreviations, including identifying the number of states reported, and
that a response of ``national'' is acceptable in certain cases in lieu
of listing every state.
``Item 7(c)(iv)''
Amended to more clearly state that county and city/town information
is required for the specific NAICS codes outlined in this section.
Reformatted for readability.
``Item 8''
Amended to clarify that Item 8 is related to codes reported in Item
5.
Administrative Procedure Act
The Commission finds good cause to adopt these changes without
prior public comment. Under the Administrative Procedure Act (``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 Rules, Form and Instructions to
provide the option of submitting HSR Filings on DVD, and to clarify the
Form Instructions. Paper copy submission will remain available. 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 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).
For these reasons, the Commission finds that there is good cause
for adopting this final rule as effective on September 1, 2016 without
prior public comment.
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 an HSR 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 (as adjusted annually).
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
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. 3501-3521.
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:
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, 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.
* * * * *
0
3. Amend Sec. 803.2 by revising paragraphs (e) and (f) to read as
follows:
Sec. 803.2 Instructions applicable to Notification and Report Form.
* * * * *
(e) For documents required by item 4(b) of the Notification and
Report Form, a person filing the notification may, instead of
submitting a document, provide a cite to an operative Internet address
directly linking to the document, if the linked document is complete
and payment is not required to access the document. If an Internet
address becomes inoperative during the waiting period, or the document
is otherwise rendered inaccessible or incomplete, upon notification by
the Commission or Assistant Attorney General, the parties must make the
document available to the agencies by either referencing an operative
Internet address where the complete document may be accessed or by
providing paper copies to the agencies as provided in Sec.
803.10(c)(1) by 5 p.m. on the next regular business day. Failure to
make the document available, by the Internet or by providing paper
copies, by 5 p.m. on the next regular business day, will result in
notice of a deficient filing pursuant to Sec. 803.10(c)(2).
(f) Filings made via DVD must comply with all format requirements
set forth at the Premerger Notification Office pages at https://www.ftc.gov. The use of any format 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. 803.3 by revising paragraph (d) to read as follows:
Sec. 803.3 Statement of reasons for noncompliance.
* * * * *
(d) Where noncompliance is based on a claim of privilege, a
statement of the claim of privilege and all facts relied on in support
thereof, including the identity of each document, its author, the
author's title/position, addressee, the addressee's title/position,
date, subject matter, all recipients of the original and of any copies,
the recipients' titles/positions, the document's present location, and
who has control of it.
0
5. Amend Sec. 803.5 by revising paragraphs (a)(1) introductory text,
(a)(3), and (b) to read as follows:
[[Page 60260]]
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 with the DVD 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 DVD filings, the
written notice (in a form specified in the instructions) must be
included on the DVD.
(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
with the DVD 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
6. Amend Sec. 803.10 by revising paragraph (c)(1)(i), removing
paragraphs (c)(1)(ii) and (iii), and redesignating paragraph (c)(1)(iv)
as paragraph (c)(1)(ii) to read as follows:
Sec. 803.10 Running of time.
* * * * *
(c)(1) * * *
(i) For paper copy filings and DVD filings, the date of receipt
shall be the date on which delivery is effected to the designated
offices (Premerger Notification Office, Federal Trade Commission, Room
5301, 400 7th Street SW., Washington, DC 20024, and Director of Civil
Enforcement, Office 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 (including FedEx and UPS). 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 Web site.
* * * * *
0
7. Amend the appendix to part 803 by revising the Instructions to the
Form to read as follows:
Appendix to Part 803--Notification and Report Form for Certain Mergers
and Acquisitions
* * * * *
BILLING CODE 6750-01-P
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Donald S. Clark,
Secretary.
[FR Doc. 2016-20950 Filed 8-31-16; 8:45 am]
BILLING CODE 6750-01-C
