[Federal Register Volume 64, Number 185 (Friday, September 24, 1999)]
[Notices]
[Pages 51763-51764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24903]


=======================================================================
-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION


Premerger Notification: Reporting and Waiting Period Requirements

AGENCY: Federal Trade Commission.

ACTION: Notice of the issuance of Formal Interpretation 16 changing the 
policy of the Premerger Notification office to require filing persons 
to submit only one original affidavit and certification with their 
filings.

-----------------------------------------------------------------------

SUMMARY: The Premerger Notification Office (``PNO'') of the Federal 
Trade Commission (``FTC''), with the concurrence of the Assistant 
Attorney General in charge of the Antitrust Division of the Department 
of Justice (``DOJ,'' collectively, ``the enforcement agencies''), is 
issuing Formal Interpretation 16 addressing the number of original 
affidavits and certification pages which must accompany Premerger 
Notification filings. Section 803.5 of the Premerger Notification rules 
(``the rules'') requires all acquiring persons in transactions falling 
under Sec. 801.30 and all parties to non-Sec. 801.30 transactions to 
submit certain affidavits with their premerger notification filings. 
Section 803.6 of the rules requires a notarized certification for such 
filings. The PNO has required that each copy of the form be submitted 
with an original affidavit and certification. Pursuant to Formal 
Interpretation 16, from now on the PNO will require that one original 
affidavit and one original certification page accompany one of the two 
copies of the form submitted to the FTC. The other affidavits and 
certification pages may be duplicates. Only the originals need be 
separately notarized.

DATES: Formal Interpretation 16 is effective on September 24, 1999.

FOR FURTHER INFORMATION CONTACT: Marian R. Bruno, Assistant Director, 
Premerger Notification Office, Bureau of Competition, Room 301, Federal 
Trade Commission, Washington, DC 20580. Telephone: (202) 326-2846, 
Thomas F. Hancock, Attorney, Premerger Notification Office, Bureau of 
Competition, Room 301, Federal Trade Commission, Washington, DC 20580. 
Telephone: (202) 326-2946.


[[Page 51764]]


SUPPLEMENTARY INFORMATION: The text of Formal Interpretation Number 16 
is set out below:

Formal Interpretation Number 16

    Formal Interpretation Pursuant to Sec. 803.30 of the Premerger 
Notification Rules, 16 CFR Sec. 803.30, Concerning the Number of 
Original Affidavits and Certification Pages Which Must Accompany a 
Premerger Notification Filing.
    This is a Formal Interpretation pursuant to Sec. 803.30 of the 
Premerger Notification Rules (``the rules''). The rules implement 
section 7A of the Clayton Act, 15 U.S.C. 18a, which was added by 
sections 201 and 202 of the Hart-Scott-Rodino Antitrust Improvements 
Act of 1976 (``the act''). The act requires the parties to certain 
acquisitions of voting securities or assets to notify the FTC and the 
DOJ and to wait a specified period of time before consummating the 
transaction. The purpose of the act and the rules is to ensure that 
such transactions receive meaningful scrutiny under the antitrust laws, 
with the possibility of an effective remedy for violations, before 
consummation.
    The act states that ``no person shall acquire * * * any voting 
securities or assets of any other person, unless both persons (or in 
the case of a tender offer, the acquiring person) file notification 
pursuant to rules under subsection (d)(1) of this section * * *.'' 
Section 803.1(a) of the rules states that the notification required by 
the act is the completed Antitrust Improvements Act Notification and 
Report For for Certain Mergers and Acquisitions (``the form''), 16 CFR 
part 803--Appendix.
    Section 803.5(a) of the rules requires that ``* * * (f)or 
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, attesting (that the acquired person 
has been notified of certain facts about the proposed transaction, that 
the reporting person has a good faith intention to make the 
acquisition, and, in the case of a tender offer, that the intention to 
make a tender offer has been publicly announced).'' Section 803.5(b) 
requires that ``* * * (f)or acquisitions to which Section 801.30 does 
not apply, the notification required by the act shall contain an 
affidavit * * * attesting that a contract, agreement in principal or 
letter of intent to merge or acquire has been executed, and * * * to 
the good faith intention of the person filing notification to complete 
the transaction.'' Section 803.6(a) of the rules states that ``The 
notification required by the act shall be certified * * *.''
    One of the primary purposes of these requirements--particularly 
that of certification--is to preserve the evidentiary value of the 
filing. The Statement of Basis and Purpose (``SBP'') for Sec. 803.6 
states that ``* * * the certification is intended to estop the person 
on whose behalf the report is filed from later denying the completeness 
or accuracy of the information provided on the form in the event that 
either enforcement agency seeks to introduce any such information into 
evidence in any proceeding.'' 43 FR 33511 (July 31, 1978). The 
certification requirement is also intended to place responsibility on 
an individual to ensure that information reported is true, correct, and 
complete and that the form is filled out in accordance with the act and 
the rules. Id.
    The affidavit requirement is intended to ensure that several 
important prerequisites are met before the review process begins. Thus 
the acquiring person must attest that it has made certain disclosures 
about the proposed transaction to the acquired person so the acquired 
person has knowledge of its obligation to file. Id. at 33510. In 
consensual transactions, the parties must also attest that a contract, 
letter of intent, or agreement in principal has been executed. Id. Its 
contents also ensure that the parties intend to consummate the 
acquisition and are not using the notification process to vet a purely 
hypothetical transaction with the agencies. Id. at 33511.
    The Instructions to the form state that each person filing 
notification must ``(c)omplete and return two notarized copies (with 
one set of documentary attachments) of (the form) to (the PNO) * * * 
and three notarized copies (with two sets of documentary attachments) 
to (the DOJ) * * *.'' The PNO has interpreted the instructions to 
require that each certification be originally signed and notarized and 
that each of the required affidavits also be originally signed and 
notarized. This has resulted in each party's submission to the 
enforcement agencies in a non-Sec. 801.30 transaction and acquiring 
persons' filings in non-Sec. 801.30 transactions having ten original 
signatures and ten original notarizations (five on the affidavits and 
five on the certifications). Acquired persons' filings in Sec. 801.30 
transactions must have five originally signed and notarized 
certifications.
    The PNO has determined that multiple original signatures and 
notarizations, while not a great burden, is not a negligible one. 
Accordingly, the PNO has decided to modify its position on the 
necessity for original signatures and notarizations with permerger 
notification filings. From now on, filing persons need supply only one 
original signed and notarized affidavit (if required) and one original 
signed and notarized certification with one of the two copies of the 
form submitted to the FTC. The affidavits and certifications 
accompanying the other copies of the form may be copies of these 
originals. A copy is acceptable if the signature and notarization 
(including the embossed notary seal, if required in the jurisdiction of 
notarization) are clearly visible. Likewise, a person required to re-
certify an amended filing because the original was deficient may submit 
one original certification and four copies with the new information.
    This Formal Interpretation affects only the number of original 
signatures and notarizations which must accompany premerger 
notification filings. It does not change the affidavit or certification 
requirements themselves, who may sign the affidavit and certification, 
or the number of copies of the form and documentary attachments which 
must be provided. It also remains the case that any filing person, 
United States of foreign, can swear or affirm under penalty of perjury 
under the laws of the United States pursuant to 28 U.S.C. 1746 in lieu 
of notarization.
Donald S. Clark,
Secretary.
[FR Doc 99-24903 Filed 9-23-99; 8:45 am]
BILLING CODE 6750-01-M