Assistant Attorney General (2001)

Agency decision

Ask Donna

What actually matters in this document.

Text

2001

Fourth Report)

Timothy J. Muris

Charles A. James

Assistant Attorney General

INTRODUCTION

Fiscal year 2001 marked both the 25th anniversary of passage of the Hart-Scott-Rodino

Antitrust Improvements Act of 19761 (“the HSR Act” or “the Act”) and the enactment and the

implementation of the most extensive HSR reform legislation since passage of the Act in 1976.2

Largely as a result of the statutory changes, most notably the increase in the reporting thresholds, the

number of reportable transactions decreased dramatically. (See Figure 1 below.) Although fewer

transactions are now subject to the HSR Act requirements, the agencies continue to review the

largest mergers in history. In fiscal year 2001, 2,376 HSR transactions were reported, representing

about a 52 percent decrease from the record high number of transactions reported in fiscal year

2000, but yet a nearly 50 percent increase from the 1,589 transactions reported in fiscal year 1992.3

HSR MERGER TRANSACTIONS REPORTED

FISCAL YEARS 1992 -2001

6,000

NUMBER OF TRANSACTIONS

4,926

4,728

5,000

4,642

4,000

3,702

3,087

2,816

3,000

2,305

2,000

2,376

1,846

1,589

1,000

FISCAL YEARS

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

Figure 1

15 U.S.C. § 18a.

Section 630 of the Department of Commerce, Justice, and State, the Judiciary, and Related Agencies

Appropriations Act, FY 2001, Pub. L. No. 106-553, 114 Stat. 2762. The legislation raised the size-of-transaction

threshold from $15 million to $50 million and made other changes to the filing and waiting period requirements.

See infra at p. 7.

See Appendix A.

The HSR Act, together with Section 13(b) of the Federal Trade Commission Act and

Section 15 of the Clayton Act, gives the Federal Trade Commission (the “Commission”) and the

Antitrust Division of the Department of Justice (the “Antitrust Division” or “Division”) the opportunity

to obtain effective preliminary relief against anticompetitive mergers and to prevent interim harm to

competition and consumers. The premerger notification program was instrumental in detecting

transactions that were the subject of the numerous enforcement actions brought in fiscal year 2001 to

protect consumers -- individuals, businesses, and government -- against anticompetitive mergers.

During the year, the Commission challenged 23 transactions, leading to 18 consent orders, 4

abandoned transactions, and 1 preliminary injunction proceeding that was filed in district court. Most

notably, the Commission challenged the proposed merger of Philip Morris Companies and Nabisco

Holdings Corporation, 4 which would have created the world’s largest food company and would have

further reduced competition in five highly concentrated markets. The Commission also challenged

the proposed merger of two of the world’s largest integrated oil companies, Chevron Corporation

and Texaco Inc.,5 which would have eliminated direct competition in numerous relevant markets and

increased gasoline and fuel prices for consumers. The Antitrust Division challenged 32 merger

transactions resulting in 8 consent decrees, including The Thomson Corporation’s acquisition of

certain Harcourt General, Inc. assets that would have reduced competition for textbooks in 38

college courses,6 and 24 transactions that were either restructured or abandoned after the Division

informed the parties that it intended to sue, such as United Airlines’ proposed acquisition of US

Airways, which the Division concluded would have reduced competition, raised fares, and harmed

consumers on airline routes throughout the United States.7

Not only did the number of merger filings decrease under implementation of the HSR Reform

legislation four months after the beginning of the fiscal year, the number of transactions resulting in

requests for additional information from merging parties (“second requests”) declined. However, the

percentage of such transactions increased while the percentage and number of early termination

requests granted declined.8

In fiscal year 2001, the Commission’s Premerger Notification Office (“PNO”) continued to

respond to thousands of telephone calls seeking information concerning the reportability of

transactions under the HSR Act and the details involved in completing and filing the Notification and

See infra p. 21.

See infra p. 27.

See infra p. 17.

See www.usdoj.gov/atr/public/press_releases/2001/8701.htm.

See Appendix A.

Report Form (“the filing form”). The HSR website9 continued to provide improved access to

information necessary to the notification process. The website includes such information as the

premerger notification filing form and instructions, the historic HSR Statement of Basis and Purpose,

the PNO Sourcebook, the premerger notification rules, formal interpretations of the rules, grants of

early termination, filing fee instructions, HSR events, procedures for submitting post-consummation

filings, tips for completing the filing form, frequently asked questions regarding the HSR filing

requirements, and other useful information. In fiscal year 2001, the website was the paramount

source of information for HSR practitioners seeking information on the significant changes that took

place during the fiscal year concerning HSR reform, adoption of the North American Industry

Classification System (“NAICS”), and revisions to the filing form and rules.

BACKGROUND OF THE HSR ACT

Section 201 of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No.

94-435, amended the Clayton Act by adding a new Section 7A, 15 U.S.C. §18a. Subsection (j) of

Section 7A provides:

Beginning not later than January 1, 1978, the Federal Trade Commission, with the

concurrence of the Assistant Attorney General, shall annually report to Congress on

the operation of this section. Such report shall include an assessment of the effects of

this section, of the effects, purpose, and the need for any rule promulgated pursuant

thereto, and any recommendations for revisions of this section.

This is the twenty-fourth annual report to Congress pursuant to this provision. It covers fiscal

year 2001 -- October 1, 2000 through September 30, 2001.

In general, the Act requires that certain proposed acquisitions of voting securities or assets

must be reported to the Commission and the Antitrust Division prior to consummation. The parties

must then wait a specified period, usually 30 days (15 days in the case of a cash tender offer or a

bankruptcy sale), before they may complete the transaction. Whether a particular acquisition is

subject to these requirements depends upon the value of the acquisition and, in certain acquisitions,

the size of the parties as measured by their sales and assets. Small acquisitions, acquisitions involving

small parties, and other classes of acquisitions that are less likely to raise antitrust concerns are

excluded from the Act’s coverage.

The primary purpose of the statutory scheme, as the legislative history makes clear, is to

provide the antitrust enforcement agencies with the opportunity to review mergers and acquisitions

before they occur. The premerger notification program, with its filing and waiting period

See www.ftc.gov/bc/hsr/

requirements, provides the agencies with both the time and the information necessary to conduct this

antitrust review. Much of the information for a preliminary antitrust evaluation is included in the

notification filed with the agencies by the parties to the proposed transactions and is immediately

available for review during the waiting period.

However, if either agency determines during the waiting period that further inquiry is

necessary, it is authorized by Section 7A(e) of the Clayton Act to issue a second request. The

second request extends the waiting period for a specified period10 after all parties have complied with

the request (or, in the case of a tender offer or a bankruptcy sale, after the acquiring person

complies). This additional time provides the reviewing agency with the opportunity to analyze the

information and to take appropriate action before the transaction is consummated. If the reviewing

agency believes that a proposed transaction may substantially lessen competition, it may seek an

injunction in federal district court to prohibit consummation of the transaction.

The Commission with the concurrence of the Assistant Attorney General promulgated final

rules implementing the premerger notification program on July 31, 1978. At that time, a

comprehensive Statement of Basis and Purpose was also published containing a section-by-section

analysis of the rules and an item-by-item analysis of the filing form. The program became effective on

September 5, 1978. During the almost 24 years that the rules have been in effect, the Commission,

with the concurrence of the Assistant Attorney General, has amended the rules and the filing form on

several occasions to improve the program's effectiveness and to lessen the burden of complying with

the rules.11

A STATISTICAL PROFILE OF THE PREMERGER NOTIFICATION PROGRAM

The appendices to this report provide a statistical summary of the operation of the premerger

notification program. Appendix A shows, for a ten-year period, the number of transactions

reported,12 the number of filings received, the number of merger investigations in which second

Under the statutory changes cited in footnote 2, this waiting period extension was increased to 30

days for most transactions. The 10-day waiting period extension for cash tender offers and bankruptcies remains

the same.

43 Fed. Reg. 3443 (August 4, 1978); 43 Fed. Reg. 36053 (August 15, 1978); 44 Fed. Reg. (November 21,

1979); 45 Fed. Reg. 14205 (March 5, 1980); 48 Fed. Reg. 34427 (July 29, 1983); 50 Fed. Reg. 46633 (November 12,

1985); 51 Fed. Reg. 10368 (March 26, 1986); 52 Fed. Reg. 7066 (March 6, 1987); 52 Fed. Reg. 20058 (May 29, 1987);

54 Fed. Reg. 214251 (May 18, 1989); 55 Fed. Reg. 31371 (August 2, 1990); 60 Fed. Reg. 40704 (August 9, 1995); 61

Fed. Reg. 13666 (March 28, 1996); 63 Fed. Reg. 34592 (June 25, 1998); 66 Fed. Reg. 8680 (February 1, 2001); 66 Fed.

Reg. 8723 (February 1, 2001); 66 Fed. Reg. 16241 (March 23, 2001); 66 Fed. Reg. 23561 (May 9, 2001); 66 Fed. Reg.

35531 (July 6, 2001); 67 Fed. Reg. 11898 (March 18, 2002).

The term “transaction,” as used in Appendices A and B, and Exhibit A to this report, does not refer

only to separate mergers or acquisitions. A particular merger, joint venture or acquisition may be structured such

that it involves more than one transaction. For example, cash tender offers, options to acquire voting securities

requests were issued, and the number of transactions in which requests for early termination of the

waiting period were received, granted, and not granted. Appendix A also shows for fiscal years

1992 through 2001 the number of transactions in which second requests could have been issued, as

well as the percentage of transactions in which second requests were issued. Appendix B provides a

month-by-month comparison of the number of transactions reported and the number of filings

received for fiscal years 1992 through 2001.

The statistics set out in these appendices show that the number of transactions reported in

fiscal year 2001 decreased approximately 52 percent from the number of transactions reported in

fiscal year 2000. In fiscal year 2001, 2,376 transactions were reported, while 4,926 were reported

in fiscal year 2000. The statistics in Appendix A show that the number of merger investigations in

which second requests were issued in fiscal year 2001 decreased approximately 28.6 percent from

the number of merger investigations in which second request were issued in fiscal year 2000.

Second requests were issued in 70 merger investigations in fiscal year 2001, while second requests

were issued in 98 merger investigations in fiscal year 2000. (See figure 2 below regarding 10-year

trend in issuance of Second Requests.)

PERCENTAGE OF TRANSACTIONS RESULTING

IN SECOND REQUEST

4.5%

4.1%

3.8%

4.0%

3.5%

3.2%

3.0%

2.6%

2.5%

2.0%

1.5%

1.0%

2.7%

3.5%

3.0%

2.1%

3.5%

0.5%

0.0%

FISCAL YEARS

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

Figure 2

from the issuer, or options to acquire voting securities from someone other than the issuer, may result in multiple

acquiring or acquired persons that necessitate separate HSR transaction numbers to track the filing parties and

waiting periods.

The statistics in Appendix A also show that in recent years, early termination was requested

in the majority of transactions. In fiscal year 2001, early termination was requested in 86.8 percent

(2,063) of the transactions reported while in fiscal year 2000 it was requested in 87.8 (4,324)

percent of the transactions reported. The percentage of requests granted out of the total requested

decreased from 81.3 percent in fiscal year 2000 to 77.7 percent in fiscal year 2001.

Statistical tables (Tables I through XI) in Exhibit A contain information about the agencies’

enforcement interest in transactions reported in fiscal year 2001. The tables provide, for various

statistical breakdowns, the number and percentage of transactions in which clearances to investigate

were granted by one antitrust agency to the other and the number of merger investigations in which

second requests were issued. Table III of Exhibit A shows that, in fiscal year 2001, clearance was

granted to one or the other of the agencies for the purpose of conducting an initial investigation in

11.4 percent of the total number of transactions in which a second request could have been issued.

The tables also provide the number of transactions based on the dollar value of transactions

reported and the reporting threshold indicated in the notification report. The total dollar value of

reported transactions rose dramatically from fiscal years 1992 to 2000 from about $222 million to

about $3 trillion. During fiscal year 2001, however, the dollar value of reported transactions fell to

about $1 trillion.

Tables X and XI provide the number of transactions in each industry group in which the

acquiring person or the acquired entity derived revenue. For the sake of clarity, the industry groups

are listed by both the 2-digit Standard Industrial Classification code (“SIC”) and the corresponding 3

digit-NAICS code.13 Figure 3 illustrates the percentage of reportable transactions within industry

groups for FY 2001 based on the acquired entity’s operations.

See infra p. 12.

PERCENTAGE OF TRANSACTIONS BY

INDUSTRY GROUP OF ACQUIRED ENTITY

FISCAL YEAR 2001

Other

7.0%

Health Services

4.2%

Manufacturing

33.5%

Banking/

Insurance

12.8%

Chemicals and

Pharmaceuticals

4.9%

Consumer Goods

22.1%

Transportation

2.6%

Information/

Technology

9.8%

Energy &

Natural Resources

3.1%

Figure 3

DEVELOPMENTS WITHIN THE PREMERGER PROGRAM

1. HSR Reform Legislation

On December 21, 2000, the President signed into law certain amendments to the HSR Act

that became effective February 1, 2001.14 The principal statutory changes include an increase in the

size-of-transaction threshold, the elimination of a size-of-person test for larger transactions, the

implementation of a new tiered fee structure, and certain changes with regard to waiting periods.

These changes are summarized below.

The size-of-transaction threshold was increased from greater than $15 million to greater than

$50 million, and the 15 percent size-of-transaction threshold was eliminated, thus making $50 million

an absolute floor. No transaction resulting in an acquiring person holding $50 million or less of assets

See supra note 2.

or voting securities of an acquired person is reportable. Adjustment to the size-of-transaction

threshold will be made each fiscal year, beginning in fiscal year 2005, to reflect the percentage

change in the gross national product (“GNP”) for the previous year.

Transactions valued in excess of $200 million are now reportable without regard to the size

of the acquiring and acquired persons. The size-of-person test was not otherwise changed and

remains in place for transactions greater than $50 million and less than $200 million.

A new three-tiered fee structure was implemented, replacing the uniform $45,000 filing fee.

The fee is now based on the aggregate total value of the voting securities and assets held as a result

of the acquisition. Acquiring persons are required to pay $45,000 for transactions valued at less than

$100 million, $125,000 for transactions valued at $100 million but less than $500 million, and

$280,000 for transactions valued at $500 million or more. The filing fee tiers will be adjusted

annually, beginning in fiscal year 2005, to reflect the percentage change in the GNP for the previous

fiscal year. (The filing fees are not adjusted).

The waiting period that follows compliance with a request for additional information or

documentary material was extended from 20 days to 30 days for most transactions. The 10-day

post-compliance period for cash tender offers and bankruptcy transactions is unchanged. The end of

any waiting period that falls on a Saturday, Sunday or legal public holiday now expires on the next

regular business day.

Additionally, the legislation required the Commission and the Antitrust Division to designate a

senior official, who does not have direct responsibility for the review of any enforcement

recommendation concerning the transaction at issue, to resolve any disputes related to requests for

additional information. The Agencies were to “conduct an internal review and implement reforms of

the merger review process in order to eliminate unnecessary burden, remove costly duplication, and

eliminate undue delay, in order to achieve a more effective and more efficient merger review

process,” and report to Congress on its findings and any implemented reforms. These reforms are

discussed further in Section 4 below.

Amendments to the Rules as a Result of HSR Reform

In order to incorporate these statutory changes into the Premerger Notification Program, the

Commission, with the concurrence of the Assistant Attorney General for Antitrust, implemented a

number of significant changes to its premerger notification rules. The Commission also took this

opportunity to make several relatively minor, but welcomed, improvements to the rules and the filing

form. All of these changes were published as Interim Rules in the Federal Register on February 1,

2001,15 with a solicitation for public comments. The principal Interim rules changes are summarized

below.

Notification Thresholds

Section 801.1(h), as originally promulgated in 1978,16 contained four notification thresholds,

which were greater than $15 million, 15 percent of the outstanding voting securities of an issuer, 25

percent, and 50 percent. Enactment of the HSR reform legislation required making amendments to

these thresholds. In particular, the elimination of the 15 percent size-of-transaction test, the increase

in the monetary size-of-transaction test to greater than $50 million, and the introduction of a threetiered filing fee structure all affected this provision. The lowest notification threshold was raised, and

the intermediate notification thresholds were amended to mirror the fee thresholds Congress created,

while retaining two percentage thresholds that are important for the notification of acquisitions of

voting securities. The thresholds are now: greater than $50 million, $100 million, $500 million, 25

percent of the outstanding voting securities of an issuer if valued in excess of $1 billion, and 50 percent

of the outstanding voting securities of an issuer, if valued in excess of $50 million. These thresholds

have not been made final.

Filing Fee

An entirely new section of the rules was written to provide for the appropriate payment of

filing fees under the new-tiered-fee structure. The new rule, Section 803.9, is followed by a number

of examples designed to illustrate how to apply the new graduated fee schedule to various types of

transactions. The rule also contains two new exemptions from the filing fee requirement, intended to

prevent certain limited types of acquisitions from triggering double filing fees. These types of

transactions are consolidations and acquisitions in which the acquiring entity is controlled by two

ultimate parent entities with no significant business activities outside of the jointly controlled entity.

Previously under the rules, these types of acquisitions required a fee from each acquiring person

involved (here, two); the Commission, recognizing that in reality only one transaction is taking place

in these cases, took the opportunity to ease the burden on filing persons by eliminating the anomalous

second fee for these types of transactions.

Other Changes

Numerous other rules changes were necessitated by the passage of the HSR reform

legislation. These include the elimination of Section 802.20 (which applied to acquisitions of 15

66 Fed. Reg. 8680 (February 1, 2001).

43 Fed Reg. 33450 (July 31, 1978).

percent but valued at $15 million or less), the amendment of Section 802.2117 (which addresses

acquisitions of voting securities up to the next notification threshold), and changes to the filing form. In

conjunction with updating the filing form to accommodate the statutory changes to the program, the

Commission made changes to aid in the processing and identification of transactions and also updated

the filing form to make it more user-friendly by reorganizing it, eliminating unnecessary items and

clarifying the instructions.

Further Amendments to the Premerger Rules

On February 1, 2001, the Commission, with the concurrence of the Assistant Attorney

General, published an additional Federal Register notice setting forth certain proposed HSR

amendments for public comment.18 These additional amendments were not necessary to implement

the HSR amendments, but consisted instead of updates, corrections and other improvements to the

rules, which the Commission determined were timely and appropriate. These changes, with slight

modifications in response to public comments, became effective April 17, 2002.19 The amendments

adopted are summarized below.

Foreign Transactions

The most noteworthy changes were those amending the foreign exemptions in Sections

802.50 and 802.51 of the rules. These rules were restructured to make them easier to follow, and

were also changed in a number of substantive ways. First, the nexus with the United States that

triggers a filing obligation where foreign assets or voting securities are being acquired was raised to

$50 million, essentially to mirror the new threshold for reporting of domestic acquisitions. Second,

the measure of the value of U.S. assets, establishing the link to U.S. commerce, was changed from

book value to fair market value, as fair market value is a more accurate reflection of an asset’s

potential impact on U.S. commerce. Third, the rules were amended to reflect the longstanding

position of the PNO that sales or assets of multiple foreign issuers are to be aggregated where

controlling interests in these issuers are being acquired. The fourth change is the extension of

reportability to acquisitions of foreign assets by foreign persons. Formerly exempt across the board,

these acquisitions are now subject to the same $50 million nexus-with-the-United States test as

acquisitions of foreign voting securities. Finally, the exemption for acquisitions by foreign persons

who do not meet the $110 million aggregate sales and assets test was altered to apply only where

such acquisition is not valued over $200 million (to correspond with the elimination in the HSR Act of

a size-of-person test for acquisitions valued at over $200 million).

This amendment became effective on March 18, 2002. 67 Fed. Reg. 11904 (March 18, 2002).

66 Fed. Red. 8723 (February 1, 2001).

67 Fed. Reg. 11898 (March 18, 2002).

Other Changes

Other changes included an amendment to Section 802.2(g), which removed associated

agricultural assets from the agricultural property exemption. The rule had defined associated

agricultural assets as those assets that are integral to the agricultural business activities conducted on

the property, such as inventory (e.g., livestock, poultry, crops, fruit, vegetables, milk, and eggs),

structures that house livestock raised on the real property, and fertilizer and animal feed. These

assets were removed from the exemption primarily because the general increase in the filing

threshold to $50 million already excludes acquisitions involving agricultural assets that are likely to

be of little or no competitive consequence. This change also refocuses the rule on agricultural real

property, which was the initial intent of the exemption when promulgated.

Section 802.6 was amended to remove the reference to the now-defunct Civil Aeronautics

Board and to state a general rule regarding the reportability of mixed transactions as compared to

those that are industry-specific. The amended rule defines a mixed transaction as one in which

some portion that is exempt pursuant to subsection (c)(6), (c)(7), or (c)(8) of the HSR Act because

that portion requires regulatory agency premerger competitive review and approval, while another

portion does not require such review. While realizing that the prior version of Section 802.6 would

no longer directly apply to any transactions, the agencies recognized there is value in leaving this

concept in the rules because of its application to other regulated industries.

Premerger Review Process Improvements

When it published the Interim Rules, the Commission also amended its Rules of Practice20 to

reflect the HSR Act’s requirement that, upon a petition from the recipient, a senior agency official,

who does not have direct responsibility for the review of any enforcement recommendation

concerning the transaction at issue, review a request for additional information to determine whether

it is unreasonably cumulative, unduly burdensome, or duplicative or whether the petitioner has

substantially complied with the request for additional information. To avoid undue delay of the

merger review process, the procedures include reasonable deadlines for expedited review of these

petitions, after reasonable negotiations with investigative staff. The Antitrust Division similarly revised

its review process to comply with the HSR Act and has posted those procedures on its website.

The changes to the Act also required, within 90 days after the date of enactment, the

Commission and the Antitrust Division to conduct an internal review of the merger process and

implement reforms to eliminate unnecessary burden, remove costly duplication and eliminate undue

delay. Within 120 days, the agencies were required to issue or amend their industry guidance,

66 Fed. Reg. 8721 (February 1, 2001) (codified at 16 C.F.R. § 2.20).

regulations, operating manuals and relevant policy documents, to the extent appropriate, to

implement each reform, and within 180 days, to report to Congress on the reforms adopted and the

steps taken to implement the reforms. Both agencies have conducted their internal review of the

merger review process, implemented reforms as detailed in each of their reports to Congress, and

amended the necessary internal and external guidance, including amending the Commission’s Rules of

Practice and the Division’s Manual.

Adoption of the North American Industrial Classification System (“NAICS”)

On July 1, 2001, the Commission updated the requirements of the filing form21 by requiring

information in Items 5, 7 and 8 to be reported using the NAICS rather than the SIC system. The

changeover also updates the base year from 1992 to 199722 and requires that the parties report their

insurance activities in the body of the filing form rather than in a separate insurance appendix.

This change follows the April 1997 Office of Management and Budget decision to require all

Federal statistical agencies that collect or publish data by industry to adopt the NAICS as the

industrial classification system for the United States. Subsequently, beginning with its 1997

Economic Census, the Department of Commerce began using NAICS codes to classify U.S.

economic activities.23 Although not directly required to do so, the Commission determined that

requiring filing persons to report revenue data using the NAICS will further the policy of objectives of

the HSR notification program.

The NAICS has several characteristics that will contribute to a more meaningful antitrust

analysis. First, the NAICS was designed to describe the U.S. economy more accurately than the

SIC system. With nine new service industry sectors and 358 new industries, the NAICS should

provide more precise information in making a preliminary identification of competitive overlaps.

Second, the Commission has traditionally relied upon the most current economic data to analyze the

potential anticompetitive effects of proposed transactions.24 The 1997 Economic Census and the

1997 Numerical List of Manufactured Products published by the Bureau of Census contain such

data and use the NAICS. Third, the NAICS is erected on a production-oriented, or supply-based,

conceptual framework to ensure the internal consistency of its industry classifications. This

66 Fed. Reg. 23561(Interim Notice, May 9, 2001); and 66 FR 35541 (Final Notice, July 6, 2001).

The change in the base year will continue to occur every five years.

62 Fed. Reg. 17287 (April 9, 1997).

Periodically, the Commission has adjusted the base year when the Bureau of Census published a new

“Economic Census.” See 45 Fed. Reg. 14205 (March 5, 1980); 51 Fed. Reg. 10368 (March 26, 1986); 55 Fed. Reg.

31371 (August 2, 1990); and 60 Fed. Reg. 40704 (August 9, 1995).

organizational concept will be useful to the Commission and the Assistant Attorney General when

they evaluate entry and industry overlap issues as part of the antitrust analysis of proposed

transactions. Incorporating the NAICS into the filing form and the instructions will ensure that filing

persons provide revenues in a format that can be compared to the most recent and complete

economic data published by the Bureau of the Census.25

Compliance

The Commission and the Department of Justice continued to monitor compliance with the

premerger notification program’s filing and waiting period requirements and initiated a number of

compliance investigations in fiscal year 2001. The agencies monitor compliance through a variety of

methods, including the review of newspapers and industry publications for announcements of

transactions that may not have been reported in accordance with the requirements of the Act. In

addition, industry sources, such as competitors, customers and suppliers, as well as interested

members of the public, provide the agencies with information about transactions and possible

violations of the Act’s requirements. Under Section 7A(g)(1) of the Act, any person that fails to

comply with the Act’s notification and waiting requirements is liable for a civil penalty of up to

$11,000 for each day the violation continues.26

In United States v. Computer Associates International, Inc. and Platinum Technology

International, Inc.,27 the complaint alleged that Computer Associates obtained premature

operational control of Platinum and agreed with Platinum to limit the price discounts and other terms

it offered its customers during the mandatory premerger waiting period, thus violating the waiting

period requirements of the Act as well as Section 1 of the Sherman Act.28 On April 23, 2002, the

Antitrust Division filed a proposed consent decree to settle the suit. The consent decree, which is

awaiting entry by the Court, requires the payment of $638,000 in civil penalties and prevents

Computer Associates from agreeing on prices, approving or rejecting proposed customer contracts,

and exchanging prospective bid information with all future merger partners. The decree allows

A review of NAICS industry codes is slated to occur for every five years and is expected to keep

NAICS current as economic sectors evolve.

Effective November 20, 1996, dollar amounts specified in civil monetary penalty provisions within the

Commission’s jurisdiction were adjusted for inflation in accordance with the Debt Collection Improvement Act of

1996, Pub. L. No. 104-134 (April 26, 1996). The adjustments included, in part, an increase from $10,000 to $11,000

for each day during which a person is in violation under Section 7A(g)(1). 61 Fed. Reg. 54548 (October 21, 1996),

corrected at 61 Fed. Reg. 55840 (October 29, 1996).

United States v. Computer Assocs. Int’l, Inc. and Platinum Tech. Int’l, Inc., Civil No. 01-02062 (D.D.C.

complaint filed September 28, 2001).

15 U.S.C. § 1.

Computer Associates to conduct ordinary due diligence, which may include, under narrow and

restricted circumstances, obtaining access to pending bids that are material to Computer Associates’

understanding of the future earnings and prospects of the acquisition candidate. In no circumstances,

however, may employees who are directly involved in the sale of a competing product obtain access

to such information.

MERGER ENFORCEMENT ACTIVITY29

The Department of Justice

During fiscal 2001, the Antitrust Division challenged 32 merger transactions that it concluded

could lessen competition if allowed to proceed as proposed. In 8 of these transactions the Antitrust

Division filed a complaint in U.S. District Court, of which all were settled by consent decree. In the

remaining 24 challenges in fiscal year 2001, the Antitrust Division informed the parties to a proposed

transaction that it would file a suit challenging the transaction unless the parties restructured the

proposal to avoid competitive problems or abandoned the proposal altogether.30 In 20 of these

All cases in this report were not necessarily reportable under the premerger notification program.

Because of provisions regarding the confidentiality of the information obtained pursuant to the Act, it would be

inappropriate to identify which cases were initiated under the program.

In these instances, the Department of Justice issued press releases: October 18, 2000 -- Wells Fargo &

Company merger with Brenton Banks Inc. -- Des Moines, Iowa area banks (business banking services); November

7, 2001 -- Varian Medical Systems Inc. proposed acquisition of IMPAC Medical Systems (radiation oncology

management systems software and medical devices); January 25, 2001 -- Fleet Boston Financial Corporation's

proposed acquisition of Summit Bancorp -- New Jersey area banks (business banking services); February 5, 2001 - Firstar Corporation and U.S. Bancorp merger -- Minnesota and Iowa banks (business banking services);

February 6, 2001 -- Eastman Kodak Company's proposed acquisition of Bell & Howell Company (scanner

business); February 6, 2001 -- JDS Uniphase's proposed acquisition of SDL Inc. (980 nanometer pump laser chip

business); February 23, 2001 -- Lesaffre et Cie's proposed acquisition through Sensient Technologies Corporation

of Universal Foods Corporation Red Star Yeast Division (yeast manufacturing); March 8, 2001 -- Fifth Third

Bancorp and Old Kent Financial Corporation merger -- Michigan banks (business banking services); May 2, 2001 - General Electric Company's proposed acquisition of Honeywell International, Inc. (helicopter engines,

maintenance, repair and overhaul, and auxiliary power units); June 19, 2001 -- BB&T Corporation's proposed

acquisition of Wachovia Corporation -- Virginia, North Carolina, South Carolina and Georgia banks (business

banking services); June 29, 2001 -- Electronic Data Systems acquisition of Sabre, Inc. (full-featured airline

reservation systems); July 26, 2001 -- First Union's proposed acquisition of Wachovia Bank -- Virginia, North

Carolina, South Carolina and Georgia banks (business banking services); July 27, 2001 -- United Airlines'

proposed acquisition of US Airways (airlines); July 30, 2001 -- George Weston Ltd.'s proposed acquisition of

Bestfoods Baking from Unilever plc/nv (fresh bread products).

In the remaining 10 challenges, the Division informed the parties of its antitrust concerns but did not

issue a press release: Orica Limited's proposed acquisition of LaRoche Industries Inc. ammonium Nitrate assets

(industrial organic chemicals); BAE Systems plc proposed acquisition of Sanders Electronics Division of

Lockheed Martin's Aerospace Electronics system (infrared electronic warfare products); State National

Bancshare's proposed acquisition of Ruidoso Bank Corporation -- New Mexico banks (business banking

proposed transactions, the parties restructured the transactions, and in 4 of these proposed

transactions the parties abandoned the transactions entirely.

In United States v. WorldCom, Inc. and Intermedia Communications, Inc.,31 the

Division sued to block WorldCom's proposed acquisition of Intermedia's business operations and

assets. The complaint alleged that, by adding to WorldCom's leading position in the Internet

backbone market, the $6 billion acquisition, as originally proposed, would have resulted in higher

prices and lower quality of services in the Internet backbone market. Internet backbone networks

provide Internet service providers and other Internet users with connectivity to Internet sites

throughout the United States and the world. WorldCom owned and operated the largest Internet

backbone network in the world and carried more than twice the Internet traffic as its nearest rival.

Intermedia also operated a nationwide Internet backbone network, and it provided integrated local

and long distance voice and data telecommunications services in numerous metropolitan areas

throughout the country. The Division filed a proposed consent decree simultaneously with the

complaint, settling the suit. The decree required WorldCom to sell the business operations and

assets of Intermedia to a qualified third-party purchaser, while allowing WorldCom to retain

Intermedia's controlling stock interest in Digex Inc, a provider of managed Internet web hosting

services. The Court entered the consent decree on June 27, 2001.

In United States v. Georgia-Pacific Corp. and Fort James Corp.,32 the Division

challenged Georgia-Pacific Corporation's $11 billion acquisition of Fort James Corporation, alleging

that the acquisition, as originally proposed, would have substantially lessened competition in the

production and sale of commercial tissue products by reducing the number of major competitors

from three to two. Fort James and Georgia-Pacific were, respectively, the largest and second largest

producers of commercial tissue products in the United States. Commercial tissue, also referred to as

away-from-home tissue, includes paper towels, paper napkins, and bath tissue sold for use in public

settings such as restaurants, office buildings, factories, hospitals, schools, and airports. The Division

services); F&M's proposed acquisition of Atlantic Financial Corporation -- Virginia banks (business banking

services); Eure Communication's proposed acquisition of WCHV-AM and WKAV-AM from Charlottesville

Broadcasting Corporation (Virginia radio stations); Comcast's proposed acquisition of Home Team Sports and

Midwest Sports Channel (sports networks); joint venture between Thomson Financial Corporation and the

Depository Trust Clearing Corporation (post-trade, pre-settlement electronic services for securities transactions);

Xcel Energy's subsidiary NRG Energy, Inc.'s proposed acquisition of Duke Energy (Audrain electric plant); CRH

plc's proposed acquisition of F.W. Whitcomb Company (aggregates); Xcel Energy's proposed acquisition of

Wisvest (Connecticut electrical generation assets).

United States v. WorldCom, Inc. and Intermedia Communications, Inc., C.V.No.1:00CV02789 (D.D.C.

filed November 17, 2000).

United States v. Georgia-Pacific Corp. and Fort James Corp., C.V.No.1:00CV02824 (D.D.C. filed

November 21, 2000).

filed a proposed consent decree simultaneously with the complaint, settling the suit. Under the terms

of the decree, Georgia-Pacific was required to sell its commercial tissue business. The Court entered

the consent decree on May 9, 2001.

In United States v. Aktiebolaget Volvo, Volvo Trucks North America, Inc., Renault

S.A., Renault V.I. S.A., and Mack Trucks, Inc.,33 the Division challenged Aktiebolaget Volvo's

$1.8 billion acquisition of Renault V.I. The complaint alleged that the acquisition, as originally

proposed, would have reduced competition in the development, production and sale of heavy-duty

low cab over engine (“LCOE”) trucks in the United States, by giving Volvo the power to unilaterally

increase the price and decrease the quality, level of service, and amount of product improvement of

these trucks. LCOE trucks are made with the cab placed over or in front of the engine, providing

superior visibility and maneuverability. Heavy-duty LCOE trucks are capable of carrying the

heaviest payload capacities or gross vehicle weights and are the truck of choice for various heavy

hauling applications such as trash collection, home heating oil delivery, concrete pumping, and aircraft

refueling. Renault, through its Mack Trucks subsidiary, and Volvo were major producers of heavy

duty trucks in the U.S., including heavy-duty LCOE trucks, and accounted for approximately 86

percent of LCOE truck sales in the U.S. The Division filed a proposed consent decree

simultaneously with the complaint, settling the suit. Under the terms of the decree, Volvo was

required to divest its line of heavy-duty LCOE trucks to a suitable purchaser. The Court entered the

consent decree on April 30, 2001.

In United States v. The News Corp. Ltd., Fox Television Holdings, Inc. and ChrisCraft Indus., Inc.,34 the companies agreed to sell a television station located in Salt Lake City, Utah,

in order to resolve antitrust concerns about the companies' $5.3 billion proposed merger. The

complaint alleged that the acquisition, as originally structured, would have lessened competition

substantially by combining News Corporation's KSTU-TV, a FOX affiliate, with Chris-Craft's

KTVX-TV, an ABC affiliate, two stations that competed head-to-head in the Salt Lake City market,

resulting in higher prices for local or spot television advertising. News Corp. would have owned two

of the top four broadcast television stations in the Salt Lake City market with approximately 40% of

the broadcast television spot advertising revenue. The Division filed a proposed consent decree

simultaneously with the complaint, settling the suit. The decree required Chris-Craft Industries to

divest KTVX-TV. The consent decree was entered by the Court on August 18, 2001.

In United States v. 3D Systems Corp. and DTM Corp.,35 the Division filed suit June 6,

United States v. Aktiebolaget Volvo, Volvo Trucks North America, Inc., Renault S.A., Renault V.I. S.A.

and Mack Trucks, Inc., C.V. No. 1:00CV03006 (D.D.C. filed December 18, 2000).

United States v. The News Corp. Ltd., Fox Television Holdings, Inc. and Chris -Craft Indus., Inc., C.V.

No. 1:01CV00771 (D.D.C. filed April 11, 2001).

United States v. 3D Systems Corp. and DTM Corp., C.V. No. 1:01CV01237 (D.D.C. filed June 6, 2001).

2001, to block 3D Systems Corporation's proposed $45 million acquisition of DTM Corporation,

alleging that the transaction, as originally structured, would have resulted in higher prices and less

innovation for industrial rapid prototyping systems in the United States. Rapid prototyping (“RP”) is

a process by which a machine transforms a computer design into three-dimensional objects, speeding

the design process for everything from cellular phones to medical equipment. The complaint alleged

that 3D and DTM offered the most sophisticated systems in the industry and competed directly

against each other in the development, manufacture, and sale of industrial rapid prototyping systems

and materials. The acquisition would have combined the two largest manufacturers of RP systems in

the United States, reduced the number of competitors in the U.S. industrial RP systems market from

three to two, and resulted in the combined company having a U.S. market share, by revenue, of 80

percent. On August 16, 2001, the Division filed a proposed consent decree to settle the suit. The

consent decree will permit new entry by requiring 3D and DTM to license their RP-related patents to

a firm that will compete in the U.S. market. The consent decree is awaiting entry by the Court.

In United States v. Signature Flight Support Corp., Ranger Aerospace Corp. and

Aircraft Service Int’l Group, Inc.,36 the Division challenged Signature Flight Support Corporation's

acquisition of Ranger Aerospace Corporation. Aircraft Service International Group, Inc. (“ASIG”),

a wholly owned subsidiary of Ranger, conducted fixed base operations at the Orlando International

Airport. Signature and ASIG were the only fixed base operators at the airport, competing head-tohead to provide flight support services. The complaint alleged that the acquisition, as originally

proposed, would have resulted in a monopoly in the market for fixed base flight support operations

at Orlando International Airport and that the loss of competition likely would have resulted in higher

prices and decreased quality of service to charter, private and corporate aircraft operators who used

fixed base operations. The Division filed a proposed consent decree simultaneously with the

complaint, settling the suit. The decree required Signature to divest a flight support services business,

including fueling and ramp/hangar rentals, at Orlando International Airport. The Court entered the

consent decree on October 11, 2001.

In United States v. The Thomson Corp., Harcourt General, Inc., and Reed Elsevier,

Inc.,37 the Division challenged Thomson’s $2 billion acquisition of certain Harcourt assets from Reed

Elsevier. Thomson and Harcourt were two of the world's largest textbook publishing companies and

owned two of the largest providers of computer-based testing services -- Prometric Inc. and

Assessment Systems, Inc. (“ASI”), respectively. Reed Elsevier, a large international publisher, had

agreed to purchase Harcourt for approximately $4.6 billion and then sell Harcourt's Higher

Education and Corporate and Professional Services Groups to Thomson for approximately $2.06

United States v. Signature Flight Support Corp., Ranger Aerospace Corp. and Aircraft Service Int’l

Group, Inc., C.V. No. 1:01CV01365 (D.D.C. filed June 20, 2001).

United States v. The Thomson Corp., Harcourt General, Inc., and Reed Elsevier Inc., C.V. No.

1:01CV01419 (D.D.C. filed June 27, 2001).

billion. The complaint alleged that the deal, as originally proposed, would have been anticompetitive,

resulting in higher prices and lower quality for textbooks, substantially lessening competition for

textbooks in 38 college courses, covering subjects such as chemistry, communications, education,

finance, foreign language, mathematics, music, philosophy and psychology. The complaint further

alleged that, had the transaction gone forward as originally proposed, it would have resulted in higher

prices and lower quality for computer-based testing services, substantially lessening competition in

the market for the delivery and administration of high stakes computer-based tests in the United

States. The Division filed a proposed consent decree simultaneously with the complaint, settling the

suit. Under the terms of the decree, the parties were required to divest property rights to textbooks

used in the 38 college courses in which the complaint alleged competitive problems. The decree also

required divestiture of the national testing business of ASI or, if determined that such divestiture

would not fully restore the competition eliminated by Thomson's acquisition of ASI, all of ASI,

including its contracts to provide state computer-based testing for purposes of licensing and

certification. The Court entered the consent decree on October 30, 2001.

In United States v. Premdor Inc., Premdor U.S. Holdings, Inc., Int’l Paper Co. and

Masonite Corp.,38 the Division challenged Premdor’s acquisition of Masonite Corporation and

related businesses from International Paper Company. The complaint alleged that the $527 million

acquisition would substantially lessen competition in the interior molded doorskin and interior molded

door markets by restructuring the industry in a way that would have facilitated coordination among

the dominant firms. A doorskin is the component that makes up the front and back of an interior

molded door. Premdor was one of two major manufacturers of molded doors, selling over 40

percent of all interior molded doors purchased in the United States in 2000. It was also Masonite's

largest customer and a small, but significant, competitor of Masonite in the molded doorskin market.

The acquisition, as proposed, would have removed Premdor as a competitor in the interior molded

doorskin market and resulted in the markets for interior molded doorskins and interior molded doors

being dominated by two similarly sized vertically integrated firms. The Division filed a proposed

consent decree simultaneously with the complaint, settling the suit. The decree requires the

divestiture of one of Masonite's two U.S. interior molded doorskin manufacturing plants to maintain

an independent molded doorskin manufacturer. The Court entered the consent decree on April 5,

2002.

During fiscal year 2001, the Division investigated eight bank merger transactions for which

divestiture was required prior to or concurrently with the acquisition and three others in which

conditions were imposed. A “not significantly adverse” letter conditioned upon a letter agreement

between the parties and the Division was sent to the appropriate bank regulatory agency in all

United States v. Premdor Inc., Premdor U.S. Holdings, Inc., Int’l Paper Co. and Masonite Corp., C.V.

No. 1:01CV01696 (D.D.C. filed August 3, 2001).

instances.39

Also during fiscal year 2001, consent decrees were entered in four merger cases previously

filed by the Division.40

The Federal Trade Commission

The Commission challenged 23 transactions that it concluded would lessen competition if

allowed to proceed as proposed during fiscal year 2001, leading to 18 consent agreements for public

comment, and 4 withdrawn filings. Out of the 18 consent agreements issued, 17 became final in fiscal

year 2001 and 1 became final in fiscal year 2002. In one matter the Commission authorized staff to

seek injunctive relief, which was filed in district court.

In The Hearst Trust,41 the Commission filed for a permanent injunction alleging that Hearst

The 11 letters were: October 18, 2000 letter to the Board of Governors regarding the application by

Wells Fargo & Company, San Francisco, CA to acquire Brenton Banks, Des Moines, IO; December 20, 2000 letter

to the Board of Governors and the Comptroller of the Currency regarding the application for State National

Bancshares, Inc., Lubbock, TX, to acquire Ruidoso Bank Corporation, Ruidoso, NM; December 21, 2000 letter to

the Comptroller of the Currency regarding the application by Wells Fargo Bank, Texas, N.A., San Antonio, TX, to

acquire three branches of Chase Manhattan Bank, New York, NY, and to merge with Midland Interim Trust

Company, N.A., Midland, TX; January 8, 2001 letter sent to the Board of Governors regarding the application by

F&M National Corporation, Winchester, VA to acquire Atlantic Financial Corporation, Newport News, VA;

January 25, 2001 letter to the Board of Governors regarding the application by Fleet Boston Financial Corporation,

Boston, MA to acquire Summit Bancorp, Princeton, NJ and a letter to the Comptroller of the Currency regarding

the application by Fleet National Bank, Providence, RI, to acquire Summit Bank, Bethlehem, PA; February 5, 2001

letter to the Board of Governors regarding the application by Firstar Corporation, Milwaukee, WI to acquire U.S.

Bancorp, Minneapolis, MN; March 8, 2001 letter to the Board of Governors regarding the application by Fifth

Third Bancorp, Cincinnati, OH to acquire Old Kent Financial Corporation, Grand Rapids, MI; March 19, 2001 letter

to the Comptroller of the Currency regarding the application by CNB National Bank, Lake City, FL to purchase two

branches of Republic Bank, St. Petersburg, FL; March 22, 2001 letter to the Comptroller of the Currency regarding

the application by First Farmers and Merchants National Bank of Columbia, Columbia, TN to acquire Peoples and

Union Bank, Lewisburg, TN; June 19, 2001 letter to the Board of Governors regarding the application by BB&T

Corporation, Winston-Salem, NC to acquire F&M National Corporation, Winchester, VA; July 26, 2001 letter to

the Board of Governors regarding the application by First Union Corporation, Charlotte, NC, to acquire Wachovia

Corporation, Winston-Salem, NC.

On July 10, 2001, the District Court entered the consent decree in United States v. Alcoa Inc. and

Reynolds Metals Company (D.D.C. filed May 3, 2000); on April 30, 2001, the consent decree was entered in United

States v. Allied Waste Industries, Inc. and Republic Services, Inc. (D.D.C. filed June 21, 2000); on November 27,

2000, the consent decree was entered in United States v. L'Oreal USA, Inc., L'Oreal S.A. and Carson, Inc. (D.D.C.

filed July 31, 2000); and on September 6, 2001, the consent decree was entered in United States v. Clear Channel

Communications, Inc. and AMFM Inc. (D.D.C. filed August 29, 2000). See the FY 2000 Annual Report for a

description of these cases.

Federal Trade Commission v. Hearst Trust, Civ. No. 1:01CV00734 (D.D.C.), filed April 5, 2001.

and its wholly owned subsidiary, First DataBank Inc., illegally acquired a monopoly in the market for

electronic integratable drug information databases, also known as integratable drug data files.

According to the complaint, Hearst’s 1998 acquisition of Medi-Span, Inc., its main competitor in

that market, allowed First DataBank to institute substantial price increases to its customers for use of

the electronic databases which contain clinical, pricing and other information on prescription and nonprescription drugs. Pharmacists, physicians, hospital staff, and health plans use these databases to

help them provide high-quality, cost-effective patient care. Most notably, integratable drug data files

are needed for pharmacists to get quick, automatic warnings of any dangerous interactions between

newly prescribed drugs and other drugs their patients are already taking. The complaint also charged

that Hearst illegally withheld certain corporate documents about the Medi-Span acquisition that were

required for premerger notification review under the HSR Act. On December 14, 2001, the

Commission voted to approve a proposed settlement that required Hearst to divest the former MediSpan business and pay $19 million as disgorgement of unlawful profits. The settlement marks the

first time the Commission has sought either divestiture or disgorgement of profits in a federal court

action for a consummated merger. The funds will be distributed to injured customers as part of the

settlement of a private class action suit alleging unlawful overcharges by Hearst. The district court

approved the final order and stipulated permanent injunction on December 18, 2001.42

In Manheim Auctions, Inc./ADT Automotive Holdings, Inc.,43 the complaint alleged that

the proposed merger of Manheim and ADT would reduce competition in the provision of major

wholesale auction services in six geographic markets: the greater metropolitan area of Kansas City,

Missouri; the Colorado Front Range, which includes the greater metropolitan areas of Denver and

Colorado Springs, Colorado; the greater metropolitan area of Atlanta, Georgia; the greater

metropolitan area of San Francisco, California; the greater metropolitan area of Seattle, Washington;

and the I-4 Corridor of Florida, which includes the greater metropolitan areas of Tampa, Orlando,

and Daytona Beach, Florida. In these markets the proposed acquisition would have given Manheim

a monopoly over major wholesale auction services and created a substantial risk of reduced service

levels or higher prices. The complaint also alleged that Manheim acquired a monopoly of major

auctions in Phoenix, Arizona in 1996 when it acquired from JM Family Enterprises, Inc., a controlling

interest in its only major auction competitor there. Under the terms of the order, Manheim and ADT

were required to divest eight ADT auctions, along with one of Manheim’s major auctions in Phoenix.

The Commission also asked the Department of Justice to file a separate complaint in U.S. District

Court seeking civil penalties for Hearst’s failure to comply with premerger notification filing requirements by

failing to supply key documents. The Division sought civil penalties in a suit filed on October 11, 2001 (C.V. No.

1:01CV02119), and under the terms of the final judgment, Hearst agreed to pay $4 million in civil penalties to settle

the charges.

Manheim Auctions, Inc./ADT Automotive Holdings, Inc., Docket No. C-3982 (issued November 13,

2000).

In Tyco Int’l, Ltd./Mallinckrodt, Inc.,44 the complaint alleged that the proposed $4.2 billion

acquisition by Tyco of Mallinckrodt would lessen competition and could create a monopoly in the

U.S. market for endotracheal tubes – the principal means by which anesthesia and oxygen are

administered to patients in operating and emergency room settings. According to the complaint, both

Tyco and Mallinckrodt are leading suppliers of disposable medical supplies and are head-to-head

competitors in the highly concentrated U.S. market for endotracheal tubes. The proposed

acquisition would have provided Tyco with over 86 percent of the market share. In addition, new

entry into the U.S. endotracheal tube market requires the development of a full line of products in a

number of sizes and configurations, procurement of manufacturing equipment, and the establishment

of production practices in conformity with U.S. Food and Drug Administration regulations, as well as

development of a track record and customer base. Because of the high costs and significant risks

associated with accomplishing these tasks, new entry into the U.S. endotracheal tube market would

have been unlikely to deter or counteract the anticompetitive effects that would have resulted from

the proposed merger. Under the order, Tyco was required to divest its endotracheal tube business

to Hudson RCI, a company with significant presence in other respiratory care markets.

In Novartis AG/AstraZeneca PLC,45 the complaint alleged that the proposed merger

between Novartis and AstraZeneca would lessen competition in the already highly concentrated

markets for corn herbicides for pre-emergent control of grasses and foliar fungicides for use on

cereals, peanuts, potatoes, rice, turf and vegetables. The proposed merger would have also

significantly increased the level of concentration in the relevant markets, increased the barriers to

entry in these markets, allowed the merged firm to unilaterally raise prices and increased the

likelihood of coordinated interaction between the remaining competitors. According to the

complaint, Novartis is the leading developer, producer, manufacturer and seller of corn herbicides for

pre-emergent control of grasses in the United States, with about 50 percent of the market, followed

by AstraZeneca. Similarly, Novartis and AstraZeneca are leading sellers of foliar fungicides for use

on cereals, peanuts, potatoes, rice, turf and vegetables in the United States, and account for about

40 percent of all fungicides sales. To remedy the potential anticompetitive effects of the proposed

merger, the parties were required to divest AstraZeneca’s worldwide acetochlor corn herbicide

business to Dow Agro, a wholly-owned subsidiary of Dow Chemical, and Novartis’ worldwide

strobilurin fungicide business to Bayer AG.

In Philip Morris Cos./Nabisco Holdings Corp.,46 the complaint alleged the proposed

$19.4 billion merger of Philip Morris and Nabisco would create the world’s largest food company

Tyco Int’l, Ltd./Mallinckrodt, Inc., Docket No. C-3985 (issued December 5, 2000).

Novartis AG/AstraZeneca PLC, Docket No. C-3979 (issued December 19, 2000).

Philip Morris Cos., Inc./Nabisco Holdings Corp., Docket No. C-3987 (issued February 27, 2001).

and would lessen competition in five already highly concentrated food product markets: 1) dry-mix

gelatin desserts, 2) dry-mix pudding, 3) no-bake desserts, 4) baking powder, and 5) intense mints.

According to the complaint, Philip Morris and Nabisco are the only two significant sellers of branded

dry-mix gelatin desserts, branded dry-mix pudding, and no-bake desserts in the United States, and

two of only three significant sellers of baking powder and intense mints in the United States. Philip

Morris, through its Kraft Foods Inc. subsidiary, produces and sells Jell-O brand dry-mix gelatin

desserts, dry-mix pudding, and no-bake desserts, the Calumet brand of baking powder, and the

Altoids brand of intense mints. Nabisco sells Royal and My-T-Fine brands of dry-mix gelatin

desserts, dry-mix pudding, and the Royal brand of no-bake desserts. Nabisco also sells the Davis

and Fleischmann’s brands of baking powder and the Ice Breakers and Cool Blast brands of intense

mints. Under the order, Nabisco was required to divest all of its dry-mix gelatin, dry-mix pudding,

no-baking dessert, and baking powder assets to The Jel Sert Company, and to sell Nabisco’s

intense mints assets to Hershey Foods Corporation.

In AOL Online, Inc./Time Warner Inc.,47 the complaint alleged that the proposed merger

between AOL and Time Warner would lessen competition in broadband Internet access service,

broadband Internet transport service, and the provision of Interactive TV (“ITV”) service in the

United States. According to the complaint, AOL is the nation’s largest Internet service provider

(“ISP”) and Time Warner is a media conglomerate comprising cable television system servicing

about 20 percent of U.S. cable households, and various cable-programming networks, publishing

and records interests and film libraries. The order required that the merged company, AOL Time

Warner, open its cable system to competitor ISPs and prohibited the company from interfering with

content passed along the bandwidth contracted for by non-affiliated ISPs, or from discriminating on

the basis of affiliation in the transmission of content that AOL Time Warner has contracted to deliver

to subscribers over their cable system, including the transmission of interactive triggers or other

content in conjunction with ITV services. The order also required AOL Time Warner to market and

offer AOL’s digital subscriber line (“DSL”) services to subscribers in Time Warner cable areas

where affiliated cable broadband service is available in the same manner and at the same retail pricing

as they do in those areas where affiliated cable broadband ISP service is not available.

In SmithKline plc/Glaxo Wellcome plc,48 the complaint alleged that the proposed $182

billion merger of SmithKline and Glaxo would lessen competition in the markets for the research,

development, manufacture, and sale of: 1) 5HT-3 antiemetic drugs, which are administered to

cancer patients undergoing chemotherapy and radiation treatments; 2) ceftazidime, an antibiotic used

to treat hospitalized patients who are at risk of contracting strains of potentially life-threatening

pseudomona infections; 3) oral and intravenous antiviral drugs to treat herpes, chicken pox, and

AOL Online, Inc./Time Warner Inc., Docket No. C-3989 (issued April 18, 2001).

SmithKline plc/Glaxo Wellcome plc, Docket No. C-3990 (issued January 26, 2001).

shingles; 4) topical antiviral herpes drugs for the treatment of cold sores (herpes); 5) prophylactic

genital herpes vaccines; 6) over-the-counter H-2 blocker acid relief products; 7) topoisomerase I

inhibitor drugs, which are used to treat solid-tumor cancers; 8) migraine treatment drugs; and 9)

irritable bowel syndrome drugs. According to the complaint, Glaxo and SmithKline are the two

leading suppliers in several of these markets, and, in some instances, the only two suppliers. In

several of these markets the proposed merger would have reduced the number of competitors to

two, created a monopoly, and eliminated any research and development efforts underway. Under

the order, the companies were required to divest: all of SmithKline’s worldwide rights relating to its

antiemetic drug Kytril; SmithKline’s U.S. rights to manufacture and market ceftazidime; SmithKline’s

worldwide rights relating to its antiviral drugs Famvir and Denavir; and Glaxo Wellcome’s U.S. and

Canadian Zantac trademark rights. The companies’ were also required to assign all of Glaxo

Wellcome’s relevant intellectual property rights and relinquish its reversionary rights to the

topoisomerase I inhibitor being developed by Gilead Sciences, Inc., return to Cantab

Pharmaceuticals all rights to use Cantab’s DISC technology to develop a prophylactic herpes

vaccine, and assign all of SmithKline’s relevant intellectual property rights and relinquish all options to

the irritable bowel syndrome drug renzapride to Alizyme plc.

In Valspar Corp./Lilly Indus., Inc.,49 the complaint alleged that Valspar’s proposed merger

with Lilly would lessen competition in the market for the research, development, manufacture and

sale of silver, tin, and copper solutions (“mirror solutions”) and mirror backing paint. According to

the complaint, Valspar and Lilly are the two leading suppliers of mirror solutions and are two of the

suppliers of mirror backing paint in the United States. As a result, they are frequent competitors to

win contracts with mirror manufacturers. The proposed merger would have created a firm

controlling more than 90 percent in each of the mirror solutions markets and more than 60 percent of

the mirror backing paint market. As significant impediments to new entry exist in these markets, a

new entrant would need to undertake the difficult, expensive and time-consuming process of

developing a competitive product, establishing reliable U.S. distribution and technical support, and

developing a reputation among mirror manufacturers for consistently producing a high quality

product. Under the terms of the order, Valspar was required to divest its mirror coatings business to

Spraylat Corporation.

In Computer Sciences Corp./Mynd Corp.,50 the complaint alleged that CSC’s proposed

acquisition of Mynd would lessen competition in the U.S. market for claims assessment systems.

Comprised of computer software and other intellectual property, claims assessment systems are used

by insurance companies and others to evaluate appropriate payments for claims of bodily injury and

to evaluate return-to-work plans in workers compensation matters. According to the complaint, the

Valspar Corp./Lilly Indus., Inc., Docket No. C-3995 (issued January 26, 2001).

Computer Sciences Corp./Mynd Corp., Docket No. C-3991 (issued January 26, 2001).

market for claims assessment systems in the United States is highly concentrated and CSC and

Mynd are the only significant competitors for the provision of such services. Under the order, CSC

was required to divest Mynd’s claims assessments system, known as Claims Outcome Advisor

(“COA”), to Insurance Services Office, Inc.

In El Paso Energy Corp./PG&E Gas Transmission Teco, Inc. and PG&E Gas

Transmission Texas Corp.,51 the complaint alleged that the proposed acquisition by El Paso of

PG&E Gas Transmission Teco and PG&E Gas Transmission Texas would lessen competition in

three natural gas transportation markets: 1) the prolific gas supply area of western Texas and

southeastern New Mexico (“the Permian Basin”); 2) the natural gas consuming areas of the San

Antonio-Austin area (“Central Texas”); and 3) the Matagorda Island offshore production area.

According to the Complaint, the Permian Basin is among the largest natural gas producing areas in

the United States. If the merger were to proceed as proposed, El Paso would have owned more

natural gas transportation capacity out of the Permian Basin than any other company and would have

been the owner of almost all of the natural gas transportation capacity from the Permian Basin to

Central Texas. The proposed merger would therefore have resulted in highly concentrated markets

and would have allowed El Paso to raise prices unilaterally. To remedy the effects of the proposed

merger, the parties were required to divest all of El Paso’s interest in the Oasis Pine Line Company,

all of PG&E’s share in the “Teco Pipeline” and all of PG&E’s pipeline assets in Matagorda.

In Winn-Dixie Stores, Inc./Jitney Jungle Stores of America, Inc.,52 the complaint alleged

that the proposed acquisition by Winn-Dixie of Jitney-Jungle would lessen supermarket competition

in Florida and Mississippi, resulting in higher prices and reduced services for consumers. According

to the complaint each of the post-merger markets would be highly concentrated, with the two firms

controlling market shares between 34 and 100 percent in the relevant geographic area. Under the

order, Winn-Dixie was allowed to acquire 68 supermarkets and other assets as opposed to the

originally proposed 72 supermarkets from the bankrupt Jitney-Jungle.

In El Paso Energy Corp./The Coastal Corp.,53 the complaint alleged that the $16 billion

proposed merger of El Paso and Coastal would lessen competition in the transportation of natural

gas via pipeline and in the provision of tailored services, which allow users of natural gas to balance

their changes in natural gas demand with their supply of natural gas and transportation. According to

the complaint, the proposed merger would have eliminated actual and direct competition between the

El Paso Energy Corp./PG&E Gas Transmission Teco, Inc. and PG&E Gas Transmission Texas Corp.,

Docket No. C-3997 (issued January 30, 2001).

Winn-Dixie Stores, Inc./Jitney Jungle Stores of America, Inc., Docket No. C-4001 (issued February 16,

El Paso Energy Corp./The Coastal Corp., Docket No. C-3996 (issued March 23, 2001).

2001).

two companies in the following markets: 1) Central Florida; 2) the metropolitan areas of Buffalo,

Rochester, Syracuse and Albany, New York; 3) the metropolitan area of Milwaukee, Wisconsin; 4)

the metropolitan area of Evansville, Indiana; and 5) 13 areas in the Gulf of Mexico. The market for

natural gas and natural gas transportation in these areas is highly concentrated and the proposed

transaction would have substantially increased that concentration. In some instances, El Paso and

Coastal were the only two options available to customers, and in other instances, they represented

two of three options. The proposed merger not only would have eliminated existing competition

between El Paso and Coastal, but also would have threatened to forestall potential new competition

as well as lead to increased transportation prices and a decrease in overall output, thereby increasing

the cost of electricity and natural gas. Under the terms of the order, El Paso and Coastal were

required to divest their interests in 11 natural gas pipelines systems totaling more than 2,500 miles of

pipe.

In Koch Indus., Inc./Entergy Corp./Entergy-Koch, L.P. (“EKLP”),54 the complaint

alleged that the proposed acquisition by EKLP, a limited partnership owned equally by Entergy and

Koch, of a 50 percent interest in the Gulf South Pipeline Company, L.P. (“Gulf South”), a major

natural gas pipeline serving Entergy’s regulated utilities in Louisiana and Mississippi, from Koch

would lessen competition in two markets: 1) the sale of electricity to consumers in areas of Louisiana

and Mississippi where Entergy subsidiaries are the regulated electric utilities; and 2) the distribution of

natural gas to consumers in New Orleans and Baton Rouge, where Entergy subsidiaries are the

regulated natural gas distribution utilities. According to the complaint, after the proposed acquisition,

Entergy would have benefited from paying Gulf South an inflated price for gas supplies because it

would have retained half of the profit and, if undetected, passed the increased costs to ratepayers.

Entergy’s added incentive to accept inflated costs would have made it more difficult for regulators to

review and challenge an imprudent purchase of natural gas transportation by Entergy. Under the

order, Entergy was required to implement an open, transparent process to buy natural gas and

natural gas transportation that will assist state regulators in determining whether Entergy purchased

gas supplies from EKLP at inflated prices.

In The Dow Chemical Co./Union Carbide Corp.,55 the complaint alleged that the

proposed merger would lessen competition in the worldwide markets for linear low density

polyethylene (“LLDPE”) and related technology, ethyleneamines, ethanolamines, and branded

methyldiethanolamine (“MDEA”) in the United States. According to the complaint, Dow and

Carbide are the leading producers of LLDPE, a key ingredient in premium plastic products such as

trash bags, stretch film and sealable food pouches, throughout the world and are among the few

LLDPE producers that have succeeded in developing specialty, high-performance polymers

Koch Indus., Inc./Entergy Corp., Docket No.C-3998 (issued January 31, 2001)

The Dow Chem. Co./Union Carbide Corp., Docket No. C-3999 (issued March 16, 2001).

demanded by significant users of LLDPE. The companies are also the leading developers of

polyethylene reactor process technology, of which Carbide’s reactor technology, Unipol, is the

world’s most widely licensed polyethylene process technology. Carbide and Dow are the only

producers of ethyleneamines and are the largest and third largest producers, respectively, of

ethanolamines in the United States and Canada. These chemicals are used in a broad variety of

applications, including lubricating oil additives, chelating agents, wet-strength resins, surfactants,

personal care products, pulp and paper products, fungicides, herbicides, oil and gas refining

applications, pharmaceuticals and fabric softeners. Dow and Carbide are the two largest sellers of

MDEA-based gas treating products in the United States and Canada, and as a result of the

proposed merger, the combined company would have had 60 percent of the relevant market. Under

the order, Dow was required to divest and license intellectual property that is critical to the

production of LLDPE to BP Amoco plc, its former partner in developing the technology. Dow was

also required to divest its ethyleneamines, ethanolamines and MDEA-based gas treating products

businesses.

In DTE Energy Co./MCN Energy Group, Inc.,56 the complaint alleged that the proposed

$4.6 billion merger of DTE and MCN would lessen competition in the local distribution of electricity

and the local distribution of natural gas in the Overlap Area, consisting of the city of Detroit and all or

parts of Macomb, Monroe, Oakland, Washtenaw, and Wayne Counties in Michigan. According to

the complaint, Michigan Consolidated Gas Company (“MichCon”), a subsidiary of MCN, is the only

distributor of natural gas within the Overlap Area. Similarly, except for the cities of Detroit and

Wyandotte, which operate their own municipal electric utilities, the Detroit Edison Company

(“Edison”), a subsidiary of DTE, is the only distributor of electricity in the Overlap Area. Entry into

the distribution of electricity and the distribution of natural gas within the Overlap Area is effectively

blocked by regulatory constraints, and would not be timely, likely or sufficient to prevent

anticompetitive effects that would have resulted from the proposed merger. Under the terms of the

order, DTE/MCN was required to divest certain assets to Exelon Company, one of the largest

suppliers of electricity and natural gas in the nation.

In Siemens AG/Atecs Mannesmann/Vodafone Group PLC,57 the complaint alleged that

the proposed $9 billion acquisition by Siemens of Atecs from Vodafone would lessen competition in

the research, development, manufacture, integration, sale and service of postal automation systems.

According to the complaint, Siemens and Vodafone, through its Atecs Dematic subsidiary, are the

two leading suppliers of postal automation systems in the world and the proposed acquisition would

have allowed Siemens, the largest supplier of these systems, to purchase its closest competitor.

Under the order, Siemens and Vodafone were required to divest Vodafone’s Mannesmann Dematic

DTE Energy Co./MCN Energy Group, Inc., Docket No. C-4008 (issued May 18, 2001.

Siemens AG/Atecs Mannesmann, Docket No. C-4011 (issued May 18, 2001).

postal automation business to Northrop Grunman Corporation.

In Lafarge S.A/Blue Circle Indus. PLC,58 the complaint alleged that the proposed merger

of Lafarge and Blue Circle would lessen competition in the manufacturing, marketing and selling of

cement and lime in the United States. According to the complaint, the markets for cement in the

Great Lakes Region and Syracuse Region, as well as the market for lime in the Southeast Region,

are highly concentrated, and the proposed merger would have substantially increased this

concentration. Under the order, the companies were required to divest Blue Circle’s cement

business serving the Great Lakes Region and the Syracuse, New York area, and Blue Circle’s lime

business in the southeast United States.

In Chevron Corp./Texaco Inc.,59 the complaint alleged that the proposed $45 billion

merger of Chevron and Texaco would lessen competition in each of the following markets: 1)

gasoline marketing in the western United States, the southern United States, Alaska, Hawaii and

several smaller localities; 2) the marketing of California Air Resources Board (“CARB”) gasoline in

California; 3) the refining and bulk supply of CARB gasoline for sale in California; 4) the refining and

bulk supply of gasoline and jet fuel in the Pacific Northwest; 5) the bulk supply of Phase II

Reformulated Gasoline (“RFG II”) in metropolitan St. Louis, Missouri; 6) the terminaling of gasoline

and other light petroleum products in Arizona, California, Mississippi, Texas, and Hawaii; 7) the

pipeline transportation of crude oil from California’s San Joaquin Valley; 8) the pipeline

transportation of crude oil to shore from portions of the Eastern Gulf of Mexico; 9) the pipeline

transportation of offshore natural gas to shore from locations in the Central Gulf of Mexico; 10) the

fractionation of raw mix into natural gas liquids products at Mont Belvieu, Texas; and 11) the

marketing and distribution of aviation fuel to customers in the western and southeastern United

States. According to the complaint, Chevron and Texaco are two of the world’s largest integrated

oil companies and if the proposed merger were allowed to proceed either unilateral behavior by the

combined Chevron/Texaco, or coordinated behavior among Chevron/Texaco and other remaining

competitors, would have lead to higher consumer prices in the relevant markets. Under the terms of

the order, the combined company was required to divest all of Texaco’s interests in two joint

ventures, Equilon Enterprises, LLC, which is owned by Texaco and Shell Oil Company, and Motiva

Enterprises, LLC, which is owned by Shell, Texaco, and Saudi Refining, Inc. Texaco also was

required to divest its interest in the Discovery natural gas pipeline system in the Gulf of Mexico, its

interests in the Enterprise fractionating plant in Mont Belvieu, Texas, and its general aviation

businesses in fourteen states.

Lafarge S.A./Blue Circle Indus. PLC, Docket No. C-4014 (issued August 10, 2001).

Chevron Corp./Texaco Inc., Docket No. C-4023 (September 7, 2001).

In Metso Oyi/Svedala Industri AB,60 the complaint alleged that the proposed $1.6 billion

acquisition by Metso of Svedala would lessen competition globally in the research, development,

manufacture, and sale of four separate rock processing equipment markets: cone crushers, jaw

crushers, primary gyratory crushers and grinding mills. According to the complaint, Metso and

Svedala are the two largest suppliers of rock processing equipment in the world. Under the order,

Metso was required to divest its global primary gyratory crusher and grinding mill businesses and

Svedala was required to divest its global jaw crusher and cone crusher businesses.

ONGOING REASSESSMENT OF THE EFFECTS OF THE PREMERGER

NOTIFICATION PROGRAM

The Commission continually reviews the impact of the premerger notification program on the

business community and antitrust enforcement. Although a complete assessment is not possible in

this limited report, a few observations can be made.

As indicated in past annual reports, the HSR program ensures that virtually all significant

mergers or acquisitions that affect American consumers in the United States will be reviewed by the

antitrust agencies prior to consummation. The agencies generally have the opportunity to challenge

unlawful transactions before they occur, thus avoiding the problem of constructing effective postacquisition relief. As a result, the HSR Act is doing what Congress intended, giving the government

the opportunity to investigate and challenge mergers that are likely to harm consumers before injury

can arise. Prior to the premerger notification program, businesses could, and frequently did,

consummate transactions that raised significant antitrust concerns before the antitrust agencies had the

opportunity to adequately consider their competitive effects. The enforcement agencies were forced

to pursue lengthy post-acquisition litigation, during the course of which harm from the consummated

transaction continued (and afterwards as well, where achievement of effective post-acquisition relief

was not practicable). Because the premerger notification program requires reporting before

consummation, this problem has been significantly reduced.

Although highly effective, the HSR program historically prompted expressions of concern

from the business and legal communities that the program may be overreaching, that the reporting

thresholds (which had not been adjusted since enactment of the HSR Act in 1976) may be too low,

and that the process may cause delay. The enactment and the implementation of HSR Reform

legislation during fiscal year 2001 has significantly lessened the burden on business by increasing the

reporting thresholds substantially.

In addition, the enforcement agencies continue to seek ways to speed up the review process

and reduce burdens for companies. This year, the agencies continued to implement new procedures

and initiatives to improve the handling of second requests. The agencies are continuing their ongoing

Metso Oyi/Svedala Industri AB, Docket No. C-4024 (issued October 23, 2001).

review of the HSR program in order to make it as minimally burdensome as possible without

compromising the agencies’ ability to investigate and interdict proposed transactions that may

substantially lessen competition.

List of Appendices

Appendix A -

Summary of Transactions, Fiscal Years 1992 - 2001

Appendix B -

Number of Transactions Reported and Filings Received by Month for

Fiscal Years 1992 - 2001.

List of Exhibits

Exhibit A -

Statistical Tables for Fiscal Year 2001, Presenting Data Profiling HartScott-Rodino Premerger Notification Filings and Enforcement Interest

Appendix A

Summary of Transactions

Fiscal Years 1992 - 2001

Appendix A

Summary of Transaction by Year

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

1,589

3,030

1,846

3,559

2,305

4,403

2,816

5,439

3,087

6,001

3,702

7,199

4,728

9,264

4,642

4,926

9,151

9,941

2,376

4,800

Adjusted Transactions In

Which A Second Request

Could Have Been Issued2

1,451

1,745

2,128

2,612

2,864

3,438

4,575

4,340

4,749

2,237

Investigations in Which

Second Requests Were Issued

101

122

125

111

FTC3

1.8%

2.3%

2.2%

1.3%

1.0%

0.9%

1.2%

1.8%

1.3%

1.6%

2.2%

1.7%

1.6%

1.2%

1.9%

1,403

1,689

2,081

2,471

2,861

3,363

4,323

4,110

4,324

2,063

1,020

1,201

1,508

1,869

2,044

2,513

3,234

3,103

3,515

1,603

383

448

573

602

817

850

1,089

1,007

809

460

Transactions Reported

Filings Received

Percent

DOJ

Transactions Involving a Request

For Early Termination5

Granted5

Not Granted

1 Usually, two filings are received, one from the acquiring person and one from the acquired person when a transaction is reported. Only one application is received when an acquiring

party files for an exemption under sections 7A(c)(6) or (c)(8) of the Clayton Act.

2 These figures omit from the total number of transactions reported all transactions for which the agencies were not authorized to request additional information. These include (1)

incomplete transactions (only one party filed a complete notification); (2) transactions reported pursuant to the exemption provisions of sections 7A(c) (6) and 7A(c)(8) of the Act; and

(3) transactions which were found to be non-reportable. In addition, where a party filed more than one notification in the same year to acquire voting securities of the same corporation,

e.g., filing for one threshold and later filing for the 25 % threshold, only a single consolidated transaction has been counted because, a practical matter, the agencies do not issue more

than one Second Request in such a case. These statistics also omit from the total number of transactions reported secondary acquisitions filed pursuant to 801.4 of the premerger

notification rules. Secondary acquisitions have been deducted in order to be consistent with the statistics presented in most of the prior annual reports.

3 These statistics are based on the date the request was issued and not the date the investigation was opened.

4 Second Requests investigations are a percentage of the total number of adjusted transactions.

5 These statistics are based on the date of the H-S-R filing and not the date action was taken on request.

Appendix B

Number of Transactions Reported

And

Filings Received by Month

for

Fiscal Years 1992 – 2001

Appendix B

Table 1. Number of Transactions Reported by Months for the Fiscal Years 1992 - 2001

October

November

December

January

February

March

April

May

June

July

August

September

TOTAL

1992

140

180

155

135

129

142

116

154

124

130

1,589

1993

163

184

160

100

110

149

131

155

151

172

204

167

1,846

1994

184

221

222

156

149

167

220

182

208

226

203

2,305

1995

273

309

216

180

170

229

177

281

252

225

237

267

2,816

1996

238

273

249

238

231

277

252

304

253

265

264

243

3,087

1997

296

332

267

263

250

315

302

328

319

389

318

323

3,702

1998

424

387

426

306

336

392

384

401

442

435

427

368

4,728

1999

333

359

394

282

330

427

364

438

445

444

434

392

4,642

2000

376

428

468

335

440

455

343

398

494

351

446

392

4,926

2001

360

451

345

245

120

153

190

163

2,376

Appendix B

Table 2. Number of Filings Received1 by Month for Fiscal Years 1992 - 2001

October

November

December

January

February

March

April

May

June

July

August

September

TOTAL

1992

253

326

316

194

165

255

244

268

233

286

227

263

3,030

1993

297

341

325

188

239

263

251

301

311

327

393

323

3,559

1994

332

428

427

293

295

326

321

421

362

380

431

387

4,403

1995

505

614

419

360

326

432

350

534

496

439

455

509

5,439

1996

450

520

474

445

480

528

498

584

502

515

490

6,001

1997

561

636

521

514

483

614

599

640

620

759

617

635

7,199

1998

818

749

836

614

650

766

763

787

862

851

844

724

9,264

1999

662

686

785

548

658

828

719

851

884

887

885

758

9,151

2000

777

839

922

677

867

959

695

859

1,004

718

886

738

9,941

2001

751

920

686

499

144

243

188

296

378

182

332

181

4,800

Usually, two filings are received, one from the acquiring person and one from the acquired person when the transaction is reported, unless notification for a joint venture where more

than one acquiring person is required to submit a filing. Only one filing is received when an acquiring person files for a transaction that is exempt under Sections 7(A)(c)(6) and (c)(8) of

the Clayton Act.

Exhibit A

Statistical Tables

for

Fiscal Year 2001

Data Profiling Hart-Scott-Rodino Premerger

Notification Filings and Enforcement Interest

TABLE I

FISCAL YEAR 20011

ACQUISITIONS BY SIZE OF TRANSACTION (BY SIZE RANGE)2

TRANSACTION RANGE HSR TRANSACTIONS

($MILLIONS)

NUMBER4 PERCENT5

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT6

SECOND REQUEST INVESTIGATIONS 3

NUMBER

PERCENT

Less Than 15

15 UP to 25

25 UP to 50

50 UP to 100

100 UP to 150

150 UP to 200

200 UP to 300

300 UP to 500

500 UP to 1000

1000 AND UP

223

270

607

257

135

170

193

157

196

1.3%

10.0%

12.1%

27.1%

11.5%

6.0%

7.6%

8.6%

7.0%

8.8%

FTC

DOJ

FTC

3.4%

1.8%

5.6%

5.3%

5.1%

6.7%

8.8%

6.2%

8.9%

8.2%

DOJ

0.0%

1.8%

0.7%

3.1%

7.4%

7.6%

6.7%

10.2%

19.4%

TOTAL

3.4%

3.6%

6.3%

8.4%

8.2%

14.1%

16.4%

12.9%

19.1%

27.6%

FTC

DOJ

FTC

0.0%

0.4%

0.8%

1.5%

2.9%

1.0%

1.3%

3.6%

DOJ

0.0%

0.5%

1.2%

3.7%

2.4%

2.6%

3.8%

8.7%

TOTAL

0.0%

0.4%

1.3%

2.0%

5.2%

5.3%

3.6%

5.1%

12.3%

ALL TRANSACTIONS

2,237

100.0%

131

123

5.9%

5.5%

11.4%

1.2%

1.9%

3.1%

TABLE II

FISCAL YEAR 20011

ACQUISITIONS BY SIZE OF TRANSACTION2 (CUMULATIVE)

HSR TRANSACTIONS

TRANSACTION RANGE

($MILLIONS)

NUMBER

LESS THAN 15

LESS THAN 25

LESS THAN 50

LESS THAN 100

LESS THAN 150

LESS THAN 200

LESS THAN 300

LESS THAN 500

LESS THAN 1000

252

522

1,129

1,386

1,521

1,691

1,884

2,041

ALL TRANSACTIONS

2,237

CLEARANCE GRANTED TO FTC OR DOJ

PERCENT

1.3%

11.3%

23.3%

50.5%

62.0%

68.0%

75.6%

84.2%

91.2%

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENTAGE OF

TOTAL NUMBER OF

CLEARANCES GRANTED

NUMBER

PERCENT

FTC

101

115

DOJ

FTC

0.3%

1.2%

5.9%

15.3%

19.2%

21.8%

26.3%

29.8%

33.9%

DOJ

0.0%

1.2%

1.8%

7.4%

9.7%

12.7%

16.5%

20.4%

25.1%

TOTAL

0.3%

2.4%

7.7%

22.7%

28.9%

34.5%

42.8%

50.1%

59.0%

FTC

DOJ

FTC

0.0%

1.0%

2.0%

7.1%

9.2%

11.2%

16.3%

18.4%

20.4%

DOJ

0.0%

3.1%

6.1%

11.2%

15.3%

20.4%

26.5%

TOTAL

0.0%

1.0%

2.0%

10.2%

15.3%

22.4%

31.6%

38.8%

46.9%

131

123

51.6%

48.4%

100.0%

38.6%

61.4%

100.0%

TABLE III

FISCAL YEAR 20011

TRANSACTIONS INVOLVING THE GRANTING OF CLEARANCE BY AGENCY

CLEARANCE GRANTED AS A PERCENTAGE OF

TRANSACTION RANGE

($MILLIONS)

CLEARANCE GRANTED TO

AGENCY

TOTAL NUMBER OF

TRANSACTIONS

TOTAL NUMBER

OF CLEARANCES

PER AGENCY

TOTAL NUMBER OF

CLEARANCES GRANTED

LESS THAN 15

15 UP to 25

25 to 50

50 UP to 100

100 UP to 150

150 UP to 200

200 UP to 300

300 UP to 500

500 UP to 1000

1000 AND UP

FTC

DOJ

TOTAL

FTC

0.1%

0.2%

0.7%

1.4%

0.6%

0.4%

0.7%

0.5%

0.6%

0.7%

DOJ

0.0%

0.4%

0.8%

2.3%

0.9%

0.8%

1.3%

1.1%

1.3%

2.4%

TOTAL

0.1%

0.6%

1.5%

3.7%

1.5%

1.3%

1.9%

1.7%

2.0%

3.1%

FTC

0.8%

3.1%

11.5%

24.4%

9.9%

6.9%

11.5%

9.2%

10.7%

12.2%

DOJ

0.0%

3.3%

1.6%

15.4%

6.5%

8.1%

10.6%

13.0%

30.9%

FTC

0.4%

1.6%

5.9%

12.6%

5.1%

3.5%

5.9%

4.7%

5.5%

6.3%

DOJ

0.0%

1.6%

0.8%

7.5%

3.1%

3.9%

5.1%

6.3%

15.0%

TOTAL

0.4%

3.2%

6.7%

20.1%

8.2%

7.4%

11.0%

9.8%

11.8%

21.3%

ALL CLEARANCES

131

123

254

5.9%

5.5%

11.4%

100.0%

51.6%

48.4%

100.0%

TABLE IV

FISCAL YEAR 20011

INVESTIGATIONS IN WHICH SECOND REQUESTS WERE ISSUED

SECOND REQUESTS ISSUED AS A PERCENTAGE OF:

TRANSACTION RANGE

($MILLIONS)

INVESTIGATIONS IN WHICH

SECOND REQUEST

WERE ISSUED3

TOTAL NUMBER OF

TRANSACTIONS

TRANSACTIONS IN

EACH TRANSACTION

RANGE GROUP

TOTAL NUMBER OF

SECOND REQUEST

INVESTIGATIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

LESS THAN 15

15 UP to 25

25 to 50

50 UP to 100

100 UP to 150

150 UP to 200

200 UP to 300

300 UP to 500

500 UP to 1000

1000 AND UP

0.0%

0.2%

0.1%

0.2%

0.1%

0.3%

0.0%

0.1%

0.2%

0.3%

0.8%

0.0%

0.4%

0.2%

0.3%

0.4%

0.3%

0.4%

1.1%

0.0%

0.4%

0.2%

3.9%

0.1%

7.1%

0.1%

0.3%

0.0%

2.4%

0.2%

7.1%

0.3%

0.8%

0.0%

0.4%

0.2%

6.3%

0.4%

7.3%

7.4%

0.4%

1.2%

0.0%

1.4%

7.1%

2.9%

7.1%

2.9%

10.0%

0.0%

4.3%

7.1%

5.7%

7.1%

8.6%

24.3%

0.0%

1.4%

11.4%

7.2%

10.0%

12.8%

10.0%

11.5%

34.3%

ALL TRANSACTIONS

1.2%

1.9%

3.1%

1.2%

1.9%

3.1%

38.6%

61.4%

100.0%

TABLE V

FISCAL YEAR 20011

ACQUISITIONS BY REPORTING THRESHOLD

NUMBER

PERCENT

$15 MILLION

15%

25%

50%

ASSETS ONLY

178

111

470

526

1.4%

8.0%

5.0%

21.0%

23.5%

CLEARANCE GRANTED TO FTC OR DOJ

PERCENTAGE OF

NUMBER

THRESHOLD GROUP

FTC

DOJ

FTC

DOJ

TOTAL

21.9%

43.8%

16.3%

10.1%

26.4%

1.8%

3.6%

5.4%

5.5%

5.1%

10.6%

5.1%

2.9%

8.0%

$50M

$100M

$500M

25%

50%

ASSETS ONLY

410

325

3.8%

3.4%

0.9%

0.1%

18.3%

14.5%

2.4%

6.5%

9.5%

0.0%

2.4%

6.5%

4.8%

1.3%

14.3%

0.0%

6.1%

6.8%

7.2%

7.8%

23.8%

0.0%

8.5%

13.3%

3.6%

3.9%

4.8%

0.0%

1.5%

0.9%

2.4%

0.0%

4.8%

0.0%

2.9%

2.2%

6.0%

3.9%

9.6%

0.0%

4.4%

3.1%

ALL TRANSACTIONS

2,237

100.0%

131

123

5.9%

5.5%

11.4%

1.2%

1.9%

3.1%

THRESHOLD7

HSR TRANSACTIONS

SECOND REQUEST INVESTIGATIONS

PERCENTAGE OF

NUMBER

THRESHOLD GROUP

FTC

DOJ

FTC

DOJ

TOTAL

3.1%

6.3%

9.4%

2.2%

3.9%

6.1%

0.0%

0.9%

0.4%

1.3%

1.7%

0.8%

1.0%

1.8%

TABLE VI

FISCAL YEAR 20011

TRANSACTIONS BY ASSETS OF ACQUIRING PERSON

HSR TRANSACTIONS

CLEARANCE GRANTED TO FTC OR DOJ

ASSET RANGE

($ MILLIONS)

NUMBER

PERCENT

LESS THAN 15

15 UP to 25

25 to 50

50 UP to 100

100 UP to 150

150 UP to 200

200 UP to 300

300 UP to 500

500 UP to 1000

1000 AND UP

101

168

222

1368

4.4%

1.1%

2.0%

3.5%

4.5%

2.0%

3.9%

7.5%

9.9%

61.2%

FTC

ALL TRANSACTIONS

2,237

100.0%

131

SECOND REQUEST INVESTIGATIONS

DOJ

PERCENTAGE OF

ASSET RANGE GROUP

FTC

DOJ

TOTAL

2.0%

1.0%

3.0%

4.2%

0.0%

4.2%

6.8%

9.1%

15.9%

3.8%

1.3%

5.1%

3.0%

1.0%

4.0%

4.4%

6.7%

11.1%

4.5%

3.4%

7.9%

4.8%

5.4%

10.2%

8.6%

4.5%

13.1%

6.3%

6.7%

13.0%

FTC

DOJ

PERCENTAGE OF

ASSET RANGE GROUP

FTC

DOJ

TOTAL

1.0%

2.0%

0.0%

2.2%

1.1%

2.3%

3.4%

2.4%

1.2%

3.6%

0.0%

1.8%

1.5%

2.4%

3.9%

123

5.9%

1.2%

NUMBER

5.5%

11.4%

NUMBER

1.9%

3.1%

TABLE VII

FISCAL YEAR 20011

TRANSACTIONS BY SALES OF ACQUIRING PERSON

CLEARANCE GRANTED TO FTC OR DOJ

SALES RANGE

($ MILLIONS)

HSR TRANSACTIONS

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENTAGE OF

SALES RANGE GROUP

FTC

DOJ

TOTAL

FTC

DOJ

PERCENTAGE OF

SALES RANGE GROUP

FTC

DOJ

TOTAL

NUMBER

FTC

DOJ

9.7%

1.6%

3.1%

4.0%

3.7%

2.4%

4.8%

6.1%

9.0%

55.7%

1.9%

5.6%

4.3%

3.4%

8.5%

3.7%

0.9%

6.6%

6.0%

7.1%

2.3%

0.0%

5.7%

5.6%

2.4%

1.9%

4.7%

2.9%

6.5%

6.7%

4.2%

5.6%

10.0%

9.0%

10.9%

5.6%

9.5%

12.5%

13.8%

0.0%

1.1%

3.7%

0.0%

2.2%

0.0%

1.6%

1.4%

0.0%

1.4%

1.1%

1.2%

0.0%

0.7%

1.5%

2.7%

1.4%

0.0%

1.4%

2.2%

4.9%

0.0%

2.9%

1.5%

4.3%

100.0%

131

123

5.9%

5.5%

11.4%

1.2%

1.9%

3.1%

NUMBER

PERCENT

LESS THAN 15

15 UP to 25

25 to 50

50 UP to 100

100 UP to 150

150 UP to 200

200 UP to 300

300 UP to 500

500 UP to 1000

1000 AND UP

216

107

137

201

1245

ALL TRANSACTIONS

2,237

TABLE VIII

FISCAL YEAR 2001

TRANSACTIONS BY ASSETS OF ACQUIRED ENTITIES 8

HSR TRANSACTIONS

ASSET RANGE

($ MILLIONS)

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT

PERCENTAGE OF

ASSET RANGE GROUP

SECOND REQUEST INVESTIGATIONS

NUMBER

PERCENTAGE OF

ASSET RANGE GROUP

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

LESS THAN 15

15 UP to 25

25 to 50

50 UP to 100

100 UP to 150

150 UP to 200

200 UP to 300

300 UP to 500

500 UP to 1000

1000 AND UP

ASSETS

UNAVAILABLE9

342

209

274

355

145

107

130

120

309

15.3%

9.3%

12.2%

15.9%

6.5%

4.3%

4.8%

5.8%

5.4%

13.8%

7.9%

4.3%

3.3%

5.9%

5.5%

7.3%

9.3%

10.8%

6.7%

5.2%

7.9%

2.4%

1.5%

2.5%

3.4%

8.3%

8.4%

9.2%

5.8%

12.0%

15.8%

6.7%

4.8%

8.4%

8.9%

15.6%

17.7%

20.0%

12.5%

17.2%

2.0%

0.5%

0.7%

0.6%

0.7%

3.1%

0.9%

1.5%

0.8%

1.6%

3.5%

0.0%

0.7%

0.6%

1.4%

1.0%

1.9%

2.3%

2.5%

5.2%

5.5%

0.5%

1.4%

1.2%

2.1%

4.1%

2.8%

3.8%

3.3%

6.8%

150

6.7%

1.3%

0.0%

1.3%

0.0%

1.3%

ALL TRANSACTIONS

2,237

100.0%

131

123

5.9%

5.5%

11.4%

1.2%

1.9%

3.1%

TABLE IX

FISCAL YEAR 2001

TRANSACTIONS BY SALES OF ACQUIRED ENTITIES 10

HSR TRANSACTIONS

SALES RANGE

($ MILLIONS)

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENTAGE OF

SALES RANGE GROUP

SECOND REQUEST INVESTIGATIONS

NUMBER

PERCENTAGE OF

SALES RANGE GROUP

NUMBER

PERCENT

LESS THAN 15

15 UP to 25

25 to 50

50 UP to 100

100 UP to 150

150 UP to 200

200 UP to 300

300 UP to 500

500 UP to 1000

1000 AND UP

SALES NOT

AVAILABLE11

398

149

326

337

170

119

153

147

160

243

17.7%

6.7%

14.6%

15.1%

7.6%

5.3%

6.8%

6.6%

7.2%

10.9%

FTC

DOJ

FTC

2.0%

6.0%

4.9%

6.5%

4.7%

8.4%

9.2%

5.4%

6.3%

10.7%

DOJ

2.0%

1.3%

0.9%

3.9%

7.1%

7.6%

5.2%

4.1%

13.1%

16.0%

TOTAL

4.0%

7.3%

5.8%

10.4%

11.8%

16.0%

14.4%

9.5%

19.4%

26.7%

FTC

DOJ

FTC

1.5%

0.0%

0.9%

1.5%

0.0%

1.7%

2.0%

0.7%

1.3%

2.1%

DOJ

2.0%

0.0%

0.3%

2.4%

1.7%

2.6%

2.0%

4.4%

5.3%

TOTAL

3.5%

0.0%

1.2%

1.8%

2.4%

3.4%

4.6%

2.7%

5.7%

7.4%

1.6%

0.0%

5.7%

0.0%

ALL TRANSACTIONS

2,237

100.0%

131

123

5.9%

5.5%

11.4%

1.2%

1.9%

3.1%

TABLE X

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRING PERSONS

2-DIGIT

SIC

CODE12

3-DIGIT

NAICS

CODE 13

111

INDUSTRY DESCRIPTION

FTC

113

Agricultural Production - Crops

Agricultural Production - Livestock

and Animal Specialties

Forestry

114

112

CLEARANCE

PERCENT

CHANGE

FROM

GRANTED

TO FTC OR SECOND REQUEST

NUMBER4

TOTAL

FY 200014

DOJ

INVESTIGATIONS 3

0.0%

DOJ TOTAL FTC DOJ TOTAL

-0.2%

0.2%

0.1%

Fishing, Hunting and Trapping

0.0%

-0.1%

212

Metal Mining

Coal Mining

0.1%

211

Oil and Gas Extraction

454

Heating Oil Dealers and Liquefied

Petroleum Gas

1.0%

0.2%

212

Mining and Quarrying of

Nonmetallic Minerals, Except Fuels

0.1%

233

Building Construction – General

Contractors and Operative Builders

0.3%

234

0.6%

235

0.5%

0.1%

311

Heavy Construction Other Than

Building Construction - Contractors

Construction - Special Grade

Contractors

Food and Kindred Products

2.9%

0.9%

TABLE X

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRING PERSONS

2-DIGIT

SIC

CODE12

3-DIGIT

NAICS

CODE 13

312

313

315

113

337

322

453

511

325

324

326

316

327

324

332

INDUSTRY DESCRIPTION

CLEARANCE

PERCENT

CHANGE

FROM

GRANTED

TO FTC OR SECOND REQUEST

NUMBER4

TOTAL

FY 200014

DOJ

INVESTIGATIONS 3

FTC

Bottled and Canned Soft Drinks and

Carbonated Drinks; and Cigarette

Manufacturing

Textile Mill Products

Apparel and Other Finished

Products Made From Fabrics and

Similar Materials

Lumber and Wood Products, Except

Furniture

Furniture and Fixtures

Paper and Allied Products

Stationery and Office Supplies

Printing, Publishing and Allied

Industries

Chemicals and Allied Products

Petroleum Refining and Related

Industries

Rubber and Misc. Plastics Products

Leather and Leather Products

Stone, Clay, Glass and Concrete

Products

Primary Metal Industries

Fabricated Metal Products, Except

Machinery and Transportation

Equipment

DOJ TOTAL FTC DOJ TOTAL

0.1%

0.3%

-0.4%

0.0%

-0.1%

0.1%

-0.1%

0.4%

-0.1%

0.7%

0.5%

2.4%

0.6%

109

4.9%

1.3%

0.3%

1.0%

-0.4%

0.2%

0.4%

-0.4%

0.6%

-0.5%

1.4%

0.3%

TABLE X

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRING PERSONS

2-DIGIT

SIC

CODE12

3-DIGIT

NAICS

CODE 13

333

335

336

334

339

482

485

484

483

481

486

561

513

INDUSTRY DESCRIPTION

CLEARANCE

PERCENT OF CHANGE FROM GRANTED TO FTC OR SECOND REQUEST

NUMBER

TOTAL

FY 200014

DOJ

INVESTIGATIONS 3

FTC

Industrial and Commercial

Machinery and Computer Equipment

DOJ TOTAL FTC DOJ TOTAL

3.1%

0.3%

118

5.3%

1.0%

2.0%

0.6%

4.3%

2.7%

0.5%

0.0%

-0.1%

0.0%

-0.1%

0.6%

-0.2%

Water Transportation

0.6%

0.1%

Transportation by Air

Pipelines, Except Natural Gas

Transportation Services

Communications

149

0.4%

3.0%

1.0%

6.7%

2.8%

0.2%

-2.7%

Electronic and Other Electrical

Equipment and Components, Except

Computer Equipment

Transportation Equipment

Measuring, Analyzing and

Controlling Instruments;

Photographic, Medical and Optical

Goods; Watches and Clocks

Miscellaneous Manufacturing

Industries

Railroad Transportation

Local and Suburban Transit and

Interurban Highway Passenger

Transportation

Motor Freight Transportation and

Warehousing

TABLE X

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRING PERSONS

2-DIGIT

SIC

CODE12

3-DIGIT

NAICS

CODE 13

221

421

422

444

452

447

441

448

337

722

446

521

522

523

524

525

INDUSTRY DESCRIPTION

CLEARANCE

PERCENT OF CHANGE FROM GRANTED TO FTC OR SECOND REQUEST

NUMBER

TOTAL

FY 200014

DOJ

INVESTIGATIONS 3

FTC

DOJ TOTAL FTC DOJ TOTAL

Electric, Gas and Sanitary Services

0.5%

-2.8%

Wholesale Trade - Durable Goods

Wholesale Trade - Nondurable

Goods

4.0%

-0.5%

3.3%

0.3%

0.2%

0.3%

0.7%

0.1%

0.2%

1.3%

0.3%

0.1%

-0.2%

0.4%

0.1%

0.7%

1.5%

-0.2%

-0.8%

-0.4%

1.5%

0.3%

3.3%

0.8%

2.0%

0.2%

0.7%

Building Materials, Hardware,

Garden Supply, and Mobile Home

Dealers

General Merchandise Stores

Food Stores

Automotive Dealers and Gasoline

Service Stations

Apparel and Accessory Stores

Home Furniture, Furnishings and

Equipment Stores

Eating and Drinking Places

Miscellaneous Retail

Depository Institutions

Nondepository Credit Institutions

Security and Commodity Brokers,

Dealers, Exchanges and Services

Insurance Carriers

Insurance Agents, Brokers and

Service

TABLE X

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRING PERSONS

2-DIGIT

SIC

CODE12

3-DIGIT

NAICS

CODE 13

711

551

721

812

541

532

443

512

713

621

622

541

611

624

813

541

INDUSTRY DESCRIPTION

CLEARANCE

PERCENT OF CHANGE FROM GRANTED TO FTC OR SECOND REQUEST

NUMBER

TOTAL

FY 200014

DOJ

INVESTIGATIONS 3

FTC

Real Estate

Holding and Other Investment

Offices

Hotels, Rooming Houses, Camps,

and Other Lodg ing Places

Personal Services

Business Services

Automotive Repair, Services and

Parking

Miscellaneous Repair Services

Motion Pictures

Amusement and Recreation

Services

Health Services

General Medical and Surgical;

Psychiatric and Substance Abuse

Hospitals

Legal Services

Educational Services

Social Services

Membership Organizations

Engineering, Accounting, Research,

Management and Related Services

DOJ TOTAL FTC DOJ TOTAL

0.5%

0.1%

107

4.8%

3.5%

0.3%

-0.1%

0.1%

3.4%

-10.0%

0.4%

0.1%

0.4%

-0.1%

3.5%

2.7%

0.6%

-1.8%

227

0.8%

10.0%

0.0%

0.1%

0.8%

10.0%

2.5%

0.2%

TABLE X

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRING PERSONS

2-DIGIT

SIC

CODE12

3-DIGIT

NAICS

CODE 13

711

923

924

999

000

INDUSTRY DESCRIPTION

CLEARANCE

PERCENT OF CHANGE FROM GRANTED TO FTC OR SECOND REQUEST

NUMBER

TOTAL

FY 200014

DOJ

INVESTIGATIONS 3

FTC

DOJ TOTAL FTC DOJ TOTAL

Miscellaneous Services

Administration of Human Resource

Programs

0.1%

Administration of Environmental

Quality and Housing Programs

0.0%

Nonclassificable Establishments

Not Available15

0.0%

109

4.9%

0.4%

2,237

100.0%

131

123

254

ALL TRANSACTIONS

TABLE XI

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRED ENTITIES

2-DIGIT 3-DIGIT

SIC

NAICS

CODE

CODE13

INDUSTRY DESCRIPTION NUMBER4

PERCENT CHANGE CLEARANCE GRANTED

FROM FY

TO FTC OR DOJ

TOTAL

2000

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3 DIGIT

INTRA-INDUSTRY

TRANSACTIONS13

(the data series for this column was

revised in April, 2008)

111

112

115

113

114

Agricultural Production Crops

Agricultural Production –

Livestock and Animal

Specialties

Agricultural Services

Forestry

Lumber and Wood Products,

Except Furniture

Fishing, Hunting & Trapping

Metal Mining

233

234

235

311

312

Coal Mining

Mining and Quarrying of

Nonmetallic Minerals, Except

Fuels

Building Construction General Contractors and

Operative Builders

Heavy Construction other than

Building Construction Contractors

Construction - Special Grade

Contractors

Food and Kindred Products

Tobacco Products

313

Textile Mill Products

212

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.0%

-0.1%

0.1%

0.0%

0.2%

-0.1%

0.1%

0.6%

0.0%

-0.1%

0.2%

0.0%

0.2%

0.5%

0.3%

0.2%

0.1%

0.6%

-0.1%

0.4%

0.7%

2.7%

0.2%

0.4%

0.1%

0.4%

0.1%

TABLE XI

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRED ENTITIES

2-DIGIT 3-DIGIT

SIC

NAICS

CODE

CODE13

INDUSTRY DESCRIPTION NUMBER4

PERCENT CHANGE CLEARANCE GRANTED

FROM FY

TO FTC OR DOJ

TOTAL

2000

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3 DIGIT

INTRA-INDUSTRY

TRANSACTIONS13

(the data series for this column was

revised in April, 2008)

315

337

322

511

325

324

326

316

327

332

333

335

336

Apparel and Other Finished

Products Made from Fabrics

and Similar Materials

Furniture and Fixtures

Paper and Allied Products

Printing, Publishing and Allied

Industries

Chemicals and Allied Products

Petroleum Refining and

Related Industries

Primary Metal Industries

Rubber and Misc. Plastics

Products

Leather and Leather Products

Stone, Clay, Glass and

Concrete Products

Fabricated Metal Products,

Except Machinery and

Transportation Equipment

Industrial and Commercial

Machinery and Computer

Equipment

Electronic and Other Electrical

Equipment and Components,

Except Computer Equipment

Transportation Equipment

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.1%

-0.1%

0.1%

-0.3%

0.9%

-0.3%

2.8%

4.3%

-0.1%

0.4%

-0.2%

1.9%

1.0%

1.3%

-0.3%

0.0%

-0.1%

0.4%

-0.6%

1.9%

3.1%

-0.2%

108

4.9%

-0.1%

1.7%

-0.1%

TABLE XI

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRED ENTITIES

2-DIGIT 3-DIGIT

SIC

NAICS

CODE

CODE13

INDUSTRY DESCRIPTION NUMBER4

PERCENT CHANGE CLEARANCE GRANTED

FROM FY

TO FTC OR DOJ

TOTAL

2000

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3 DIGIT

INTRA-INDUSTRY

TRANSACTIONS13

(the data series for this column was

revised in April, 2008)

Measuring, Analyzing and

Controlling Instruments;

Photographic, Medical and

Optical Goods; Watches and

Clocks

Miscellaneous Manufacturing

Industries

Railroad Transportation

Local and Suburban Transit

and Interurban Highway

Passenger Transportation

Motor Freight Transportation

and Warehousing

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

4.4%

2.6%

0.6%

0.1%

0.0%

-0.1%

0.5%

-0.2%

Water Transportation

0.7%

0.5%

481

486

561

513

Transportation by Air

Pipelines, Except Natural Gas

Transportation Services

Communications

170

0.3%

0.4%

1.0%

7.7%

0.1%

0.3%

-2.7%

122

221

3.7%

0.7%

421

Electric, Gas and Sanitary

Goods

Wholesale Trade-Durable

Goods

4.4%

-0.3%

422

2.8%

-0.1%

444

0.0%

-0.1%

452

447

0.2%

0.6%

-0.1%

334

339

482

485

484

483

Wholesale Trade-Nondurable

Goods

Building Materials, Hardware,

Garden Supply, and Mobile

Home Dealers

General Merchandise Stores

Food Stores

TABLE XI

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRED ENTITIES

2-DIGIT 3-DIGIT

SIC

NAICS

CODE

CODE13

INDUSTRY DESCRIPTION NUMBER4

PERCENT CHANGE CLEARANCE GRANTED

FROM FY

TO FTC OR DOJ

TOTAL

2000

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3 DIGIT

INTRA-INDUSTRY

TRANSACTIONS13

(the data series for this column was

revised in April, 2008)

Automotive Dealers and

Gasoline Service Stations

Apparel and Accessory Stores

Home Furniture, Furnishings

and Equipment Stores

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

1.5%

-0.2%

0.2%

-0.1%

0.5%

0.1%

Eating and Drinking Places

0.9%

0.2%

446

Miscellaneous Retail

0.8%

-1.1%

521

522

1.3%

1.7%

-0.7%

0.5%

523

Depository Institutions

Nondepository Credit

Security and Commondity

Brokers, Dealers, Exchanges

Insurance Carriers

Insurance Agents, Brokers and

Service

Real Estate

Administration of Human

Resource Programs

Holding and Other Investment

Offices

Hotels, Rooming Houses,

Camps, and Other Lodging

3.3%

1.7%

2.3%

0.5%

1.0%

0.3%

0.2%

-0.1%

0.0%

1.2%

0.6%

0.2%

-0.1%

285

0.1%

12.8%

1.3%

1.2%

-3.2%

1.1%

0.5%

0.2%

0.1%

0.5%

441

448

337

722

524

711

551

721

812

Personal Services

Business Services

541

532

443

512

Educational Services

Miscellaneous Services

Automotive Repair, Services

and Parking

Miscellaneous Repair Services

Motion Pictures

196

TABLE XI

FISCAL YEAR 20011

INDUSTRY GROUP OF ACQUIRED ENTITIES

2-DIGIT 3-DIGIT

SIC

NAICS

CODE

CODE13

INDUSTRY DESCRIPTION NUMBER4

PERCENT CHANGE CLEARANCE GRANTED

FROM FY

TO FTC OR DOJ

TOTAL

2000

SECOND REQUEST

INVESTIGATIONS3

NUMBER OF 3 DIGIT

INTRA-INDUSTRY

TRANSACTIONS13

(the data series for this column was

revised in April, 2008)

713

621

611

624

813

923

924

Amusement and Recreation

Services

Health Services

Social Services

Membership Organizations

Research, Management and

Related Services

Nonclassificable Establishments

Not Available

ALL TRANSACTIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.6%

-0.3%

2.3%

0.2%

0.1%

0.3%

0.2%

0.1%

2.6%

-0.3%

120

2,219

0.0%

5.4%

100.00%

-2.0%

130

120

250

1,450

Fiscal Year 2001 figures include transactions reported between October 1, 2000 and September 30, 2001.

The size of transaction is based on the aggregate total amount of voting securities and assets to be held by the acquiring person as a result of the transaction and is taken from the

response to Item 3(b)(ii) and 3(c) of the notification form.

These statistics are based on the date that the second request was issued.

During fiscal year 2001, 2376 transactions were reported under the Hart-Scott-Rodino premerger notification program. The smaller number 2,237 reflects adjustments to eliminate the

following types of transactions: (1) transactions reported under Section (c)(6) and Section (c)(8), (transactions involving certain regulated industries and financial businesses); (2)

transactions found to be non-reportable; (3) incomplete transactions (only one party in each transaction filed a compliant notification); and (4) transactions withdrawn before the waiting

period began. The table does not, however, exclude competing offers or multiple party transactions (transactions involving two or more acquiring persons).

Percentage of total transactions

Percentage of transaction range group.

Pursuant to HSR reform, on February 1, 2001, the size-of-transaction threshold was increased from $15 million to $50 million, and the 15 percent size-of-transaction threshold was

eliminated.

The assets of the acquired entity were taken from response to Item 3(b)(i) (Assets to be acquired) or from Items 4(a) or (b) (SEC documents and annual reports required by the

premerger notification and report form.

The assets were not available primarily because the acquired entity’s financial data was consolidated within its ultimate parent.

The sales of the acquired entity were taken from Items 4(a) and (b) (SEC documents and annual reports) or responses to Item 5 (dollar revenues) of the premerger notification and

report form.

Transactions in this category include acquisitions of newly formed corporations or corporate joint ventures from which no sales were generated, and acquisitions of assets, which had

produced no sales or revenues during the prior year to filing the notification and report form.

The 2-digit SIC codes are part of the system of Standard Industrial Classification established by the United States Government Standard Classification Manual, 1987, Executive Office

of the President – Office of Management and Budget. The SIC groupings used in this table were determined from responses submitted by filing parties to Item 5 of the premerger

notification and report form.

The 3-digit NAICS codes are part of the North American Industrial Classification System established by the United States Government North American Industrial Classification

System 1997, Executive Office of the President – Office of Management and Budget. The NAICS groups used in this table were determined from responses submitted by the parties to

Item 5 of the premerger notification and report form effective July 1, 2001.

This number represents a deviate in percentage from the FY 2000 percentage.

This category includes transactions by newly formed entities.

The intra-industry transaction column identifies the number of acquisitions in which both the acquiring and acquired persons derived revenues in the same industry.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.