[Congressional Record Volume 170, Number 115 (Thursday, July 11, 2024)]
[Senate]
[Page S4978]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2665. Mr. RISCH submitted an amendment intended to be proposed by 
him to the bill S. 4638, to authorize appropriations for fiscal year 
2025 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:

       At the end of subtitle F of title XII, add the following:

     SEC. 1291. PREDATORY PRICING BY ENTITIES OWNED, CONTROLLED, 
                   OR DIRECTED BY A FOREIGN STATE.

       (a) Prohibited Acts.--
       (1) In general.--Any entity owned, controlled, or directed 
     by a foreign state or an agent or instrumentality of a 
     foreign state (as defined in section 1603 of title 28, United 
     States Code) that participates in international commerce may 
     not establish or set prices below the average variable cost 
     in a manner that may foreseeably harm competition.
       (2) Economic support.--In determining the average variable 
     cost under paragraph (1), the court may take into account the 
     effects of economic support provided by the owning or 
     controlling foreign state to the entity on a discriminatory 
     basis that may allow the entity to unfairly price at or below 
     marginal cost.
       (3) Government subsidies.--In determining the 
     foreseeability of the elimination of market competitors under 
     paragraph (1), the court may take into account the 
     aggravating factor of the actions of the foreign state owning 
     or controlling the entity referred to in such paragraph to 
     use government resources to subsidize or underwrite the 
     losses of the entity in a manner that allows the entity to 
     sustain the predatory period and recoup its losses.
       (4) Market power not required.--For the purpose of 
     establishing the elements described in paragraph (1), the 
     plaintiff shall not be required to demonstrate that the 
     defendant has monopoly or market power.
       (b) Recovery of Damages.--Any person (as defined in section 
     1(a) of the Clayton Act (15 U.S.C. 12(a)) whose business or 
     property is injured as a result of the actions of an entity 
     described in subsection (a) shall be entitled to recovery 
     from the defendant for damages and other related costs under 
     section 4 of such Act (15 U.S.C. 15).
       (c) Elements of Prima Facie Case.--A plaintiff may initiate 
     a claim against a defendant in an appropriate Federal court 
     for a violation of subsection (a) in order to recover damages 
     under subsection (b) by--
       (1) establishing, by a preponderance of the evidence, that 
     the defendant--
       (A) is a foreign state or an agency or instrumentality of a 
     foreign state (as defined in section 1603 of title 28, United 
     States Code); and
       (B) is not immune from the jurisdiction of the Federal 
     court pursuant to section 1605(a)(2) of title 28, United 
     States Code; and
       (2) setting forth sufficient evidence to establish a 
     reasonable inference that the defendant has violated 
     subsection (a).
       (d) Court Determination Leading to Evidentiary Burden 
     Shifting to Defendant.--If a Federal court finds that a 
     plaintiff has met its burden of proof under subsection (c), 
     the court may determine that--
       (1) the plaintiff has established a prima facie case that 
     the conduct of the defendant is in violation of subsection 
     (a); and
       (2) the defendant has the burden of rebutting such case by 
     establishing that the defendant is not in violation of 
     subsection (a).
       (e) Filing of Amicus Briefs by the Department of State and 
     Department of Justice Regarding International Comity and Harm 
     to Competition.--
       (1) In general.--For the purposes of considering questions 
     of international comity with respect to making decisions 
     regarding commercial activity and the scope of applicable 
     sovereign immunity, the Federal court may receive and 
     consider relevant amicus briefs filed by the Secretary of 
     State.
       (2) Attorney general.--For the purposes of considering 
     questions regarding assessing potential harm to competition, 
     the Federal court may receive and consider relevant amicus 
     briefs filed by the Attorney General.
       (3) Savings provision.--Nothing in paragraph (1) may be 
     construed to limit the ability of the Federal court to 
     receive and consider any other amicus briefs.
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