[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]
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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.
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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
