[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[Senate]
[Pages S5577-S5578]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 6047. Ms. WARREN submitted an amendment intended to be proposed to 
amendment SA 5499 submitted by Mr. Reed (for himself and Mr. Inhofe) 
and intended to be proposed to the bill H.R. 7900, to authorize 
appropriations for fiscal year 2023 for military activities of the 
Department of Defense, for military construction, and for defense 
activities of the Department of Energy, to prescribe military personnel 
strengths for such fiscal year, and for other purposes; which was 
ordered to lie on the table; as follows:


[[Page S5578]]


  

       At the appropriate place in title V, insert the following:

     SEC. _____. DEPARTMENT OF DEFENSE REVIEW OF PROSPECTIVE 
                   COVERED TRANSACTIONS.

       (a) In General.--
       (1) Department notification.--The parties to a covered 
     transaction shall simultaneously file the notification under 
     section 7A of the Clayton Act (15 U.S.C. 18a) with the 
     Department.
       (2) Department assessment.--For each covered transaction, 
     the Department shall--
       (A) assess whether the transaction is likely to harm the 
     public interest; and
       (B) assess whether any divestiture or other structural 
     remedy would likely benefit the public interest, and if so, 
     describe the recommended structural remedy.
       (3) Deadline.--The Department shall determine whether a 
     covered transaction is likely to harm the public interest not 
     later than the end of the waiting period under section 7A of 
     the Clayton Act (15 U.S.C. 18a).
       (4) Additional documentation.--The parties to a covered 
     transaction shall simultaneously provide to the Department 
     any additional documentation or information submitted to the 
     Department of Justice or the Federal Trade Commission during 
     the waiting period under section 7A of the Clayton Act (15 
     U.S.C. 18a).
       (5) Compulsory process.--The Department may use compulsory 
     process, including issuing subpoenas or civil investigative 
     demands, in order to assess the potential impacts of a 
     covered transaction.
       (6) Reporting.--All findings, assessments, and 
     recommendations of the Department described in this 
     subsection shall be reported to the Department of Justice or 
     the Federal Trade Commission, as applicable, and may be 
     reported in the Hart-Scott-Rodino annual reports.
       (b) Standards Regarding Harm to the Public Interest.--
       (1) In general.--Harms to the public interest described in 
     this section include harms to competition, national security, 
     sustainment of the industrial and technological base, 
     innovation, access to critical technologies, the workforce, 
     or talent management in the industrial base.
       (2) Determination.--Notwithstanding any other harms to the 
     public interest that may be determined when evaluating a 
     covered transaction, the Department may determine that the 
     transaction is likely to harm the public interest if--
       (A) any party is a critical trading partner in the supply 
     chains or business ecosystems of the parties;
       (B) any party offers overlapping, competing, or 
     functionally equivalent services or products to those of the 
     major defense supplier;
       (C) the acquiring person would have a market share of 
     greater than 33 percent of any relevant market; or
       (D) the transaction would result in a Herfindahl-Hirschman 
     Index greater than 1,800 in any relevant market and increase 
     the Herfindahl-Hirschman Index by more than 100 in such 
     relevant market.
       (3) Additional considerations.--The Department may use 
     additional considerations when determining whether a covered 
     transaction is likely to harm the public interest.
       (c) Definitions.--In this section:
       (1) Covered transaction.--The term ``covered transaction'' 
     means an actual or proposed merger, acquisition, joint 
     venture, strategic alliance, or investment--
       (A) for which the parties are required to file a 
     notification under section 7A of the Clayton Act (15 U.S.C. 
     18a); and
       (B) any party to the transaction is, owns, or controls a 
     major defense supplier.
       (2) Critical trading partner.--The term ``critical trading 
     partner'' means a person that has the ability to restrict, 
     impede, or foreclose access to its inputs, customers, 
     partners, goods, services, technology, platform, facilities, 
     or tools in a way that harms the competitive process or 
     limits the ability of the customers or suppliers of the 
     person to carry out business effectively.
       (3) Department.--The term ``Department'' means the 
     Department of Defense.
       (4) Major defense supplier.--The term ``major defense 
     supplier'' means--
       (A) any current prime contractor of a major system as 
     defined in section 2302(5), of title 10, United States Code;
       (B) any current prime contractor, under a contract awarded 
     pursuant to section 2304(c)(3), title 10, United States Code, 
     for reasons described in subparagraph (A) of that section; or
       (C) any prime contractor or subcontractor that the 
     Secretary of Defense, the Deputy Secretary of Defense, the 
     Undersecretary of Defense for Acquisition and Sustainment, or 
     the Deputy Assistant Secretary of Defense for Manufacturing 
     and Industrial Base Policy designates as a main source of 
     supply, including any firm that supplies or could supply 
     goods or services directly or indirectly to the Department or 
     any company with technology potentially significant to 
     defense capabilities.
                                 ______