[Federal Register Volume 66, Number 22 (Thursday, February 1, 2001)]
[Rules and Regulations]
[Pages 8721-8722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-2607]


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FEDERAL TRADE COMMISSION

16 CFR Part 2


Rules of Practice

AGENCY: Federal Trade Commission (FTC).

ACTION: Interim rule with request for comments.

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SUMMARY: The FTC is amending its Rules of Practice to incorporate 
procedures for internal agency review of requests for additional 
information or documentary material relating to transactions subject to 
the premerger notification requirements of Section 7A of the Clayton 
Act. These procedures are necessary to implement recent amendments to 
Section 7A. The procedures will ensure that petitions for such review 
are handled in accordance with the statute's requirements.

DATES: These rules are effective February 1, 2001. Comments should be 
filed no later than March 19, 2001.

ADDRESSES: Address all comments concerning these rules to Secretary, 
Federal Trade Commission, Room 159, 600 Pennsylvania Avenue, NW, 
Washington, DC 20580, or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Christian S. White, Assistant General 
Counsel, Room 592, Federal Trade Commission, 600 Pennsylvania Avenue, 
NW, Washington, DC 20580. Telephone: (202) 326-32424.

SUPPLEMENTARY INFORMATION: On December 21, 2000, the President signed 
into law certain amendments to Section 7A of the Clayton Act, 15 U.S.C. 
18a, which requires that parties to certain mergers or acquisitions 
file reports with the FTC and with the Department of Justice and to 
wait a specified period of time before consummating such a transaction, 
so that the agencies can determine whether the transaction may violate 
the antitrust laws if consummated and, when appropriate, to seek a 
preliminary injunction in federal court to prevent consummation. See 
Pub. L. 106-553, 114 Stat. 2762 (``2000 Amendments''). The statutory 
amendments are effective on February 1, 2001.
    In a separate Federal Register document, the Commission is adopting 
interim implementing amendments to its rules and notification form for 
premerger review under Section 7A (16 CFR Parts 801, 802, and 803) and, 
in another Federal Register document, is proposing additional rule 
amendments.
    In this Federal Register document, the Commission, in accordance 
with Section 7A(e)(1)(B) of the Clayton Act, 15 U.S.C. 18a(e)(1)(B), as 
added by the 2000 Amendments, is adopting administrative procedures for 
persons seeking to obtain internal agency review of requests for 
additional information or documentary material (``second requests'') 
relating to proposed transactions for which premerger notification is 
required under Section 7A. These ``second request'' review procedures 
will be incorporated into previously reserved Subpart B of Part 2 of 
the Commission's Rules of Practice and will implement the statute's 
requirement that a senior agency official be designated for the review, 
upon petition, of a ``second request'' to determine whether it is 
unreasonably cumulative, unduly burdensome, or cumulative, or whether 
the petitioner has substantially complied with the request.

Administrative Procedure Act

    These procedures are exempt from the notice-and-comment 
requirements of the Administrative Procedure Act as rules of agency 
organization, procedure or practice. See 5 U.S.C. 553(b)(A). 
Nonetheless, the Commission seeks public comment on these procedures 
and reserves the right to amend them based on its experience and on any 
comments that may be received after the procedures take effect.

Regulatory Flexibility Act

    The requirements for initial and final regulatory analyses under 
the Regulatory Flexibility Act, 5 U.S.C. 601-612, do not apply to these 
procedural rules, because they will not have a significant economic 
impact on a substantial number of small entities. 5 U.S.C. 605. Under 
the recent statutory amendments to Section 7A of the Clayton Act, 
transactions valued at less than $50 million are exempted, and these 
``second request'' review procedures do not expand or otherwise alter 
the coverage of the premerger notification rules in a way that would 
affect its impact, if any, on small business. Accordingly, the 
Commission certifies that these procedural rules will not have a 
significant economic impact on a substantial number of small entities. 
This document serves as the required notice of this certification to 
the Small Business Administration.

Paperwork Reduction Act

    These procedural rules 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 & Budget under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3518.

List of Subjects in 16 CFR Part 2

    Administrative practice and procedure.

    Accordingly, for the reasons stated in the preamble, the Federal 
Trade Commission amends 16 CFR part 2 as follows:

PART 2--NONADJUDICATIVE PROCEDURES

    1. Revise the authority citation for part 2 to read as follows:

    Authority: 15 U.S.C. 46, unless otherwise noted.

    2. Add subpart B to read as follows:

Subpart B--Petitions Filed Under Section 7A of the Clayton Act, as 
Amended, for Review of Requests for Additional Information or 
Documentary Material

    Authority: 15 U.S.C. 18a(d), (e).


Sec. 2.20  Petitions for review of requests for additional information 
or documentary material.

    (a) For purposes of this section, ``second request'' refers to a 
request for additional information or documentary material issued under 
16 CFR 803.20.
    (b) Second request procedures. (1) Notice. Every request for 
additional information or documentary material issued under 16 CFR 
803.20 shall inform the recipient(s) of the request that the recipient 
has a right to discuss modifications or clarifications of the request 
with an authorized representative of the Commission. The request shall 
identify the name and telephone number of at least one such 
representative.
    (2) Second request conference. An authorized representative of the 
Commission shall invite the recipient to discuss the request for 
additional information or documentary material soon after the request 
is issued. At the conference, the authorized representative shall 
discuss the competitive issues raised by the proposed transaction, to 
the extent then known, and confer with the recipient about the most 
effective way to obtain information and documents relating to the 
competitive issues raised. The

[[Page 8722]]

conference will ordinarily take place within 5 business days of 
issuance of the request, unless the recipient declines the invitation 
or requests a later date.
    (3) Modification of requests. The authorized representative shall 
modify the request for additional information or documentary material, 
or recommend such modification to the responsible Assistant Director of 
the Bureau of Competition, if he or she determines that a less 
burdensome request would be consistent with the needs of the 
investigation. A request for additional information or documentary 
material may be modified only in writing signed by the authorized 
representative.
    (4) Review of request decisions. (i) If the recipient of a request 
for additional information or documentary material believes that 
compliance with portions of the request should not be required and the 
recipient has exhausted reasonable efforts to obtain clarifications or 
modifications of the request from an authorized representative, the 
recipient may petition the General Counsel to consider and rule on 
unresolved issues. Such petition shall be submitted by letter to the 
General Counsel with a copy to the authorized representative who 
participated in the second request conference held under paragraph 
(b)(3) of this section. The petition shall not, without leave of the 
General Counsel, exceed 500 words, excluding any cover, table of 
contents, table of authorities, glossaries, proposed form of relief and 
any appendices containing only sections of statutes or regulations, and 
shall address petitioner's efforts to obtain modification from the 
authorized representative.
    (ii) Within 2 business days after receiving such a petition, the 
General Counsel shall set a date for a conference with the petitioner 
and the authorized representative.
    (iii) Such conference shall take place within 7 business days after 
the General Counsel receives the petition, unless the request recipient 
agrees to a later date or declines to attend a conference.
    (iv) Not later than 3 business days before the date of the 
conference, the petitioner and the authorized representative may each 
submit memoranda regarding the issues presented in the petition. Such 
memoranda shall not, without leave of the General Counsel, exceed 1250 
words, excluding any cover, table of contents, table of authorities, 
glossaries, proposed form of relief and appendices containing only 
sections of statutes or regulations. Such memoranda shall be delivered 
to counsel for the other participants on the same day they are 
delivered to the General Counsel.
    (v) The petitioner's memorandum shall include a concise statement 
of reasons why the request should be modified, together with proposed 
modifications, or a concise explanation why the recipient believes it 
has substantially complied with the request for additional information 
or documentary material.
    (vi) The authorized representative's memorandum shall include a 
concise statement of reasons why the petitioner's proposed 
modifications are inappropriate or a concise statement of the reasons 
why the representative believes that the petitioner has not 
substantially complied with the request for additional information and 
documentary material.
    (vii) The General Counsel shall advise the petitioner and the 
authorized representative of his or her decision within 3 business days 
following the conference.

    By direction of the Commission.

    Dated: January 24, 2001.
Donald S. Clark,
Secretary.

Statement of Commissioner Orson Swindle Concerning Premerger 
Notification Rules Changes File No. P989316

    The Commission and its staff have worked quickly and diligently 
on a package of interim rules to implement statutory changes to the 
premerger notification program that will take effect shortly. Other 
amendments to the premerger rules are designed to achieve needed 
housekeeping improvements or spell out procedures for the appeals 
process in Hart-Scott-Rodino matters. Although the interim rules 
announced today take effect imminently, I look forward to--and would 
encourage--any comments that members of the public care to submit 
concerning the clarity, consistency, and anticipated effects of 
these rules.

[FR Doc. 01-2607 Filed 1-31-01; 8:45 am]
BILLING CODE 6750-01-P