[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3843 Received in Senate (RDS)]
<DOC>
117th CONGRESS
2d Session
H. R. 3843
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 11, 2022
Received
_______________________________________________________________________
AN ACT
To protect competition and promote antitrust enforcement by adjusting
premerger filing fees to increase antitrust enforcement resources.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Merger Filing Fee
Modernization Act of 2022''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--MODERNIZING MERGER FILING FEE COLLECTIONS; ACCOUNTABILITY
REQUIREMENTS; LIMITATION ON FUNDING
Sec. 101. Modification of premerger notification filing fees.
Sec. 102. Reporting requirements for merger fee collections.
TITLE II--DISCLOSURE OF SUBSIDIES BY FOREIGN ADVERSARIES
Sec. 201. Findings and purpose.
Sec. 202. Mergers involving foreign government subsidies.
TITLE III--VENUE FOR STATE ANTITRUST ENFORCEMENT
Sec. 301. Venue for State Antitrust Enforcement.
TITLE I--MODERNIZING MERGER FILING FEE COLLECTIONS; ACCOUNTABILITY
REQUIREMENTS; LIMITATION ON FUNDING
SEC. 101. MODIFICATION OF PREMERGER NOTIFICATION FILING FEES.
Section 605 of Public Law 101-162 (15 U.S.C. 18a note) is amended--
(1) in subsection (b)--
(A) in paragraph (1)--
(i) by striking ``$45,000'' and inserting
``$30,000'';
(ii) by striking ``$100,000,000'' and
inserting ``$161,500,000'';
(iii) by striking ``2004'' and inserting
``2023''; and
(iv) by striking ``2003'' and inserting
``2022'';
(B) in paragraph (2)--
(i) by striking ``$125,000'' and inserting
``$100,000'';
(ii) by striking ``$100,000,000'' and
inserting ``$161,500,000'';
(iii) by striking ``but less'' and
inserting ``but is less''; and
(iv) by striking ``and'' at the end;
(C) in paragraph (3)--
(i) by striking ``$280,000'' and inserting
``$250,000''; and
(ii) by striking the period at the end and
inserting ``but is less than $1,000,000,000 (as
so adjusted and published);''; and
(D) by adding at the end the following:
``(4) $400,000 if the aggregate total amount determined
under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2))
is not less than $1,000,000,000 (as so adjusted and published)
but is less than $2,000,000,000 (as so adjusted and published);
``(5) $800,000 if the aggregate total amount determined
under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2))
is not less than $2,000,000,000 (as so adjusted and published)
but is less than $5,000,000,000 (as so adjusted and published);
and
``(6) $2,250,000 if the aggregate total amount determined
under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2))
is not less than $5,000,000,000 (as so adjusted and
published).''; and
(2) by adding at the end the following:
``(c)(1) For each fiscal year commencing after September 30, 2023,
the filing fees in this section shall be increased by an amount equal
to the percentage increase, if any, in the Consumer Price Index, as
determined by the Department of Labor or its successor, for the year
then ended over the level so established for the year ending September
30, 2022.
``(2) As soon as practicable, but not later than January 31 of each
year, the Federal Trade Commission shall publish the adjusted amounts
required by paragraph (1).
``(3) The Federal Trade Commission shall not adjust amounts
required by paragraph (1) if the percentage increase described in
paragraph (1) is less than 1 percent.
``(4) An amount adjusted under this section shall be rounded to the
nearest multiple of $5,000.''.
SEC. 102. REPORTING REQUIREMENTS FOR MERGER FEE COLLECTIONS.
(a) FTC and DOJ Joint Report.--For each of fiscal years 2023
through 2027, the Federal Trade Commission and Department of Justice
shall jointly and annually report to the Congress on the operation of
section 7A of the Clayton Act (15 U.S.C. 18a) and shall include in such
report the following:
(1) The amount of funds made available to the Federal Trade
Commission and the Department of Justice, respectively, from
the premerger notification filing fees under this section, as
adjusted by the Merger Filing Fee Modernization Act of 2022, as
compared to the funds made available to the Federal Trade
Commission and the Department of Justice, respectively, from
premerger notification filing fees as the fees were determined
in fiscal year 2022.
(2) The total revenue derived from premerger notification
filing fees, by tier, by the Federal Trade Commission and the
Department of Justice, respectively.
(3) The gross cost of operations of the Federal Trade
Commission, by Budget Activity, and the Antitrust Division of
the Department of Justice, respectively.
(b) FTC Report.--The Federal Trade Commission shall include in the
report required under subsection (a), in addition to the requirements
under subsection (a), for the previous fiscal year--
(1) for actions with respect to which the record of the
vote of each member of the Federal Trade Commission is on the
public record of the Federal Trade Commission, a list of each
action with respect to which the Federal Trade Commission took
or declined to take action on a 3 to 2 vote; and
(2) for all actions for which the Federal Trade Commission
took a vote, the percentage of such actions that were decided
on a 3 to 2 vote.
(c) Summary.--The Federal Trade Commission and the Department of
Justice shall make the report required under subsection (a) available
to the Committees on the Judiciary of the House of Representatives and
of the Senate, and shall, for fiscal years 2023 through 2027, no later
than July 1, present a summary of the joint annual report for the
preceding fiscal year, including the information required in
subsections (a) and (b) of this section, to the Committees on the
Judiciary of the House of Representatives and of the Senate.
TITLE II--DISCLOSURE OF SUBSIDIES BY FOREIGN ADVERSARIES
SEC. 201. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) Foreign subsidies, which can take the form of direct
subsidies, grants, loans (including below-market loans), loan
guarantees, tax concessions, preferential government
procurement policies, or government ownership or control, can
distort the competitive process by enabling the subsidized firm
to submit a bid higher than other firms in the market, or
otherwise change the incentives of the firm in ways that
undermine competition following an acquisition.
(2) Foreign subsidies are particularly problematic when
granted by countries or entities that constitute a strategic or
economic threat to United States interests.
(3) The Made in China 2025 plan, states that the Chinese
Communist Party will ``support enterprises to carry out mergers
and acquisitions (M&A), equity investment, and venture capital
overseas''.
(4) The 2020 report to Congress from the bipartisan U.S.-
China Economic and Security Review Commission concluded that
the Chinese Government subsidizes companies with a goal of
their expanding into the United States and other countries,
finding that ``[t]his process assists Chinese national
champions in surpassing and supplanting global market
leaders''. The report warns that the risk is particularly acute
when it comes to emerging technologies, where China seeks to
``surpass and displace the United States altogether [and that]
[f]ailure to appreciate the gravity of this challenge and
defend U.S. competitiveness would be dire . . . [and] risks
setting back U.S. economic and technological progress for
decades''.
(5) In remarks before the Hudson Institute on December 8,
2020, FTC Commissioner Noah Phillips stated, ``[O]ne area where
antitrust needs to reckon with the strategic interests of other
nations is when we scrutinize mergers or conduct involving
state-owned entities . . . companies that are controlled, to
varying degrees, by the state . . . [and] often are a
government tool for implementing industrial policies or to
protect national security''.
(b) Purpose.--The purpose of this section is to require parties
providing pre-merger notifications to include in the notification
required under section 7A of the Clayton Act (15 U.S.C. 18a)
information concerning subsidies they receive from countries or
entities that are strategic or economic threats to the United States.
SEC. 202. MERGERS INVOLVING FOREIGN GOVERNMENT SUBSIDIES.
(a) Definition.--In this section, the term ``foreign entity of
concern'' has the meaning given the term in section 40207 of the
Infrastructure Investment and Jobs Act (42 U.S.C. 18741(a)).
(b) Accounting for Foreign Government Subsidies.--A person required
to file a notification under section 7A of the Clayton Act (15 U.S.C.
18a) that received a subsidy from a foreign entity of concern shall
include in such notification content regarding such subsidy.
(c) Authority of Antitrust Regulators.--The Federal Trade
Commission, with the concurrence of the Assistant Attorney General in
charge of the Antitrust Division of the Department of Justice, and in
consultation with the Chairperson of the Committee on Foreign
Investment in the United States, the Secretary of Commerce, the Chair
of the United States International Trade Commission, the United States
Trade Representative, and the heads of other appropriate agencies, and
by rule in accordance with section 553 of title 5, United States Code,
shall require that the notification required under subsection (b) be in
such form and contain such documentary material and information
relevant to a proposed acquisition as is necessary and appropriate to
enable the Federal Trade Commission and the Assistant Attorney General
in charge of the Antitrust Division of the Department of Justice to
determine whether such acquisition may, if consummated, violate the
antitrust laws.
(d) Effective Date.--Subsection (b) shall take effect on the date
on which the rule described in subsection (c) takes effect.
TITLE III--VENUE FOR STATE ANTITRUST ENFORCEMENT
SEC. 301. VENUE FOR STATE ANTITRUST ENFORCEMENT.
Section 1407 of title 28, United States Code, is amended--
(1) in subsection (g) by inserting ``or a State'' after
``United States'' and striking ``; but shall not include
section 4A of the Act of October 15, 1914, as added July 7,
1955 (69 Stat. 282; 15 U.S.C. 15a)''; and
(2) by striking subsection (h).
Passed the House of Representatives September 29, 2022.
Attest:
CHERYL L. JOHNSON,
Clerk.