[Federal Register Volume 70, Number 250 (Friday, December 30, 2005)]
[Rules and Regulations]
[Pages 77312-77319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24684]


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FEDERAL TRADE COMMISSION

16 CFR Parts 801 and 803


Premerger Notification; Reporting and Waiting Period Requirements

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: This final rule amends 16 CFR part 801 and part 803, Appendix, 
the Antitrust Improvements Act Notification and Report Form for Certain 
Mergers and Acquisitions (the ``Form''). The Form must be completed and 
submitted by persons required to report mergers and acquisitions 
pursuant to Section 7A of the Clayton Act, as added by Title II of the 
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. The 
revised Form requires that 2002 revenue data, identified by the 2002 
North American Industry Classification System (``NAICS''), be provided 
in response to certain items on the Form.

DATES: Effective December 30, 2005. To facilitate the changeover from 
using 1997 to 2002 NAICS information, filers may use either 1997 or 
2002 information for 30 days following the Effective Date, provided 
that all filing parties to a transaction use the same year and use the 
same codes in Item 7. This will allow an orderly transition while 
minimizing the burden on filing parties.

FOR FURTHER INFORMATION CONTACT: Comments or questions may be directed 
to Robert L. Jones, Deputy Assistant Director, Premerger Notification 
Office, Bureau of Competition, Room 302, Federal Trade Commission, 
Washington, DC 20580. Telephone: (202) 326-2740. E-mail: 
[email protected]. For information about the NAICS system, including the 
2002 update, see the U.S. Census Bureau's Web site at http://www.census.gov/epcd/www/naics.html.

SUPPLEMENTARY INFORMATION:

Background

    Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. 94-435, 90 
Stat. 1390, and amended by Pub. L. 106-553, 114 Stat. 2762 (``HSR 
Act''), requires all persons contemplating certain mergers or 
acquisitions to file notification with the Commission and the Assistant 
Attorney General for the Antitrust Division of the Department of 
Justice (``Assistant Attorney General''). The HSR Act further provides 
that such persons must wait a designated period of time before 
consummating such transactions. Congress empowered the Commission, with 
the concurrence of the Assistant Attorney General, to require ``that 
the notification * * * be in such form and contain such documentary 
material and information * * * as is necessary and appropriate'' to 
enable the agencies ``to determine whether such acquisitions may, if 
consummated, violate the antitrust laws.'' Congress similarly granted 
rulemaking authority to, inter alia, ``prescribe such other rules as 
may be necessary and appropriate to carry out the purposes of this 
section.'' 15 U.S.C.18a(d). Pursuant to this section, the Commission, 
with the concurrence of the Assistant Attorney General, promulgated 
rules governing the filing process (``Rules'') \1\ and the Antitrust 
Improvements Act Notification and Report Form for Certain Mergers and 
Acquisitions and accompanying Instructions on July 31, 1978, with an 
effective date of September 5, 1978, 43 FR 33450 (July 31, 1978). The 
agencies have since amended or revised the Rules and Form on multiple 
occasions.
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    \1\ 16 CFR parts 801, 802 and 803.
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    Completion of the Form provides the Commission and the Assistant 
Attorney General with information and documentary material necessary to 
conduct an initial review of mergers, acquisitions, and other similar 
transactions. The Form is not designed to elicit all potentially 
relevant information relating to a transaction; rather, the information 
requested assists the Commission and the Assistant Attorney General in 
determining whether to open an investigation or, alternatively, whether 
to grant a request for early termination of the waiting period or to 
allow the waiting period to expire if no such request has been made.
    The Form and Instructions currently require that filing persons 
report revenue data contained in the ``North American Industry 
Classification System, 1997'' and the ``1997 Numerical List of 
Manufactured and Mineral Products.'' This requirement was established 
in a 2001 rulemaking \2\ that changed the required reporting format 
from the Standard Industrial Classification (``SIC'') to the North 
American Industry Classification System (``NAICS''). The Executive 
Office of the President, Office of Management and Budget (``OMB'') 
recently published its North American Industry Classification System--
United States, 2002 (``2002 NAICS Manual'') and the Census Bureau has 
published its 2002 Numerical List of Manufactured and Mineral Products. 
To allow use of

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this updated information, the Form and Instructions are hereby amended 
to replace references to the 1997 base year with a 2002 base year and 
to replace the references to the 1997 Numerical List of Manufactured 
and Mineral Products (EC97M31R-NL) with the 2002 Numerical List of 
Manufactured and Mineral Products (EC02M31R-NL).
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    \2\ Interim Rule: 66 FR 23561 (May 9, 2001). Final Rule: 66 FR 
35541 (July 6, 2001).
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Statement of Basis and Purpose for the Commission's Revision of the 
Form and the Instructions

    The Commission, with the concurrence of the Assistant Attorney 
General, is adopting and implementing these amendments to the Form and 
the Instructions relating to Item 5 and Item 7, as well as to Section 
801.1(j) of the Rules, to require submission of 2002 NAICS information. 
The Commission has traditionally relied upon the most current economic 
data to analyze the potential anticompetitive effects of proposed 
transactions.\3\ The information in the 2002 NAICS Manual and 2002 
Numerical List of Manufactured and Mineral Products is the most current 
information available. We reiterate that filing parties may use either 
the 1997 or 2002 year for 30 days following the effective date December 
30, 2005, provided that all filing parties to a transaction use the 
same year and use the same codes for Item 7.
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    \3\ Periodically, the Commission has adjusted the base year when 
the U.S. Census Bureau published a new ``Economic Census.'' See 45 
FR 14205 (March 5, 1980); 51 FR 10368 (March 26, 1986); 55 FR 31371 
(August 2, 1990); 60 FR 40704 (August 9, 1995), and 66 FR 23561 (May 
9, 2001).
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Part 801--Coverage Rules[FEDREG][VOL]*[/VOL][NO]*[/NO][DATE]*[/
DATE][RULES][RULE][PREAMB][AGENCY]*[/AGENCY][SUBJECT]*[/SUBJECT][/
PREAMB][SUPLINF][HED]*[/HED]

Section 801.1 Definitions

    Paragraph (j), the definition of Engaged in Manufacturing, is 
amended to refer to the 2002 edition of the North American Industry 
Classification System, rather than the 1997 edition.

Part 803--Transmittal Rules

Appendix to Section 803 Instructions Applicable to Notification and 
Report Form

    Generally, references to ``1997 base year'' will be replaced with 
``2002 base year'' throughout the Form and Instructions. Filing persons 
should refer to the ``2002 NAICS Manual'' and the ``2002 Numerical List 
of Manufactured and Mineral Products,'' published by the Census Bureau 
to locate product class codes and product codes.\4\
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    \4\ Executive Office of the President, Office of Management and 
Budget, North American Industry Classification System--United 
States, 2002 (2002). U.S. Census Bureau, Numerical List of 
Manufactured and Mineral Products (EC02M31R-NL) (April, 2004).
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    In response to Item 5 of the Form, filing parties are required to 
provide revenue data for the most current year and the base year. 
Specifically, Item 5 is amended as follows: Item 5(a) requires that the 
filing person provide 2002 base year revenue data for each 6-digit 
NAICS industry code(s) in which it derived revenues. Item 5(b)(i) 
requires that a filing person engaged in manufacturing provide 2002 
base year revenue for each 10-digit NAICS-based product code(s) in 
which it derived revenue. Item 5(b)(ii) requires that the filing person 
identify each manufactured product it has added or deleted since 2002 
by 10-digit NAICS-based product code(s).
    In response to Item 7 of the Form, for specified industries, filers 
are required to provide 6-digit NAICS industry codes and descriptions 
and to list geographic markets for any industry in which the filer and 
any other party to the transaction derived revenues. Many of these 
referenced NAICS codes have been changed in the 2002 update. The 
Instructions to Item 7, specifically Items 7(c)(ii), (iii), (iv), and 
(v), are amended to identify the updated 2002 codes.

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 Commission certifies that the regulatory 
action will not have a significant economic impact on a substantial 
number of small entities. See 5 U.S.C. 605.
    Because of the size of the transactions necessary to invoke a Hart-
Scott-Rodino filing, the premerger notification rules rarely, if ever, 
affect small businesses. Indeed, the 2000 amendments to the Act were 
intended to reduce the burden of the premerger notification program by 
exempting all transactions valued at $50 million or less.\5\ Further, 
none of the proposed rule amendments changes the coverage of the 
premerger notification rules in any way that would affect small 
business. Accordingly, 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 the required notice 
of this certification to the Small Business Administration.
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    \5\ That figure is now $53.1 million, adjusted for the change in 
the Gross National Product, and will be adjusted annually.
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Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501-3518, requires agencies 
to submit ``collections of information'' to the Office of Management 
and Budget (``OMB'') and obtain clearance before instituting them. Such 
collections of information include reporting, record keeping, or 
disclosure requirements contained in regulations. The information 
collection requirements in the HSR Rules and Form have been reviewed 
and approved by OMB under OMB Control No. 3084-0005. The current 
clearance expires on May 31, 2007.
    The Commission's proposed revisions to the Form and Rules do not 
``substantive[ly] or material[ly] modify'' the existing terms of the 
currently approved collection of information (OMB Control Number 3084-
0005) to necessitate OMB's further review and approval. See 44 U.S.C. 
3507(h)(3); 5 CFR 1320.5(g). The individual rule modifications are 
described more fully below.

Administrative Procedure Act

    These rule changes are procedural and do not alter the existing 
legal obligations of filing parties to submit the most currently 
available industry classification information. Accordingly, the 
amendments are not subject to the notice and comment requirements of 
the Administrative Procedure Act. See 5 U.S.C. 553(b)(A).

List of Subjects in 16 CFR Parts 801 and 803

    Antitrust.

0
For the reasons stated in the preamble, the Federal Trade Commission 
amends 16 CFR parts 801 and 803 as set forth below:

PART 801--COVERAGE RULES

0
1. The authority citation for part 801 continues to read as follows:

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

0
2. Amend Sec.  801.1 by revising paragraph (j) to read as follows:


Sec.  801.1  Definitions.

* * * * *
    (j) Engaged in manufacturing. A person is engaged in manufacturing 
if it produces and derives annual sales or revenues in excess of $1 
million from products within industries in Sectors 31-33 as coded by 
the North American Industry Classification System (2002 Edition) 
published by the Executive Office of the President, Office of 
Management and Budget.
* * * * *

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PART 803--TRANSMITTAL RULES

0
3. The authority citation for part 803 continues to read as follows:

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

0
4. Revise pages I, V, and VI of the Instructions, and pages 7 and 8 of 
the Notification and Report Form For Certain Mergers and Acquisitions, 
in the Appendix to part 803 to read as follows:
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    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 05-24684 Filed 12-29-05; 8:45 am]
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