Merger Filing Fee Modernization Act of 2022
Bill: H.R.3843 | Sponsor: Rep. Neguse, Joe (D-CO)
Policy area: Commerce

Summary:
Merger Filing Fee Modernization Act of 2022
This bill modifies and expands the schedule for graduated merger filing fees and requires that such fees be adjusted each year based on the Consumer Price Index. It also (1) requires parties to disclose in their premerger notification filings any subsidy received from a foreign entity of concern, (2) modifies the venue rules for multi-district antitrust litigation, and (3) establishes various reporting requirements.

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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Merger Filing Fee 
Modernization Act of 2022''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

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 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 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).

            Passed the House of Representatives September 29, 2022.

            Attest:

                                             CHERYL L. JOHNSON,

                                                                 Clerk.