HSR Form Changes Q&A

Question

Do the following scenarios qualify as Select 801.30 transactions?

1. In an 801.30 transaction, the acquiring person is a mutual fund or similar financial entity and is not acquiring control of the target; the acquiring person has a representative on the target’s board.
2. The buyer is acquiring voting securities on the open market and has a representative on the target’s board.
3. An investor is acquiring additional voting securities and currently has a representative on the target’s board but has no continuing right to appoint another board member in the event that the current representative resigns. 

Answer

No. These scenarios do not qualify as Select 801.30s.

Question

The amended HSR Rules provide that the term “subsidy” “has the meaning given to the term in part IV of title VII of the Tariff Act of 1930 (19 USC 1677(5)(B)),” which defines “subsidy” as:

the case in which an authority (“a government of a country or any public entity within the territory of the country”) —

(i) provides a financial contribution, (ii) provides any form of income or price support within the meaning of Article XVI of the GATT 1994, or (iii) makes a payment to a funding mechanism to provide a financial contribution or entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the practice does not differ in substance from practices normally followed by governments to a person and a benefit is thereby conferred.

For the purposes of Rule §801.1(r)(1), then, can a “subsidy” only exist where it is provided by “a government of a country or any public entity within the territory of the country”?

Answer

For the purposes of Rule §801.1(r)(1), a “subsidy” can exist where it is provided by “a government of a country or any public entity within the territory of the country” or where an authority “makes a payment to a funding mechanism to provide a financial contribution, or entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the practice does not differ in substance from practices normally followed by governments, to a person and a benefit is thereby conferred.”  See 19 USC 1677(5)(B), which provides more detail.

Question

Would a tax credit or deduction given by a foreign government of concern qualify as a “subsidy” under the HSR rules if it is generally available and not specific to a particular enterprise or industry?

Answer

If the tax credit or deduction qualifies as a subsidy under 19 U.S.C. 1677(5)(B), then it is treated as a subsidy under the HSR Rules.

Question

The instructions state that the filing person should, for each responsive countervailing duty, list the (1) product, (2) countervailing duty imposed, and (3) the jurisdiction that imposed the duty.  What type of information is expected for (2)?  Would the case number (which is a unique reference number for the applicable duty) be sufficient?

Answer

No.  The filing must include the countervailing duty rate for each relevant product (as well as identification of the product and the imposing jurisdiction).

Question

What constitutes a NAICS code overlap?  Do filers look to the 6-digit NAICS codes to determine an overlap or to the more detailed index entries?  What description should filers use?  

Answer

NAICS code overlaps should continue to be identified at the 6-digit NAICS code level using the general descriptions associated with 6-digit NAICS codes.  

Question

May a filer stipulate to the size of person test in lieu of providing a translated version of an annual report?

Answer

No.  Annual reports must be included and translated.

Question

The instructions require a count of the total number of states and territories for each overlapping NAICS code.  The table for state-level reporting asks for this information in the last column. Where should I include this information in the tables for street-level reporting?

Answer

Please include this information in the top-most row for each street-level reporting table after identifying the NAICS Code and Description.  For example, a top-most row could read: 513210 Software Publishers (# states).

Question

Can you provide additional detail on the drafts requirement?

Answer

The new Form requires submission of Transaction Related Documents shared with a member of the board of directors (or similar body). As noted in the PNO post, 2025 HSR Form Updates: What Filers Need to Know, documents that board members merely had access to, such as through a collaborative drafting tool or platform, do not need to be submitted, but the filing must include a statement of noncompliance stating board members had access to draft versions that were not produced.

Additionally, only drafts provided to board members are potentially responsive. If an individual holds both a board (or similar) position as well as other roles within the organization, only those drafts that were shared with the individual in their role as a board member need to be produced.

Here are some specific scenarios:

• A draft report is presented to a supervisory deal team lead who is not a member of the board of directors (or similar body). That draft report does not need to be produced as long as the final or the latest available version of the report is produced.
• A board member has access to a collaborative drafting tool or platform that contains Transaction Related Documents. That board member should produce final versions of responsive documents as well as any drafts that board member downloaded, edited, or printed out. The associated filing must include a statement of non- compliance.
• A deal team member who is on the board of directors of an indirect subsidiary is collaborating with other deal team members on a draft presentation. The director/deal team member is forwarded or cc’d on an email containing edits or proposed input to the document, and those edits or input contains responsive content. If the document wasn’t sent to the director/deal team member in their role as a board member, the draft document attached to the email and the email itself would not be responsive, so long as they were not received by another member of the board of directors (or similar body).

Question

A CEO, who is on the board of directors of the acquiring person, regularly reviews drafts of ordinary course business plans and reports prepared for the board on a periodic basis (quarterly, semi- annually, annually). Such draft documents contain discussions of market shares, competition, competitors, or markets of products provided by both the acquiring person and the acquired entity in the context of the proposed transaction and fall within the one-year time limitation. Are these draft documents responsive?

Answer

First, only draft documents shared with the individual in their role as a member of the board of directors would be potentially responsive. Documents that currently meet the requirements of Item 4(c) or Item 4(d) should be considered Transaction Related Documents, and responsive drafts sent to individuals in their role as a member of the board of directors (or similar body) should be produced. Drafts of documents that are not Transaction Related Documents do not need be produced.

Question

If a buyside 801.30 filing is submitted before the new Form goes into effect, can the corresponding sellside 801.30 filer use that same version of the Form even if it files after the effective date of the new Form?

Answer

No. Sellside 801.30 filers should use the Form in effect at the time their filing is submitted. If the new Form goes into effect after the buyside 801.30 filer submits its filing but before the sellside 801.30 filer submits its filing, the sellside 801.30 filer must use the new Form.

Question

We have questions about how pull and refile would work for HSR filings to be submitted on or after this Friday as the refile would occur on or after the effective date of the new rules (i.e., February 10, 2025).

Per current 803.12(c)(1)(iii), the filer would submit new affidavit and certification pages with “Items 4(a), 4(b), 4(c), and 4(d) of the Notification and Report Form…updated to the date of the resubmission”. For re-filings as of February 10, 2025:

• Should parties follow the requirement under the new rules (e.g., drafts and supervisory deal team lead) for additional item 4 documents created on/after February 10, and follow the current requirements for additional item 4 documents created before February 10?
• Could you please confirm the separate category of CEO and Board “Plans and Reports” (which are “Business Documents” but not “Transaction Related Documents” under the new rules) would not fall under the refile requirement?
  • New 803.12(c)(1)(iii) provides: “The resubmitted notification is recertified, and the submission, as it relates to Transaction-Specific Agreements, Transaction-Related Documents, and Subsidies from Foreign Entities of Concern sections of the Notification and Report Form, is updated to the date of the resubmission;”
  • The above language does not require submission of Plans and Reports on refiling.

Answer

With regards to withdraw/refiles and bounces for filings submitted before the February 10, 2025 effective date of the new HSR Form, the following procedures will be in effect:

• When filing parties have been informed that the agencies are conducting further review to determine whether a second request may be appropriate for their transaction or otherwise wish to extend the time for initial agency review of their filing, those filing parties should use the 803.12(c) procedures and Form in effect at the time of their original filing.
• The 803.12(c) procedures may not be used to cure a non-compliant filing. Filing parties should understand that the submission of non-compliant filings could require submission on the new form.
• For refilings when the original filing was made using the new Form, new documents qualifying only as Plans and Reports that were created after the original filing do not need to be submitted but new documents that qualify as both Plans and Reports and as Transaction- Related documents do need to be submitted.

Question

I’m preparing a draft HSR form using the new Acquired Person form. I’m reviewing instructions and don’t see anything about the text block for the first page of the attachments, labeling of final HSR documents (0_HSR Form, 0_Letter, etc.). Will that stay the same as well as the procedures for uploading the final documents? Are we keeping the Affidavit/Certification separate from the filing as we’ve done in the past (0_Affidavit, 0_Certification)?

Answer

Yes, the submission procedures will remain the same. We are going to start asking people to merge the Form/Cert/Affidavit into one document, as many people already do. But keep the 0_ as a label for the combined docs so we can sort the submission with the Form at the top.

A labeling scheme for attachments is forthcoming on the PNO webpage.