One Agency Act

II 117TH CONGRESS 1ST SESSION S. 633 To transfer antitrust enforcement functions from the Federal Trade Commission to the Department of Justice, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 9, 2021 Mr. LEE (for himself and Mr. TILLIS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To transfer antitrust enforcement functions from the Federal Trade Commission to the Department of Justice, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘One Agency Act’’. 4 SEC. 2. FINDINGS. 5 Congress finds the following: 6 (1) It is the policy of the United States to pro- 7 mote the vigorous, effective, and efficient enforce- 8 ment of the antitrust laws. 9 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 633 IS (2) The overlapping antitrust enforcement ju- 1 risdiction of the Department of Justice and the Fed- 2 eral Trade Commission has wasted taxpayer re- 3 sources, hampered enforcement efforts, and caused 4 uncertainty for businesses and consumers in the 5 United States. 6 (3) It is preferable that primary Federal re- 7 sponsibility for enforcing the antitrust laws of the 8 United States be given to a single agency, and the 9 Department of Justice is best suited to do so. 10 SEC. 3. DEFINITIONS. 11 In this Act: 12 (1) ANTITRUST LAWS.—The term ‘‘antitrust 13 laws’’ means— 14 (A) the Sherman Act (15 U.S.C. 1 et seq.); 15 and 16 (B) the Clayton Act (15 U.S.C. 12 et 17 seq.). 18 (2) ASSISTANT ATTORNEY GENERAL.—The 19 term ‘‘Assistant Attorney General’’ means the As- 20 sistant Attorney General for the Antitrust Division 21 of the Department of Justice. 22 (3) COMMISSION.—The term ‘‘Commission’’ 23 means the Federal Trade Commission. 24 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 633 IS (4) EFFECTIVE DATE.—The term ‘‘effective 1 date’’ means the date described in section 7. 2 (5) FTC ANTITRUST ACTION.—The term ‘‘FTC 3 antitrust action’’ means any litigation or administra- 4 tive proceeding initiated by the Commission that— 5 (A) is supervised by an FTC Antitrust 6 Unit; or 7 (B) relates to the antitrust laws or section 8 5 of the Federal Trade Commission Act (15 9 U.S.C. 45), as in effect on the day before the 10 effective date. 11 (6) FTC ANTITRUST ASSETS.—The term ‘‘FTC 12 antitrust assets’’— 13 (A) means all electronic or tangible records 14 and files relating to matters supervised, as well 15 as any physical assets or equipment owned and 16 used or retained, by an FTC Antitrust Unit; 17 and 18 (B) does not include any office space or 19 leased facilities or equipment. 20 (7) FTC ANTITRUST EMPLOYEE.—The term 21 ‘‘FTC antitrust employee’’ means an individual who 22 on the day before the effective date is employed by 23 the Federal Trade Commission and assigned to an 24 FTC Antitrust Unit. 25 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 633 IS (8) FTC ANTITRUST FUNCTION.—The term 1 ‘‘FTC antitrust function’’ means a function of the 2 Commission relating to the antitrust laws or unfair 3 methods of competition under section 5 of the Fed- 4 eral Trade Commission Act (15 U.S.C. 45), as in ef- 5 fect on the day before the effective date. 6 (9) FTC ANTITRUST FUNDING.—The term 7 ‘‘FTC antitrust funding’’ means— 8 (A) all amounts appropriated before the ef- 9 fective date by an Act of Congress to the Fed- 10 eral Trade Commission that are designated, by 11 Congress or the Commission, for an FTC Anti- 12 trust Unit; and 13 (B) all fees collected by the Federal Trade 14 Commission before the effective date under sec- 15 tion 7A of the Clayton Act (15 U.S.C. 18a) and 16 rules issued under that section. 17 (10) FTC ANTITRUST UNIT.—The term ‘‘FTC 18 Antitrust Unit’’ means— 19 (A) the Bureau of Competition of the 20 Commission; and 21 (B) each division of the Bureau of Eco- 22 nomics of the Commission that is designated to 23 work on FTC antitrust actions. 24 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 633 IS (11) FUNCTION.—The term ‘‘function’’ means 1 any duty, obligation, power, authority, responsibility, 2 right, privilege, activity, or program. 3 (12) TRANSITION PERIOD.—The term ‘‘transi- 4 tion period’’ means the period beginning on the ef- 5 fective date of this Act and ending on the later of— 6 (A) the date that is 1 year after the effec- 7 tive date of this Act; or 8 (B) the date that is 180 days after the 9 date described in subparagraph (A), which may 10 be extended by the Assistant Attorney General 11 once for an additional 180 days, if the Assist- 12 ant Attorney General determines that a period 13 longer than the period described in subpara- 14 graph (A) is necessary to avoid harm to the in- 15 terests of the United States or the effective en- 16 forcement of the antitrust laws. 17 SEC. 4. TRANSFER OF ANTITRUST ENFORCEMENT FUNC- 18 TIONS FROM THE FEDERAL TRADE COMMIS- 19 SION TO THE DEPARTMENT OF JUSTICE. 20 (a) TRANSFER OF FUNCTIONS.— 21 (1) IN GENERAL.—Except as provided in para- 22 graph (3)(D), there shall be transferred to the De- 23 partment of Justice all FTC antitrust functions, 24 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 633 IS FTC antitrust employees, FTC antitrust assets, and 1 FTC antitrust funding on the earlier of— 2 (A) the date determined by the Assistant 3 Attorney General under paragraph (2)(B); or 4 (B) the end of the transition period. 5 (2) REQUIREMENT.—The Assistant Attorney 6 General, taking care to minimize disruption to ongo- 7 ing enforcement matters and in consultation as nec- 8 essary with the Attorney General, the Office of Per- 9 sonnel Management, the General Services Adminis- 10 tration, and the Chairman of the Commission, 11 shall— 12 (A) take all necessary actions to complete 13 implementation of this Act before the end of the 14 transition period; and 15 (B) determine the dates certain, which 16 may not be earlier than the effective date nor 17 later than the end of the transition period, on 18 which the transfers under paragraph (1) shall 19 occur. 20 (3) PERSONNEL.— 21 (A) ASSIGNMENT.—An FTC antitrust em- 22 ployee transferred to the Department of Justice 23 under this Act shall be assigned to the Anti- 24 trust Division of the Department of Justice. 25 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 633 IS (B) EFFECT ON PERSONNEL.—Except as 1 provided in subparagraph (C), the transfer 2 under this Act of an FTC antitrust employee 3 shall not cause the employee to be separated or 4 reduced in grade or compensation for 1 year 5 after the transfer date. 6 (C) EXECUTIVE SCHEDULE.—Notwith- 7 standing subparagraph (B), the Assistant At- 8 torney General may appoint an FTC antitrust 9 employee in a Senior Executive Service position, 10 as defined in section 3132 of title 5, United 11 States Code, to a position within the Antitrust 12 Division rate payable for a position at level 15, 13 step 10 of the General Schedule. 14 (D) VOLUNTARY NONTRANSFER OF PER- 15 SONNEL.—Notwithstanding paragraph (1), an 16 FTC antitrust employee may, with the consent 17 of the Chairman of the Commission, elect to re- 18 main an employee of the Commission assigned 19 to a non-FTC Antitrust Unit. 20 (E) OFFICE SPACE.—Upon request from 21 the Assistant Attorney General, and in con- 22 sultation as necessary with the General Services 23 Administration, the Commission shall allow the 24 Department of Justice to use any office space 25 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 633 IS or leased facilities previously used by FTC anti- 1 trust employees until such time as the Depart- 2 ment of Justice may provide its own office 3 space or facilities. After the transfer of FTC 4 antitrust funding to the Department of Justice, 5 the Department of Justice shall compensate the 6 Commission for the costs of the use of such of- 7 fice space or leased facilities. 8 (F) RESTRUCTURING.—Notwithstanding 9 any other provision of law, the Assistant Attor- 10 ney General is authorized to restructure the 11 Antitrust Division before the expiration of the 12 transition period, as the Assistant Attorney 13 General determines is appropriate, to carry out 14 the purposes of this Act and accomplish the ef- 15 ficient enforcement of the antitrust laws. 16 (4) ANTITRUST ACTIONS.— 17 (A) IN GENERAL.—As soon as is reason- 18 ably practicable during the transition period, all 19 open investigations, litigations, matters, or 20 other proceedings being supervised by an FTC 21 antitrust unit and relating to the antitrust laws 22 or unfair methods of competition under section 23 5 of the Federal Trade Commission Act (15 24 U.S.C. 45), as in effect on the day before the 25 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 633 IS effective date, shall be transferred to and as- 1 sumed by the Department of Justice. 2 (B) HANDLING OF CERTAIN ADMINISTRA- 3 TIVE PROCEEDINGS.—Administrative pro- 4 ceedings that were initiated by the Commission, 5 were unresolved as of the first day of the tran- 6 sition period, and relate to enforcement of the 7 antitrust laws or unfair methods of competition 8 under section 5 of the Federal Trade Commis- 9 sion Act (15 U.S.C. 45), as in effect on the day 10 before the effective date, shall be treated in the 11 following manner: 12 (i) Any such proceeding pending be- 13 fore an administrative law judge shall be 14 dismissed without prejudice and the matter 15 shall be referred to the Assistant Attorney 16 General. 17 (ii) For any such proceeding pending 18 on appeal before the Commission, the ad- 19 ministrative appeal shall cease, the ruling 20 of the administrative law judge shall be 21 treated as the final decision of the Com- 22 mission, and the Court of Appeals for the 23 District of Columbia Circuit shall have ju- 24 risdiction over any appeal therefrom. 25 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 633 IS (C) INTERVENTION.— 1 (i) IN GENERAL.—In any FTC anti- 2 trust action before a court of the United 3 States as of the first day of the transition 4 period, the court shall allow the Depart- 5 ment of Justice to— 6 (I) intervene and assume rep- 7 resentation of the Federal Govern- 8 ment from the Commission; and 9 (II) amend any complaint origi- 10 nally brought by the Commission for 11 the purpose of alleging violations of 12 statutes other than the Federal Trade 13 Commission Act as necessary and 14 where appropriate. 15 (ii) SCHEDULING ORDER UPON RE- 16 QUEST.—Upon the request of the Commis- 17 sion or the Department of Justice, and in 18 consultation with all parties to the matter, 19 the court shall issue an order making such 20 scheduling adjustments as necessary to fa- 21 cilitate the transfer of prosecutorial re- 22 sponsibilities under this subparagraph. 23 (D) CONSENT DECREES.—At the end of 24 the transition period, the Department of Justice 25 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 633 IS shall have sole authority to enforce violations 1 of, approve modifications to, or rescind any con- 2 sent decree entered into by the Commission be- 3 fore the effective date that concerns conduct al- 4 leged to violate the antitrust laws or unfair 5 methods of competition under section 5 of the 6 Federal Trade Commission Act (15 U.S.C. 45), 7 as in effect on the day before the effective date. 8 (5) AUTHORITY TO CONDUCT INVESTIGATIVE 9 STUDIES.— 10 (A) REPORTS OF PERSONS, PARTNER- 11 SHIPS, AND CORPORATIONS.— 12 (i) IN GENERAL.—The Department of 13 Justice may require, by general or special 14 orders, persons, partnerships, and corpora- 15 tions, engaged in or whose business affects 16 commerce to file with the Department in 17 such form as the Department may pre- 18 scribe annual or special reports or answers 19 in writing to specific questions, furnishing 20 to the Department such information as the 21 Department may require as to the organi- 22 zation, business, conduct, practices, man- 23 agement, and relation to other corpora- 24 tions, partnerships, and individuals of the 25 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 633 IS respective persons, partnerships, and cor- 1 porations filing such reports or answers in 2 writing. 3 (ii) OATH.—Reports and answers re- 4 quired under clause (i) shall— 5 (I) be made under oath or other- 6 wise as the Department may pre- 7 scribe; 8 (II) pertain solely to competition 9 or the application of the antitrust 10 laws; and 11 (III) be filed with the Depart- 12 ment within such reasonable period as 13 the Department may prescribe, unless 14 additional time be granted in any case 15 by the Department. 16 (B) PUBLICATION OF INFORMATION OR 17 REPORTS.— 18 (i) IN GENERAL.—Except as provided 19 in clause (ii), the Department of Justice— 20 (I) shall make public from time 21 to time such portions of the informa- 22 tion obtained by the Department 23 under this paragraph as are in the 24 public interest; 25 VerDate Sep 11 2014 23:27 Apr 03, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S633.IS S633 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 633 IS (II) may make annual and spe- 1 cial reports to Congress that include 2 recommendations for additional legis- 3 lation; and 4 (III) shall provide for the publi- 5 cation of reports and decisions of the 6 Department in such form and manner 7 as may be best adapted for public in- 8 formation and use. 9 (ii) PROHIBITION AGAINST PUBLICA- 10 TION OF PRIVILEGED OR CONFIDENTIAL 11 INFORMATION.— 12 (I) IN GENERAL.—Except as pro- 13 vided in subclause (II), the Depart- 14 ment of Justice shall not make public 15 any trade [Text truncated for display. 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