Question
(redacted)
Andrew Scanlon
Premerger Notification Office
Bureau of Competition
Federal Trade Commission
600 Pennsylvania Avenue, NW, Room 303
Washington, D.C. 20580
Re: Applicability of Hart-Scott-Rodino report to Federally Recognized American Indian Tribes
Dear Mr .. Scanlon:
In our telephone conversation of Tuesday, March 3, 1987, we discussed the issue of whether an acquisition of assets by a federally recognized tribe of American Indians would be a transaction for which a Notification and Report (Report) must be filed pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (Act).
Section 801.1 (a)(2) of rules promulgated pursuant to the Act Specifies that the term entity does not include any foreign state, government, or agency. Section 801.1 (a)(2) further excludes from the term entity the United States, the individual states, and any political subdivision or agency of either. The result is that Section 7A of the Act does not apply to any acquisition by or from one of those bodies excluded from the term entity. Excluding governments and their agencies from the definition of entity means that they cannot be persons or included within persons. Since Section 7A only covers transactions by persons, the Act simply does not apply to those excluded from the definition.
We would like to have an opinion from your office on whether a federally recognized tribe of American Indians is excluded from the term entity an therefore exempt from filing a Report, even if a transaction to which the tribe is a party would otherwise meet the size of the parties and the size of the transaction tests. In this regard, a federally recognized tribe of American Indians is a sovereign entity under Federal Law and is analogous in many respects to a foreign government or state, or to a state or political subdivision of the United State.
It would be greatly appreciated if you would supply us with such an opinion as soon as possible inasmuch as it will impact upon a transaction which we would like to consummate in the very near future.
Sincerely,
cc: (redacted)