File comments in HSR Rulemaking by February 1

Earlier this fall, the Commission announced two separate rulemaking initiatives aimed at updating the rules and interpretations that implement the Hart-Scott-Rodino Act. After publication of the notice in the Federal Register, the deadline for comments on both initiatives is now set for February 1, 2021. 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 fulsome record when it considers next steps.

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, an 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.

The seven topics covered by the ANPRM are:

1. Size of transaction
2. Real estate investment trusts
3. Non-corporate entities
4. Acquisitions of small amounts of voting securities
5. Influence outside the scope of voting securities
6. Transactions or devices for avoiding the HSR Act requirements
7. Issues pertaining to the HSR filing process.

Last month, to facilitate a robust and thoughtful set of public comments, we hosted a series of three live virtual workshops to answer questions we received from the public. Videos and transcripts from those three events are available on the FTC website. The first session covered the aggregation requirements of the NOPR; the second addressed questions related to the proposed exemption for small stakes. The third session covered the topics in the ANPRM.

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.