[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2039 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 2039
To improve the antitrust laws, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 14, 2021
Mr. Lee (for himself and Mr. Grassley) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To improve the antitrust laws, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tougher Enforcement Against
Monopolists Act'' or the ``TEAM Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
TITLE I--ONE AGENCY
Sec. 101. Short title.
Sec. 102. Findings.
Sec. 103. Definitions.
Sec. 104. Transfer of antitrust enforcement functions from the Federal
Trade Commission to the Department of
Justice.
Sec. 105. Removal of review authority from Federal Communications
Commission and State entities.
Sec. 106. Technical and conforming amendments.
Sec. 107. Effective date.
TITLE II--MERGERS
Sec. 201. Premerger notification filing fees.
Sec. 202. Merger presumptions.
Sec. 203. Merger notification requirements.
TITLE III--COMPETITION POLICY
Sec. 301. Competitive impact statement.
Sec. 302. Written explanations of enforcement and non-enforcement
actions.
Sec. 303. Studies.
Sec. 304. Monopsony guidelines.
TITLE IV--RESTORING BOARD IMMUNITY
Sec. 401. Short title.
Sec. 402. Statement of findings and purpose.
Sec. 403. Definitions.
Sec. 404. Antitrust immunity.
Sec. 405. Active supervision.
Sec. 406. Judicial review.
TITLE V--OTHER IMPROVEMENTS TO ANTITRUST LAWS
Sec. 501. Overturning Illinois Brick and Hanover Shoe.
Sec. 502. Limitations on implied immunity from the antitrust laws.
Sec. 503. Prejudgment interest.
Sec. 504. Safe harbor for efforts to facilitate data portability and
interoperability.
Sec. 505. Study of assigning all antitrust cases to certain district
courts of the United States.
Sec. 506. Balancing harm and benefits.
Sec. 507. Actions on behalf of consumers under Sherman Act.
Sec. 508. Civil fines for knowing violations of the antitrust laws.
Sec. 509. Direct evidence of intent to avoid or restrict competition.
Sec. 510. Limit on contracting.
Sec. 511. Prohibiting discrimination in distribution.
Sec. 512. Authorizations of appropriations.
SEC. 3. DEFINITIONS.
In this Act:
(1) Antitrust laws.--The term ``antitrust laws'' means--
(A) the Sherman Act (15 U.S.C. 1 et seq.); and
(B) the Clayton Act (15 U.S.C. 12 et seq.).
(2) Assistant attorney general.--The term ``Assistant
Attorney General'' means the Assistant Attorney General for the
Antitrust Division of the Department of Justice.
(3) Executive agency.--The term ``Executive agency'' has
the meaning given that term in section 105 of title 5, United
States Code.
TITLE I--ONE AGENCY
SEC. 101. SHORT TITLE.
This title may be cited as the ``One Agency Act''.
SEC. 102. FINDINGS.
Congress finds the following:
(1) It is the policy of the United States to promote the
vigorous, effective, and efficient enforcement of the antitrust
laws.
(2) The overlapping antitrust enforcement jurisdiction of
the Department of Justice and the Federal Trade Commission has
wasted taxpayer resources, hampered enforcement efforts, and
caused uncertainty for businesses and consumers in the United
States.
(3) It is preferable that primary Federal responsibility
for enforcing the antitrust laws of the United States be given
to a single agency, and the Department of Justice is best
suited to do so.
SEC. 103. DEFINITIONS.
In this title:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Effective date.--The term ``effective date'' means the
date described in section 107.
(3) FTC antitrust action.--The term ``FTC antitrust
action'' means any litigation or administrative proceeding
initiated by the Commission that--
(A) is supervised by an FTC Antitrust Unit; or
(B) relates to the antitrust laws or section 5 of
the Federal Trade Commission Act (15 U.S.C. 45), as in
effect on the day before the effective date.
(4) FTC antitrust assets.--The term ``FTC antitrust
assets''--
(A) means all electronic or tangible records and
files relating to matters supervised, as well as any
physical assets or equipment owned and used or
retained, by an FTC Antitrust Unit; and
(B) does not include any office space or leased
facilities or equipment.
(5) FTC antitrust employee.--The term ``FTC antitrust
employee'' means an individual who on the day before the
effective date is employed by the Federal Trade Commission and
assigned to an FTC Antitrust Unit.
(6) FTC antitrust function.--The term ``FTC antitrust
function'' means a function of the Commission relating to the
antitrust laws or unfair methods of competition under section 5
of the Federal Trade Commission Act (15 U.S.C. 45), as in
effect on the day before the effective date.
(7) FTC antitrust funding.--The term ``FTC antitrust
funding'' means--
(A) all amounts appropriated before the effective
date by an Act of Congress to the Federal Trade
Commission that are designated, by Congress or the
Commission, for an FTC Antitrust Unit; and
(B) all fees collected by the Federal Trade
Commission before the effective date under section 7A
of the Clayton Act (15 U.S.C. 18a) and rules issued
under that section.
(8) FTC antitrust unit.--The term ``FTC Antitrust Unit''
means--
(A) the Bureau of Competition of the Commission;
and
(B) each division of the Bureau of Economics of the
Commission that is designated to work on FTC antitrust
actions.
(9) Function.--The term ``function'' means any duty,
obligation, power, authority, responsibility, right, privilege,
activity, or program.
(10) Transition period.--The term ``transition period''
means the period beginning on the effective date of this title
and ending on the later of--
(A) the date that is 1 year after the effective
date of this title; or
(B) the date that is 180 days after the date
described in subparagraph (A), which may be extended by
the Assistant Attorney General once for an additional
180 days, if the Assistant Attorney General determines
that a period longer than the period described in
subparagraph (A) is necessary to avoid harm to the
interests of the United States or the effective
enforcement of the antitrust laws.
SEC. 104. TRANSFER OF ANTITRUST ENFORCEMENT FUNCTIONS FROM THE FEDERAL
TRADE COMMISSION TO THE DEPARTMENT OF JUSTICE.
(a) Transfer of Functions.--
(1) In general.--Except as provided in paragraph (3)(D),
there shall be transferred to the Department of Justice all FTC
antitrust functions, FTC antitrust employees, FTC antitrust
assets, and FTC antitrust funding on the earlier of--
(A) the date determined by the Assistant Attorney
General under paragraph (2)(B); or
(B) the end of the transition period.
(2) Requirement.--The Assistant Attorney General, taking
care to minimize disruption to ongoing enforcement matters and
in consultation as necessary with the Attorney General, the
Office of Personnel Management, the General Services
Administration, and the Chairman of the Commission, shall--
(A) take all necessary actions to complete
implementation of this title before the end of the
transition period; and
(B) determine the dates certain, which may not be
earlier than the effective date nor later than the end
of the transition period, on which the transfers under
paragraph (1) shall occur.
(3) Personnel.--
(A) Assignment.--An FTC antitrust employee
transferred to the Department of Justice under this
title shall be assigned to the Antitrust Division of
the Department of Justice.
(B) Effect on personnel.--Except as provided in
subparagraph (C), the transfer under this title of an
FTC antitrust employee shall not cause the employee to
be separated or reduced in grade or compensation for 1
year after the transfer date.
(C) Executive schedule.--Notwithstanding
subparagraph (B), the Assistant Attorney General may
appoint an FTC antitrust employee in a Senior Executive
Service position, as defined in section 3132 of title
5, United States Code, to a position within the
Antitrust Division rate payable for a position at level
15, step 10 of the General Schedule.
(D) Voluntary nontransfer of personnel.--
Notwithstanding paragraph (1), an FTC antitrust
employee may, with the consent of the Chairman of the
Commission, elect to remain an employee of the
Commission assigned to a non-FTC Antitrust Unit.
(E) Office space.--Upon request from the Assistant
Attorney General, and in consultation as necessary with
the General Services Administration, the Commission
shall allow the Department of Justice to use any office
space or leased facilities previously used by FTC
antitrust employees until such time as the Department
of Justice may provide its own office space or
facilities. After the transfer of FTC antitrust funding
to the Department of Justice, the Department of Justice
shall compensate the Commission for the costs of the
use of such office space or leased facilities.
(F) Restructuring.--Notwithstanding any other
provision of law, the Assistant Attorney General is
authorized to restructure the Antitrust Division before
the expiration of the transition period, as the
Assistant Attorney General determines is appropriate,
to carry out the purposes of this title and accomplish
the efficient enforcement of the antitrust laws.
(4) Antitrust actions.--
(A) In general.--As soon as is reasonably
practicable during the transition period, all open
investigations, litigations, matters, or other
proceedings being supervised by an FTC antitrust unit
and relating to the antitrust laws or unfair methods of
competition under section 5 of the Federal Trade
Commission Act (15 U.S.C. 45), as in effect on the day
before the effective date, shall be transferred to and
assumed by the Department of Justice.
(B) Handling of certain administrative
proceedings.--Administrative proceedings that were
initiated by the Commission, were unresolved as of the
first day of the transition period, and relate to
enforcement of the antitrust laws or unfair methods of
competition under section 5 of the Federal Trade
Commission Act (15 U.S.C. 45), as in effect on the day
before the effective date, shall be treated in the
following manner:
(i) Any such proceeding pending before an
administrative law judge shall be dismissed
without prejudice and the matter shall be
referred to the Assistant Attorney General.
(ii) For any such proceeding pending on
appeal before the Commission, the
administrative appeal shall cease, the ruling
of the administrative law judge shall be
treated as the final decision of the
Commission, and the Court of Appeals for the
District of Columbia Circuit shall have
jurisdiction over any appeal therefrom.
(C) Intervention.--
(i) In general.--In any FTC antitrust
action before a court of the United States as
of the first day of the transition period, the
court shall allow the Department of Justice
to--
(I) intervene and assume
representation of the Federal
Government from the Commission; and
(II) amend any complaint originally
brought by the Commission for the
purpose of alleging violations of
statutes other than the Federal Trade
Commission Act as necessary and where
appropriate.
(ii) Scheduling order upon request.--Upon
the request of the Commission or the Department
of Justice, and in consultation with all
parties to the matter, the court shall issue an
order making such scheduling adjustments as
necessary to facilitate the transfer of
prosecutorial responsibilities under this
subparagraph.
(D) Consent decrees.--At the end of the transition
period, the Department of Justice shall have sole
authority to enforce violations of, approve
modifications to, or rescind any consent decree entered
into by the Commission before the effective date that
concerns conduct alleged to violate the antitrust laws
or unfair methods of competition under section 5 of the
Federal Trade Commission Act (15 U.S.C. 45), as in
effect on the day before the effective date.
(5) Authority to conduct investigative studies.--
(A) Reports of persons, partnerships, and
corporations.--
(i) In general.--The Department of Justice
may require, by general or special orders,
persons, partnerships, and corporations,
engaged in or whose business affects commerce
to file with the Department in such form as the
Department may prescribe annual or special
reports or answers in writing to specific
questions, furnishing to the Department such
information as the Department may require as to
the organization, business, conduct, practices,
management, and relation to other corporations,
partnerships, and individuals of the respective
persons, partnerships, and corporations filing
such reports or answers in writing.
(ii) Oath.--Reports and answers required
under clause (i) shall--
(I) be made under oath or otherwise
as the Department may prescribe;
(II) pertain solely to competition
or the application of the antitrust
laws; and
(III) be filed with the Department
within such reasonable period as the
Department may prescribe, unless
additional time be granted in any case
by the Department.
(B) Publication of information or reports.--
(i) In general.--Except as provided in
clause (ii), the Department of Justice--
(I) shall make public from time to
time such portions of the information
obtained by the Department under this
paragraph as are in the public
interest;
(II) may make annual and special
reports to Congress that include
recommendations for additional
legislation; and
(III) shall provide for the
publication of reports and decisions of
the Department in such form and manner
as may be best adapted for public
information and use.
(ii) Prohibition against publication of
privileged or confidential information.--
(I) In general.--Except as provided
in subclause (II), the Department of
Justice shall not make public any trade
secret or any commercial or financial
information that is obtained from any
person and that is privileged or
confidential.
(II) Exception.--The Department may
disclose information described in
subclause (I) to--
(aa) officers and employees
of appropriate Federal law
enforcement agencies or to any
officer or employee of any
State law enforcement agency
upon the prior certification of
an officer of any such Federal
or State law enforcement agency
that such information will be
maintained in confidence and
will be used only for official
law enforcement purposes; or
(bb) any officer or
employee of any foreign law
enforcement agency under the
same circumstances that making
material available to foreign
law enforcement agencies is
permitted under section 21(b)
of the Federal Trade Commission
Act (15 U.S.C. 57b-2(b)).
(6) Benefit of antitrust division.--All FTC antitrust
assets and FTC antitrust funding transferred under this
subsection shall be for the exclusive use and benefit of the
Antitrust Division of the Department of Justice.
(b) Transition Period.--
(1) In general.--Except as provided in paragraph (2),
beginning on the effective date, the Commission may not--
(A) hire or assign an employee to an FTC Antitrust
Unit;
(B) open a new investigation or matter within an
FTC Antitrust Unit or relating to antitrust
enforcement;
(C) without the approval of the Assistant Attorney
General, enter into a consent decree, enter into a
settlement agreement, or otherwise resolve an FTC
antitrust action; or
(D) initiate a new FTC antitrust action.
(2) Enforcement on behalf of the department of justice.--
Notwithstanding paragraph (1), during the transition period,
the Assistant Attorney General may deputize an FTC Antitrust
Employee to investigate or prosecute an alleged violation of
the antitrust laws on behalf of the Department of Justice
before the completion of the transfer of personnel under
subsection (a)(3).
(3) Same rights and obligations.--
(A) In general.--Notwithstanding any other
provision of law, during the transition period all
Department of Justice employees under the supervision
of the Assistant Attorney General shall have the same
rights and obligations with respect to confidential
information submitted to the Commission as FTC
antitrust employees on the day before the effective
date.
(B) Rule of construction.--Nothing in this
paragraph may be construed as implying any change to
the rights and obligations described in subparagraph
(A) as a result of this title.
(c) Agreements.--The Assistant Attorney General, in consultation
with the Chairman of the Commission, shall--
(1) review any agreements between the Commission and any
other Federal agency or any foreign law enforcement agency; and
(2) before the end of the transition period, seek to amend,
transfer, or rescind such agreements as necessary and
appropriate to carry out this title, endeavoring to complete
such amendment, transfer, or rescindment with all due haste.
(d) Rules.--The Attorney General shall, pursuant to section 7A of
the Clayton Act (15 U.S.C. 18a) and in accordance with section 553 of
title 5, United States Code, prescribe or amend any rules as necessary
to carry out this title.
SEC. 105. REMOVAL OF REVIEW AUTHORITY FROM FEDERAL COMMUNICATIONS
COMMISSION AND STATE ENTITIES.
(a) Definitions.--In this section--
(1) the term ``covered transaction'' means any acquisition,
assignment, or transfer of control of--
(A) any license, authorization, or line subject to
the jurisdiction of the Communications Act of 1934 (47
U.S.C. 151 et seq.); or
(B) any authorization, certificate, franchise, or
other instrument issued by a State commission or
franchising authority; and
(2) the terms ``State commission'' and ``franchising
authority'' have the meanings given those terms in sections 3
and 602, respectively, of the Communications Act of 1934 (47
U.S.C. 153, 522).
(b) Review of Communications Transactions.--
(1) Sole responsibility of department of justice.--
Notwithstanding any provision of the Communications Act of 1934
(47 U.S.C. 151 et seq.) or any law or regulation of a State or
political subdivision thereof, the review of the competitive
impact of any proposed covered transaction shall be solely the
responsibility of the Department of Justice pursuant to the
antitrust laws, and neither the Federal Communications
Commission nor any State commission or franchising authority
shall have any authority to conduct such review.
(2) Consultation.--In reviewing the competitive impact of a
proposed covered transaction, the Attorney General shall
solicit and consider the views of the Federal Communications
Commission.
(c) Application of Public Interest Standards.--
(1) In general.--A determination of the Federal
Communications Commission described in paragraph (2) with
respect to a proposed covered transaction shall be limited to
an assessment of whether the acquirer, assignee, or transferee
meets the technical, financial, character, and citizenship
qualifications that the Commission has prescribed by rule under
the Communications Act of 1934 (47 U.S.C. 151 et seq.) to hold
that license, authorization, or line.
(2) Determinations.--A determination described in this
paragraph is a determination pursuant to section 214(a) or
310(d) of the Communications Act of 1934 (47 U.S.C. 214(a),
310(d)) as to whether a proposed covered transaction would
serve the public interest, without regard to whether the
determination is phrased as whether the present or future
public convenience and necessity require or will require the
transaction or whether the public interest, convenience, and
necessity will be served by the transaction.
SEC. 106. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Clayton Act.--The Clayton Act (15 U.S.C. 12 et seq.) is
amended--
(1) in section 2 (15 U.S.C. 13)--
(A) in subsection (a), by striking ``Federal Trade
Commission'' and inserting ``Attorney General of the
United States''; and
(B) in subsection (b), by striking ``Commission''
and inserting ``Attorney General of the United
States'';
(2) in section 5(a) (15 U.S.C. 16(a)), in the second
sentence, by striking ``, except that, in any action or
proceeding brought under the antitrust laws, collateral
estoppel effect shall not be given to any finding made by the
Federal Trade Commission under the antitrust laws or under
section 5 of the Federal Trade Commission Act which could give
rise to a claim for relief under the antitrust laws'';
(3) in section 7 (15 U.S.C. 18)--
(A) in the first undesignated paragraph, by
striking ``and no person subject to the jurisdiction of
the Federal Trade Commission shall acquire the whole or
any part of the assets of another person engaged also
in commerce or in any activity affecting commerce'';
and
(B) in the second undesignated paragraph, by
striking ``and no person subject to the jurisdiction of
the Federal Trade Commission shall acquire the whole or
any part of the assets of one or more persons engaged
in commerce or in any activity affecting commerce'';
(4) in section 7A (15 U.S.C. 18a)--
(A) in subsection (b)--
(i) in paragraph (1)(A), in the matter
preceding clause (i), by striking ``the Federal
Trade Commission and''; and
(ii) in paragraph (2), by striking
``Federal Trade Commission and the'';
(B) in subsection (c)--
(i) in paragraph (6), by striking ``the
Federal Trade Commission and''; and
(ii) in paragraph (8), by striking ``the
Federal Trade Commission and'';
(C) in subsection (d)--
(i) in the matter preceding paragraph (1),
by striking ``Federal Trade Commission, with
the concurrence of the Assistant Attorney
General and'' and inserting ``Attorney General
of the United States''; and
(ii) in paragraph (1), by striking ``the
Federal Trade Commission and'';
(D) in subsection (e)--
(i) in paragraph (1)--
(I) in subparagraph (A), by
striking ``Federal Trade Commission or
the''; and
(II) in subparagraph (B), by
striking ``and the Federal Trade
Commission shall each'' and inserting
``shall''; and
(ii) in paragraph (2)--
(I) by striking ``Federal Trade
Commission or the'';
(II) by striking ``its or''';
(III) by striking ``the Federal
Trade Commission or'' each place the
term appears; and
(IV) by striking ``, as the case
may be,'';
(E) in subsection (f)--
(i) by striking ``the Federal Trade
Commission, alleging that a proposed
acquisition violates section 7 of this Act or
section 5 of the Federal Trade Commission Act,
or an action is filed by''; and
(ii) by striking ``the Federal Trade
Commission or'';
(F) in subsection (g)(2), in the matter following
subparagraph (C), by striking ``the Federal Trade
Commission or'';
(G) in subsection (h), by striking ``or the Federal
Trade Commission'';
(H) in subsection (i)--
(i) in paragraph (1), by striking ``the
Federal Trade Commission or'' each place the
term appears; and
(ii) in paragraph (2)--
(I) by striking ``or the Federal Trade
Commission''; and
(J) by striking ``, the Federal Trade Commission
Act,''; and
(5) in section 8(a)(5) (15 U.S.C. 19(a)(5)), in the second
sentence, by striking ``Federal Trade Commission'' and
inserting ``Attorney General of the United States''.
(b) Charitable Gift Annuity Antitrust Relief Act of 1995.--Section
3(1) of the Charitable Gift Annuity Antitrust Relief Act of 1995 (15
U.S.C. 37a(1)) is amended by striking ``, except that such term
includes section 5 of the Federal Trade Commission Act (15 U.S.C. 45)
to the extent that such section 5 applies to unfair methods of
competition''.
(c) Pension Funding Equity Act of 2004.--Section 207(b)(1)(A)(i) of
the Pension Funding Equity Act of 2004 (15 U.S.C. 37b(b)(1)(A)(i)) is
amended by striking ``, except that such term includes section 5 of the
Federal Trade Commission Act (15 U.S.C. 45) to the extent such section
5 applies to unfair methods of competition''.
(d) Federal Trade Commission Act.--The Federal Trade Commission Act
(15 U.S.C. 41 et seq.) is amended--
(1) in section 5 (15 U.S.C. 45)--
(A) in subsection (a)--
(i) in paragraph (1), by striking ``methods
of competition in or affecting commerce, and
unfair'';
(ii) by striking paragraph (3); and
(iii) by redesignating paragraph (4) as
paragraph (3);
(B) in subsection (b)--
(i) in the first sentence, by striking
``unfair method of competition or''; and
(ii) in the fifth sentence--
(I) by striking ``the method of
competition or''; and
(II) by striking ``method of
competition or such'';
(C) in subsection (c)--
(i) in the first sentence--
(I) by striking ``method of
competition or''; and
(II) by striking ``method of
competition or the''; and
(ii) in the third sentence, by striking
``or to competitors'';
(D) by striking subsection (e);
(E) in subsection (g), by striking paragraph (4);
and
(F) in subsection (n), in the first sentence, by
striking ``or to competition'';
(2) in section 6 (15 U.S.C. 46)--
(A) by striking subsections (c) through (e) and
(i);
(B) by redesignating--
(i) subsections (f), (g), and (h) as
subsections (c) through (e), respectively; and
(ii) subsections (j) through (l) as
subsections (f) through (h), respectively;
(C) in subsection (f)(1), as so redesignated, by
striking ``other than Federal antitrust laws (as
defined in section 12(5) of the International Antitrust
Enforcement Assistance Act of 1994 (15 U.S.C.
6211(5))),''; and
(D) in subsection (h)(2), as so redesignated, in
the matter preceding subparagraph (A), by striking ``or
competition'';
(3) by repealing section 7 (15 U.S.C. 47);
(4) in section 11 (15 U.S.C. 51), by striking ``antitrust
Acts or the'' each place the term appears;
(5) in section 18 (15 U.S.C. 57a(a)(2)), by striking the
second sentence;
(6) in section 20 (15 U.S.C. 57b-1)--
(A) in subsection (a)--
(i) in paragraph (2), by striking ``or in
any antitrust violations'';
(ii) in paragraph (3), by striking ``or any
provisions relating to antitrust violations'';
(iii) in paragraph (7), by striking ``or
any antitrust violation''; and
(iv) by striking paragraph (8);
(B) in subsection (c)(1), by striking ``or to
antitrust violations,''; and
(C) in subsection (j)(1), by striking ``, any
proceeding under section 11(b) of the Clayton Act (15
U.S.C. 21(b)),'';
(7) in section 21(b)(6) (15 U.S.C. 57b-2(b)(6)), in the
matter following subparagraph (D), by striking ``paragraphs (5)
and (7)'' and inserting ``paragraphs (4) and (6)''; and
(8) in section 21A (15 U.S.C. 57b-2a)--
(A) by striking subsection (f);
(B) by redesignating subsection (g) as subsection
(f);
(C) in subsection (f), as so redesignated, by
striking ``subsection (g)'' each place the term appears
and inserting ``subsection (f)''; and
(D) in section 24 (15 U.S.C. 57b-5(a)), by striking
``for any conduct which, because of the provisions of
the Act entitled `An Act to authorize association of
producers of agricultural products', approved February
18, 1922 (7 U.S.C. 291 et seq., commonly known as the
Capper-Volstead Act), is not a violation of any of the
antitrust Acts or this Act''.
(e) Webb-Pomerene Act.--The Webb-Pomerene Act (15 U.S.C. 61 et
seq.) is amended--
(1) by repealing section 4 (15 U.S.C. 64); and
(2) in section 5--
(A) in the first undesignated paragraph--
(i) in the first sentence, by striking
``Federal Trade Commission'' and inserting
``Attorney General of the United States''; and
(ii) in the second sentence, by striking
``commission'' each place the term appears and
inserting ``Attorney General of the United
States'';
(B) in the second undesignated paragraph--
(i) in the first sentence, by striking
``Federal Trade Commission'' and inserting
``Attorney General of the United States''; and
(ii) by striking the third sentence; and
(C) by striking the third undesignated paragraph.
(f) Wool Products Labeling Act of 1939.--The Wool Products Labeling
Act of 1939 (15 U.S.C. 68 et seq.) is amended--
(1) by striking ``an unfair method of competition, and''
each place the term appears; and
(2) in section 68g(b), by striking ``an unfair method of
competition and''.
(g) Fur Products Labeling Act.--The Fur Products Labeling Act (15
U.S.C. 69 et seq.) is amended by striking ``an unfair method of
competition, and'' each place the term appears.
(h) Textile Fiber Products Identification Act.--The Textile Fiber
Products Identification Act (15 U.S.C. 70 et seq.) is amended--
(1) by striking ``an unfair method of competition, and''
each place the term appears; and
(2) in section 3 (15 U.S.C. 70a), by striking ``an unfair
method of competition and'' each place the term appears.
(i) Antitrust Civil Process Act.--Section 4(d) of the Antitrust
Civil Process Act (15 U.S.C. 1313(d)) is amended--
(1) in paragraph (1), by striking ``(1) Whoever'' and
inserting ``Whoever''; and
(2) by striking paragraph (2).
(j) International Antitrust Enforcement Assistance Act of 1994.--
The International Antitrust Enforcement Assistance Act of 1994 (15
U.S.C. 6201 et seq.) is amended--
(1) in section 2 (15 U.S.C. 6201), in the matter preceding
paragraph (1), by striking ``and the Federal Trade
Commission'';
(2) in section 3(b) (15 U.S.C. 6202(b)), by striking ``and
the Commission may, using their respective authority to
investigate possible violations of the Federal antitrust
laws,'' and inserting ``may'';
(3) in section 5(1) (15 U.S.C. 6204(1)), by striking ``or
the Commission'' each place the term appears;
(4) in section 6 (15 U.S.C. 6205)--
(A) by striking ``or the Commission''; and
(B) by striking ``6(f)'' and inserting ``6(c)'';
(5) in section 7 (15 U.S.C. 6206)--
(A) by striking ``, with the concurrence of the
Commission,'' each place the term appears; and
(B) in subsection (c)(2)(B), by striking ``and the
Commission'';
(6) in section 8 (15 U.S.C. 6207)--
(A) by striking ``Neither the Attorney General nor
the Commission may'' each place the term appears and
inserting ``The Attorney General may not'';
(B) in subsection (a), by striking ``or the
Commission, as the case may be,'';
(C) in subsection (b), by striking ``or the
Commission''; and
(D) in subsection (c)--
(i) by striking ``or the Commission''; and
(ii) by striking ``or the Commission, as
the case may be,'';
(7) in section 10 (15 U.S.C. 6209)--
(A) in subsection (a)--
(i) by striking ``, the Commission,''; and
(ii) by striking ``(a) In General.--The''
and inserting ``The''; and
(B) by striking subsection (b);
(8) in section 12 (15 U.S.C. 6211)--
(A) in paragraph (2)--
(i) in the matter preceding subparagraph
(A)--
(I) by striking ``and the
Commission jointly determine'' and
inserting ``determines'';
(II) by striking ``jointly''; and
(III) by striking ``and the
Commission'';
(ii) in subparagraph (A)--
(I) by striking ``and the
Commission'' each place the term
appears; and
(II) by striking ``provide'' and
inserting ``provides'';
(iii) in subparagraph (E)(ii), in the
matter preceding subclause (I), by striking
``or the Commission, as the case may be,'';
(iv) in subparagraph (F)--
(I) by striking ``or the
Commission''; and
(II) by striking ``or the
Commission, respectively,''; and
(v) in subparagraph (H)--
(I) in clause (i)--
(aa) by striking ``or the
Commission''; and
(bb) by striking ``or the
Commission, respectively,'';
and
(II) in clause (ii), by striking
``or the Commission'' each place the
term appears;
(B) by striking paragraph (4);
(C) by redesignating paragraphs (5) through (9) as
paragraphs (4) through (8), respectively; and
(D) in paragraph (4), as so redesignated, by
striking ``but also includes section 5 of the Federal
Trade Commission Act (15 U.S.C. 45) to the extent that
such section 5 applies to unfair methods of
competition''; and
(9) in section 13 (15 U.S.C. 6212)--
(A) by striking ``and the Commission are'' and
inserting ``is''; and
(B) by striking ``or the Commission,
respectively,''.
(k) Medicare Prescription Drug, Improvement, and Modernization Act
of 2003.--Subtitle B of title XI of the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003 (Public Law 108-173; 117
Stat. 2461) is amended--
(1) in the subtitle heading, by striking ``Federal Trade
Commission'' and inserting ``Antitrust'';
(2) in section 1111 (21 U.S.C. 355 note)--
(A) by striking paragraph (8); and
(B) by redesignating paragraphs (9) through (12) as
paragraphs (8) through (11), respectively;
(3) in section 1112(c) (21 U.S.C. 355 note), by striking
``and the Commission'' each place the term appears;
(4) in section 1113 (21 U.S.C. 355 note), by striking ``and
the Commission'';
(5) in section 1114 (21 U.S.C. 355 note), by striking ``or
the Commission'';
(6) in section 1115 (21 U.S.C. 355 note)--
(A) in subsection (a), by striking ``, or brought
by the Commission in accordance with the procedures
established in section 16(a)(1) of the Federal Trade
Commission Act (15 U.S.C. 56(a))''; and
(B) in subsection (b), by striking ``or the
Commission'';
(7) in section 1116 (21 U.S.C. 355 note), in the matter
preceding paragraph (1), by striking ``Commission, with the
concurrence of the Assistant Attorney General'' and inserting
``Attorney General''; and
(8) in section 1117 (21 U.S.C. 355 note), by striking ``or
the Commission'' each place the term appears.
(l) Other Laws.--For any other provision of law requiring the
Assistant Attorney General or the Attorney General to consult with or
seek the concurrence of the Commission or the Chairman of the
Commission, where such requirement relates to the antitrust laws or
unfair methods of competition under section 5 of the Federal Trade
Commission Act (15 U.S.C. 45), as in effect on the day before the
effective date, that requirement shall be waived.
SEC. 107. EFFECTIVE DATE.
Except where explicitly provided otherwise, this title and the
amendments made by this title shall take effect on the start of the
first fiscal year that is at least 90 days after the date of enactment
of this title.
TITLE II--MERGERS
SEC. 201. 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
``2022''; and
(iv) by striking ``2003'' and inserting
``2021'';
(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) $1,250,000 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, 2022,
the filing fees in this section shall be increased each year by an
amount equal to the percentage increase, if any, in the Gross National
Product of the United States, 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, 2021.
``(2) As soon as practicable, but not later than January 31 of each
year, the Attorney General shall publish the adjusted amounts required
by paragraph (1).
``(3) The Attorney General 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. 202. MERGER PRESUMPTIONS.
Section 7 of the Clayton Act (15 U.S.C. 18), as amended by section
106 of this Act, is amended--
(1) by striking all that proceeds ``person engaged in
commerce'' and inserting the following:
``SEC. 7. ACQUISITION BY ONE CORPORATION OF STOCK OF ANOTHER.
``(a) In General.--No'';
(2) by striking ``No person shall acquire,'' and inserting
the following:
``(b) Acquisition of Persons Engaged in Commerce.--No person shall
acquire'';
(3) by striking ``This section shall not apply'' and
inserting the following:
``(d) Not Lessening Competition.--This section shall not apply'';
(4) by striking ``Nor shall anything herein'' and inserting
the following:
``(e) Common Carriers.--Nor shall anything herein'';
(5) by striking ``Nothing contained in this section shall
be held'' and inserting the following:
``(f) Hold Harmless.--Nothing contained in this section shall be
held'';
(6) by striking ``Nothing contained in this section shall
apply to transactions'' and inserting the following:
``(g) Certain Transactions.--Nothing contained in this section
shall apply to transactions''; and
(7) by inserting after subsection (b), as so designated by
this section, the following:
``(c) Actions by United States.--
``(1) In general.--The United States may initiate a
proceeding to enjoin a transaction prohibited by this section.
``(2) Rebuttable presumptions.--
``(A) In general.--In a proceeding initiated by the
United States to enjoin a transaction prohibited by
this section, it shall be presumed that the effect of a
transaction may be substantially to lessen competition,
or to tend to create a monopoly, if--
``(i) the United States shows by a
preponderance of the evidence that, as a result
of the transaction, the combined firm would be
able meaningfully to increase prices or reduce
output, innovation, or quality in a market; or
``(ii)(I) the transaction would combine
persons that compete, would compete, or would
attempt to compete against each other, absent
the transaction; and
``(II) the combined firm would have a post-
transaction share of the market that--
``(aa) is greater than 33 percent;
or
``(bb) if the acquiring person is
owned or controlled by a foreign
government, is greater than 5 percent.
``(B) Rebuttal.--A defendant may rebut a
presumption under clause (i) or (ii) of subparagraph
(A) only if the defendant demonstrates by a
preponderance of the evidence that--
``(i) the combined parties post-transaction
would not be able to exercise market power; or
``(ii) the anticompetitive effects of the
transaction--
``(I) are insubstantial; or
``(II) are clearly outweighed by
the procompetitive benefits of the
transaction in the relevant market.
``(C) Rule of construction.--The presumptions under
clauses (i) and (ii) of subparagraph (A) shall not
limit any other presumption courts have created or used
or may create or use in resolving cases under this
section.
``(3) Irrebuttable presumption.--In a proceeding initiated
by the United States to enjoin a transaction prohibited by this
section, except to the extent the transaction is necessary to
prevent serious harm to the national economy, the effect of a
transaction shall be deemed to substantially to lessen
competition, or to tend to create a monopoly, if--
``(A) the transaction would combine persons that
compete, would compete, or would attempt to compete
against each other absent the transaction; and
``(B) the combined firm would have a post-
transaction share of the market that is greater than 66
percent.''.
SEC. 203. MERGER NOTIFICATION REQUIREMENTS.
(a) In General.--Section 7A(a)(2) of the Clayton Act (15 U.S.C.
18a(a)(2)) is amended--
(1) by redesignating subclause (III) of subparagraph
(B)(ii) as item (bb);
(2) by striking ``(ii)(I) any voting'' and all that follows
through ``(II) any voting securities or assets of a person not
engaged in manufacturing'' and inserting ``(II)(aa) any voting
securities or assets of a person'';
(3) by striking ``(B)(i) in excess'' and inserting
``(ii)(I) in excess'';
(4) by striking ``(A) in excess'' and inserting ``(i) in
excess'';
(5) by inserting ``(A)'' after ``(2)'';
(6) by striking ``published) or more.'' and inserting
``published) or more; or''; and
(7) by inserting after subparagraph (A), as so
redesignated, the following:
``(B) except with respect to an acquisition made solely for
the purpose of investment, the acquiring person--
``(i) has assets in excess of $500,000,000,000; or
``(ii) is owned or controlled by a foreign
government.''.
(b) Repeal of Limited Nexus to Commerce in the United States
Exception.--
(1) In general.--The Assistant Attorney General shall amend
sections 802.50 and 802.51 of title 16, Code of Federal
Regulations, and any other rule or regulation, to repeal any
exception from filing a notification under subsection (a) of
section 7A of the Clayton Act (15 U.S.C. 18a) or from the
waiting period described in subsection (b)(1) of such section
with respect to an acquisition on the basis that the
acquisition has a limited nexus with the United States.
(2) Limitation.--The Assistant Attorney General may not
promulgate or enforce any rule that excludes from the
requirements under section 7A of the Clayton Act (15 U.S.C.
18a) any acquisition by or of a person engaged in commerce or
in any activity affecting commerce on the basis that the
acquisition has a limited nexus with the United States.
TITLE III--COMPETITION POLICY
SEC. 301. COMPETITIVE IMPACT STATEMENT.
(a) Definitions.--In this section:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the Office of Information and Regulatory
Affairs of the Office of Management and Budget.
(2) Agency; significant regulatory action.--The terms
``agency'' and ``significant regulatory action'' have the
meanings given those terms in section 3 of the Executive Order.
(3) Executive order.--The term ``Executive Order'' means
Executive Order 12866 (5 U.S.C. 601 note; relating to
regulatory planning and review).
(b) Requirement.--In reviewing a significant regulatory action of
an agency in accordance with the Executive Order, the Administrator
shall prepare and submit to the agency a competitive impact statement
that--
(1) identifies any way in which the significant regulatory
action may impact or harm competition in the market to which
the significant regulatory action applies; and
(2) provides guidance on how the significant regulatory
could be revised to minimize the impact or harm to competition
in that market.
SEC. 302. WRITTEN EXPLANATIONS OF ENFORCEMENT AND NON-ENFORCEMENT
ACTIONS.
(a) In General.--The Assistant Attorney General shall prepare and
preserve a written explanation of any decision by the Federal
Government not to file a civil action under the antitrust laws after
the use of compulsory process by the Federal Government.
(b) Availability to Congress.--Upon request by any Member of
Congress, the Assistant Attorney General shall make available an
unredacted version of a written explanation described in subsection
(a). A Member of Congress shall not disclose an unredacted version of a
written explanation received under this subsection.
(c) Public Availability.--
(1) In general.--The Assistant Attorney General shall make
a written explanation described in subsection (a) publicly
available if all subjects of the investigation have
acknowledged the existence of the investigation.
(2) Other availability.--A written explanation described in
subsection (a) may be disclosed in accordance with the
procedures and limitations under section 552 of title 5, United
States Code (commonly known as the ``Freedom of Information
Act''), or any other applicable provision of law.
(3) Redaction.--Information in a written explanation
described in subsection (a) that is made publicly available
shall be redacted to protect confidential or competitively
sensitive information, which may include the identities of the
subjects of the investigation when appropriate.
SEC. 303. STUDIES.
(a) Institutional Investors.--Not later than 2 years after the date
of enactment of this Act, the Assistant Attorney General, in
consultation with the Securities and Exchange Commission, shall conduct
and publish a study, using any compulsory process reasonably necessary,
relying on public data and information if available and sufficient, and
incorporating public comment, on--
(1) the extent to which an institutional investor or
related institutional investors have ownership or control
interests in competitors in moderately concentrated or
concentrated markets;
(2) the economic impacts of such overlapping ownership or
control; and
(3) the mechanisms by which an institutional investor could
affect competition among the companies in which it invests and
whether such mechanisms are prevalent.
(b) Self-Preferencing by Digital Platforms.--Not later than 2 years
after the date of enactment of this Act, the Assistant Attorney General
shall conduct and publish a study, using any compulsory process
reasonably necessary, relying on public data and information if
available and sufficient, and incorporating public comment, on self-
preferencing by digital platforms.
(c) Technology Merger Retrospective.--Not later than 2 years after
the date of enactment of this Act, the Assistant Attorney General
shall--
(1) conduct a retrospective analysis of mergers involving
technology companies completed during the 15-year period ending
on the date of enactment of this Act; and
(2) publish a report of the findings of the analysis, which
shall include an analysis of the adequacy of any enforcement
actions or settlement agreements regarding such mergers.
SEC. 304. MONOPSONY GUIDELINES.
The Assistant Attorney General shall publicly issue guidelines
regarding how the Antitrust Division of the Department of Justice
analyzes and approaches a matter involving a monopsony under the
antitrust laws.
TITLE IV--RESTORING BOARD IMMUNITY
SEC. 401. SHORT TITLE.
This title may be cited as the ``Restoring Board Immunity Act of
2021'' or the ``RBI Act''.
SEC. 402. STATEMENT OF FINDINGS AND PURPOSE.
Congress finds the following:
(1) The prevalence of occupational licensing has increased
dramatically in recent decades, in part because private
interests have sought licensing in order to limit competition.
(2) Occupational licensing often limits opportunities for
workers, frustrates entrepreneurs seeking to introduce new
business models, and raises prices paid by consumers.
(3) Licensing should be imposed only to combat real,
substantial threats to public health, safety, or welfare and
only where other less restrictive regulatory alternatives are
insufficient to protect consumers and serve the public
interest.
(4) Regulators should consider a range of less restrictive
alternatives before enacting an occupational licensing regime,
which may include inspections, bonding or insurance
requirements, registration, and voluntary certification.
(5) Voluntary certification provides a particularly
significant alternative to licensure, as it allows market
participants to signal to consumers the attainment of personal
qualifications without limiting entry into the marketplace.
(6) The failure of State governments to adopt less
restrictive alternatives to licensing, and less burdensome
requirements in those areas where licensing is deemed
necessary, has resulted in significant costs to consumers and
the broader economy.
(7) The United States Supreme Court responded to these
concerns in North Carolina Board of Dental Examiners v. FTC,
135 S. Ct. 1101 (2015), holding that self-interested licensing
boards may be subject to liability under the antitrust laws,
but that decision has also created significant uncertainty for
the States and their licensing boards.
(8) Some States have responded to the decision in North
Carolina Board of Dental Examiners by establishing a layer of
bureaucratic oversight that merely monitors board actions for
consistency with State licensing laws. This response is a
missed opportunity for reform, as it does not address the
specific competition concern raised in North Carolina Board of
Dental Examiners or the underlying problems with over-reliance
on occupational licensure as a regulatory approach and with
overly broad enforcement of licensing laws as a means to
regulate commercial activities outside an occupation's scope of
practice.
(9) Legislation is necessary to clarify the requirements of
active supervision, both to offer States a clear and certain
mechanism to immunize their occupational boards and to make
clear that mere bureaucratic oversight to ensure consistency
with State licensing laws does not suffice to confer immunity.
(10) This title is intended to offer States a choice
between two alternative routes to achieve immunity for their
occupational licensing boards--either establishing a mechanism
for meaningful active supervision of licensing boards by State
officials or establishing a mechanism for meaningful judicial
review of board actions in the State courts.
SEC. 403. DEFINITIONS.
In this title:
(1) Certification.--The term ``certification'' means a
voluntary program under which--
(A) a private organization (in the case of private
certification) or the government of a State (in the
case of government certification) authorizes an
individual who meets certain personal qualifications to
use ``certified'' as a designated title with respect to
the performance of a lawful occupation; and
(B) a non-certified individual may perform the
lawful occupation for compensation but may not use the
title ``certified''.
(2) Good faith.--The term ``good faith'', with respect to
performance--
(A) means diligent performance that is directed
towards achieving the policies set forth in this title;
(B) does not include performance that is--
(i) designed to subvert or evade the
policies set forth in this title; or
(ii) carried out in a manner that has the
systematic effect of subverting or evading the
policies set forth in this title; and
(C) refers to an objective, rather than subjective,
standard.
(3) Lawful occupation.--The term ``lawful occupation''
means a course of conduct, pursuit, or profession that includes
the sale of goods or services that are not themselves illegal
to sell irrespective of whether the individual selling the
goods or services is subject to occupational licensing laws.
(4) Least restrictive regulation.--The term ``least
restrictive regulation'' means, from least to most restrictive:
(A) One or more of the following, each of which
shall be considered equally restrictive:
(i) Market competition.
(ii) Industry or consumer-related ratings
and reviews.
(iii) Private certification.
(iv) A specific private civil cause of
action to remedy consumer harm.
(v) A deceptive trade practice act.
(vi) A regulation of the process of
providing the specific goods or services to
consumers.
(vii) Inspections.
(viii) Bonding or insurance.
(ix) Registration.
(x) Government certification.
(B) Specialty occupational license for medical
reimbursement.
(C) Occupational license.
(5) Less restrictive alternatives to occupational
licensing.--The term ``less restrictive alternatives to
occupational licensing''--
(A) means regulations that achieve the public
health or safety goals asserted by the government to
justify licensing while imposing a less onerous
restriction on entry into the marketplace; and
(B) includes the alternative forms of regulation
described in paragraph (4)(A).
(6) Member, officer, or employee.--The term ``member,
officer, or employee'', with respect to an occupational
licensing board, means an individual appointed by a State to
the board.
(7) Occupational license.--The term ``occupational
license'' means a nontransferable authorization under law for
an individual to perform a lawful occupation for compensation
based on meeting personal qualifications established by the
State government.
(8) Occupational licensing board.--The term ``occupational
licensing board'' or ``board'' means an entity established
under State law--
(A) the express purpose of which is to regulate the
personal qualifications required to engage in or
practice a particular lawful occupation;
(B) that has authority conferred by State law to
interpret or enforce the occupational licensing laws of
the State; and
(C) not less than \2/3\ of the members of which are
appointed by an elected official of the State.
(9) Occupational licensing law.--The term ``occupational
licensing law''--
(A) means a State statute that allows an individual
to work in a lawful occupation and use an occupational
title; and
(B) does not include a business license, facility
license, building permit, or zoning and land use
regulation, except to the extent that the law regulates
an individual's personal qualifications to engage in or
practice a lawful occupation.
(10) Occupational regulation.--The term ``occupational
regulation''--
(A) means a statute, rule, practice, policy, or
other law that substantially burdens an individual's
ability to work in a lawful occupation;
(B) includes a regulation requiring registration,
certification, or an occupational license; and
(C) does not include a business license, facility
license, building permit, or zoning and land use
regulation except to the extent that such a requirement
or restriction substantially burdens an individual's
ability to work in a lawful occupation.
(11) Personal qualifications.--The term ``personal
qualifications'' means criteria related to an individual's
personal background and characteristics, including completion
of an approved educational program, satisfactory performance on
an examination, work experience, other evidence of attainment
of requisite skills or knowledge, moral standing, criminal
history, and completion of continuing education.
(12) Registration.--The term ``registration'' means a
requirement that an individual give notice to the government of
a State that may include--
(A) the individual's name and address;
(B) the individual's agent for service of process;
(C) the location of the activity to be performed;
and
(D) a description of the service the individual
provides.
(13) Specialty occupational license for medical
reimbursement.--The term ``specialty occupational license for
medical reimbursement'' means a nontransferable authorization
in law for an individual to qualify for payment or
reimbursement from a government agency for the non-exclusive
provision of medical services based on meeting personal
qualifications established by the State legislature.
(14) State.--The term ``State'' means--
(A) each of the several States; and
(B) the District of Columbia.
SEC. 404. ANTITRUST IMMUNITY.
(a) In General.--Subject to subsection (b), the Sherman Act (15
U.S.C. 1 et seq.) shall not apply to any action of an occupational
licensing board of a State, or any action of a member, officer, or
employee of the board acting in the official capacity of that member,
officer, or employee, if--
(1) the requirements under section 405 of this title are
satisfied; or
(2) the requirements under section 406 of this title are
satisfied.
(b) Requirement of Good Faith.--The immunity provided under
subsection (a) shall not apply to any action of an occupational
licensing board of a State, or any action of a member, officer, or
employee of the board acting in the official capacity of that member,
officer, or employee, unless the State acts in good faith to perform
the applicable requirements under section 405 or 406 of this title.
(c) Existing Entities or Procedures.--The fact that a State
governmental entity or procedure was established before the date of
enactment of this Act shall not prevent an occupational licensing board
of the State, or a member, officer, or employee of that board, from
qualifying for immunity under subsection (a) if the State governmental
entity or procedure satisfies the applicable requirements under section
405 or 406 of this title.
(d) Savings Clause.--The immunity provided under subsection (a)
shall not apply to an action unrelated to regulating the personal
qualifications required to engage in or practice a lawful occupation,
such as rules of an occupational licensing board governing minimum
prices or residency requirements.
SEC. 405. ACTIVE SUPERVISION.
(a) In General.--The immunity under section 404(a) shall apply to
any action of an occupational licensing board of a State, or any action
of a member, officer, or employee of that board acting in the official
capacity of that member, officer, or employee, if--
(1) the actions of the occupational licensing board or
member, officer, or employee are authorized by a non-frivolous
interpretation of the occupational licensing laws of the State;
(2) the State adopts a policy of using less restrictive
alternatives to occupational licensing to address real,
substantial threats to public health, safety, or welfare, in
accordance with subsection (b) of this section; and
(3) the State enacts legislation providing for active
supervision of the actions of an occupational licensing board
and any member, officer, or employee of such a board, in
accordance with subsection (c) of this section.
(b) Policy.--The State shall adopt a policy providing that--
(1) occupational licensing laws should be construed and
applied to--
(A) protect public health, safety, and welfare; and
(B) increase economic opportunity, promote
competition, and encourage innovation;
(2) regulators should displace competition through
occupational licensing laws only if less restrictive
alternatives to occupational licensing will not suffice to
protect consumers from real, substantial threats to public
health, safety, or welfare; and
(3) an occupational licensing law should be enforced
against an individual only to the extent the individual sells
goods or services that are included explicitly in the statute
or regulation that defines the occupation's scope of practice.
(c) Active Supervision.--
(1) In general.--The legislation enacted under subsection
(a)(3) shall satisfy each of the requirements under this
subsection.
(2) Day-to-day supervision.--
(A) Establishment of office of supervision of
occupational boards.--The State shall establish an
Office of Supervision of Occupational Boards (referred
to in this subsection as the ``Office'') to review the
actions of occupational licensing boards to ensure
compliance with the policy adopted under subsection
(b).
(B) Duties.--The Office shall--
(i) review and explicitly approve or reject
in writing any occupational regulation proposed
by an occupational licensing board before the
board may adopt or implement the occupational
regulation;
(ii) play a substantial role in the
development of a board's rules and policies to
ensure they benefit consumers and do not serve
the private interests of providers of goods and
services regulated by the board;
(iii) disapprove in writing the use of any
board rule or policy relating to an
occupational regulation and terminate any
enforcement action, including any such action
pending on the date of enactment of this Act,
that is inconsistent with the policy adopted
under subsection (b);
(iv) exercise control over each board by
reviewing and affirmatively approving in
writing only occupational regulations that are
consistent with the policy adopted under
subsection (b);
(v) use the analysis conducted under
paragraph (5) and conduct reasonable
investigations to gain additional information,
including about less restrictive regulatory
approaches, to promote compliance with
subsection (b);
(vi)(I) be staffed by not less than 1
attorney; and
(II) prohibit attorneys working in the
Office from providing general counsel to any
board; and
(vii)(I) approve board actions explicitly
in writing, rather than implicitly; and
(II) clearly establish that silence or
inaction does not constitute approval.
(3) Internal review.--
(A) Complaint.--The State shall establish a
mechanism under which a person who is a resident of or
has a license to operate a business in the State may
file a complaint with the Office about an occupational
regulation of an occupational licensing board in the
State that the person believes is inconsistent with the
policy adopted under subsection (b).
(B) Office response.--Not later than 90 days after
the date on which a person files a complaint under
subparagraph (A), the Office shall--
(i) investigate the complaint;
(ii) identify remedies and instruct the
board to take action, where appropriate; and
(iii) respond in writing to the
complainant.
(C) Review.--The State shall establish a mechanism
for review of a determination made by the Office under
subparagraph (B), under which a complainant may appeal
the determination to the general division of the trial
court of the State if the challenged occupational
regulation would substantially burden the complainant's
ability to--
(i) engage in a lawful occupation; or
(ii) employ or contract other individuals
for the performance of a lawful occupation.
(4) Right to raise defense.--
(A) In general.--The State shall authorize an
individual to assert as a defense, in any
administrative or judicial proceeding to enforce an
occupational regulation, that the regulation does not
comply with the policy adopted under subsection (b).
(B) Procedures.--In a proceeding described in
subparagraph (A)--
(i) an individual who asserts a defense
under this paragraph has the initial burden of
proof that the occupational regulation being
enforced substantially burdens the individual's
ability to engage in a lawful occupation;
(ii) if an individual meets the burden of
proof under clause (i), the State shall be
required to demonstrate by clear and convincing
evidence that the occupational regulation--
(I) advances an important
government interest in protecting
against real, substantial threats to
public health, safety, or welfare; and
(II) is substantially related to
achievement of the important government
interest described in subclause (I), in
light of the availability of less
restrictive alternatives to
occupational licensing; and
(iii) in reviewing an alleged violation of
the policy adopted under subsection (b), an
administrative agency or a court--
(I) shall make its own findings of
fact and conclusions of law;
(II) may not rely on a legislative
finding of fact presented in admissible
form to the agency or court; and
(III) may not grant any presumption
to a legislative determination--
(aa) of harm to public
health, safety, or welfare; or
(bb) that the occupational
regulation is substantially
related to achievement of the
important government interest
described in clause (ii)(I).
(5) Periodic advisory review.--
(A) In general.--The State shall establish a
mechanism for periodic non-binding review of existing
occupational regulations, and non-binding review of new
proposed occupational regulations, to ensure that the
occupational regulations comply with the policy adopted
under subsection (b).
(B) Scope of review.--The entity conducting the
review under subparagraph (A)--
(i) shall publish an annual written report
encompassing approximately 20 percent of the
occupations subject to occupational regulations
within the State, such that the entity will
review all occupational regulations within the
State during each 5-year period; and
(ii) shall publish a written report
assessing any proposed occupational licensing
law, or other proposed law that would expand
the authority of an occupational licensing
board to impose occupational regulations,
before the proposed law is submitted to a vote
by the State legislature.
(C) Requirements for analysis.--In conducting the
review required under subparagraph (A), the entity
shall--
(i) determine whether the law or other
regulation satisfies the policy adopted under
subsection (b) of using the least restrictive
regulation necessary to protect consumers from
real, substantial threats to public health,
safety, or welfare;
(ii) evaluate the effects of the law or
other regulation on opportunities for workers,
consumer choices and costs, general
unemployment, market competition, governmental
costs, and other effects;
(iii) compare the law or other regulation
to whether and how other States regulate the
applicable occupation; and
(iv) if the applicable occupation is
subject to an occupational licensing law,
evaluate--
(I) the feasibility of entering
into reciprocity compacts with one or
more other States to improve worker
mobility and labor market flexibility;
and
(II) the advisability of endorsing
occupational licenses granted by other
States to spouses of active service
military members as if those
occupational licenses were granted by
the State conducting the review.
SEC. 406. JUDICIAL REVIEW.
(a) In General.--The immunity under section 404(a) shall apply to
any action of an occupational licensing board of a State, or any action
of a member, officer, or employee of that board acting in the official
capacity of that member, officer, or employee, if--
(1) the actions of the occupational licensing board or
member, officer, or employee are authorized by a non-frivolous
interpretation of the occupational licensing laws of the State;
(2) the State adopts a policy of using less restrictive
alternatives to occupational licensing to address real,
substantial threats to public health, safety, or welfare, in
accordance with section 405(b); and
(3) the State enacts legislation providing for judicial
review of occupational licensing laws, in accordance with
subsection (b) of this section.
(b) Judicial Review Legislation.--Legislation enacted by a State
under subsection (a)(3)--
(1) shall--
(A) prohibit the State and any occupational
licensing board from imposing an occupational licensing
law unless the State--
(i) identifies an important government
interest in protecting against real,
substantial threats to public health, safety,
or welfare; and
(ii) demonstrates that the occupational
licensing law is substantially related to
achievement of the important government
interest described in clause (i), in light of
the availability of less restrictive
alternatives to occupational licensing;
(B) provide an affirmative defense against
enforcement of any occupational licensing law of the
State under which the State shall be required to
demonstrate that the standard under subparagraph (A)
has been met;
(C) establish a cause of action under which--
(i) a person may bring an action for
injunctive relief against enforcement of an
occupational licensing law of the State;
(ii) the plaintiff bears the initial burden
to prove that the challenged occupational
licensing law substantially burdens the
plaintiff's ability to engage in a lawful
occupation; and
(iii) once the plaintiff makes the initial
showing under clause (ii), the State is
required to demonstrate that the standard under
subparagraph (A) has been met;
(D) provide for an award of reasonable costs and
attorney fees to a person who successfully challenges
the application of an occupational licensing law of the
State by--
(i) raising an affirmative defense under
subparagraph (B); or
(ii) bringing an action under subparagraph
(C); and
(E) provide for independent judicial review of the
occupational licensing laws of the State to ensure that
the standard set forth in subparagraph (A) has been
met; and
(2) may not authorize a court to--
(A) uphold enforcement of an occupational licensing
law of the State simply because the court believes the
law is rationally related to a legitimate governmental
purpose;
(B) rely on hypothetical risks to public safety,
not substantiated by evidence in the record, to uphold
enforcement of an occupational licensing law of the
State;
(C) defer to factual or legal conclusions of
another person or entity, rather than exercising
independent review; or
(D) rely on a post hoc justification for the action
of an occupational licensing board that was not put
forward by the board at the time of the challenged
action.
(c) Rule of Construction.--Nothing in subsection (b) shall be
construed to require legislation enacted by a State under subsection
(a)(3) to provide a right to recover monetary damages, other than
reasonable costs and attorney fees as provided under subsection
(b)(1)(D).
TITLE V--OTHER IMPROVEMENTS TO ANTITRUST LAWS
SEC. 501. OVERTURNING ILLINOIS BRICK AND HANOVER SHOE.
Section 4 of the Clayton Act (15 U.S.C. 15) is amended--
(1) in subsection (a), in the first sentence--
(A) by striking ``subsection (b)'' and inserting
``subsections (b) and (c)''; and
(B) by inserting ``, including an indirect
purchaser,'' after ``business or property'';
(2) by redesignating subsection (c) as subsection (f); and
(3) by inserting after subsection (b) the following:
``(c)(1) In the case of a person who was injured by a violation of
the antitrust laws and who resold any property or service that was the
subject of the violation, the amount of the damages sustained by the
person shall not include the amount of any overcharge by the defendant
(or portion thereof) that the person passed on to a subsequent
purchaser of the property or service that was the subject of the
violation.
``(2) The defendant shall bear the burden of proving the amount of
any overcharge passed on to a subsequent purchaser.''.
SEC. 502. LIMITATIONS ON IMPLIED IMMUNITY FROM THE ANTITRUST LAWS.
(a) In General.--In any action or proceeding to enforce the
antitrust laws with respect to conduct that is regulated under Federal
statute, no court or adjudicatory body may find that the Federal
statute, or any rule or regulation promulgated in accordance with the
Federal statute, implicitly precludes application of the antitrust laws
to the conduct unless--
(1) a Federal agency or department actively regulates the
conduct under the Federal statute;
(2) the Federal statute does not include any provision
preserving the rights, claims, or remedies under the applicable
antitrust laws or under any area of law that includes the
antitrust laws; and
(3) the Federal agency or department rules or regulations,
adopted by rulemaking or adjudication, explicitly require or
authorize the defendant to undertake the conduct.
(b) Existing Federal Regulation.--In any action or proceeding
described in subsection (a), the antitrust laws shall be applied fully
and without qualification or limitation, and the scope of the antitrust
laws shall not be defined more narrowly on account of the existence of
Federal rules, regulations, or regulatory agencies or departments,
unless application of the antitrust laws is precluded or limited by--
(1) an explicit exemption from the antitrust laws under a
Federal statute; or
(2) an implied immunity that satisfies the requirements
under subsection (a).
SEC. 503. PREJUDGMENT INTEREST.
Section 4(a) of the Clayton Act (15 U.S.C. 15), as amended by
section 502 of this Act, is amended by striking ``may sue therefor''
and all that follows and inserting ``may sue therefor in any district
court of the United States in the district in which the defendant
resides or is found or has an agent, without respect to the amount in
controversy, and shall recover threefold the damages by him sustained,
the cost of suit, including a reasonable attorney's fee, and simple
interest on threefold the damages by him sustained for the period
beginning on the date of service of such person's pleading setting
forth a claim under the antitrust laws and ending on the date of
judgment.''.
SEC. 504. SAFE HARBOR FOR EFFORTS TO FACILITATE DATA PORTABILITY AND
INTEROPERABILITY.
(a) In General.--Except as provided in subsection (b), it shall not
constitute a violation of the antitrust laws for 2 or more persons
providing comparable interactive computer services (as defined in
section 230(f) of the Communications Act of 1934 (47 U.S.C. 230(f))) to
enter into a joint venture or similar partnership to create standard
protocols for data portability or interoperability between the
interactive computer services if--
(1) the joint venture or similar partnership does not
exclude from the joint venture or similar partnership any
person that offers comparable interactive computer services;
and
(2) the standard protocols do not restrict competition in
any market.
(b) Exception for Per Se Violations.--Subsection (a) shall not
apply to conduct constituting a per se violation of section 1 of the
Sherman Act (15 U.S.C. 1).
SEC. 505. STUDY OF ASSIGNING ALL ANTITRUST CASES TO CERTAIN DISTRICT
COURTS OF THE UNITED STATES.
Not later than 1 year after the date of enactment of this Act, the
Director of the Administrative Office of the United States Courts shall
submit to Congress a report reviewing the feasibility, possible
benefits, and potential harms of establishing a program to designate
certain district courts of the United States that will hear cases
raising 1 or more claims under the antitrust laws.
SEC. 506. BALANCING HARM AND BENEFITS.
The Clayton Act (15 U.S.C. 12 et seq.) is amended--
(1) by redesignating section 28 (15 U.S.C. 27) as section
31; and
(2) by inserting after section 27 the following:
``SEC. 28. BALANCING HARM AND BENEFITS.
``(a) In General.--In any civil action brought under this Act or
the Sherman Act (15 U.S.C. 1 et seq.), a court may consider a benefit,
efficiency, or other mitigating factor only to the degree that it--
``(1) is tied to the market in which competition or
consumers are harmed;
``(2) can reasonably be achieved only through the conduct
or transaction at issue;
``(3) is reasonably quantifiable;
``(4) will accrue to the consumer; and
``(5) has a high likelihood of being achieved.
``(b) Examination of Competitive Effects.--In examining the
competitive effects of conduct or a transaction challenged under any of
the antitrust laws, a court shall consider exclusively the effects of
the challenged conduct or transaction on consumer welfare, including
price, output, quality, innovation, and consumer choice.
``(c) Rule of Construction.--Nothing in this section shall be
construed to require that, in the aggregate, in-market benefits,
efficiencies, or mitigating factors outnumber or outweigh any out-of-
market benefits, efficiencies, or mitigating factors.
``(d) Definition of Consumer.--In this section, the term `consumer'
includes buyers and sellers.''.
SEC. 507. ACTIONS ON BEHALF OF CONSUMERS UNDER SHERMAN ACT.
Section 4 of the Clayton Act (15 U.S.C. 15), is amended--
(1) by inserting after subsection (c), as added by section
501 of this Act, the following:
``(d)(1) The Assistant Attorney General may bring an action on
behalf of persons in the United States injured in their business or
property by reason of anything forbidden under the Sherman Act (15
U.S.C. 1 et seq.) in any district court of the United States in the
district in which the defendant resides or is found or has an agent,
without respect to the amount in controversy, and shall recover
threefold the damages sustained by such persons, and the cost of suit,
including a reasonable attorney's fee.
``(2)(A) The court may award under this subsection, pursuant to a
motion by the Assistant Attorney General promptly made, simple interest
on actual damages in accordance with the requirements under subsection
(a).
``(B) A court may not award any damages under this subsection that
are duplicative of damages awarded before the date of the award under
this subsection in a separate civil action pertaining to the same
conduct and injured party.
``(C) A court awarding damages to a person in a civil action after
the date of an award of damages under this subsection that would be
duplicative of damages awarded to the Assistant Attorney General on
behalf of the person shall direct that such damages shall first be paid
by the Assistant Attorney General from amounts in the Fund and, to the
extent such damages are not fully paid from amounts in the Fund, shall
be paid by the defendant.
``(3)(A) There is established in the Treasury of the United States
a fund to be known as the `Antitrust Consumer Damages Fund' (in this
subsection referred to as the `Fund'), which shall consist of amounts
deposited under subparagraph (B).
``(B) Notwithstanding section 3302 of title 31, United States Code,
any amounts received by the Assistant Attorney General under an award
under this subsection--
``(i) shall be deposited in the Fund; and
``(ii) shall be available to the Assistant Attorney
General, without further appropriation, for distribution to
persons in the United States harmed by the applicable violation
of the Sherman Act (15 U.S.C. 1 et seq.).
``(4) Effective on the day after the date that is 10 years after
the date on which an award is received under this subsection, the
unobligated balances in the Fund of amounts that were received under
the award are rescinded and shall be deposited in the general fund of
the Treasury.''; and
(2) in subsection (f), as so redesignated by section 501 of
this Act--
(A) by redesignating paragraphs (1) and (2) as
paragraphs (2) and (3), respectively; and
(B) by inserting before paragraph (1) the
following:
``(1) the term `Assistant Attorney General' means the
Assistant Attorney General in charge of the Antitrust Division
of the Department of Justice;''.
SEC. 508. CIVIL FINES FOR KNOWING VIOLATIONS OF THE ANTITRUST LAWS.
Section 4 of the Clayton Act (15 U.S.C. 15), is amended by
inserting after subsection (d), as added by section 507 of this Act,
the following:
``(e)(1) In this subsection, the term `covered antitrust laws'
means any provision of the antitrust laws, other than section 7 of this
Act.
``(2)(A) In an action brought by the Assistant Attorney General in
an appropriate district court of the United States, the court may
impose a civil fine against any person who engaged in a knowing
violation of any provision of the covered antitrust laws.
``(B) The maximum amount of a civil fine imposed on a person under
subparagraph (A) shall be 15 percent of the total of the gross income
of the person from the line of business at issue during each year
during which the person engaged in the violation.
``(3) A civil fine under paragraph (2) shall be in addition to any
damages awarded or other remedy imposed in connection with the
violation of the provision of the covered antitrust laws.''.
SEC. 509. DIRECT EVIDENCE OF INTENT TO AVOID OR RESTRICT COMPETITION.
The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting
after section 28, as added by section 506 of this Act, the following:
``SEC. 29. DIRECT EVIDENCE OF INTENT TO AVOID OR RESTRICT COMPETITION.
``In any civil action brought under this Act or the Sherman Act (15
U.S.C. 1 et seq.), if there is direct evidence that the conduct or
transaction at issue was undertaken with the clear intent to harm or
prevent competition, which shall not require proof that the person
knowingly violated the antitrust laws, the court shall deem the conduct
or transaction to be anticompetitive.''.
SEC. 510. LIMIT ON CONTRACTING.
The head of an Executive agency may not award a contract for the
procurement of goods or services to any person that has been found by a
trier of fact in a court of competent jurisdiction to have violated any
of the antitrust laws, except for section 7 of the Clayton Act (15
U.S.C. 18), on or after the date that is 5 years before the date on
which the procurement process for the goods or services begins.
SEC. 511. PROHIBITING DISCRIMINATION IN DISTRIBUTION.
The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting
after section 29, as added by section 509 of this Act, the following:
``SEC. 30. PROHIBITING DISCRIMINATION IN DISTRIBUTION.
``(a) Definitions.--In this section:
``(1) Distributed product.--The term `distributed product'
means a good or service that is distributed by a person other
than the person which manufactures or provides the good or
service.
``(2) Distribution market.--The term `distribution market'
means the geographic and product markets for the distribution
of a distributed product.
``(b) Discrimination by Persons With Monopoly Power.--A person with
monopoly power in a distribution market, that also offers a product or
service that competes with a distributed product in the distribution
market in which it has monopoly power, may not engage in discrimination
in that distribution market that harms competition in the market for
the distributed product.''.
SEC. 512. AUTHORIZATIONS OF APPROPRIATIONS.
There is authorized to be appropriated for the Antitrust Division
of the Department of Justice $600,000,000 for fiscal year 2022.
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