II

106TH CONGRESS

1ST 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

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’’.

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

7 THRESHOLDS.

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

9 (15 U.S.C. 18a(a)) is amended—
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1 (1) in paragraph (3)(B), by striking

2 ‘‘$15,000,000’’ and inserting ‘‘$35,000,000’’; and

3 (2) by adding at the end the following: ‘‘The fil4 ing threshold established in paragraph (3)(B) shall

5 be adjusted by the Federal Trade Commission on

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

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

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

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

10 As soon as practicable, but not later than January

11 31 of each year, the Federal Trade Commission

12 shall publish the adjusted amount required by this

13 paragraph.’’.

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

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

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

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

18 ‘‘(k)(1)(A) The Federal Trade Commission shall as19 sess and collect filing fees which shall be paid by persons

20 acquiring voting securities or assets who are required to

21 file premerger notifications by this section.

22 ‘‘(B) The filing fee shall be—

23 ‘‘(i) $45,000 if, as a result of the acquisition,

24 the acquiring person would hold an aggregate total

25 amount of the voting securities and assets of the ac-
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1 quired person in an amount of at least $35,000,000

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

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

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

5 ‘‘(2) When the filing threshold established in sub6 section (a)(3)(B) is adjusted pursuant to subsection (a),

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

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

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

10 payment of the fee required by this subsection.

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

12 be divided and credited as provided in section 605 of Pub13 lic Law 101–162 (103 Stat. 1031; 15 U.S.C. 18a note)

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

15 this subsection).’’.

16 SEC. 3. INFORMATION AND DOCUMENTARY REQUESTS.

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

18 (15 U.S.C. 18a(e)) is amended—

19 (1) in paragraph (1)—

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

21 (B) by inserting at the end the following:

22 ‘‘(B)(i) A request for additional information or docu23 mentary material under this paragraph shall be limited

24 to—
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1 ‘‘(I) information or documentary material that

2 is not unreasonably cumulative or duplicative; and

3 ‘‘(II) information or documentary material that

4 does not impose a burden or expense that substan5 tially outweighs the likely benefit of the information

6 to the Assistant Attorney General or Federal Trade

7 Commission in conducting a preliminary antitrust

8 review of the proposed acquisition.

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

10 complied with a request for additional information or doc11 umentary material if that person’s response to the request

12 does not contain any deficiency that materially impairs the

13 ability of the Assistant Attorney General or the Federal

14 Trade Commission to conduct a preliminary antitrust re15 view of the proposed acquisition.

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

17 Trade Commission shall, when requesting additional infor18 mation or documentary material, set forth a specific sum19 mary of the competitive concerns presented by the pro20 posed acquisition and the relation between such concerns

21 and the additional information or documentary material

22 requested.’’;

23 (2) in paragraph (2), by striking ‘‘20 days’’ and

24 inserting ‘‘30 days’’; and

25 (3) by adding at the end the following:
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1 ‘‘(3)(A)(i) The acquiring person, or the person whose

2 voting securities or assets are being acquired, may certify

3 the substantial compliance of that person with a request

4 for additional information or documentary material.

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

6 Trade Commission shall have 20 days from the date on

7 which substantial compliance is certified under clause (i)

8 in which to issue a notice specifying with particularity the

9 basis for any asserted deficiency.

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

11 Trade Commission does not issue a notice of deficiency

12 as specified under clause (ii) within the 20-day period pro13 vided in clause (ii), then the person responding to the re14 quest for additional information or documentary material

15 shall be deemed to have substantially complied with the

16 request.

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

18 Trade Commission shall jointly issue guidelines relating

19 to second requests and the steps that a person responding

20 to a request for additional information or documentary

21 material can take to comply.

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

23 voting securities or assets are being acquired, may petition

24 the designated United States magistrate judge in the

25 United States District Court for the District of Columbia
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1 for expedited review of a request for the submission of ad2 ditional information or documentary material relevant to

3 the proposed acquisition under this subsection.

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

5 not later than 7 days after—

6 ‘‘(i) the issuance of the request for the submis7 sion of additional information or documentary mate8 rial; or

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

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

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

12 shall be limited to whether the request for additional infor13 mation or documentary material made pursuant to para14 graph (1)—

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

16 ‘‘(ii) imposes a burden or expense that substan17 tially outweighs any likely benefit to the Assistant

18 Attorney General or Federal Trade Commission in

19 conducting a preliminary antitrust review of the pro20 posed acquisition; or

21 ‘‘(iii) has been substantially complied with by

22 the petitioning person.

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

24 that person filed under this paragraph, then the extended

25 waiting period specified in paragraph (2) shall be further
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1 extended in an amount of days equal to the amount of

2 days taken to resolve any such petition for expedited re3 view.

4 ‘‘(E)(i) The determination of the United States mag5 istrate judge under this paragraph may be appealed by

6 either party to the United States District Court for the

7 District of Columbia.

8 ‘‘(ii) The District Court shall review the determina9 tion of the United States magistrate judge under a clearly

10 erroneous standard.

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

12 and not appealable and shall be issued on an expedited

13 basis.

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

15 substantially complied with the request for additional in16 formation or documentary material relevant to the pro17 posed acquisition under this subsection if there is an ab18 sence of any deficiency in the submission of that person

19 that materially impairs the ability of the Assistant Attor20 ney General or Federal Trade Commission to conduct a

21 preliminary antitrust review of the proposed acquisition.

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

23 shall bear the burden of establishing by a preponderance

24 of the evidence that the request for additional information

25 or documentary material—
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1 ‘‘(i) is unreasonably cumulative or duplicative;

2 or

3 ‘‘(ii) imposes a burden or expense that substan4 tially outweighs any likely benefit to the Assistant

5 Attorney General or Federal Trade Commission in

6 conducting a preliminary antitrust review of the pro7 posed acquisition.

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

9 Trade Commission shall bear the burden of establishing

10 by a preponderance of the evidence that the petitioning

11 person under this paragraph has not substantially com12 plied with the request for additional information or docu13 mentary material.’’.

14 (b) MAGISTRATE FOR REVIEWING FILINGS AP15 PEALS.—The chief judge of the United States District

16 Court for the District of Columbia shall designate a

17 United States magistrate judge for that district who shall

18 have primary responsibility for reviewing petitions filed

19 pursuant to section 7A(e)(3) of the Clayton Act as added

20 by subsection (a).

21 SEC. 4. CALCULATION OF FILING PERIODS.

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

23 amended by adding at the end the following:

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

25 section falls on a Saturday, Sunday, or legal holiday, then
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1 that period shall be extended to the end of the following

2 business day.’’.

3 SEC. 5. ADDITIONAL REQUIREMENTS FOR ANNUAL RE4 PORTS.

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

6 is amended by—

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

8 (2) inserting at the end the following:

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

10 Federal Trade Commission, with the concurrence of the

11 Assistant Attorney General, shall include in the report to

12 Congress required by this subsection—

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

14 this section;

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

16 the Assistant Attorney General or Federal Trade

17 Commission requested the submission of additional

18 information or documentary material relevant to the

19 proposed acquisition;

20 ‘‘(C) data relating to the length of time for par21 ties to comply with requests for the submission of

22 additional information or documentary material rel23 evant to the proposed acquisition;

24 ‘‘(D) the number of petitions filed with the des25 ignated United States magistrate judge for expe-
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1 dited review of a request for the submission of addi2 tional information or documentary material relevant

3 to the proposed acquisition and the manner in which

4 such petitions were resolved;

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

6 boxes or pages) of materials submitted pursuant to

7 requests for additional information or documentary

8 material; and

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

10 a request for additional information or documentary

11 materials was made but never complied with prior to

12 resolution of the case.’’.

13 SEC. 6. CONFORMING AMENDMENTS TO CERTAIN REGULA14 TIONS.

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

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

17 by the Federal Trade Commission on January 1, 2005,

18 and each year thereafter, in the same manner as is set

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

20 19(a)(5)). The adjusted amount shall be rounded to the

21 nearest $1,000,000.

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

23 later than January 31 of each year, the Federal Trade
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1 Commission shall publish the adjusted amount required

2 by this subsection (a).

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