Premerger Notification; Antitrust Improvements Act Notification and Report Form

AGENCY:

Federal Trade Commission.

ACTION:

Interim rule with request for comment.

SUMMARY:

The Federal Trade Commission (“Commission”) is amending the Antitrust Improvements Act Notification and Report Form (“the Form”) and the accompanying Instructions for Certain Mergers and Acquisitions (“the Instructions”) which must be completed and submitted by persons required to report mergers or acquisitions pursuant to section 7A of the Clayton Act, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”). The amended Form and Instructions will require filing persons to: report revenue data using the North American Industry Classification System (“NAICS”) rather than the Standard Industrial Classification (“SIC”); use 1997 rather than 1992 as the base year for reporting revenue data; and report insurance activities in the body of the Form rather than in an Insurance Appendix. In addition, the references to the SIC will be replaced with references to the NAICS. Finally, the Commission will make minor revisions to the Instructions to provide further assistance to persons required to file under the HSR Act.

DATES:

This interim rule is effective July 1, 2001. The Commission, however, is soliciting comments regarding the July 1, 2001 effective date of these amendments, which the Commission will change if appropriate. Comments must be received on or before June 8, 2001. In addition, it is important to note that filing persons must continue to use the SIC codes through June 30, 2001, and that all parties to a transaction must use the same classification system. However, for transactions identified as Section 801.30 transactions, where the acquiring person files before July 1, 2001 with the expectation that the acquired person will file on or after July 1, 2001, the Premerger Notification Office recommends that the acquiring person use the NAICS industry and product codes to ensure the efficient handling of the filing.

ADDRESSES:

Address all comments to: Secretary, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580, or by e-mail to hsr-rules@ftc.gov, and the Director of Operations and Merger Enforcement, Antitrust Division, Department of Justice, Room 10103, 601 D Street, NW., Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT:

William L. Lanning, Acting Deputy Assistant Director, or Alice M. Villavicencio, Compliance Specialist, of the Premerger Notification Office, Bureau of Competition at (202) 326-3361 or (202) 326-3155, respectively.

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 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 the Antitrust Improvements Act Notification and Report Form for Certain Mergers and Acquisitions on July 31, 1978, with an effective date of September 5, 1978, 43 FR 33450 (July 31, 1978), and has since amended or revised the rules and Form on fifteen occasions. The Commission, with the concurrence of the Assistant Attorney General, is promulgating these amendments to the Form and the Instructions relating to Items 3, 5, 6, 7, and 8 as well as to Sections 801.1(j), 802.2(g), and 803.2 of the Rules as indicated herein.

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 “to determine whether such acquisitions may, if consummated, violate the antitrust laws.” 15 U.S.C. 18a(d). The Form is not designed to elicit all potentially relevant information relating to a transaction. Instead, the information requested enables the Commission and the Assistant Attorney General to determine whether the waiting period for a proposed acquisition should be allowed to expire; whether a request by one or both of the filing persons for early termination of the waiting period should be granted; or whether the Commission or the Assistant Attorney General should issue a request for additional information and documentary materials pursuant to section 7A(e) of the HSR Act and 16 CFR 803.20.

The Form and the Instructions currently require that filing persons report revenue data contained in the 1992 Economic Census and the “1992 Numerical List of Manufactured and Mineral Products.” The Bureau of the Census has recently published its 1997 versions of the Economic Census and the “Numerical List of Manufactured and Mineral Products.” In these reports, the data is compiled using the NAICS which has replaced the SIC as the industrial classification for the United States. As a result, the Form, the Instructions, and several rules will be amended to replace references to the SIC codes with references to the NAICS codes, and references to a 1992 base year to a 1997 base year.

Statement of Basis and Purpose for the Commission's Revision of the Form and the Instructions

In 1992, OMB established the Economic Classification Policy Committee (ECPC). Among other things, OMB asked the ECPC to evaluate the SIC to determine whether it should be revised or it should be replaced with a new industry classification system for the United States. The ECPC concluded that the SIC should be replaced because it did not adequately describe the economy of the United States. Specifically, the ECPC noted that the SIC had failed to address two significant economic trends which had transformed the economy over the last 20 years: the emergence of service-producing industries and the rapid development of technology-based industries.

After conducting an extensive examination of the economy, the ECPC determined that a new industrial classification system would best describe the economy if it were based on a production-oriented, or supply-based, conceptual framework that grouped together businesses using identical or similar production processes. The ECPC also noted that a single conceptual framework would add internal consistency to the new classification system and would ensure that the system could adapt to future economic trends.

Acting in concert with similar committees in Mexico and Canada, the ECPC developed the NAICS to replace the SIC. The NAICS divides the economy into 20 sectors and identifies nine new service industries sectors and 358 new national industries. The NAICS employs a 6-digit coding system in which the first two digits designate the sector, the third digit designates the subsector, the fourth digit designates the industry group, the fifth digit represents the NAICS industry, and the sixth digit designates individual national industries (either Canadian, Mexican, or United States). A 6-digit NAICS industry code is comparable to a 4-digit SIC industry code. A 7-digit NAICS product class code and a 10-digit NAICS product code are comparable to a 5-digit SIC product class code and a 7-digit SIC product code, respectively. A review of NAICS industry codes is slated for every five years and is expected to keep the NAICS current as economic sectors evolve.

In April, 1997, OMB issued its decision to require all Federal statistical agencies that collect or publish data by industry to adopt the NAICS as the industrial classification system for the United States, 62 FR 17287-17337 (April 9, 1997). However, OMB specifically noted that it was not requiring any non-statistical agencies, such as the Commission, to use the NAICS because the non-statistical agencies played no role in the development of the NAICS. Instead, OMB noted that non-statistical agencies should utilize the NAICS only after the “head of the agency administering that program has . . . determined that the use of such industry definitions is appropriate to the implementation of the program's objectives.” Id.

The Commission has determined that requiring filing persons to report revenue data using the NAICS will further the policy objectives of the HSR notification program because the NAICS has several characteristics that will contribute to a more meaningful antitrust analysis. First, the NAICS was designed to describe the United States economy more accurately than the SIC. With its nine new service industry sectors and 358 new industries, the NAICS should provide more precise comparisons for product markets. The review of the NAICS every five years should also provide more accurate comparisons in a dynamic economy.

Second, the Commission has traditionally relied upon the most current economic data to analyze the potential anticompetitive effects of proposed transactions. The “1997 Economic Census” and the “1997 Numerical List of Manufactured and Mineral Products” published by Bureau of the Census contain such data and use the NAICS.

Third, the NAICS is erected on a production-oriented, or supply-based, conceptual framework to ensure the internal consistency of its industry classifications. Businesses that use identical or similar production processes are grouped together. This organizational concept will be useful to the Commission and the Assistant Attorney General when they evaluate entry and industry overlap issues as part of their antitrust analysis of proposed transactions.

Incorporating the NAICS into the Form and the Instructions will ensure that filing persons provide revenues in a format that can be compared to the most recent and complete economic data published by the Bureau of the Census. The amended Form and Instructions will require the 6-digit NAICS industry code where the Form and Instructions currently require the 4-digit SIC industry code. Filing persons should be aware, however, that certain NAICS industry codes only contain 5-digits. In those instances, the filing person should add a zero (0) to the end of the five-digit code when completing the Form. Seven-digit NAICS product class codes and the 10-digit NAICS product codes should be used where the Form and Instructions currently require the 5-digit SIC class codes and the 7-digit SIC product codes.

We reiterate that filing persons must continue to use the SIC codes through June 30, 2001, and that all parties to a transaction must use the same classification system. For transactions identified as Section 801.30 transactions, where the acquiring person files before July 1, 2001 with the expectation that the acquired person will file on or after July 1, 2001, the Premerger Notification Office recommends that the acquiring person use the NAICS industry and product codes to ensure the efficient handling of the filing.

Amendments to the Form and Instructions

Items 5, 7, and 8 of the Form and Instructions will require that revenue data be provided using the NAICS. References to the SIC codes in Section 801.1(j) and Section 802.2(g) will be replaced with NAICS references. References to the “1992 base year” will replaced with “1997 base year” throughout the Form and Instructions. Filing persons should refer to the “1997 Numerical List of Manufactured and Mineral Products” (EC97M31R-NL) published by the Bureau of the Census to locate product class codes and product codes.

As noted above, several other minor changes to the Form and the Instructions will be made. Most of these changes either clarify the requirements of the Form and Instructions or correct technical errors in earlier versions. In addition, the Insurance Appendix will be deleted and filing persons should report revenues from all insurance activities in Item 5 of the Form. Finally, Section 803.2 will be amended to reflect the deletion of the Insurance Appendix.

Section 801.1(j) Engaged in Manufacturing

In Section 801.1(j), the definition of “Engaged in manufacturing,” will be amended by replacing “products within industries 2000-3999 as coded in the Standard Industrial Classification Manual (1972 Edition)” with “products within industries in Sectors 31-33 as coded by the North American Industrial Classification System (1997 Edition).” This amendment is needed to update the definition to refer to the applicable NAICS sector rather than the SIC industry code.

Section 802.2(g) Certain Acquisitions of Real Property Assets

In Section 802.2(g), the reference to the SIC in the parenthetical will be amended by replacing “(activities within SIC Major Groups 01 and 02)” with “(activities within NAICS sector 11).” This amendment is necessary to update the definition to refer to the applicable NAICS sector rather than the SIC industry codes. Section 802.2(g) is also the subject of a substantive proposed rule change set forth at 66 FR 8723-8729 (February 1, 2001), but that change will not affect the parenthetical referenced here. The parenthetical reference to “(activities within SIC Major Groups 01 and 02)” will be amended as of July 1, 2001, along with the other NAICS changes.

Item 3 of the Instructions

The last sentence of the Instruction to Item 3(a) will be corrected by inserting the word “involved” between the words “persons” and “in.” In the Instruction to Item 3(c), the reference to “items 3(c)(i)-3(c)(viii)” will be corrected to read “items 3(c)(i)-3(c)(vi).”

Item 5 of the Form and Instructions

The last paragraph of the general instruction to Items 5(a) through 5(c) will be revised to clarify that persons filing notification should report revenues derived by all entities included within the person at the time the Notification and Report Form is prepared for each applicable subpart of Item 5. Filing persons have always been required to provide this information for all entities they controlled at the time of filing. The specific reference to the base year in the instruction was added because the Commission wanted to make clear that information for the base year should be included for those entities that were acquired after the base year. Since the instruction has been the subject of questions on several occasions, the revised language should eliminate any confusion about this requirement.

Item 5(a) will require that the filing person provide 1997 base year revenue data for each 6-digit NAICS industry code(s) in which it derived revenues. Item 5(b)(i) will require that a filing person engaged in manufacturing provide 1997 base year revenue data for each 10-digit NAICS product code(s) in which it derived any revenues. Item 5(c) will require that a filing person engaged in non-manufacturing activities provide 6-digit NAICS industry revenue data for the most recent year.

Item 5(b)(ii) will require that the filing person identify each manufactured product it has added or deleted since 1997 by 10-digit NAICS-based product code(s). The filing person must also give the year in which the product was added or deleted, and must provide the total dollar revenue attributable to each product added for the most recent year by 10-digit NAICS-based product code.

The second paragraph of the Instruction to Item 5(b)(ii) will be revised to clarify that while products added by reason of acquisition of an entity are not included in this item, products added by reason of an acquisition of assets constituting less than an entity should be reported. The paragraph will also be revised to clarify that the same is true of products deleted by disposition of assets. The reference to dispositions of voting securities will be removed in order to correct a technical error in the original instructions. (If a product has been deleted by a disposition of voting securities, then that issuer is no longer within the person filing notification, and no Item 5 information is required for that issuer.)

Item 5(b)(iii) will require that the filing person engaged in manufacturing provide revenue data for the most recent year for each 7-digit NAICS-based class code(s) in which it derived revenues.

The paragraph following the note to Item 5(c) in the Instructions references the Insurance Appendix, which was designed to elicit information relating to insurance activities, broken down by type of insurance. Over time, the Commission has determined that requiring a separate listing for insurance overlaps has not been particularly useful. Consequently, all insurance revenues, including those revenues previously classified under 2-digit SIC major group 63, will now be required to be reported in Item 5. The Insurance Appendix will be deleted and this reference in the Instructions will no longer be needed.

Item 5(d)(iv) of the Form and the Instructions will require that the filing person identify the source of dollar revenues by 6-digit NAICS industry code(s) for a joint venture or other corporation. If the joint venture or other corporation is engaged in manufacturing, the filing person will be required to specify each 7-digit NAICS-based product class code in which it will derive revenues.

In Item 5(d) of the Form, the number “(1)” will be changed to “( i )” to correct a typographical error.

Item 6 of the Form

In the heading of Item 6(b) on the Form, the word “or” will be corrected to “of,” so that it reads, “Shareholders of Person Filing Notification.”

Item 7 of the Form and Instructions

Item 7, which currently requires geographic market information for any 4-digit SIC code in which more than one party to the transaction derives revenues, will require this geographic market information by 6-digit NAICS industry code(s).

Items 7(c)(i-vi) of the Instructions, which require the submission of geographic market information by state and, in some instances, by county, city or town, will be amended by adding the references to the NAICS sectors and subsectors rather than the SIC major groups. The reference to the NAICS sectors and subsectors were carefully compared with the SIC to ensure that the assignment of NAICS codes to subdivisions (i-vi) of Item 7(c) will correspond to the SIC codes currently required. For example, the Instructions to Items 7(c)(v) and 7(c)(vi) will be revised to accommodate a change in classification under the NAICS of insurance agencies/brokerages and insurance carriers. Insurance agencies and brokerages have always been required to list the states in which their establishments are located, while insurance carriers are required to list the states in which they are licensed to write insurance. Under the SIC, agencies and brokerages were reported under Major Group 64, while insurance carriers were reported under Major Group 63. Both types of activities are classified under Sector 52 in the NAICS, but insurance carriers and insurance agencies/brokerages are classified under NAICS Industry Group 5241 and 5242, respectively. Thus, the Instruction to Item 7(c)(v) will apply to insurance agencies/brokers (NAICS Industry Group 5242) and the Instruction to Item 7(c)(vi) will apply to insurance carriers (NAICS Industry Group 5241).

Item 8 of the Form and Instructions

Item 8 requires that the acquiring person report certain recent acquisitions of assets and voting securities, where the assets or voting securities that were previously acquired derived revenues in the same 4-digit SIC code as reported in Item 7 in the instant acquisition. This item will ask for this information by 6-digit NAICS industry code(s).

The instruction to Item 8 will be revised to clarify that information should be provided as to any previous acquisitions where such acquisitions were of a controlling interest in an issuer with sales or assets satisfying the threshold in the instruction. The previous language, requiring the listing of acquisitions of “more than 50 percent” of the voting securities of an entity, did not technically encompass an acquisition of exactly 50 percent, which also would constitute a controlling interest. The instruction for asset acquisitions will also be revised to require the listing of any previous acquisition of assets valued at or above the statutory size-of-transaction test at the time of their acquisition, rather than any acquisition of more than 50 percent of the assets of an entity. Requiring the listing of asset acquisitions of a potentially reportable size at the time of their acquisition, and therefore deemed by Congress to warrant antitrust scrutiny, should yield more meaningful information than the listing of acquisitions of over 50 percent of the assets of an entity with assets of $10 million or more, which could be extremely small and of little antitrust significance. In addition, the requirement to provide annual net sales and total assets of the acquired entity in the year prior to the acquisition has been eliminated. Numerous informal comments have been received over the years indicating that this information is often difficult to obtain, particularly for prior acquisitions of assets. The agencies have determined that the burden placed on persons filing notification outweighs the usefulness of the information in analyzing the antitrust implications of the transaction. Accordingly, Items 8(e) and 8(f) will be deleted and Item 8(g) will be redesignated as Item 8(e).

Insurance Appendix and Section 803.2

As noted in Item 5, this appendix will be deleted in its entirety. Section 803.2 has been amended to reflect the deletion.

Administrative Procedure Act

The requirement to publish a notice of proposed rulemaking and afford an opportunity for public comment under the Administrative Procedure Act does not apply when an agency for good cause finds that such procedure would be “impracticable, unnecessary, or contrary to the public interest.” See 5 U.S.C. 553(b)(A).

The Commission believes that a notice of proposed rulemaking with public comment is unnecessary here. The NAICS has already become the U.S. standard as an industrial classification system for statistical agencies, replacing the SIC. The NAICS is used by all federal statistical agencies, and has already been widely adopted by state agencies, trade associations, private businesses, and other organizations. Moreover, as noted earlier, the use of the NAICS will improve both the accuracy and consistency of data submitted by filing parties and the evaluation of entry and industry overlap issues as part of the Commission's premerger antitrust analysis. In addition, these revisions will not alter or otherwise affect the substantive rights of the filing parties or the standards by which the Commission is required to conduct such premerger review. Finally, the publication of this interim rule is being made to provide the public with ample opportunity to implement the change to the NAICS from the SIC.

Nonetheless, the Commission is soliciting comment regarding the July 1, 2001 effective date of these amendments to ascertain whether it provides sufficient time for filing persons to comply.

After the comment period, the Commission will publish a notice and final rule in the Federal Register. The notice will discuss comments received and will indicate the action taken by the Commission in light of such comments.

Regulatory Flexibility Act

The information required by the amended Form is substantially the same as the information elicited on the current Form. The only difference is that filing persons will be required to report revenue data using the NAICS instead of the SIC in Items 5, 7, and 8. The change in base year simply requires that filing persons use data from the “1997 Economic Census” rather than data from the “1992 Economic Census.” The ministerial changes clarify or simplify existing practices.

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 a Hart-Scott-Rodino filing, the premerger notification rules rarely, if ever, affect small businesses. The recent amendments to section 7A of the Clayton Act and the Commission's implementing rule amendments were intended to reduce the burden of the premerger notification program by exempting all transactions valued at $50 million or less.

Furthermore, most federal statistical agencies have adopted the NAICS since 1997. Accordingly, many companies that currently file HSR notifications have submitted economic information to the Bureau of the Census using the NAICS codes since 1997. For these filing persons, reporting base year revenue data classified under the NAICS should present little difficulty. For persons that do not have base year revenue data coded under the NAICS, the delayed effective date of the amendments to the Form should provide sufficient time to convert their SIC data to the NAICS format with minimal burden. Finally, potential filers have always been required to provide base year data from the most recent Economic Census since the inception of the Form in 1978.

In light of the foregoing, the Commission certifies that the amendments to the Form will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. Thus, neither an initial nor a final regulatory flexibility analysis of this revision is required. 5 U.S.C. 605. This document serves as the required notice of this certification to the Small Business Administration.

Paperwork Reduction Act

The Commission's revisions to the Form 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).

List of Subjects in 16 CFR Parts 801, 802, and 803

• Antitrust
• Business and industry
• Reporting and recordkeeping requirements

For the reasons stated in the preamble, the Commission amends 16 CFR part 801, 802, and 803 as follows:

PART 801—COVERAGE RULES

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

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

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

PART 802—EXEMPTION RULES

3. The authority citation for part 802 continues to read as follows:

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

4. Amend § 802.2 by revising paragraph (g) to read as follows:

PART 803—TRANSMITTAL RULES

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

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

6. Amend § 803.2 by revising paragraphs (b) introductory text, (b)(1) introductory text, and (c) introductory text as set forth below.

7. The Appendix to Part 803 is amended by revising pages I, II, III, IV, V, VI of the instructions to the Antitrust Improvements Act Notification and Report Form for Certain Mergers and Acquisitions, and pages 1 through 15 of the Notification and Report Form for Certain Mergers and Acquisitions to read as follows: