II

Calendar No. 576

106TH CONGRESS

2D SESSION S. 1854

To reform the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 4, 1999

Mr. HATCH (for himself, Mr. KOHL, and Mr. DEWINE) introduced the following bill; which was read twice and referred to the Committee on the

Judiciary

MAY 25, 2000

Reported by Mr. HATCH, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To reform the Hart-Scott-Rodino Antitrust Improvements

Act of 1976.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Hart-Scott-Rodino

5 Antitrust Improvements Act of 1999’’.
2

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1 SEC. 2. INCREASE IN THE SIZE OF THE TRANSACTION

2 THRESHOLDS.

3 (a) IN GENERAL.—Section 7A(a) of the Clayton Act

4 (15 U.S.C. 18a(a)) is amended—

5 (1) in paragraph (3)(B), by striking

6 ‘‘$15,000,000’’ and inserting ‘‘$35,000,000’’; and

7 (2) by adding at the end the following: ‘‘The fil8 ing threshold established in paragraph (3)(B) shall

9 be adjusted by the Federal Trade Commission on

10 January 1, 2005, and each year thereafter, in the

11 same manner as is set forth in section 8(a)(5) of the

12 Clayton Act (15 U.S.C. 19(a)(5)). The adjusted

13 amount shall be rounded to the nearest $1,000,000.

14 As soon as practicable, but not later than January

15 31 of each year, the Federal Trade Commission

16 shall publish the adjusted amount required by this

17 paragraph.’’.

18 (b) FILING FEES.—Section 605 of Public Law 101–

19 162 (103 Stat. 1031; 15 U.S.C. 18a note) is transferred

20 to section 7A of the Clayton Act (15 U.S.C. 18a(a)) as

21 subsection (k) and amended to read as follows:

22 ‘‘(k)(1)(A) The Federal Trade Commission shall as23 sess and collect filing fees which shall be paid by persons

24 acquiring voting securities or assets who are required to

25 file premerger notifications by this section.

26 ‘‘(B) The filing fee shall be—
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1 ‘‘(i) $45,000 if, as a result of the acquisition,

2 the acquiring person would hold an aggregate total

3 amount of the voting securities and assets of the ac4 quired person in an amount of at least $35,000,000

5 but not exceeding $100,000,000; and

6 ‘‘(ii) $100,000 if the total amount referred to

7 in clause (i) is greater than $100,000,000.

8 ‘‘(2) When the filing threshold established in sub9 section (a)(3)(B) is adjusted pursuant to subsection (a),

10 the $35,000,000 threshold established in paragraph

11 (1)(B)(i) shall be adjusted to the same amount.

12 ‘‘(3) No notification shall be considered filed until

13 payment of the fee required by this subsection.

14 ‘‘(4) Fees collected pursuant to this subsection shall

15 be divided and credited as provided in section 605 of Pub16 lic Law 101–162 (103 Stat. 1031; 15 U.S.C. 18a note)

17 (as in effect on the day before the date of enactment of

18 this subsection).’’.

19 SEC. 3. INFORMATION AND DOCUMENTARY REQUESTS.

20 (a) IN GENERAL.—Section 7A(e) of the Clayton Act

21 (15 U.S.C. 18a(e)) is amended—

22 (1) in paragraph (1)—

23 (A) by inserting ‘‘(A)’’ after ‘‘(1)’’; and

24 (B) by inserting at the end the following:
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1 ‘‘(B)(i) A request for additional information or docu2 mentary material under this paragraph shall be limited

3 to—

4 ‘‘(I) information or documentary material that

5 is not unreasonably cumulative or duplicative; and

6 ‘‘(II) information or documentary material that

7 does not impose a burden or expense that substan8 tially outweighs the likely benefit of the information

9 to the Assistant Attorney General or Federal Trade

10 Commission in conducting a preliminary antitrust

11 review of the proposed acquisition.

12 ‘‘(ii) A person shall be deemed to have substantially

13 complied with a request for additional information or doc14 umentary material if that person’s response to the request

15 does not contain any deficiency that materially impairs the

16 ability of the Assistant Attorney General or the Federal

17 Trade Commission to conduct a preliminary antitrust re18 view of the proposed acquisition.

19 ‘‘(iii) The Assistant Attorney General or the Federal

20 Trade Commission shall, when requesting additional infor21 mation or documentary material, set forth a specific sum22 mary of the competitive concerns presented by the pro23 posed acquisition and the relation between such concerns

24 and the additional information or documentary material

25 requested.’’;
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1 (2) in paragraph (2), by striking ‘‘20 days’’ and

2 inserting ‘‘30 days’’; and

3 (3) by adding at the end the following:

4 ‘‘(3)(A)(i) The acquiring person, or the person whose

5 voting securities or assets are being acquired, may certify

6 the substantial compliance of that person with a request

7 for additional information or documentary material.

8 ‘‘(ii) The Assistant Attorney General or Federal

9 Trade Commission shall have 20 days from the date on

10 which substantial compliance is certified under clause (i)

11 in which to issue a notice specifying with particularity the

12 basis for any asserted deficiency.

13 ‘‘(iii) If the Assistant Attorney General or Federal

14 Trade Commission does not issue a notice of deficiency

15 as specified under clause (ii) within the 20-day period pro16 vided in clause (ii), then the person responding to the re17 quest for additional information or documentary material

18 shall be deemed to have substantially complied with the

19 request.

20 ‘‘(B) The Assistant Attorney General and the Federal

21 Trade Commission shall jointly issue guidelines relating

22 to second requests and the steps that a person responding

23 to a request for additional information or documentary

24 material can take to comply.
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1 ‘‘(4)(A) The acquiring person, or the person whose

2 voting securities or assets are being acquired, may petition

3 the designated United States magistrate judge in the

4 United States District Court for the District of Columbia

5 for expedited review of a request for the submission of ad6 ditional information or documentary material relevant to

7 the proposed acquisition under this subsection.

8 ‘‘(B) The petition under this paragraph shall be filed

9 not later than 7 days after—

10 ‘‘(i) the issuance of the request for the submis11 sion of additional information or documentary mate12 rial; or

13 ‘‘(ii) the issuance of a notice of deficiency as

14 specified under paragraph (3)(A)(ii).

15 ‘‘(C) A petition for review pursuant to this paragraph

16 shall be limited to whether the request for additional infor17 mation or documentary material made pursuant to para18 graph (1)—

19 ‘‘(i) is unreasonably cumulative or duplicative;

20 ‘‘(ii) imposes a burden or expense that substan21 tially outweighs any likely benefit to the Assistant

22 Attorney General or Federal Trade Commission in

23 conducting a preliminary antitrust review of the pro24 posed acquisition; or
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1 ‘‘(iii) has been substantially complied with by

2 the petitioning person.

3 ‘‘(D) If a person does not prevail on the petition of

4 that person filed under this paragraph, then the extended

5 waiting period specified in paragraph (2) shall be further

6 extended in an amount of days equal to the amount of

7 days taken to resolve any such petition for expedited re8 view.

9 ‘‘(E)(i) The determination of the United States mag10 istrate judge under this paragraph may be appealed by

11 either party to the United States District Court for the

12 District of Columbia.

13 ‘‘(ii) The District Court shall review the determina14 tion of the United States magistrate judge under a clearly

15 erroneous standard.

16 ‘‘(iii) The decision of the District Court shall be final

17 and not appealable and shall be issued on an expedited

18 basis.

19 ‘‘(F) A petitioning person under this paragraph has

20 substantially complied with the request for additional in21 formation or documentary material relevant to the pro22 posed acquisition under this subsection if there is an ab23 sence of any deficiency in the submission of that person

24 that materially impairs the ability of the Assistant Attor-
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1 ney General or Federal Trade Commission to conduct a

2 preliminary antitrust review of the proposed acquisition.

3 ‘‘(G) The petitioning person under this paragraph

4 shall bear the burden of establishing by a preponderance

5 of the evidence that the request for additional information

6 or documentary material—

7 ‘‘(i) is unreasonably cumulative or duplicative;

8 or

9 ‘‘(ii) imposes a burden or expense that substan10 tially outweighs any likely benefit to the Assistant

11 Attorney General or Federal Trade Commission in

12 conducting a preliminary antitrust review of the pro13 posed acquisition.

14 ‘‘(H) The Assistant Attorney General or the Federal

15 Trade Commission shall bear the burden of establishing

16 by a preponderance of the evidence that the petitioning

17 person under this paragraph has not substantially com18 plied with the request for additional information or docu19 mentary material.’’.

20 (b) MAGISTRATE FOR REVIEWING FILINGS AP21 PEALS.—The chief judge of the United States District

22 Court for the District of Columbia shall designate a

23 United States magistrate judge for that district who shall

24 have primary responsibility for reviewing petitions filed
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1 pursuant to section 7A(e)(3) of the Clayton Act as added

2 by subsection (a).

3 SEC. 4. CALCULATION OF FILING PERIODS.

4 Section 7A(a) of the Clayton Act (15 U.S.C. 18a) is

5 amended by adding at the end the following:

6 ‘‘(l) If the end of any period of time provided in this

7 section falls on a Saturday, Sunday, or legal holiday, then

8 that period shall be extended to the end of the following

9 business day.’’.

10 SEC. 5. ADDITIONAL REQUIREMENTS FOR ANNUAL RE11 PORTS.

12 Section 7A(j) of the Clayton Act (15 U.S.C. 18a(j))

13 is amended by—

14 (1) inserting ‘‘(1)’’ after ‘‘(j)’’; and

15 (2) inserting at the end the following:

16 ‘‘(2) Beginning with the report filed in 2001, the

17 Federal Trade Commission, with the concurrence of the

18 Assistant Attorney General, shall include in the report to

19 Congress required by this subsection—

20 ‘‘(A) the number of notifications filed under

21 this section;

22 ‘‘(B) the number of notifications filed in which

23 the Assistant Attorney General or Federal Trade

24 Commission requested the submission of additional
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1 information or documentary material relevant to the

2 proposed acquisition;

3 ‘‘(C) data relating to the length of time for par4 ties to comply with requests for the submission of

5 additional information or documentary material rel6 evant to the proposed acquisition;

7 ‘‘(D) the number of petitions filed with the des8 ignated United States magistrate judge for expe9 dited review of a request for the submission of addi10 tional information or documentary material relevant

11 to the proposed acquisition and the manner in which

12 such petitions were resolved;

13 ‘‘(E) data relating to the volume (in number of

14 boxes or pages) of materials submitted pursuant to

15 requests for additional information or documentary

16 material; and

17 ‘‘(F) the number of notifications filed in which

18 a request for additional information or documentary

19 materials was made but never complied with prior to

20 resolution of the case.’’.

21 SEC. 6. CONFORMING AMENDMENTS TO CERTAIN REGULA22 TIONS.

23 (a) IN GENERAL.—The thresholds established by rule

24 and promulgated as 16 C.F.R. 802.20 shall be adjusted

25 by the Federal Trade Commission on January 1, 2005,
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1 and each year thereafter, in the same manner as is set

2 forth in section 8(a)(5) of the Clayton Act (15 U.S.C.

3 19(a)(5)). The adjusted amount shall be rounded to the

4 nearest $1,000,000.

5 (b) PUBLICATION.—As soon as practicable, but not

6 later than January 31 of each year, the Federal Trade

7 Commission shall publish the adjusted amount required

8 by this subsection (a).

9 SECTION 1. SHORT TITLE.

10 This Act may be cited as the ‘‘Hart-Scott-Rodino Anti11 trust Improvements Act of 2000’’.

12 SEC. 2. INCREASE IN THE SIZE OF THE TRANSACTION

13 THRESHOLDS.

14 (a) IN GENERAL.—Section 7A(a) of the Clayton Act

15 (15 U.S.C. 18a(a)) is amended—

16 (1) in paragraph (3)(B), by striking

17 ‘‘$15,000,000’’ and inserting ‘‘$50,000,000’’; and

18 (2) by adding at the end the following: ‘‘The fil19 ing threshold established in paragraph (3)(B) shall be

20 adjusted by the Federal Trade Commission on Janu21 ary 1, 2005, and each year thereafter, in the same

22 manner as is set forth in section 8(a)(5) of the Clay23 ton Act (15 U.S.C. 19(a)(5)). The adjusted amount

24 shall be rounded to the nearest $1,000,000. As soon as

25 practicable, but not later than January 31 of each
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1 year, the Federal Trade Commission shall publish the

2 adjusted amount required by this paragraph.’’.

3 (b) FILING FEES.—Section 605 of Public Law 101–

4 162 (103 Stat. 1031; 15 U.S.C. 18a note) is amended to

5 read as follows:

6 ‘‘SEC. 605.(a)(1) The Federal Trade Commission shall

7 assess and collect filing fees which shall be paid by persons

8 acquiring voting securities or assets who are required to file

9 premerger notifications by this section.

10 ‘‘(2) The filing fee shall be—

11 ‘‘(A) $45,000 if, as a result of the acquisition,

12 the acquiring person would hold an aggregate total

13 amount of the voting securities and assets of the ac14 quired person in an amount of at least $50,000,000

15 but not exceeding $100,000,000;

16 ‘‘(B) $100,000 if the total amount referred to in

17 clause (i) is greater than $100,000,000 but not exceed18 ing $1,000,000,000; and

19 ‘‘(C) $200,000 if the total amount referred to in

20 clause (i) is greater than $1,000,000,000.

21 ‘‘(2) When the filing threshold established in subsection

22 (a)(3)(B) is adjusted pursuant to subsection (a), the

23 $50,000,000 threshold established in paragraph (1)(B)(i)

24 shall be adjusted to the same amount.
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1 ‘‘(3) No notification shall be considered filed until pay2 ment of the fee required by this subsection.

3 ‘‘(4) Fees collected pursuant to this subsection shall be

4 divided and credited as provided in section 605 of Public

5 Law 101–162 (103 Stat. 1031; 15 U.S.C. 18a note) (as in

6 effect on the day before the date of enactment of this sub7 section).’’.

8 SEC. 3. INFORMATION AND DOCUMENTARY REQUESTS.

9 Section 7A(e)(1) of the Clayton Act (15 U.S.C. 18a(e))

10 is amended)—

11 (1) by inserting ‘‘(A)’’ after ‘‘(1)’’; and

12 (2) by inserting at the end the following:

13 ‘‘(B)(i) The Assistant Attorney General and the Fed14 eral Trade Commission shall each designate a senior official

15 not directly having supervisory responsibility in, or having

16 responsibility for, the review of any enforcement rec17 ommendation under this section concerning the transaction

18 at issue to hear any petition filed by the acquiring person

19 or the person whose voting securities or assets are to be ac20 quired, to determine—

21 ‘‘(I) whether the request for additional informa22 tion or documentary material is unreasonably cumu23 lative, unduly burdensome or duplicative; or
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1 ‘‘(II) whether the request for additional informa2 tion or documentary material has been substantially

3 complied with by the petitioning person.

4 ‘‘(ii) Internal review procedures for petitions filed pur5 suant to clause (i) shall include reasonable deadlines for

6 expedited review of any such petitions filed, after reasonable

7 negotiations with investigative staff, in order to avoid

8 undue delay of the merger review process.

9 ‘‘(iii) Upon the date of enactment of the Hart-Scott10 Rodino Antitrust Improvements Act of 2000, the Assistant

11 Attorney General and the Federal Trade Commission shall

12 conduct an internal review and implement reforms of the

13 merger review process in order to eliminate unnecessary

14 burden, remove costly duplication, and eliminate undue

15 delay, in order to achieve a more effective and more efficient

16 merger review process.

17 ‘‘(iv) Not later than 120 days after the date of enact18 ment of the Hart-Scott-Rodino Antitrust Improvements Act

19 of 2000, the Assistant Attorney General and the Federal

20 Trade Commission shall issue or amend their respective in21 dustry guidance, regulations, operating manuals and rel22 evant policy documents, where appropriate, to implement

23 each reform in this subparagraph.

24 ‘‘(v) Not later than 180 days after the date of enact25 ment of the Hart-Scott-Rodino Antitrust Improvements Act
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1 of 2000, the Assistant Attorney General and the Federal

2 Trade Commission shall each report to Congress—

3 ‘‘(I) what reforms each agency has adopted

4 under this subparagraph;

5 ‘‘(II) what steps each has taken to implement

6 such internal reforms; and

7 ‘‘(III) the effects of those reforms.’’.

8 SEC. 4. CALCULATION OF FILING PERIODS.

9 Section 7A of the Clayton Act (15 U.S.C. 18a) is

10 amended—

11 (1) in subsection (e)(2), by striking ‘‘20 days’’

12 and inserting ‘‘30 days’’; and

13 (2) by adding at the end the following:

14 ‘‘(k) If the end of any period of time provided in this

15 section falls on a Saturday, Sunday, or legal holiday, then

16 that period shall be extended to the end of the following busi17 ness day.’’.

18 SEC. 5. ADDITIONAL REQUIREMENTS FOR ANNUAL

19 REPORTS.

20 Section 7A(j) of the Clayton Act (15 U.S.C. 18a(j))

21 is amended by—

22 (1) inserting ‘‘(1)’’ after ‘‘(j)’’; and

23 (2) inserting at the end the following:

24 ‘‘(2) Beginning with the report filed in 2001, the Fed25 eral Trade Commission, in consultation with the Assistant
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1 Attorney General, shall include in the report to Congress

2 required by this subsection—

3 ‘‘(A) the number of notifications filed under this

4 section;

5 ‘‘(B) the number of notifications filed in which

6 the Assistant Attorney General or Federal Trade

7 Commission requested the submission of additional

8 information or documentary material relevant to the

9 proposed acquisition;

10 ‘‘(C) data relating to the length of time for par11 ties to comply with requests for the submission of ad12 ditional information or documentary material rel13 evant to the proposed acquisition;

14 ‘‘(D) the number of petitions filed pursuant to

15 rules and regulations promulgated under this Act re16 garding a request for the submission of additional in17 formation or documentary material relevant to the

18 proposed acquisition and the manner in which such

19 petitions were resolved;

20 ‘‘(E) data relating to the volume (in number of

21 boxes or pages) of materials submitted pursuant to re22 quests for additional information or documentary

23 material; and

24 ‘‘(F) the number of notifications filed in which

25 a request for additional information or documentary
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1 materials was made but never complied with prior to

2 resolution of the case.’’.

3 SEC. 6. CONFORMING AMENDMENTS TO CERTAIN REGULA4 TIONS.

5 (a) IN GENERAL.—The thresholds established by rule

6 and promulgated as 16 C.F.R. 802.20 shall be adjusted by

7 the Federal Trade Commission on January 1, 2005, and

8 each year thereafter, in the same manner as is set forth

9 in section 8(a)(5) of the Clayton Act (15 U.S.C. 19(a)(5)).

10 The adjusted amount shall be rounded to the nearest

11 $1,000,000.

12 (b) PUBLICATION.—As soon as practicable, but not

13 later than January 31 of each year, the Federal Trade Com14 mission shall publish the adjusted amount required by this

15 subsection (a).
Calendar No. 576

106TH CONGRESS

2D SESSION S. 1854

A BILL

To reform the Hart-Scott-Rodino Antitrust

Improvements Act of 1976.

MAY 25, 2000

Reported with an amendment