[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Rules and Regulations]
[Pages 5748-5774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01584]


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FEDERAL TRADE COMMISSION

16 CFR Parts 801 and 803

RIN 3084-AB46


Premerger Notification; Reporting and Waiting Period Requirements

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: The Federal Trade Commission (``Commission'' or ``FTC'') is 
amending the Hart-Scott-Rodino (``HSR'') Premerger Notification Rules 
(``Rules'') that require the parties to certain mergers and 
acquisitions to file reports with the FTC and the Assistant Attorney 
General in charge of the Antitrust Division of the Department of 
Justice (``the Assistant Attorney General'') (together the ``Antitrust 
Agencies'' or ``Agencies'') and to wait a specified period of time 
before consummating such transactions. The Commission is amending the 
Rules to conform to the new filing fee tiers enacted by the Merger 
Filing Fee Modernization Act of 2022 (``2022 Amendments''), contained 
within the Consolidated Appropriations Act, 2023.

DATES:  Effective February 27, 2023.

FOR FURTHER INFORMATION CONTACT: Robert Jones, Assistant Director, 
Premerger Notification Office, Bureau of Competition, Federal Trade 
Commission, 400 7th Street SW, Room CC-5301, Washington, DC 20024, or 
by telephone at (202) 326-3100, Email: [email protected].

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 the 
Assistant Attorney General and wait a specified period before 
consummating the proposed transaction to allow the Antitrust Agencies 
to conduct their initial review of a proposed transaction's competitive 
impact. The reporting requirement and the waiting period that it 
triggers are intended to enable the 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.
    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 of the Act. 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 appendices to part 
803, the Notification and Report Form for Certain Mergers and 
Acquisitions (``HSR Form'') and Instructions to the Notification and 
Report Form for Certain Mergers and Acquisitions (``Instructions''), to 
govern the form of premerger notification to be provided by merging 
parties.
    The Commission is amending parts 801 and 803 of the rules and the 
HSR Form and Instructions to make the ministerial changes required to 
conform with the fees and fee tiers established by the 2022 Amendments.

Affected in Part 801, Coverage Rules:
    Sec.  801.1 Definitions.
Affected in Part 803, Transmittal Rules:
     Sec.  803.9 Filing fee.
     Appendix A to Part 803--Notification and Report Form for 
Certain Mergers and Acquisitions
     Appendix B to Part 803--Instructions to Notification and 
Report Form for Certain Mergers and Acquisitions

Background

    In 1990, section 605 of Public Law 101-162, 103 Stat. 1031 (15 
U.S.C. 18a note), first required the Federal Trade Commission to assess 
and collect filing fees from persons acquiring voting securities or 
assets under the Act. Fee tiers, rather than a single fee, were 
established in 2000 by section 630(b) of Public Law 106-553, 114 Stat. 
2762, 2762A-109. On December 29, 2022, the President signed into law 
the Consolidated Appropriations Act, 2023, which included the 2022 
Amendments. The 2022 Amendments, among other things, amend these fees 
and fee tiers. See Public Law 117-328, Div. GG, 136 Stat. 4459.
    Prior to enactment of the 2022 Amendments, filers were required to 
pay $45,000; $125,000; or $280,000 per transaction, depending on the 
total value of the transaction. While these fees have remained constant 
since adoption in 2000, the value of the acquisition to which they 
apply had adjusted annually since 2005 to reflect changes in the gross 
national product (``GNP'').\1\
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    \1\ See Public Law 106-553, 114 Stat. at 2762A-109 to -110, 
amending Section 605 of title VI of Public Law 101-162 (15 U.S.C. 
18a note).
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    The new fee structure enacted by the 2022 Amendments includes six, 
rather than three, tiers. The filing fee has been lowered for certain 
transactions, but increased for others, particularly for acquisitions 
valued at more than $1 billion. As enacted, the fee thresholds for 2023 
are as follows: \2\
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    \2\ See the notice ``Revised Jurisdictional Thresholds,'' 
published in the January 26, 2023, issue of the Federal Register (88 
FR 5004).

------------------------------------------------------------------------
                Size (value) of transaction                      Fee
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<$161.5 million............................................      $30,000
$161.5 to <$500 million....................................      100,000
$500 million to <$1 billion................................      250,000
$1 billion to <$2 billion..................................      400,000
$2 billion to <$5 billion..................................      800,000
$5 billion or more.........................................    2,250,000
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[[Page 5749]]

    Beginning in Fiscal Year 2024, the filing tiers will be adjusted 
annually to reflect changes in the GNP for the previous year.\3\ 
Additionally, beginning in Fiscal Year 2024, the 2022 Amendments will 
require the filing fees to be increased annually, if the percentage 
increase in the consumer price index (``CPI'') for the prior year as 
compared to the CPI for the fiscal year ended on September 30, 2022, is 
greater than one percent.\4\ Such adjustments to the fees will be 
rounded to the nearest $5,000. The Commission, with the concurrence of 
the Assistant Attorney General, is making the required ministerial 
revisions to parts 801 and 803 of the Rules and to the HSR Form and 
Instructions to conform to these changes.
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    \3\ Public Law 117-328, 136 Stat. 4459, Div. GG, Title I.
    \4\ Id.
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I. Changes to Section 801.1 Definitions

Section 801.1(m), Definition of The Act

    The Commission is making a ministerial change to the definition of 
``the act'' to include reference to the 2022 Amendments. The Commission 
is not making any material changes to this section.

II. Changes to Section 803.9 Filing Fee

    Section 803.9 describes how fees are determined and paid. The 
Commission is amending all eight of the examples in Sec.  803.9 to 
conform with the changes to the fees and fee tiers required by the 2022 
Amendments, to update dates and dollar values to reflect more recent 
adjusted jurisdictional thresholds, and to add clarity to the examples. 
Since the fees and fee tiers will not adjust until after fiscal year 
2023, references to fees and fee tiers do not include ``(as 
adjusted).'' The Commission will adopt amendments to the Rules to 
reference ``as adjusted'' fees and fee tiers at the appropriate time. 
Specifically, the Commission will amend the examples in Sec.  803.9 as 
follows:
     Revising Example 1 to update the determination of the 
filing fee to be consistent with the 2022 Amendments; and eliminate 
``(as adjusted)'' from filing fee tiers.
     Revising Example 2 to provide example dollar values more 
in line with current adjusted jurisdictional thresholds; update the 
determination of the filing fee to be consistent with the 2022 
Amendments; and eliminate ``(as adjusted)'' from filing fee tiers.
     Revising Example 3 to provide a date and example dollar 
values more in line with current adjusted jurisdictional thresholds; 
and update the determination of the filing fee to be consistent with 
the 2022 Amendments.
     Revising Example 4 to update the determination of the 
filing fee to be consistent with the 2022 Amendments; eliminate ``(as 
adjusted)'' from filing fee tiers; and eliminate reference to an 
explanation of valuation, which had been eliminated in prior 
rulemakings.\5\
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    \5\ See, 82 FR 32123 (July 12, 2017); 76 FR 42471 (July 19, 
2011).
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     Revising Example 5 to update the determination of the 
filing fee to be consistent with the 2022 Amendments; eliminate ``(as 
adjusted)'' from filing fee tiers; and eliminate reference to an 
explanation of valuation, which had been eliminated in prior 
rulemakings.\6\
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    \6\ Id.
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     Revising Example 6 to update the determination of the 
filing fee to be consistent with the 2022 Amendments; eliminate ``(as 
adjusted)'' from filing fee tiers; and add ``(as adjusted)'' to 
jurisdictional and notification thresholds.
     Revising Example 7 to provide a date and example dollar 
values more in line with current adjusted jurisdictional thresholds; 
update the determination of the filing fee to be consistent with the 
2022 Amendments; and eliminate reference to an explanation of 
valuation, which had been eliminated in prior rulemakings.\7\
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    \7\ Id.
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     Revising Example 8 to provide example dollar values more 
in line with current adjusted jurisdictional thresholds; and update the 
determination of the filing fee to be consistent with the 2022 
Amendments.

III. Changes to Appendix A to Part 803--Notification and Report Form 
for Certain Mergers and Acquisitions

    The Commission is amending appendix A to part 803, the HSR Form, to 
make ministerial changes to conform to the 2022 Amendments. The 
Commission is amending the ``Fee Information'' portion of the HSR Form 
to incorporate the six new fee tiers and fees.

IV. Changes to Appendix B to Part 803--Instructions to the Notification 
and Report Form for Certain Mergers and Acquisitions

    The Commission is amending appendix B to part 803, the 
Instructions, to make ministerial changes to conform to the 2022 
Amendments. Specifically, the Commission is changing the ``Fee 
Information'' section of the Instructions to reflect the new fee tiers 
and introduction of adjustments to the fees. Additionally, because the 
2022 Amendments will require the relevant valuation of the acquisition 
and the fees themselves to be adjusted annually, the Commission is 
eliminating the table on page III of the instructions, leaving the web 
link that will update each time the fees and fee tier valuations 
change.

V. 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).
    In this case, the Commission finds that public comment on these 
changes is unnecessary. The Commission is amending the HSR Rules to 
conform with the new fee tiers and fees enacted by Congress. These 
updates do not involve any substantive changes in the HSR Rules' 
requirements for entities subject to the Rules. Rather, they are 
conforming updates to the definition of the HSR Act and examples of how 
to calculate the appropriate fee.
    In addition, these amendments 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)(3)(A).
    For these reasons, the Commission finds that there is good cause 
under 5 U.S.C. 553(b)(3) for adopting this final rule as effective on 
February 27, 2023, without prior public comment.

VI. 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. 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 further by exempting all transactions 
valued at less than $50 million (as adjusted

[[Page 5750]]

annually).\8\ Likewise, none of the rule amendments expand the coverage 
of the premerger notification rules in a way that would affect small 
business. In addition, the Regulatory Flexibility Act requirements 
apply 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, to the extent, if any, that the Regulatory Flexibility 
Act applies, the Commission certifies that these 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.
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    \8\ By comparison, the dollar thresholds established for total 
annual receipts of a small business under the applicable small 
business size standards fall well under $50 million. See 13 CFR 
121.201.
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VII. Paperwork Reduction Act

    The Commission has existing Paperwork Reduction Act clearance for 
the HSR Rules (OMB Control Number 3084-0005). The Commission has 
concluded that these technical amendments do not change the substance 
or frequency of the pre-existing information collection requirements 
and, therefore, do not require further OMB clearance.

VIII. Other Matters

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a ``major rule,'' as defined by 5 U.S.C. 804(2).

List of Subjects in 16 CFR Parts 801 and 803

    Antitrust.

    For the reasons stated in the preamble, the Federal Trade 
Commission is amending 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 (m) to read as follows:


Sec.  801.1  Definitions.

* * * * *
    (m) The act. References to ``the act'' refer to Section 7A of the 
Clayton Act, 15 U.S.C. 18a, as added by section 201 of the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, Public Law 94-435, 90 Stat. 
1390, and as amended by Public Law 106-553, 114 Stat. 2762, and Public 
Law 117-328, Div. GG, 136 Stat. 4459. References to ``Section 7A()'' 
refer to subsections of Section 7A of the Clayton Act. References to 
``this section'' refer to the section of these rules in which the term 
appears.
* * * * *

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. Amend Sec.  803.9 by revising paragraph (a) to read as follows:


Sec.  803.9  Filing fee.

    (a) Each acquiring person shall pay the filing fee required by the 
act to the Federal Trade Commission, except as provided in paragraphs 
(b), (c), and (f) of this section. No additional fee is to be submitted 
to the Antitrust Division of the Department of Justice. Examples:
    (1) ``A'' wishes to acquire voting securities issued by B, where 
the greater of the acquisition price and the market price is in excess 
of $50 million (as adjusted) but less than $100 million (as adjusted) 
pursuant to Sec.  801.10 of this chapter. When ``A'' files notification 
for the transaction, it must indicate the $50 million (as adjusted) 
threshold. If the value of the voting securities is less than $161.5 
million, ``A'' must pay a filing fee of $30,000 because the aggregate 
total amount of the acquisition is greater than $50 million (as 
adjusted) but less than $161.5 million. If the aggregate total value of 
the voting securities is at least $161.5 million, but less than $500 
million, ``A'' must pay a filing fee of $100,000.
    (2) ``A'' acquires $75 million of assets from ``B.'' The parties 
meet the size of person criteria of section 7A(a)(2)(B) of the act, but 
the transaction is not reportable because it does not exceed the $50 
million (as adjusted) size of transaction threshold of that provision. 
Two months later ``A'' acquires additional assets from ``B'' valued at 
$175 million. Pursuant to the aggregation requirements of Sec.  
801.13(b)(2)(ii) of this chapter, the aggregate total amount of ``B's'' 
assets that ``A'' will hold as a result of the second acquisition is 
$250 million. Accordingly, when ``A'' files notification for the second 
transaction, ``A'' must pay a filing fee of $100,000 because the 
aggregate total amount of the acquisition is less than $500 million, 
but not less than $161.5 million.
    (3) In 2023, ``A'' acquires $115 million of voting securities 
issued by B after submitting its notification and $30,000 filing fee 
and indicates the $50 million (as adjusted) threshold. Two years later, 
``A'' files to acquire additional voting securities issued by B valued 
at $114.4 million because it will exceed the next higher reporting 
threshold (see Sec.  801.1(h) of this chapter). Assuming the second 
transaction is reportable, and the value of its initial holdings is 
unchanged (see Sec. Sec.  801.13(a)(2) and 801.10(c) of this chapter), 
the provisions of Sec.  801.13(a)(1) of this chapter require that ``A'' 
report that the total value of the second transaction is $229.4 
million, which is in excess of $100 million (as adjusted) notification 
threshold. This is because ``A'' must aggregate previously acquired 
securities in calculating the value of B's voting securities that it 
will hold as a result of the second acquisition. ``A'' should pay a 
filing fee of $100,000 because the total value is greater than $161.5 
million but less than $500 million.
    (4) ``A'' signs a contract with a stated purchase price of $162 
million, subject to adjustments, to acquire all of the assets of ``B.'' 
If the amount of adjustments can be reasonably estimated, the 
acquisition price--as adjusted to reflect that estimate--is determined. 
If the amount of adjustments cannot be reasonably estimated, the 
acquisition price is undetermined. In either case the board or its 
delegee must also determine in good faith the fair market value. (Sec.  
801.10(b) of this chapter states that the value of an asset acquisition 
is to be the fair market value or the acquisition price, if determined 
and greater than fair market value.) ``A'' files notification and 
submits a $30,000 filing fee. ``A'' 's decision to pay that fee may be 
justified on either of two bases. First, ``A'' may have concluded that 
the acquisition price can be reasonably estimated to be less than 
$161.5 million, because of anticipated adjustments--e.g., based on due 
diligence by ``A's'' accounting firm indicating that one third of the 
inventory is not saleable. If fair market value is also determined in 
good faith to be less than $161.5 million, the $30,000 fee is 
appropriate. Alternatively, ``A'' may conclude that because the 
adjustments cannot reasonably be estimated, the acquisition price is 
undetermined. If so, ``A'' would base the valuation on the good faith 
determination of fair market value. The acquiring party's execution of 
the Certification also attests to the good faith valuation of the value 
of the transaction.
    (5) ``A'' contracts to acquire all of the assets of ``B'' for in 
excess of $500 million. The assets include hotels, office

[[Page 5751]]

buildings, and rental retail property, all of which are exempted by 
Sec.  802.2 of this chapter. Section 802.2 directs that these assets 
are exempt from the requirements of the act and that reporting 
requirements for the transaction should be determined by analyzing the 
remainder of the acquisition as if it were a separate transaction. 
Furthermore, Sec.  801.15(a)(2) of this chapter states that those 
exempt assets are never held as a result of the acquisition. 
Accordingly, the aggregate amount of the transaction is in excess of 
$161.5 million), but less than $500 million. ``A'' will be liable for a 
filing fee of $100,000, rather than $250,000, because the value of the 
transaction is not less than $161.5 million but is less than $500 
million.
    (6) ``A'' acquires coal reserves from ``B'' valued at $150 million. 
No notification or filing fee is required because the acquisition is 
exempted by Sec.  802.3(b) of this chapter. Three months later, A 
proposes to acquire additional coal reserves from ``B'' valued at $500 
million. This transaction is subject to the notification requirements 
of the act because the value of the acquisition exceeds the $200 
million limitation on the exemption in Sec.  802.3(b). As a result of 
Sec.  801.13(b)(2)(ii) of this chapter, the prior $150 million 
acquisition must be added because the additional $500 million of coal 
reserves were acquired from the same person within 180 days of the 
initial acquisition. Because aggregating the two acquisitions exceeds 
the $200 million exemption limitation, Sec.  801.15(b) of this chapter 
directs that ``A'' will also hold the previously exempt $150 million 
acquisition; thus, the aggregate amount held as a result of the $500 
million acquisition exceeds $500 million. Accordingly, ``A'' must file 
notification to acquire the coal reserves valued in excess of $500 
million), but less than $1 billion and pay a filing fee of $250,000.
    (7) In 2023, ``A'' intends to acquire 20 percent of the voting 
securities of B, a non-publicly traded issuer. The agreed upon 
acquisition price is $160.5 million subject to post-closing adjustments 
of up to plus or minus $2 million. ``A'' estimates that the adjustments 
will be minus $1 million. In this example, since ``A'' is able in good 
faith to reasonably estimate the adjustments to the agreed-on price, 
the acquisition price is deemed to be determined and the appropriate 
filing fee threshold is $50 million (as adjusted). Even if the post-
closing adjustments cause the final price actually paid to exceed 
$161.5 million, ``A'' would be deemed to hold $159.5 million in B 
voting securities as a result of this acquisition. Note, that any 
additional acquisition by ``A'' of B voting may trigger another filing 
and require the appropriate fee.
    (8) ``A'' intends to make a cash tender offer for a minimum of 50 
percent plus one share of the voting securities of B, a non-publicly 
traded issuer, but will accept up to 100 percent of the shares if they 
are tendered. There are 12 million shares of B voting stock outstanding 
and the tender offer price is $100 per share. In this instance, since 
there is no cap on the number of shares that can be tendered, the value 
of the transaction will be the value of 100 percent of B's voting 
securities, and ``A'' must pay the $400,000 fee for the $1 billion 
filing fee threshold. Note that if the tender offer had been for a 
maximum of 50 percent plus one share the value of the transaction would 
be $600 million, and the appropriate fee would be $250,000, based on 
the $500 million filing fee threshold. This would be true even if the 
tender offer were to be followed by a merger which would be exempt 
under section 7A(c)(3) of the act.
* * * * *

0
5. Revise appendix A to part 803 to read as follows:

Appendix A to Part 803--Notification and Report Form for Certain 
Mergers and Acquisitions

BILLING CODE 6750-01-P

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0
6. Revise appendix B to part 803 to read as follows:

Appendix B to Part 803--Instructions to the Notification and Report 
Form for Certain Mergers and Acquisitions
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    By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2023-01584 Filed 1-27-23; 8:45 am]
BILLING CODE 6750-01-C