15 U.S.C. § 18b — Mergers involving foreign government sub-

Page 33 TITLE 15—COMMERCE AND TRADE § 18b Subsec. (c)(8). Pub. L. 106–102, § 133(c)(2), inserted be- fore semicolon at end ‘‘, except that a portion of a transaction is not exempt under this paragraph if such portion of the transaction (A) is subject to section 1843(k) of title 12; and (B) does not require agency ap- proval under section 1843 of title 12’’. 1989—Subsec. (c)(7). Pub. L. 101–73, § 1214(1), inserted reference to section 1467a(e) of title 12. Subsec. (c)(8). Pub. L. 101–73, § 1214(2), struck out ref- erence to section 1726 or 1730a(e) of title 12. 1984—Subsec. (f)(2). Pub. L. 98–620 struck out designa- tion ‘‘(A)’’ before ‘‘upon the filing’’, and struck out sub- par. (B) which had provided that if the Federal Trade Commission or the Assistant Attorney General cer- tified that he or it believed that the public interest re- quired relief pendente lite pursuant to this subsection, the motion for a preliminary injunction had to be set down for hearing by the district judge so designated at the earliest practicable time, would take precedence over all matters except older matters of the same char- acter and trials pursuant to section 3161 of title 18, and had to be in every way expedited. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2000 AMENDMENT Pub. L. 106–553, § 1(a)(2) [title VI, § 630(e)], Dec. 21, 2000, 114 Stat. 2762, 2762A–111, provided that: ‘‘This sec- tion [amending this section and provisions set out as a note under this section] and the amendments made by this section shall take effect on the 1st day of the 1st month that begins more than 30 days after the date of the enactment of this Act [Dec. 21, 2000].’’ EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–102 effective 120 days after Nov. 12, 1999, see section 161 of Pub. L. 106–102, set out as a note under section 24 of Title 12, Banks and Bank- ing. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure. EFFECTIVE DATE Pub. L. 94–435, title II, § 202, Sept. 30, 1976, 90 Stat. 1394, provided that: ‘‘The amendment made by section 201 of this Act [enacting this section] shall take effect 150 days after the date of enactment of this Act [Sept. 30, 1976], except that subsection (d) of section 7A of the Clayton Act [subsec. (d) of this section] (as added by section 201 of this Act) shall take effect on the date of enactment of this Act.’’ DEPARTMENT OF DEFENSE NOTIFICATION OF CERTAIN TRANSACTIONS Pub. L. 118–31, div. A, title VIII, § 857, Dec. 22, 2023, 137 Stat. 346, provided that: ‘‘The parties to a proposed merger or acquisition that will require a review by the Department of Defense who are required to file the no- tification and provide supplementary information to the Department of Justice or the Federal Trade Com- mission under section 7A of the Clayton Act (15 U.S.C. 18a) shall concurrently provide such information to the Department of Defense during the waiting period under section 7A of the Clayton Act (15 U.S.C. 18a).’’ ASSESSMENT AND COLLECTION OF FILING FEES Pub. L. 101–162, title VI, § 605, Nov. 21, 1989, 103 Stat. 1031, as amended by Pub. L. 101–302, title II, May 25, 1990, 104 Stat. 217; Pub. L. 102–395, title I, Oct. 6, 1992, 106 Stat. 1847; Pub. L. 103–317, title I, Aug. 26, 1994, 108 Stat. 1739; Pub. L. 106–553, § 1(a)(2) [title VI, § 630(b)], Dec. 21, 2000, 114 Stat. 2762, 2762A–109; Pub. L. 117–328, div. GG, title I, § 101, Dec. 29, 2022, 136 Stat. 5967, pro- vided that: ‘‘(a) Five working days after enactment of this Act [Nov. 21, 1989] and thereafter, the Federal Trade Com- mission shall assess and collect filing fees established in subsection (b) which shall be paid by persons acquir- ing voting securities or assets who are required to file premerger notifications by the [sic] section 7A of the Clayton Act (15 U.S.C. 18a) and the regulations promul- gated thereunder. For purposes of said Act, no notifica- tion shall be considered filed until payment of the fee required by this section. Fees collected pursuant to this section shall be divided evenly between and cred- ited to the appropriations, Federal Trade Commission, ‘Salaries and Expenses’ and Department of Justice, ‘Salaries and Expenses, Antitrust Division’: Provided, That fees in excess of $40,000,000 in fiscal year 1990 shall be deposited to the credit of the Treasury of the United States: Provided further, That fees made available to the Federal Trade Commission and the Antitrust Divi- sion herein shall remain available until expended. ‘‘(b) The filing fees referred to in subsection (a) are— ‘‘(1) $30,000 if the aggregate total amount deter- mined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is less than $161,500,000 (as adjusted and published for each fiscal year beginning after September 30, 2023, in the same manner as provided in section 8(a)(5) of the Clayton Act (15 U.S.C. 19(a)(5)) to reflect the percentage change in the gross national product for such fiscal year compared to the gross na- tional product for the year ending September 30, 2022); ‘‘(2) $100,000 if the aggregate total amount deter- mined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not less than $161,500,000 (as so ad- justed and published) but is less than $500,000,000 (as so adjusted and published); ‘‘(3) $250,000 if the aggregate total amount deter- mined under section 7A(a)(2) of the Clayton Act (15 U.S.C. 18a(a)(2)) is not less than $500,000,000 (as so ad- justed and published) but is less than $1,000,000,000 (as so adjusted and published); ‘‘(4) $400,000 if the aggregate total amount deter- mined 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 deter- mined 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 deter- mined 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). ‘‘(c)(1) For each fiscal year commencing after Sep- tember 30, 2023, the filing fees in this section shall be increased by an amount equal to the percentage in- crease, if any, in the Consumer Price Index, as deter- mined 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 Janu- ary 31 of each year, the Federal Trade Commission shall publish the adjusted amounts required by para- graph (1). ‘‘(3) The Federal Trade Commission shall not adjust amounts required by paragraph (1) if the percentage in- crease 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.’’ [Another section 101 of div. GG of Pub. L. 117–328 is set out as a note under section 1 of this title.] § 18b. Mergers involving foreign government sub- sidies (a) Definition In this section, the term ‘‘foreign entity of concern’’ has the meaning given the term in sec- tion 18741 of title 42. Page 34 TITLE 15—COMMERCE AND TRADE § 19 (b) Accounting for foreign government subsidies A person required to file a notification under section 18a of this title that received a subsidy from a foreign entity of concern shall include in such notification content regarding such sub- sidy. (c) Authority of antitrust regulators The Federal Trade Commission, with the con- currence of the Assistant Attorney General in charge of the Antitrust Division of the Depart- ment of Justice, and in consultation with the Chairperson of the Committee on Foreign In- vestment in the United States, the Secretary of Commerce, the Chair of the United States Inter- national Trade Commission, the United States Trade Representative, and the heads of other ap- propriate agencies, and by rule in accordance with section 553 of title 5, shall require that the notification required under subsection (b) be in such form and contain such documentary mate- rial and information relevant to a proposed ac- quisition as is necessary and appropriate to en- able the Federal Trade Commission and the As- sistant Attorney General in charge of the Anti- trust Division of the Department of Justice to determine whether such acquisition may, if con- summated, 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. (Pub. L. 117–328, div. GG, title II, § 202, Dec. 29, 2022, 136 Stat. 5970.) Statutory Notes and Related Subsidiaries FINDINGS AND PURPOSE Pub. L. 117–328, div. GG, title II, § 201, Dec. 29, 2022, 136 Stat. 5969, provided that: ‘‘(a) FINDINGS.—Congress finds the following: ‘‘(1) Foreign subsidies, which can take the form of direct subsidies, grants, loans (including below-mar- ket loans), loan guarantees, tax concessions, pref- erential government procurement policies, or govern- ment ownership or control, can distort the competi- tive process by enabling the subsidized firm to submit a bid higher than other firms in the market, or other- wise 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 inter- ests. ‘‘(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 in- vestment, and venture capital overseas’. ‘‘(4) The 2020 report to Congress from the bipartisan U.S.-China Economic and Security Review Commis- sion concluded that the Chinese Government sub- sidizes 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 alto- gether [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. eco- nomic and technological progress for decades’. ‘‘(5) In remarks before the Hudson Institute on De- cember 8, 2020, FTC Commissioner Noah Phillips stat- ed, ‘[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 vary- ing degrees, by the state . . . [and] often are a gov- ernment tool for implementing industrial policies or to protect national security’. ‘‘(b) PURPOSE.—The purpose of this section [probably means ‘‘this title’’, enacting this section and this note] 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 con- cerning subsidies they receive from countries or enti- ties that are strategic or economic threats to the United States.’’ § 19. Interlocking directorates and officers (a)(1) No person shall, at the same time, serve as a director or officer in any two corporations (other than banks, banking associations, and trust companies) that are— (A) engaged in whole or in part in commerce; and (B) by virtue of their business and location of operation, competitors, so that the elimi- nation of competition by agreement between them would constitute a violation of any of the antitrust laws; if each of the corporations has capital, surplus, and undivided profits aggregating more than $10,000,000 as adjusted pursuant to paragraph (5) of this subsection. (2) Notwithstanding the provisions of para- graph (1), simultaneous service as a director or officer in any two corporations shall not be pro- hibited by this section if— (A) the competitive sales of either corpora- tion are less than $1,000,000, as adjusted pursu- ant to paragraph (5) of this subsection; (B) the competitive sales of either corpora- tion are less than 2 per centum of that cor- poration’s total sales; or (C) the competitive sales of each corporation are less than 4 per centum of that corpora- tion’s total sales. For purposes of this paragraph, ‘‘competitive sales’’ means the gross revenues for all products and services sold by one corporation in competi- tion with the other, determined on the basis of annual gross revenues for such products and services in that corporation’s last completed fis- cal year. For the purposes of this paragraph, ‘‘total sales’’ means the gross revenues for all products and services sold by one corporation over that corporation’s last completed fiscal year. (3) The eligibility of a director or officer under the provisions of paragraph (1) shall be deter- mined by the capital, surplus and undivided profits, exclusive of dividends declared but not paid to stockholders, of each corporation at the end of that corporation’s last completed fiscal year. (4) For purposes of this section, the term ‘‘offi- cer’’ means an officer elected or chosen by the Board of Directors. (5) For each fiscal year commencing after Sep- tember 30, 1990, the $10,000,000 and $1,000,000 thresholds in this subsection shall be increased (or decreased) as of October 1 each year by an amount equal to the percentage increase (or de-