The FTC welcomes comments on its recent HSR Rulemaking initiative, and to facilitate a robust and thoughtful set of public comments, the Commission is holding a series of three live virtual workshops in November to answer the public’s questions before comments are due.
On September 21, the Commission announced that it would seek public comments on proposed changes to the rules and interpretations that implement the Hart-Scott-Rodino Act. This rulemaking initiative has two parts. The first is a Notice of Proposed Rulemaking (NPRM) that would, if adopted, make two changes to the existing rules. The first proposed change would require filers to disclose additional information about their associates and to aggregate acquisitions in the same issuer across those entities. The second change is a new proposed rule that would exempt the acquisition of 10 percent or less of an issuer’s voting securities unless the acquiring person already has a competitively significant relationship with the issuer.
The second part of this rulemaking initiative is designed to encourage a broad conversation about changes in corporate structure and investment activity since the late 1970s and whether those changes warrant modifications in HSR rules or interpretations. What was right for 1979 when the premerger notification program began may not be right for 2020, and we want to ensure that HSR rules and interpretations keep pace with new developments so that the antitrust agencies get notice of potentially problematic deals before they occur. The Advance Notice of Public Rulemaking (ANPRM) seeks to gather information on seven topics that will help determine the path for potential future amendments to the HSR rules and interpretations of those rules. These seven topic areas were identified based on our experience with reviewing thousands of filings every year, and answering questions about HSR filing obligations—and enforcing the rules when necessary to ensure HSR compliance.
The seven topics covered by the ANPRM are:
- Size of transaction
- Real estate investment trusts
- Non-corporate entities
- Acquisitions of small amounts of voting securities
- Influence outside the scope of voting securities
- Transactions or devices for avoiding the HSR Act requirements
- Issues pertaining to the HSR filing process.
The NPRM and ANPRM will soon be published in the Federal Register, and comments will be due 60 days thereafter. Understanding the breadth of topics and the significance of the proposed changes, we want to encourage a wide range of stakeholders to submit comments so that the Commission has a robust record when it considers next steps.
If you have questions, we would like to answer them, in hopes that the answers we provide will improve the quality of the feedback we receive during the comment period. Here’s how to get an answer to your question about either one of the two rulemaking initiatives.
Send your question via email to the dedicated mailbox we’ve set up to receive questions: HSRRuleReview@ftc.gov. Please indicate in the Re: line whether you are asking about the NPRM or the ANPRM. If you have a question about the NPRM, please indicate further which topic you are writing about, the aggregation requirement or the proposed exemption. For instance, if you have a question about aggregation, please include this in the RE line: “NPRM Aggregation.” If you have a question about one of the topics in the ANPRM, please further indicate about which topic you are writing. For instance, if you have a question about the Size of Transaction, please include this in the RE line: “ANPRM Size of Transaction.”
HSR experts from the PNO and Compliance offices within the Bureau will review the questions. Then we will host three virtual events to address the questions. We will broadcast the first event live on the FTC’s website on November 9 beginning at 1:00 pm ET and will address questions posed about the aggregation proposal in the NPRM. The second event will occur on November 10 at 1:00 pm ET and will address the proposed new exemption in the NPRM. The third will occur on November 16 at 2:00 pm ET and will address questions about the seven topics under review in the ANPRM. We will also be taking questions during the live event using the same email address. We may combine questions to try to respond to all the issues raised, especially if we receive a large number of inquiries. We expect each session to last one hour, depending on the number of questions we receive.
A link to view the Question and Answer session will be posted the morning of the event to ftc.gov.
There may be additional public events scheduled after we have received all comments. These HSR initiatives represent a major undertaking for the Commission, and we are committed to hearing from a wide range of stakeholders as the Commission considers how to “right size” the HSR rules for modern times.