[Congressional Record Volume 168, Number 199 (Wednesday, December 21, 2022)]
[Senate]
[Pages S10006-S10007]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 6597. Ms. KLOBUCHAR (for herself and Mr. Lee) submitted an
amendment intended to be proposed to amendment SA 6552 proposed by Mr.
Leahy to the bill H.R. 2617, to amend section 1115 of title 31, United
States Code, to amend the description of how performance goals are
achieved, and for other purposes; which was ordered to lie on the
table; as follows:
Strike division GG and insert the following:
DIVISION GG--MERGER FILING FEE MODERNIZATION
SEC. 101. SHORT TITLE.
This division may be cited as the ``Merger Filing Fee
Modernization Act of 2022''.
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
[[Page S10007]]
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).
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