Formal Interpretation No. 11

BUREAU OF COMPETITION

April 7, 1981

Formal Interpretation Pursuant to § 803.30 of the
Premerger Notification Rules, 16 C.F.R. § 803.30,
Concerning Incorporation by Reference in the
Antitrust Improvements Act Notification and Report Form

On April 10, 1979, the Federal Trade Commission staff, with the concurrence of the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, issued a formal interpretation pursuant to § 803.30 of the premerger notification rules ("the rules"), 16 C.F.R. § 803.30, concerning incorporation by reference in the Antitrust Improvements Act Notification and Report Form ("the Form"), 16 C.F.R. Part 803--Appendix. This interpretation specified a narrow set of circumstances in which a person filing notification would be permitted to incorporate by reference in its initial filing documents submitted with an earlier filing and precluded such incorporation in all other cases. This position was based on practical considerations concerning the review of premerger notification filings. Filings are often sent for analysis to divisions in Washington, D.C., or to regional offices in other parts of the country. Filings by the same person with respect to different transactions are not necessarily reviewed by the same office. The analysis of subsequent filings by the same person, within the time limits imposed by the Act, would be made more difficult in such cases if all documentary materials required to be supplied with the Form do not accompany each filing.

Certain documents filed with the Securities and Exchange Commission ("SEC") are among the documentary attachments which are required to be supplied with the Form, provided they are readily available to the filing person. The United States General Accounting Office ("GAO") has recently taken the position that the restrictions imposed by this formal interpretation on the incorporation by reference in later filings of current SEC documents supplied with earlier filings, constitutes unnecessary duplication within the meaning of the Federal Reports Act, 44 U.S.C. § 3512. The Commission staff disagreed with GAO's assertion that these restrictions result in unnecessary duplication. In the interest of cooperation between government agencies, however, the Commission staff will hereafter permit wider use of incorporation by reference of such documents.

In the future, persons filing notification may incorporate by reference all SEC documents supplied with earlier filings which remain current and are called for in the subsequent filing. Item 4(a) of the Form requests specified documents filed with the SEC (or to be filed contemporaneously with the premerger notification filing) if any such documents have been filed within the three years prior to the date of the premerger notification filing and if copies of them are readily available to the filing person. The SEC documents requested are: the most recent Form 10-K, all registration statements and all Forms 10-Q and 8-K filed since the end of the period reflected in the most recent Form 10-K, the most recent proxy statement, and, if the acquisition is a tender offer, Schedule 14D-1. Thus, for example, if a person has made a premerger notification filing in the third quarter following the filing of Form 10-K and has submitted that Form 10-K, Forms 10-Q for the first two quarters, a registration statement, and a Form 8-K, it may now incorporate these documents by reference in a filing made in the fourth quarter. In the latter filing, it must supply only copies of the Form 10-Q for the third quarter and subsequent registration statements and Forms 8-K (assuming that any such documents have been filed with the SEC). After the end of the fourth quarter, however, if a new Form 10-K has been filed, these documents would no longer be called for by item 4(a), and the new Form 10-K would be filed with the premerger notification Form together with any subsequent registration statements and Forms 10-Q and 8-K.

Persons wishing to incorporate documents accompanying an earlier filing should identify that filing by the name of the person and the date on which the Form was submitted. Such persons must also specifically identify each document incorporated by reference from an earlier filing. The formal interpretation of April 10, 1979, remains in effect except to the extent it has been modified here.

The Assistant Attorney General in charge of the Antitrust Division of the Department of Justice has concurred in this formal interpretation.