Merger Filing Fee Modernization Act of 2022

II 117TH CONGRESS 2D SESSION H. R. 3843 IN THE SENATE OF THE UNITED STATES OCTOBER 11, 2022 Received AN ACT To protect competition and promote antitrust enforcement by adjusting premerger filing fees to increase antitrust enforcement resources. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 2 HR 3843 RDS SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1 (a) SHORT TITLE.—This Act may be cited as the 2 ‘‘Merger Filing Fee Modernization Act of 2022’’. 3 (b) TABLE OF CONTENTS.—The table of contents of 4 this Act is as follows: 5 Sec. 1. Short title; table of contents. TITLE I—MODERNIZING MERGER FILING FEE COLLECTIONS; ACCOUNTABILITY REQUIREMENTS; LIMITATION ON FUNDING Sec. 101. Modification of premerger notification filing fees. Sec. 102. Reporting requirements for merger fee collections. TITLE II—DISCLOSURE OF SUBSIDIES BY FOREIGN ADVERSARIES Sec. 201. Findings and purpose. Sec. 202. Mergers involving foreign government subsidies. TITLE III—VENUE FOR STATE ANTITRUST ENFORCEMENT Sec. 301. Venue for State Antitrust Enforcement. TITLE I—MODERNIZING MERG- 6 ER FILING FEE COLLEC- 7 TIONS; ACCOUNTABILITY RE- 8 QUIREMENTS; LIMITATION 9 ON FUNDING 10 SEC. 101. MODIFICATION OF PREMERGER NOTIFICATION 11 FILING FEES. 12 Section 605 of Public Law 101–162 (15 U.S.C. 18a 13 note) is amended— 14 (1) in subsection (b)— 15 (A) in paragraph (1)— 16 (i) by striking ‘‘$45,000’’ and insert- 17 ing ‘‘$30,000’’; 18 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 3 HR 3843 RDS (ii) by striking ‘‘$100,000,000’’ and 1 inserting ‘‘$161,500,000’’; 2 (iii) by striking ‘‘2004’’ and inserting 3 ‘‘2023’’; and 4 (iv) by striking ‘‘2003’’ and inserting 5 ‘‘2022’’; 6 (B) in paragraph (2)— 7 (i) by striking ‘‘$125,000’’ and insert- 8 ing ‘‘$100,000’’; 9 (ii) by striking ‘‘$100,000,000’’ and 10 inserting ‘‘$161,500,000’’; 11 (iii) by striking ‘‘but less’’ and insert- 12 ing ‘‘but is less’’; and 13 (iv) by striking ‘‘and’’ at the end; 14 (C) in paragraph (3)— 15 (i) by striking ‘‘$280,000’’ and insert- 16 ing ‘‘$250,000’’; and 17 (ii) by striking the period at the end 18 and inserting ‘‘but is less than 19 $1,000,000,000 (as so adjusted and pub- 20 lished);’’; and 21 (D) by adding at the end the following: 22 ‘‘(4) $400,000 if the aggregate total amount 23 determined under section 7A(a)(2) of the Clayton 24 Act (15 U.S.C. 18a(a)(2)) is not less than 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 4 HR 3843 RDS $1,000,000,000 (as so adjusted and published) but 1 is less than $2,000,000,000 (as so adjusted and 2 published); 3 ‘‘(5) $800,000 if the aggregate total amount 4 determined under section 7A(a)(2) of the Clayton 5 Act (15 U.S.C. 18a(a)(2)) is not less than 6 $2,000,000,000 (as so adjusted and published) but 7 is less than $5,000,000,000 (as so adjusted and 8 published); and 9 ‘‘(6) $2,250,000 if the aggregate total amount 10 determined under section 7A(a)(2) of the Clayton 11 Act (15 U.S.C. 18a(a)(2)) is not less than 12 $5,000,000,000 (as so adjusted and published).’’; 13 and 14 (2) by adding at the end the following: 15 ‘‘(c)(1) For each fiscal year commencing after Sep- 16 tember 30, 2023, the filing fees in this section shall be 17 increased by an amount equal to the percentage increase, 18 if any, in the Consumer Price Index, as determined by 19 the Department of Labor or its successor, for the year 20 then ended over the level so established for the year ending 21 September 30, 2022. 22 ‘‘(2) As soon as practicable, but not later than Janu- 23 ary 31 of each year, the Federal Trade Commission shall 24 publish the adjusted amounts required by paragraph (1). 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 5 HR 3843 RDS ‘‘(3) The Federal Trade Commission shall not adjust 1 amounts required by paragraph (1) if the percentage in- 2 crease described in paragraph (1) is less than 1 percent. 3 ‘‘(4) An amount adjusted under this section shall be 4 rounded to the nearest multiple of $5,000.’’. 5 SEC. 102. REPORTING REQUIREMENTS FOR MERGER FEE 6 COLLECTIONS. 7 (a) FTC AND DOJ JOINT REPORT.—For each of fis- 8 cal years 2023 through 2027, the Federal Trade Commis- 9 sion and Department of Justice shall jointly and annually 10 report to the Congress on the operation of section 7A of 11 the Clayton Act (15 U.S.C. 18a) and shall include in such 12 report the following: 13 (1) The amount of funds made available to the 14 Federal Trade Commission and the Department of 15 Justice, respectively, from the premerger notification 16 filing fees under this section, as adjusted by the 17 Merger Filing Fee Modernization Act of 2022, as 18 compared to the funds made available to the Federal 19 Trade Commission and the Department of Justice, 20 respectively, from premerger notification filing fees 21 as the fees were determined in fiscal year 2022. 22 (2) The total revenue derived from premerger 23 notification filing fees, by tier, by the Federal Trade 24 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 6 HR 3843 RDS Commission and the Department of Justice, respec- 1 tively. 2 (3) The gross cost of operations of the Federal 3 Trade Commission, by Budget Activity, and the 4 Antitrust Division of the Department of Justice, re- 5 spectively. 6 (b) FTC REPORT.—The Federal Trade Commission 7 shall include in the report required under subsection (a), 8 in addition to the requirements under subsection (a), for 9 the previous fiscal year— 10 (1) for actions with respect to which the record 11 of the vote of each member of the Federal Trade 12 Commission is on the public record of the Federal 13 Trade Commission, a list of each action with respect 14 to which the Federal Trade Commission took or de- 15 clined to take action on a 3 to 2 vote; and 16 (2) for all actions for which the Federal Trade 17 Commission took a vote, the percentage of such ac- 18 tions that were decided on a 3 to 2 vote. 19 (c) SUMMARY.—The Federal Trade Commission and 20 the Department of Justice shall make the report required 21 under subsection (a) available to the Committees on the 22 Judiciary of the House of Representatives and of the Sen- 23 ate, and shall, for fiscal years 2023 through 2027, no later 24 than July 1, present a summary of the joint annual report 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 7 HR 3843 RDS for the preceding fiscal year, including the information re- 1 quired in subsections (a) and (b) of this section, to the 2 Committees on the Judiciary of the House of Representa- 3 tives and of the Senate. 4 TITLE II—DISCLOSURE OF SUB- 5 SIDIES BY FOREIGN ADVER- 6 SARIES 7 SEC. 201. FINDINGS AND PURPOSE. 8 (a) FINDINGS.—Congress finds the following: 9 (1) Foreign subsidies, which can take the form 10 of direct subsidies, grants, loans (including below- 11 market loans), loan guarantees, tax concessions, 12 preferential government procurement policies, or 13 government ownership or control, can distort the 14 competitive process by enabling the subsidized firm 15 to submit a bid higher than other firms in the mar- 16 ket, or otherwise change the incentives of the firm 17 in ways that undermine competition following an ac- 18 quisition. 19 (2) Foreign subsidies are particularly problem- 20 atic when granted by countries or entities that con- 21 stitute a strategic or economic threat to United 22 States interests. 23 (3) The Made in China 2025 plan, states that 24 the Chinese Communist Party will ‘‘support enter- 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 8 HR 3843 RDS prises to carry out mergers and acquisitions (M&A), 1 equity investment, and venture capital overseas’’. 2 (4) The 2020 report to Congress from the bi- 3 partisan U.S.-China Economic and Security Review 4 Commission concluded that the Chinese Government 5 subsidizes companies with a goal of their expanding 6 into the United States and other countries, finding 7 that ‘‘[t]his process assists Chinese national cham- 8 pions in surpassing and supplanting global market 9 leaders’’. The report warns that the risk is particu- 10 larly acute when it comes to emerging technologies, 11 where China seeks to ‘‘surpass and displace the 12 United States altogether [and that] [f]ailure to ap- 13 preciate the gravity of this challenge and defend 14 U.S. competitiveness would be dire . . . [and] risks 15 setting back U.S. economic and technological 16 progress for decades’’. 17 (5) In remarks before the Hudson Institute on 18 December 8, 2020, FTC Commissioner Noah Phil- 19 lips stated, ‘‘[O]ne area where antitrust needs to 20 reckon with the strategic interests of other nations 21 is when we scrutinize mergers or conduct involving 22 state-owned entities . . . companies that are con- 23 trolled, to varying degrees, by the state . . . [and] 24 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 9 HR 3843 RDS often are a government tool for implementing indus- 1 trial policies or to protect national security’’. 2 (b) PURPOSE.—The purpose of this section is to re- 3 quire parties providing pre-merger notifications to include 4 in the notification required under section 7A of the Clay- 5 ton Act (15 U.S.C. 18a) information concerning subsidies 6 they receive from countries or entities that are strategic 7 or economic threats to the United States. 8 SEC. 202. MERGERS INVOLVING FOREIGN GOVERNMENT 9 SUBSIDIES. 10 (a) DEFINITION.—In this section, the term ‘‘foreign 11 entity of concern’’ has the meaning given the term in sec- 12 tion 40207 of the Infrastructure Investment and Jobs Act 13 (42 U.S.C. 18741(a)). 14 (b) ACCOUNTING FOR FOREIGN GOVERNMENT SUB- 15 SIDIES.—A person required to file a notification under 16 section 7A of the Clayton Act (15 U.S.C. 18a) that re- 17 ceived a subsidy from a foreign entity of concern shall in- 18 clude in such notification content regarding such subsidy. 19 (c) AUTHORITY OF ANTITRUST REGULATORS.—The 20 Federal Trade Commission, with the concurrence of the 21 Assistant Attorney General in charge of the Antitrust Di- 22 vision of the Department of Justice, and in consultation 23 with the Chairperson of the Committee on Foreign Invest- 24 ment in the United States, the Secretary of Commerce, 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 10 HR 3843 RDS the Chair of the United States International Trade Com- 1 mission, the United States Trade Representative, and the 2 heads of other appropriate agencies, and by rule in accord- 3 ance with section 553 of title 5, United States Code, shall 4 require that the notification required under subsection (b) 5 be in such form and contain such documentary material 6 and information relevant to a proposed acquisition as is 7 necessary and appropriate to enable the Federal Trade 8 Commission and the Assistant Attorney General in charge 9 of the Antitrust Division of the Department of Justice to 10 determine whether such acquisition may, if consummated, 11 violate the antitrust laws. 12 (d) EFFECTIVE DATE.—Subsection (b) shall take ef- 13 fect on the date on which the rule described in subsection 14 (c) takes effect. 15 TITLE III—VENUE FOR STATE 16 ANTITRUST ENFORCEMENT 17 SEC. 301. VENUE FOR STATE ANTITRUST ENFORCEMENT. 18 Section 1407 of title 28, United States Code, is 19 amended— 20 (1) in subsection (g) by inserting ‘‘or a State’’ 21 after ‘‘United States’’ and striking ‘‘; but shall not 22 include section 4A of the Act of October 15, 1914, 23 as added July 7, 1955 (69 Stat. 282; 15 U.S.C. 24 15a)’’; and 25 VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS 11 HR 3843 RDS (2) by striking subsection (h). 1 Passed the House of Representatives September 29, 2022. Attest: CHERYL L. JOHNSON, Clerk. VerDate Sep 11 2014 02:04 Jan 04, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3843.RDS H3843 kjohnson on DSK79L0C42PROD with BILLS