II 116th CONGRESS 2d Session S. 4918 IN THE SENATE OF THE UNITED STATES November 18, 2020 Mr. Lee 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.

1. Short title This Act may be cited as the One Agency Act . 2. Findings Congress finds the following: (1) It is the policy of the United States to promote the vigorous, effective, and efficient enforcement of the antitrust laws. (2) The overlapping antitrust enforcement jurisdiction of the Department of Justice and the Federal Trade Commission has wasted taxpayer resources, hampered enforcement efforts, and caused uncertainty for businesses and consumers in the United States. (3) It is preferable that primary Federal responsibility for enforcing the antitrust laws of the United States be given to a single agency, and the Department of Justice is best suited to do so. 3. Definitions In this Act: (1) Antitrust laws The term antitrust laws means— (A) the Sherman Act ( 15 U.S.C. 1 et seq.); and (B) the Clayton Act ( 15 U.S.C. 12 et seq.). (2) Assistant attorney general The term Assistant Attorney General means the Assistant Attorney General for the Antitrust Division of the Department of Justice. (3) Commission The term Commission means the Federal Trade Commission. (4) Effective date The term effective date means the date described in section 6. (5) FTC antitrust action The term FTC antitrust action means any litigation or administrative proceeding initiated by the Commission that— (A) is supervised by an FTC Antitrust Unit; or (B) relates to the antitrust laws or section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as in effect on the day before the effective date. (6) FTC antitrust assets The term FTC antitrust assets — (A) means all electronic or tangible records and files relating to matters supervised, as well as any physical assets or equipment owned and used or retained, by an FTC Antitrust Unit; and (B) does not include any office space or leased facilities or equipment. (7) FTC antitrust employee The term FTC antitrust employee means an individual who on the day before the effective date is employed by the Federal Trade Commission and assigned to an FTC Antitrust Unit. (8) FTC antitrust function The term FTC antitrust function means a function of the Commission relating to the antitrust laws or unfair methods of competition under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as in effect on the day before the effective date. (9) FTC antitrust funding The term FTC antitrust funding means— (A) all amounts appropriated before the effective date by an Act of Congress to the Federal Trade Commission that are designated, by Congress or the Commission, for an FTC Antitrust Unit; and (B) all fees collected by the Federal Trade Commission before the effective date under section 7A of the Clayton Act ( 15 U.S.C. 18a ) and rules issued under that section. (10) FTC Antitrust Unit The term FTC Antitrust Unit means— (A) the Bureau of Competition of the Commission; and (B) each division of the Bureau of Economics of the Commission that is designated to work on FTC antitrust actions. (11) Function The term function means any duty, obligation, power, authority, responsibility, right, privilege, activity, or program. (12) Transition period The term transition period means the period beginning on the effective date of this Act and ending on the later of— (A) the date that is 1 year after the effective date of this Act; or (B) the date that is 180 days after the date described in subparagraph (A), which may be extended by the Assistant Attorney General once for an additional 180 days, if the Assistant Attorney General determines that a period longer than the period described in subparagraph (A) is necessary to avoid harm to the interests of the United States or the effective enforcement of the antitrust laws. 4. Transfer of antitrust enforcement functions from the Federal Trade Commission to the Department of Justice (a) Transfer of functions (1) In general Except as provided in paragraph (3)(D), there shall be transferred to the Department of Justice all FTC antitrust functions, FTC antitrust employees, FTC antitrust assets, and FTC antitrust funding on the earlier of— (A) the date determined by the Assistant Attorney General under paragraph (2)(B); or (B) the end of the transition period. (2) Requirement The Assistant Attorney General, taking care to minimize disruption to ongoing enforcement matters and in consultation as necessary with the Attorney General, the Office of Personnel Management, the General Services Administration, and the Chairman of the Commission, shall— (A) take all necessary actions to complete implementation of this Act before the end of the transition period; and (B) determine the dates certain, which may not be earlier than the effective date nor later than the end of the transition period, on which the transfers under paragraph (1) shall occur. (3) Personnel (A) Assignment An FTC antitrust employee transferred to the Department of Justice under this Act shall be assigned to the Antitrust Division of the Department of Justice. (B) Effect on personnel Except as provided in subparagraph (C), the transfer under this Act of an FTC antitrust employee shall not cause the employee to be separated or reduced in grade or compensation for 1 year after the transfer date. (C) Executive schedule Notwithstanding subparagraph (B), the Assistant Attorney General may appoint an FTC antitrust employee in a Senior Executive Service position, as defined in section 3132 of title 5, United States Code, to a position within the Antitrust Division rate payable for a position at level 15, step 10 of the General Schedule. (D) Voluntary nontransfer of personnel Notwithstanding paragraph (1), an FTC antitrust employee may, with the consent of the Chairman of the Commission, elect to remain an employee of the Commission assigned to a non-FTC Antitrust Unit. (E) Office space Upon request from the Assistant Attorney General, and in consultation as necessary with the General Services Administration, the Commission shall allow the Department of Justice to use any office space or leased facilities previously used by FTC antitrust employees until such time as the Department of Justice may provide its own office space or facilities. After the transfer of FTC antitrust funding to the Department of Justice, the Department of Justice shall compensate the Commission for the costs of the use of such office space or leased facilities. (F) Restructuring Notwithstanding any other provision of law, the Assistant Attorney General is authorized to restructure the Antitrust Division before the expiration of the transition period, as the Assistant Attorney General determines is appropriate, to carry out the purposes of this Act and accomplish the efficient enforcement of the antitrust laws. (4) Antitrust actions (A) In general As soon as is reasonably practicable during the transition period, all open investigations, litigations, matters, or other proceedings being supervised by an FTC antitrust unit and relating to the antitrust laws or unfair methods of competition under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as in effect on the day before the effective date, shall be transferred to and assumed by the Department of Justice. (B) Handling of certain administrative proceedings Administrative proceedings that were initiated by the Commission, were unresolved as of the first day of the transition period, and relate to enforcement of the antitrust laws or unfair methods of competition under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as in effect on the day before the effective date, shall be treated in the following manner: (i) Any such proceeding pending before an administrative law judge shall be dismissed without prejudice and the matter shall be referred to the Assistant Attorney General. (ii) For any such proceeding pending on appeal before the Commission, the administrative appeal shall cease, the ruling of the administrative law judge shall be treated as the final decision of the Commission, and the Court of Appeals for the District of Columbia Circuit shall have jurisdiction over any appeal therefrom. (C) Intervention (i) In general In any FTC antitrust action before a court of the United States as of the first day of the transition period, the court shall allow the Department of Justice to— (I) intervene and assume representation of the Federal Government from the Commission; and (II) amend any complaint originally brought by the Commission for the purpose of alleging violations of statutes other than the Federal Trade Commission Act as necessary and where appropriate. (ii) Scheduling order upon request Upon the request of the Commission or the Department of Justice, and in consultation with all parties to the matter, the court shall issue an order making such scheduling adjustments as necessary to facilitate the transfer of prosecutorial responsibilities under this subparagraph. (D) Consent decrees At the end of the transition period, the Department of Justice shall have sole authority to enforce violations of, approve modifications to, or rescind any consent decree entered into by the Commission before the effective date that concerns conduct alleged to violate the antitrust laws or unfair methods of competition under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as in effect on the day before the effective date. (5) Authority to conduct investigative studies (A) Reports of persons, partnerships, and corporations (i) In general The Department of Justice may require, by general or special orders, persons, partnerships, and corporations, engaged in or whose business affects commerce to file with the Department in such form as the Department may prescribe annual or special reports or answers in writing to specific questions, furnishing to the Department such information as the Department may require as to the organization, business, conduct, practices, management, and relation to other corporations, partnerships, and individuals of the respective persons, partnerships, and corporations filing such reports or answers in writing. (ii) Oath Reports and answers required under clause (i) shall— (I) be made under oath or otherwise as the Department may prescribe; (II) pertain solely to competition or the application of the antitrust laws; and (III) be filed with the Department within such reasonable period as the Department may prescribe, unless additional time be granted in any case by the Department. (B) Publication of information or reports (i) In general Except as provided in clause (ii), the Department of Justice— (I) shall make public from time to time such portions of the information obtained by the Department under this paragraph as are in the public interest; (II) may make annual and special reports to Congress that include recommendations for additional legislation; and (III) shall provide for the publication of reports and decisions of the Department in such form and manner as may be best adapted for public information and use. (ii) Prohibition against publication of privileged or confidential information (I) In general Except as provided in subclause (II), the Department of Justice shall not make public any trade secret or any commercial or financial information that is obtained from any person and that is privileged or confidential. (II) Exception The Department may disclose information described in subclause (I) to— (aa) officers and employees of appropriate Federal law enforcement agencies or to any officer or employee of any State law enforcement agency upon the prior certification of an officer of any such Federal or State law enforcement agency that such information will be maintained in confidence and will be used only for official law enforcement purposes; or (bb) any officer or employee of any foreign law enforcement agency under the same circumstances that making material available to foreign law enforcement agencies is permitted under section 21(b) of the Federal Trade Commission Act ( 15 U.S.C. 57b–2(b) ). (6) Benefit of Antitrust Division All FTC antitrust assets and FTC antitrust funding transferred under this subsection shall be for the exclusive use and benefit of the Antitrust Division of the Department of Justice. (b) Transition period (1) In general Except as provided in paragraph (2), beginning on the effective date, the Commission may not— (A) hire or assign an employee to an FTC Antitrust Unit; (B) open a new investigation or matter within an FTC Antitrust Unit or relating to antitrust enforcement; (C) without the approval of the Assistant Attorney General, enter into a consent decree, enter into a settlement agreement, or otherwise resolve an FTC antitrust action; or (D) initiate a new FTC antitrust action. (2) Enforcement on behalf of the department of justice Notwithstanding paragraph (1), during the transition period, the Assistant Attorney General may deputize an FTC Antitrust Employee to investigate or prosecute an alleged violation of the antitrust laws on behalf of the Department of Justice before the completion of the transfer of personnel under subsection (a)(3). (3) Same rights and obligations (A) In general Notwithstanding any other provision of law, during the transition period all Department of Justice employees under the supervision of the Assistant Attorney General shall have the same rights and obligations with respect to confidential information submitted to the Commission as FTC antitrust employees on the day before the effective date. (B) Rule of construction Nothing in this paragraph may be construed as implying any change to the rights and obligations described in subparagraph (A) as a result of this Act. (c) Agreements The Assistant Attorney General, in consultation with the Chairman of the Commission, shall— (1) review any agreements between the Commission and any other Federal agency or any foreign law enforcement agency; and (2) before the end of the transition period, seek to amend, transfer, or rescind such agreements as necessary and appropriate to carry out this Act, endeavoring to complete such amendment, transfer, or rescindment with all due haste. (d) Rules The Attorney General shall, pursuant to section 7A of the Clayton Act ( 15 U.S.C. 18a ) and in accordance with section 553 of title 5, United States Code, prescribe or amend any rules as necessary to carry out this Act. 5. Technical and conforming amendments (a) Clayton Act The Clayton Act ( 15 U.S.C. 12 et seq.) is amended— (1) in section 2 ( 15 U.S.C. 13 )— (A) in subsection (a), by striking Federal Trade Commission and inserting Attorney General of the United States ; and (B) in subsection (b), by striking Commission and inserting Attorney General of the United States ; (2) in section 5(a) ( 15 U.S.C. 16(a) ), in the second sentence, by striking , except that, in any action or proceeding brought under the antitrust laws, collateral estoppel effect shall not be given to any finding made by the Federal Trade Commission under the antitrust laws or under section 5 of the Federal Trade Commission Act which could give rise to a claim for relief under the antitrust laws ; (3) in section 7 ( 15 U.S.C. 18 )— (A) in the first undesignated paragraph, by striking and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce ; and (B) in the second undesignated paragraph, by striking and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of one or more persons engaged in commerce or in any activity affecting commerce ; (4) in section 7A ( 15 U.S.C. 18a )— (A) in subsection (b)— (i) in paragraph (1)(A), in the matter preceding clause (i), by striking the Federal Trade Commission and ; and (ii) in paragraph (2), by striking Federal Trade Commission and the ; (B) in subsection (c)— (i) in paragraph (6), by striking the Federal Trade Commission and ; and (ii) in paragraph (8), by striking the Federal Trade Commission and ; (C) in subsection (d)— (i) in the matter preceding paragraph (1), by striking Federal Trade Commission, with the concurrence of the Assistant Attorney General and and inserting Attorney General of the United States ; and (ii) in paragraph (1), by striking the Federal Trade Commission and ; (D) in subsection (e)— (i) in paragraph (1)— (I) in subparagraph (A), by striking Federal Trade Commission or the ; and (II) in subparagraph (B), by striking and the Federal Trade Commission shall each and inserting shall ; and (ii) in paragraph (2)— (I) by striking Federal Trade Commission or the ; (II) by striking its or’ ; (III) by striking the Federal Trade Commission or each place the term appears; and (IV) by striking , as the case may be, ; (E) in subsection (f)— (i) by striking the Federal Trade Commission, alleging that a proposed acquisition violates section 7 of this Act or section 5 of the Federal Trade Commission Act, or an action is filed by ; and (ii) by striking the Federal Trade Commission or ; (F) in subsection (g)(2), in the matter following subparagraph (C), by striking the Federal Trade Commission or ; (G) in subsection (h), by striking or the Federal Trade Commission ; and (H) in subsection (i)— (i) in paragraph (1), by striking the Federal Trade Commission or each place the term appears; and (ii) in paragraph (2)— (I) by striking or the Federal Trade Commission ; and (J) by striking , the Federal Trade Commission Act, ; and (5) in section 8(a)(5) ( 15 U.S.C. 19(a)(5) ), in the second sentence, by striking Federal Trade Commission and inserting Attorney General of the United States . (b) Charitable Gift Annuity Antitrust Relief Act of 1995 Section 3(1) of the Charitable Gift Annuity Antitrust Relief Act of 1995 ( 15 U.S.C. 37a(1) ) is amended by striking , except that such term includes section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ) to the extent that such section 5 applies to unfair methods of competition . (c) Pension Funding Equity Act of 2004 Section 207(b)(1)(A)(i) of the Pension Funding Equity Act of 2004 ( 15 U.S.C. 37b(b)(1)(A)(i) ) is amended by striking , except that such term includes section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ) to the extent such section 5 applies to unfair methods of competition . (d) Federal Trade Commission Act The Federal Trade Commission Act ( 15 U.S.C. 41 et seq.) is amended— (1) in section 5 ( 15 U.S.C. 45 )— (A) in subsection (a)— (i) in paragraph (1), by striking methods of competition in or affecting commerce, and unfair ; (ii) by striking paragraph (3); and (iii) by redesignating paragraph (4) as paragraph (3); (B) in subsection (b)— (i) in the first sentence, by striking unfair method of competition or ; and (ii) in the fifth sentence— (I) by striking the method of competition or ; and (II) by striking method of competition or such ; (C) in subsection (c)— (i) in the first sentence— (I) by striking method of competition or ; and (II) by striking method of competition or the ; and (ii) in the third sentence, by striking or to competitors ; (D) by striking subsection (e); (E) in subsection (g), by striking paragraph (4); and (F) in subsection (n), in the first sentence, by striking or to competition ; (2) in section 6 ( 15 U.S.C. 46 )— (A) by striking subsections (c) through (e) and (i); (B) by redesignating— (i) subsections (f), (g), and (h) as subsections (c) through (e), respectively; and (ii) subsections (j) through (l) as subsections (f) through (h), respectively; (C) in subsection (f)(1), as so redesignated, by striking other than Federal antitrust laws (as defined in section 12(5) of the International Antitrust Enforcement Assistance Act of 1994 ( 15 U.S.C. 6211(5) )), ; and (D) in subsection (h)(2), as so redesignated, in the matter preceding subparagraph (A), by striking or competition ; (3) by repealing section 7 ( 15 U.S.C. 47 ); (4) in section 11 ( 15 U.S.C. 51 ), by striking antitrust Acts or the each place the term appears; (5) in section 18 ( 15 U.S.C. 57a(a)(2) ), by striking the second sentence; (6) in section 20 ( 15 U.S.C. 57b–1 )— (A) in subsection (a)— (i) in paragraph (2), by striking or in any antitrust violations ; (ii) in paragraph (3), by striking or any provisions relating to antitrust violations ; (iii) in paragraph (7), by striking or any antitrust violation ; and (iv) by striking paragraph (8); (B) in subsection (c)(1), by striking or to antitrust violations, ; and (C) in subsection (j)(1), by striking , any proceeding under section 11(b) of the Clayton Act ( 15 U.S.C. 21(b) ), ; (7) in section 21(b)(6) ( 15 U.S.C. 57b–2(b)(6) ), in the matter following subparagraph (D), by striking paragraphs (5) and (7) and inserting paragraphs (4) and (6) ; and (8) in section 21A ( 15 U.S.C. 57b–2a )— (A) by striking subsection (f); (B) by redesignating subsection (g) as subsection (f); (C) in subsection (f), as so redesignated, by striking subsection (g) each place the term appears and inserting subsection (f) ; and (D) in section 24 ( 15 U.S.C. 57b–5(a) ), by striking for any conduct which, because of the provisions of the Act entitled An Act to authorize association of producers of agricultural products , approved February 18, 1922 ( 7 U.S.C. 291 et seq., commonly known as the Capper-Volstead Act), is not a violation of any of the antitrust Acts or this Act . (e) Webb-Pomerene Act The Webb-Pomerene Act ( 15 U.S.C. 61 et seq.) is amended— (1) by repealing section 4 ( 15 U.S.C. 64 ); and (2) in section 5— (A) in the first undesignated paragraph— (i) in the first sentence, by striking Federal Trade Commission and inserting Attorney General of the United States ; and (ii) in the second sentence, by striking commission each place the term appears and inserting Attorney General of the United States ; (B) in the second undesignated paragraph— (i) in the first sentence, by striking Federal Trade Commission and inserting Attorney General of the United States ; and (ii) by striking the third sentence; and (C) by striking the third undesignated paragraph. (f) Wool Products Labeling Act of 1939 The Wool Products Labeling Act of 1939 ( 15 U.S.C. 68 et seq.) is amended— (1) by striking an unfair method of competition, and each place the term appears; and (2) in section 68g(b), by striking an unfair method of competition and . (g) Fur Products Labeling Act The Fur Products Labeling Act ( 15 U.S.C. 69 et seq.) is amended by striking an unfair method of competition, and each place the term appears. (h) Textile Fiber Products Identification Act The Textile Fiber Products Identification Act ( 15 U.S.C. 70 et seq.) is amended— (1) by striking an unfair method of competition, and each place the term appears; and (2) in section 3 ( 15 U.S.C. 70a ), by striking an unfair method of competition and each place the term appears. (i) Antitrust Civil Process Act Section 4(d) of the Antitrust Civil Process Act ( 15 U.S.C. 1313(d) ) is amended— (1) in paragraph (1), by striking (1) Whoever and inserting Whoever ; and (2) by striking paragraph (2). (j) International Antitrust Enforcement Assistance Act of 1994 The International Antitrust Enforcement Assistance Act of 1994 ( 15 U.S.C. 6201 et seq.) is amended— (1) in section 2 ( 15 U.S.C. 6201 ), in the matter preceding paragraph (1), by striking and the Federal Trade Commission ; (2) in section 3(b) ( 15 U.S.C. 6202(b) ), by striking and the Commission may, using their respective authority to investigate possible violations of the Federal antitrust laws, and inserting may ; (3) in section 5(1) ( 15 U.S.C. 6204(1) ), by striking or the Commission each place the term appears; (4) in section 6 ( 15 U.S.C. 6205 )— (A) by striking or the Commission ; and (B) by striking 6(f) and inserting 6(c) ; (5) in section 7 (15 U.S6206)— (A) by striking , with the concurrence of the Commission, each place the term appears; and (B) in subsection (c)(2)(B), by striking and the Commission ; (6) in section 8 ( 15 U.S.C. 6207 )— (A) by striking Neither the Attorney General nor the Commission may each place the term appears and inserting The Attorney General may not ; (B) in subsection (a), by striking or the Commission, as the case may be, ; (C) in subsection (b), by striking or the Commission ; and (D) in subsection (c)— (i) by striking or the Commission ; and (ii) by striking or the Commission, as the case may be, ; (7) in section 10 ( 15 U.S.C. 6209 )— (A) in subsection (a)— (i) by striking , the Commission, ; and (ii) by striking (a) In General.—The and inserting The ; and (B) by striking subsection (b); (8) in section 12 ( 15 U.S.C. 6211 )— (A) in paragraph (2)— (i) in the matter preceding subparagraph (A)— (I) by striking and the Commission jointly determine and inserting determines ; (II) by striking jointly ; and (III) by striking and the Commission ; (ii) in subparagraph (A)— (I) by striking and the Commission each place the term appears; and (II) by striking provide and inserting provides ; (iii) in subparagraph (E)(ii), in the matter preceding subclause (I), by striking or the Commission, as the case may be, ; (iv) in subparagraph (F)— (I) by striking or the Commission ; and (II) by striking or the Commission, respectively, ; and (v) in subparagraph (H)— (I) in clause (i)— (aa) by striking or the Commission ; and (bb) by striking or the Commission, respectively, ; and (II) in clause (ii), by striking or the Commission each place the term appears; (B) by striking paragraph (4); (C) by redesignating paragraphs (5) through (9) as paragraphs (4) through (8), respectively; and (D) in paragraph (4), as so redesignated, by striking but also includes section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ) to the extent that such section 5 applies to unfair methods of competition ; and (9) in section 13 ( 15 U.S.C. 6212 )— (A) by striking and the Commission are and inserting is ; and (B) by striking or the Commission, respectively, . (k) Medicare Prescription Drug, Improvement, and Modernization Act of 2003 Subtitle B of title XI of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 ( Public Law 108–173 ; 117 Stat. 2461) is amended— (1) in the subtitle heading, by striking Federal Trade Commission and inserting Antitrust ; (2) in section 1111 ( 21 U.S.C. 355 note)— (A) by striking paragraph (8); and (B) by redesignating paragraphs (9) through (12) as paragraphs (8) through (11), respectively; (3) in section 1112(c) ( 21 U.S.C. 355 note), by striking and the Commission each place the term appears; (4) in section 1113 ( 21 U.S.C. 355 note), by striking and the Commission ; (5) in section 1114 ( 21 U.S.C. 355 note), by striking or the Commission ; (6) in section 1115 ( 21 U.S.C. 355 note)— (A) in subsection (a), by striking , or brought by the Commission in accordance with the procedures established in section 16(a)(1) of the Federal Trade Commission Act ( 15 U.S.C. 56(a) ) ; and (B) in subsection (b), by striking or the Commission ; (7) in section 1116 ( 21 U.S.C. 355 note), in the matter preceding paragraph (1), by striking Commission, with the concurrence of the Assistant Attorney General and inserting Attorney General ; and (8) in section 1117 ( 21 U.S.C. 355 note), by striking or the Commission each place the term appears. (l) Other laws For any other provision of law requiring the Assistant Attorney General or the Attorney General to consult with or seek the concurrence of the Commission or the Chairman of the Commission, where such requirement relates to the antitrust laws or unfair methods of competition under section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as in effect on the day before the effective date, that requirement shall be waived. 6. Effective date Except where explicitly provided otherwise, this Act and the amendments made by this Act shall take effect on the start of the first fiscal year that is at least 90 days after the date of enactment of this Act.