S.Amdt. 6047

1. Adds SEC. _____. DEPARTMENT OF DEFENSE REVIEW OF PROSPECTIVE COVERED TRANSACTIONS at the appropriate place in title V

   Adds a section

   Inserted: SEC. _____. DEPARTMENT OF DEFENSE REVIEW OF PROSPECTIVE COVERED TRANSACTIONS.

   Inserted: (a) In General.--

   Inserted: (1) Department notification.--The parties to a covered transaction shall simultaneously file the notification under section 7A of the Clayton Act (15 U.S.C. 18a) with the Department.

   Inserted: (2) Department assessment.--For each covered transaction, the Department shall--

   Inserted: (A) assess whether the transaction is likely to harm the public interest; and

   Inserted: (B) assess whether any divestiture or other structural remedy would likely benefit the public interest, and if so, describe the recommended structural remedy.

   Inserted: (3) Deadline.--The Department shall determine whether a covered transaction is likely to harm the public interest not later than the end of the waiting period under section 7A of the Clayton Act (15 U.S.C. 18a).

   Inserted: (4) Additional documentation.--The parties to a covered transaction shall simultaneously provide to the Department any additional documentation or information submitted to the Department of Justice or the Federal Trade Commission during the waiting period under section 7A of the Clayton Act (15 U.S.C. 18a).

   Inserted: (5) Compulsory process.--The Department may use compulsory process, including issuing subpoenas or civil investigative demands, in order to assess the potential impacts of a covered transaction.

   Inserted: (6) Reporting.--All findings, assessments, and recommendations of the Department described in this subsection shall be reported to the Department of Justice or the Federal Trade Commission, as applicable, and may be reported in the Hart-Scott-Rodino annual reports.

   Inserted: (b) Standards Regarding Harm to the Public Interest.--

   Inserted: (1) In general.--Harms to the public interest described in this section include harms to competition, national security, sustainment of the industrial and technological base, innovation, access to critical technologies, the workforce, or talent management in the industrial base.

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   Inserted: (2) Determination.--Notwithstanding any other harms to the public interest that may be determined when evaluating a covered transaction, the Department may determine that the transaction is likely to harm the public interest if--

   Inserted: (A) any party is a critical trading partner in the supply chains or business ecosystems of the parties;

   Inserted: (B) any party offers overlapping, competing, or functionally equivalent services or products to those of the major defense supplier;

   Inserted: (C) the acquiring person would have a market share of greater than 33 percent of any relevant market; or

   Inserted: (D) the transaction would result in a Herfindahl-Hirschman Index greater than 1,800 in any relevant market and increase the Herfindahl-Hirschman Index by more than 100 in such relevant market.

   Inserted: (3) Additional considerations.--The Department may use additional considerations when determining whether a covered transaction is likely to harm the public interest.

   Inserted: (c) Definitions.--In this section:

   Inserted: (1) Covered transaction.--The term "covered transaction" means an actual or proposed merger, acquisition, joint venture, strategic alliance, or investment--

   Inserted: (A) for which the parties are required to file a notification under section 7A of the Clayton Act (15 U.S.C. 18a); and

   Inserted: (B) any party to the transaction is, owns, or controls a major defense supplier.

   Inserted: (2) Critical trading partner.--The term "critical trading partner" means a person that has the ability to restrict, impede, or foreclose access to its inputs, customers, partners, goods, services, technology, platform, facilities, or tools in a way that harms the competitive process or limits the ability of the customers or suppliers of the person to carry out business effectively.

   Inserted: (3) Department.--The term "Department" means the Department of Defense.

   Inserted: (4) Major defense supplier.--The term "major defense supplier" means--

   Inserted: (A) any current prime contractor of a major system as defined in section 2302(5), of title 10, United States Code;

   Inserted: (B) any current prime contractor, under a contract awarded pursuant to section 2304(c)(3), title 10, United States Code, for reasons described in subparagraph (A) of that section; or

   Inserted: (C) any prime contractor or subcontractor that the Secretary of Defense, the Deputy Secretary of Defense, the Undersecretary of Defense for Acquisition and Sustainment, or the Deputy Assistant Secretary of Defense for Manufacturing and Industrial Base Policy designates as a main source of supply, including any firm that supplies or could supply goods or services directly or indirectly to the Department or any company with technology potentially significant to defense capabilities.

   The amendment doesn't say where this goes; the clerk decides.

   Original wording

   At the appropriate place in title V, insert the following:

Read automatically from the Congressional Record. Check the original before relying on it.

As printed