Filing A Notification Under The NCRPA

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What is the NCRPA?

Why file a notification?

What entities are eligible to file a notification?

What types of notifications are there?

Where are notifications filed?

For more information, contact the Premerger Notification Unit at 202-514-2558.

What is the NCRPA?

The National Cooperative Research and Production Act of 1993 (“NCRPA” or “Act”), 15 U.S.C. §§ 4301-06, is designed to promote innovation, facilitate trade, and strengthen the competitiveness of the United States in world markets by:

  • Clarifying the applicability of the rule of reason standard to the antitrust analysis of joint ventures and standards development organizations (or “SDOs”) while engaged in a standards development activity.
  • Providing for the possible recovery of attorneys fees by joint ventures and SDOs that are prevailing parties in damage actions brought against them under the antitrust laws.
  • Providing to parties to joint ventures and to SDOs the opportunity to limit any possible monetary damages that might be sought from them in actions brought under the antitrust laws to actual—as opposed to treble—damages.

Why file a notification?

While the application of the rule of reason and attorneys’ fee provisions to joint venture and SDO activity is automatic under the Act, the limitation of possible antitrust damage exposure to actual damages occurs only after a venture or SDO files a notification with the Antitrust Division of the Department of Justice (or the “Division”) and the Federal Trade Commission (or “FTC”) and the Division subsequently publishes a notice concerning the joint venture or SDO in the Federal Register.

Through the process of providing notifications under the NCRPA, joint ventures and SDOs inform the antitrust enforcement agencies and, through the publication (by the Division) of notices in the Federal Register, the public of their membership and activities, and any changes thereto.

What entities are eligible to file a notification?

Two types of entities are entitled to file notifications under the NCRPA:

Joint Ventures

Joint ventures that are engaged in the following activities may file notifications under the Act:

  • Research and Development (“R&D”)
    A joint venture engaging in any activities for any one or more of the following purposes:

    • Theoretical analysis, experimentation, or systematic study of phenomena or observable facts
    • Development or testing of basic engineering techniques
    • Extension of investigative findings or theory of a scientific or technical nature into practical application for experimental and demonstration purposes, including the experimental production and testing of models, prototypes, equipment, materials, and processes
    • Testing in connection with the production of a product, process, or service by such venture
    • Collection, exchange, and analysis of research or production information
  • Production
    A joint venture engaging in any activities for any one or more of the following purposes:

    • The production of a product, process, or service
    • Testing in connection with the production of a product, process, or service by such venture
    • The collection, exchange, and analysis of research or production information.

However, a joint venture for production is not eligible to file a notification unless both of the following conditions are met:

  • The principal facilities for such production are located in the United States or its territories.
  • Each person who controls any party to such venture (including such party itself) is a United States person or a foreign person from a country whose law accords antitrust treatment no less favorable to United States persons than to such country’s domestic persons with respect to participation in joint ventures for production.

Standards Development Organizations

Standards development organizations may file notifications under the Act. For purposes of the Act, a SDO is a domestic or international organization that plans, develops, establishes or coordinates voluntary consensus standards using procedures that incorporate the attributes of openness, balance of interests, due process, an appeals process, and consensus in a manner consistent with the Office of Management and Budget Circular Number A-119, as revised February 10, 1998. A standards development organization does not include the parties participating in the standards development organization.

What types of notifications are there?

There are two types of NCRPA notifications:

  • Original notifications
    An original notification is made upon the formation of the joint venture or SDO.
  • Supplemental notifications
    A supplemental notification is made when the activities of the joint venture or SDO change and, in the case of a joint venture, when its membership changes.

The information that must be included in a notification to the Division and the FTC differs somewhat in original and supplemental notifications. There are also differences in the information that must be provided by joint ventures for research and development, joint ventures for production, and standards development organizations. All information supplied to the enforcement agencies as part of an NCRPA notification is protected from disclosure; only the information published by the Division in the Federal Register becomes public.

What are the requirements for an original notification?

There are three components for every notification under the NCRPA. All three components apply to the three types of entities that may file: R&D joint ventures, production joint ventures and SDOs. Three copies of each of these items must be included in the filing—one copy must be sent to the FTC and two copies must be sent to the Division.

Original notifications by joint ventures must be submitted to the Division and FTC not later than 90 days after entering into a written agreement to form a joint venture for R&D or for production, and for SDOs not later than 90 days after commencing a standards development activity engaged in for the purpose of developing or promulgating voluntary consensus standards.

The three components of an original NCRPA notification are:

  • Information Concerning the Identity and Activities of the Joint Venture or SDO

    R&D Joint Ventures: Provide a letter that states the name of the venture, identifies the names and addresses of the parties to the venture, and describes the nature and objectives of the venture. The notification may contain any additional information or documentation that the venture wishes to provide with respect to its nature and objectives.

    Production Joint Ventures: Provide a letter that states the name of the venture, clearly identifies the venture as a joint venture for production, discloses the identity, address and nationality of any person who is a party to the venture or who controls any party to the venture whether separately or with one or more other person, identifies the location of the venture’s principal production facilities, and describes the nature and objectives of the venture. The notification may contain any additional information or documentation that the venture wishes to provide with respect to its nature and objectives.

    Standards Development Organizations: Provide a letter that states the name and principal place of business of the SDO and that describes the nature of the SDO’s activities, and further provide documents showing the nature and scope of the SDO’s standards development activities.

  • Draft Federal Register Notice

    All original NCRPA notifications should include a draft Federal Register notice.

    Joint Ventures: The notice must include the name of the venture, the identities of the parties, and a general description of the area of planned activity of the venture.

    Standards Development Organizations: The notice must identify the standards development organization and contain a general description of the standards development activities in which the SDO is engaged.

    Exemplars: Original Federal Register Notices
    Bold text indicates information to be provided by the joint venture or SDO.

  • Identification of Person or Persons with Authority to Approve the Federal Register Notice

    Prior to publication by the Division of a Federal Register notice, the notice must be approved by the notifying joint venture or SDO. Consequently, the notification should provide the name and contact information of the person or persons authorized by the joint venture or SDO to approve the Division’s proposed Federal Register notice.

Following the receipt of a proper notification, the Division will publish a notice in the Federal Register that identifies the parties to, and the activities of, the joint venture or SDO. Notifications may be withdrawn at any time before publication of a notice in the Federal Register; however, a joint venture or SDO does not receive the liability-limiting protections of the Act if its notification is withdrawn.

You may view published notices on the Federal Register website.

What are the requirements for a supplemental notification?

In order for joint ventures and SDOs that have filed original notifications to continue receiving the detrebling protections of the Act, such ventures and organizations must file supplemental notifications when changes occur after the initial filing.

Joint ventures: Supplemental notifications must be filed disclosing changes in membership or changes in the nature and/or objectives of the venture.

Standards Development Organizations: Supplemental notifications must be filed if there is an addition to or change in the standards setting activities performed by the SDO that were disclosed in the original notification.

Exemplars: Supplemental Federal Register Notices
Bold text indicates information to be provided by the joint venture or SDO.

The same process applies to making a supplemental notification as is required when making the original notification. Two copies of the notification are sent to the Division and one copy to the FTC. The notification should provide information, and in the case of an SDO documentation, concerning the changes for which the supplemental notification is being made, a draft Federal Register notice reflecting those changes, and the name and contact information of the person or persons authorized to approve the publication of the Federal Register notice.

It is not necessary to provide or restate information provided in an earlier notification. For example, if a supplemental notification is being filed because of a change of membership in a joint venture, it is not necessary to enumerate all current members in the notification, identifying the parties who have been added and those who have been dropped will suffice.

Supplemental notifications must be filed within 90 days of the occurrence of the change requiring the notification.

Where are notifications filed?

Original and supplemental NCRPA notifications should be delivered to the following locations:

U.S. Department of Justice (2 copies):
Antitrust Division
Premerger Notification Unit
950 Pennsylvania Ave., N.W., Room 3335
Washington, DC 20530
(For overnight delivery, use ZIP Code 20004.)
Phone: 202-514-2558

Federal Trade Commission (1 copy):
Office of Policy and Evaluation
Federal Trade Commission
6th and Pennsylvania Ave., N.W., Room 392
Washington, DC 20580

Updated June 25, 2015