[Federal Register Volume 75, Number 94 (Monday, May 17, 2010)]
[Notices]
[Pages 27558-27560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11701]


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FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Submission for OMB 
Review; Comment Request; Extension

AGENCY: Federal Trade Commission (``FTC'' or ``Commission'').

ACTION: Notice.

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SUMMARY: The information collection requirements described below will 
be submitted to the Office of Management and Budget (``OMB'') for 
review, as required by the Paperwork Reduction Act (``PRA''). The FTC 
is seeking public comments on its proposal to extend through May 31, 
2013, the current PRA clearance for information collection requirements 
contained its Antitrust Improvements Act Rules (``HSR Rules'') and 
corresponding Notification and Report Form for Certain Mergers and 
Acquisitions (``Notification and Report Form''). That clearance expires 
on May 31, 2010.

DATES: Comments must be filed by June 16, 2010.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form by following the instructions in the 
Request for Comments part of the SUPPLEMENTARY INFORMATION section 
below. Comments in electronic form should be submitted by using the 
following weblink: (https://public.commentworks.com/ftc/hsrpra2) and 
following the instructions on the web-based form). Comments filed in 
paper form should refer to ``HSR Rules: FTC File No. P989316,'' both in 
the text and on the envelope, and should be mailed or delivered to the 
following address: Federal Trade Commission, Office of the Secretary, 
Room H-135 (Annex J), 600 Pennsylvania Avenue, N.W., Washington, DC 
20580, in the manner detailed in the SUPPLEMENTARY INFORMATION section 
below.
    All comments should additionally be submitted to: Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Attention: Desk Officer for Federal Trade Commission. Comments should 
be submitted via facsimile to (202) 395-5167 because U.S. postal mail 
at the OMB is subject to delays due to heightened security precautions.

FOR FURTHER INFORMATION CONTACT: Requests for additional information or 
copies of the proposed information requirements should be addressed to 
Sheila Clark-Coleman, Compliance Specialist, 600 Pennsylvania Ave., 
N.W., Room 301, Washington, D.C. 20580. Telephone: (202) 326-3100.

SUPPLEMENTARY INFORMATION:

Request for Comments:

    Interested parties are invited to submit written comments. Comments 
should refer to ``HSR Rules: FTC File No. P989316'' to facilitate the 
organization of comments. Please note that your comment - including 
your name and your state - will be placed on the public record of this 
proceeding, including on the publicly accessible FTC website, at 
(http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as any individual's Social 
Security Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any

[[Page 27559]]

sensitive health information, such as medical records or other 
individually identifiable health information. In addition, comments 
should not include ``[t]rade secret or any commercial or financial 
information which is obtained from any person and which is privileged 
or confidential'' as provided in Section 6(f) of the Federal Trade 
Commission Act (``FTC Act''), 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2). Comments containing matter for which confidential 
treatment is requested must be filed in paper form, must be clearly 
labeled ``Confidential,'' and must comply with FTC Rule 4.9(c).\1\
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    \1\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted using the following weblink (https://public.commentworks.com/ftc/hsrpra2) (and following the instructions on the web-based form). To 
ensure that the Commission considers an electronic comment, you must 
file it on the web-based form at the weblink (https://public.commentworks.com/ftc/hsrpra2). If this Notice appears at 
(www.regulations.gov/search/index.jsp), you may also file an electronic 
comment through that website. The Commission will consider all comments 
that regulations.gov forwards to it.
    A comment filed in paper form should include the ``HSR Rules: FTC 
File No. P989316'' reference both in the text and on the envelope, and 
should be mailed or delivered to the following address: Federal Trade 
Commission, Office of the Secretary, Room H-135 (Annex J), 600 
Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is requesting 
that any comment filed in paper form be sent by courier or overnight 
service, if possible, because U.S. postal mail in the Washington area 
and at the Commission is subject to delay due to heightened security 
precautions.
    The FTC Act and other laws that the Commission administers permit 
the collection of public comments to consider and use in this 
proceeding as appropriate. The Commission will consider all timely and 
responsive public comments that it receives, whether filed in paper or 
electronic form. Comments received will be available to the public on 
the FTC website, to the extent practicable, at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of discretion, the FTC makes every 
effort to remove home contact information for individuals from the 
public comments it receives before placing those comments on the FTC 
website. More information, including routine uses permitted by the 
Privacy Act, may be found in the FTC's privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).
    Under the PRA, 44 U.S.C. 3501-3521, federal agencies must obtain 
approval from OMB for each collection of information they conduct or 
sponsor. ``Collection of information'' means agency requests or 
requirements that members of the public submit reports, keep records, 
or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 
1320.3(c). On February 26 2010, the FTC sought comment on the 
information collection requirements associated with the HSR Rules, 16 
CFR Parts 801 - 803 (Control Number: 3084-0005). 75 FR 8991. No 
comments were received. Pursuant to the OMB regulations, 5 CFR Part 
1320, that implement the PRA, the FTC is providing this second 
opportunity for public comment before requesting that OMB extend the 
existing paperwork clearance for the HSR Rules and the corresponding 
Notification and Report Form, 16 CFR. Parts 801-803.

Background Information:

    Section 7A of the Clayton Act (``Act''), 15 U.S.C. 18a, as amended 
by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. 
94-435, 90 Stat. 1390, requires all persons contemplating certain 
mergers or acquisitions to file notification with the Commission and 
the Assistant Attorney General and to wait a designated period of time 
before consummating such transactions. Congress empowered the 
Commission, with the concurrence of the Assistant Attorney General, to 
require ``that the notification . . . be in such form and contain such 
documentary material and information . . . as is necessary and 
appropriate'' to enable the agencies ``to determine whether such 
acquisitions may, if consummated, violate the antitrust laws.'' 15 
U.S.C. 18a(d). Congress similarly granted rulemaking authority to, 
inter alia, ``prescribe such other rules as may be necessary and 
appropriate to carry out the purposes of this section.'' Id.
    Pursuant to that section, the Commission, with the concurrence of 
the Assistant Attorney General, developed the HSR Rules and the 
corresponding Notification and Report Form. The following discussion 
presents the FTC's PRA burden analysis regarding completion of the 
Notification and Report Form.

Burden statement:

    Estimated total annual hours burden: 33,298 hours
    The following burden estimates are primarily based on FTC data 
concerning the number of HSR filings and staff's informal consultations 
with leading HSR counsel.
    In the FTC's 2007 PRA submission to OMB regarding the HSR Rules and 
the Notification and Report Form, FTC staff estimated that there were 
32 ``index filings'' under Clayton Act Sections 7A(c)(6) and 7A(c)(8) 
\2\ that required 2 hours per filing, and 3,966 non-index filings that 
required, on average, approximately 39 hours per filing.\3\ Moreover, 
staff estimated that approximately 91 non-index transactions would 
require an additional 40 hours of burden due to the need for a more 
precise valuation of transactions that are near a filing fee 
threshold.\4\
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    \2\ Clayton Act Sections 7A(c)(6) and (c)(8) exempt from the 
requirements of the premerger notification program certain 
transactions that are subject to the approval of other agencies (the 
so-called ``index filings''), but only if copies of the information 
submitted to these other agencies are also submitted to the FTC and 
the Assistant Attorney General. Thus, parties must submit copies of 
these filings, which are included in the totals shown, but 
completing the task requires significantly less time than non-exempt 
transactions.
    \3\ These are long-standing estimates that have been repeatedly 
vetted through the PRA comment process. See, e.g., 59 FR 30588 (June 
14, 1994); 69 FR 7225, 7226 (Feb. 13, 2004); 72 FR 18251, 18252 
(Apr. 11, 2007).
    \4\ See 72 FR 18252.
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    In fiscal year 2009 there were 1,411 non-index filings and 24 index 
filings. Based on an average decrease of 40.4% in fiscal year 2007 - 
fiscal year 2009 in the number of non-index filings, staff projects a 
total of 841 non-index filings for fiscal year 2010. Likewise, based on 
an average decrease of 18.4% in index filings over the same time 
period, staff projects a total of 20 index filings for fiscal year 
2010. Retaining the FTC's prior assumptions, staff estimates that non-
index filings require approximately 39 burden hours per filing and 
index filings require an average of 2 hours per filing. Moreover, staff 
estimates that for fiscal year 2010 approximately 22 non-index 
transactions will require an additional 40 hours of burden due to the 
need for more precise valuation of transactions that are near a filing 
fee threshold.\5\ Thus, the total estimated

[[Page 27560]]

hours burden before adjustments is 33,719 hours [(841 non-index filings 
x 39 hours) + (20 index filings x 2 hours) + (22 acquiring person non-
index filings requiring more precise valuation\6\ x 40 hours)].
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    \5\ This number is based on the volume of fiscal year 2009 non-
index transactions, 716, reduced by transactions involving an 
acquisition of 50% or more of an entity's assets or voting 
securities. The rationale for this exclusion is that the remainder, 
38 transactions, reflects incremental acquisitions that fell between 
notification and filing fee thresholds and thus would likely need 
more precise valuation to determine which side of a threshold the 
transaction falls upon. The resulting fiscal year 2009 total, 38, is 
then used to project the fiscal year 2010 volume of such 
transactions. To do this, we first calculated the proportion this 
net figure represents in relation to the total fiscal year 2009 non-
index transactions: 38 / 716 = 5.3%.
    This percentage is then applied to the projected number of 
fiscal year 2010 non-index transactions in order to estimate the 
proportion of them that will require more precise valuation. 
Assuming that half the projected number of fiscal year 2010 non-
index filings will constitute the number of associated transactions, 
that would result in approximately 421 non-index transactions (841 / 
2). To this we then carry over and apply the above 5.3% 
apportionment to arrive at an estimate of 22 non-index transactions 
in fiscal year 2010 that will require more precise measurement.
    \6\ Only the acquiring person is subject to a filing fee; thus, 
this specific focus.
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    As in the past, however, staff further estimates that half of those 
submitting non-index filings will incorporate Item 4(a) and Item 4(b) 
documents by reference to an Internet link, and that doing so will 
reduce individual burden by one hour. Accordingly, the cumulative 
reduction to the above total would be 421 hours (841 non-index filings 
x [frac12] [ap]421, multiplied by 1 hour), resulting in net estimated 
burden for fiscal year 2010 of 33,298 hours.
    This estimate is conservative. In estimating PRA burden, staff 
considered ``the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, disclose or provide information 
to or for a Federal agency.'' 5 CFR 1320.3(b)(1). This includes 
``developing, acquiring, installing, and utilizing technology and 
systems for the purpose of disclosing and providing information.'' 5 
CFR 1320.3(b)(1)(iv). Although not expressly stated in the OMB 
definitions regulation implementing the PRA, the definition of burden 
arguably includes upgrading and maintaining computer and other systems 
used to comply with a rule's requirements. Conversely, to the extent 
that these systems are customarily used in the ordinary course of 
business independent of the Rule, their associated upkeep would fall 
outside the realm of PRA ``burden.'' See 5 CFR 1320.3(b)(2).
    Industry has been subject to the basic provisions of the HSR Rules 
since 1978. Thus, businesses have had several years (and some have had 
decades) to integrate compliance systems into their business 
procedures. Accordingly, most companies now maintain records and 
provide updated order information of the kind required by the HSR Rules 
in their ordinary course of business. Nevertheless, staff 
conservatively assumes that the time devoted to compliance with the 
Rule by existing and new companies remains unchanged from its preceding 
estimate.
    Estimated labor costs: $15,317,080
    Using the burden hours estimated above and applying an estimated 
average of $460/hour for executive and attorney wages,\7\ staff 
estimates that the total labor cost associated with the HSR Rules and 
the Notification and Report Form is approximately $15,317,080 (33,298 
hours x $460/hour).
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    \7\ The FTC's previous estimate of $425 per hour has been 
increased by the Social Security COLA percentage for fiscal years 
2007 - fiscal year 2009 (fiscal year 2007(2.3%), fiscal year 2008 
(5.8%)), fiscal year 2009 (0%)).
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    Estimated annual non-labor cost burden: $0 or minimal
    The applicable requirements impose minimal start-up costs, as 
businesses subject to the HSR Rules generally have or obtain necessary 
equipment for other business purposes. Staff believes that the above 
requirements necessitate ongoing, regular training so that covered 
entities stay current and have a clear understanding of federal 
mandates, but that this would be a small portion of and subsumed within 
the ordinary training that employees receive apart from that associated 
with the information collected under the HSR Rules and the 
corresponding Notification and Report Form.

David C. Shonka
Acting General Counsel
[FR Doc. 2010-11701 Filed 5-14-10; 8:45 am]
BILLING CODE 6750-01-S