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The PNO handles Hart-Scott-Rodino (HSR) premerger notification filings for thousands of transactions each year.  Filing fees are also required as part of the HSR premerger notification process.  Failure to pay the required fee on time will delay the HSR waiting period, but careful planning for the fee submission can help avoid most fee-related problems.  The reminders and tips in this blog will help ensure that the PNO receives and processes the HSR fee as promptly as possible.

The Basics of HSR Filing Fees

The fee depends on the value of the transaction, and the fee tiers are adjusted annually at the time of adjustment of the HSR jurisdictional thresholds.   Information on how to determine the applicable fee and how to pay via Electronic Wire Transfer (EWT) is available on the Filing Fee Information page. The fee must be in U.S. currency, and must be net of any service, transfer, or wiring fees collected by the banking institution.  The FTC strongly discourages payment of the filing fee by check.  

Although the parties must submit HSR filings to both the FTC and the DOJ, only one filing fee is required per transaction.  The Acquiring Person is responsible for ensuring the payment of the filing fee and usually pays the entire amount, but any arrangement between the parties is acceptable.  The PNO recommends that filers pay the fee before submitting their filing to avoid delays in the start of the waiting period.

The Notification is Not Complete without the Fee

The HSR waiting period begins when the FTC and the DOJ receive a complete premerger notification filing as required by the HSR Act and Rules.  Although sending the fee to the PNO is a separate process from submitting the filing, paying the fee is a necessary part of the premerger notification process.  Therefore, the waiting period will not begin until the PNO has both the filing and the required fee. 

The PNO allows a two-day “grace period” to provide ample time for the fee to appear in the PNO’s account at the Department of Treasury.  If the PNO does not receive the fee within two days of a filing’s submission, the PNO will delay the start of the waiting period—or “bounce” the filing—until the fee is received.  The PNO would much rather receive a filing fee several days in advance of a filing (along with an email supplying the EWT details, as described below) than bounce a filing. 

The PNO generally has not bounced filings when fees were received outside the two-day grace period, unless the delay affected the timing of the weekly merger screening review process.  Going forward, in order to ensure consistency and give the agencies the maximum time allowed under the HSR Act to analyze the competitive effects of each transaction, the PNO will be strictly enforcing the two-day grace period.

The PNO will contact you if it has not received your fee by close of business on the day after you file and will bounce the filing if the issue is not remedied within 24 hours.

Tips for Electronic Wire Transfers

Paying filing fees via EWT can result in unexpected delays.  It is up to the party paying the fee to determine when to initiate the EWT so that the PNO receives the fee within two days of the HSR filing or earlier.  The two-day grace period is not meant to provide extra time to initiate the EWT or to cover delays in processing the EWT by the filing person’s bank.  Remember that banks differ in the way they arrange and execute money transfers.  EWTs initiated by foreign banks, for example, can take longer to settle because of the need to comply with the banking regulations of multiple jurisdictions.     

Here are some tips to avoid delays:

• Send payment to the correct PNO-specific bank account, available at Wiring your HSR filing fee just got easier.  The PNO has a dedicated account, and filing fees sent to that account are easier to track.
• In the EWT comment field, include the name of the filing person as it appears in Item 1(a) of the HSR Form.  This is especially important when the EWT’s originator is different from the person filing notification.
• Consider using a U.S. subsidiary or affiliate to pay the fee on behalf of foreign filers in order to avoid delays with international EWTs. 
• Use a SWIFT code (TREAS_NYC or FRNYUS33XXX) for foreign wires, not the Treasury’s ABA number.  Follow the instructions available at Wiring your HSR filing fee just got easier.  For SWIFT code FRNYUS33XXX, be sure to include the XXX; these letters are part of the required SWIFT code.
• Double-check with the bank after receiving the EWT confirmation number to make sure there were no problems with the EWT.  A confirmation number means that an EWT was initiated, but does not guarantee it was initiated correctly or that the FTC has received the fee.
• Send an email to premerger@ftc.gov containing the name of the entity that paid the fee and the date of payment, along with the EWT confirmation number and the name of the financial institution transferring the fee.  Do not contact the PNO regarding a fee without this information.

To sum up, filers should coordinate on the filing fee process well in advance of the anticipated filing date, and should always follow up with the financial institution that sent the EWT to make sure the PNO has received the filing fee.  Doing both of these things on a regular basis will help avoid bounces and potential closing delays.

As always, if you have questions about filing fees and HSR filings in general, contact the PNO.