H.R. 4321 (106th): Antitrust Enforcement Improvement Act of 2000

106th Congress, 1999–2000. Text as of Apr 13, 2000 (Introduced).

Status & Summary | PDF | Source: GPO

HR 4321 IH

106th CONGRESS

2d Session

H. R. 4321

To amend the Sherman Act, the Clayton Act, and the Packers and Stockyards Act, 1921 with respect of competition among wholesale purchasers; to establish a commission to review large agriculture mergers, concentration, and market power, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

April 13, 2000

Mr. MINGE (for himself, Mr. DEFAZIO, and Mr. HINCHEY) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Agriculture, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To amend the Sherman Act, the Clayton Act, and the Packers and Stockyards Act, 1921 with respect of competition among wholesale purchasers; to establish a commission to review large agriculture mergers, concentration, and market power, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Antitrust Enforcement Improvement Act of 2000’.

SEC. 2. AMENDMENTS TO THE SHERMAN ACT.

    (a) TRADE OR COMMERCE- Sections 1 and 3 of the Sherman Act (15 U.S.C. 1, 3) are amended by inserting ‘(which may include trade or commerce of sellers, trade or commerce of wholesale purchasers, or trade or commerce of both)’ after ‘or commerce’.

    (b) FINES- Sections 1 and 3 of the Sherman Act (15 U.S.C. 1, 3) are amended by striking ‘$10,000,000’ and inserting ‘$100,000,000’.

SEC. 3. AMENDMENTS TO THE CLAYTON ACT.

    (a) CAUSE OF ACTION- Section 7 of the Clayton Act (15 U.S.C. 18) is amended by adding at the end the following:

    ‘For purposes of this section, the term ‘competition’ may include competition among sellers, competition among wholesale purchasers, or competition among both.’.

    (b) DISCLOSURE OF INFORMATION REGARDING MERGERS- Section 7A of the Clayton Act (15 U.S.C. 18a) is amended--

      (1) in subsection (e)(2)--

        (A) by striking ‘20 days’ and inserting ‘30 days’, and

        (B) by striking ‘10 days’ and inserting ‘15 days’, and

      (2) in the 1st sentence of subsection (h) by inserting ‘or as may be requested by the State attorney general (as defined in section 4G)’ before the period.

    (c) FEES REQUIRED TO FILE NOTIFICATIONS OF MERGERS-

      (1) AMENDMENT- Section 7A of the Clayton Act (15 U.S.C. 18a) is amended by adding at the end the following:

    ‘(k)(1) To file a notification required by subsection (a), a person shall pay a filing fee to be assessed and collected by the Federal Trade Commission as follows:

      ‘(A) $25,000 if the aggregate total amount determined under subsection (a)(3)(B) is less than $100,000,000.

      ‘(B) $50,000 if the aggregate total amount determined under subsection (a)(3)(B) is less than $250,000,000 but not less than $100,000,000.

      ‘(C) $100,000 if the aggregate total amount determined under subsection (a)(3)(B) is less than $1,000,000,000 but not less than $250,000,000.

      ‘(D) $150,000 if the aggregate total amount determined under subsection (a)(3)(B) is not less than $1,000,000,000.

    ‘(2) Filing fees collected under this subsection shall be divided equally between, and credited to, the then current appropriations for the salaries and expenses of the Federal Trade Commission and the then current appropriations for the salaries and expenses of the Antitrust Division of the Department of Justice. Collected fees in excess of such appropriations shall be deposited in the Treasury as general receipts.’.

      (2) CONFORMING AMENDMENT- Section 605 of Public Law 101-162 (103 Stat. 1031; 15 U.S.C. 18a note) is repealed.

      (3) EFFECTIVE DATE AND APPLICATION OF AMENDMENTS- The amendments made by this subsection shall take effect on the 1st day of the 1st fiscal year beginning after the date of the enactment of this Act and shall apply with respect to notifications filed under section 7A of the Clayton Act on or after the date such amendments take effect.

    (d) RECOVERY OF OVERCHARGES- (1) The Clayton Act (15 U.S.C. 12 et seq.) is amended by inserting after section 4H the following:

    ‘SEC. 4I. (a) Any indirect purchaser in the chain of manufacture, production, or distribution of goods or services shall, upon proof of payment of all or any part of any overcharge for such goods or services, be deemed to be injured within the meaning of section 4, 4A, or 4C, except that such indirect purchaser may recover damages

only with respect to the amount of the initial overcharge proved to be passed on to him.

    ‘(b) Any indirect seller in the chain of manufacture, production, or distribution of goods or services shall, upon proof of receipt of all or any part of any underpayment for such goods or services, be deemed to be injured within the meaning of section 4, 4A, or 4C, except that such indirect seller may recover damages only with respect to the amount of the initial underpayment proved to be passed on to him.

    ‘(c) In any action under section 4 or 4A, any defendant, as a partial or complete defense against a damage claim, shall be entitled to prove that--

      ‘(1) a purchaser in the chain who paid any overcharge passed on all or any part of such overcharge to another purchaser in such chain; or

      ‘(2) a seller in the chain who received any underpayment passed on all or any part of such underpayment to another seller in such chain.

    ‘(d)(1) In any class action brought under section 4 by purchasers or sellers, the fact of injury and the amount of damages sustained by or passed-on to or by the members of the class may be proven on a class-wide basis, without requiring proof of such matters by each individual member of the class. The percentage of total damages attributable to a member of such class shall be the same as the ratio of such member’s purchases or sales to the purchases or sales of the class as a whole.

    ‘(2) In any action under section 4C, the fact of injury and the amount of damages sustained by or passed-on to or by purchasers or sellers may be proven on a class-wide basis, without requiring proof of such matters with respect to each individual purchaser or seller. The percentage of total damages attributable to a member of a class shall be the same as the ratio of such member’s purchases or sales to the purchases or sales of the class as a whole.

    ‘(3) Except as provided in sections 4D and 4E, damages shall not be assessed in the aggregate against a defendant but shall be assessed only on behalf of any person who makes a valid damage claim.

    ‘(e)(1) Except as provided in paragraph (2), any damage award in a final judgment heretofore or hereafter rendered against any defendant in any action under section 4, 4A, or 4C shall be admissible as--

      ‘(A) prima facie evidence against any plaintiff, and

      ‘(B) conclusive evidence against such defendant,

    in any other action under section 4, 4A, or 4C brought against such defendant, as to all fully and fairly litigated matters regarding the amount of damages passed on which would be an estoppel as between the parties thereto.

    ‘(2) This subsection shall not apply to consent judgments or decrees.

    ‘(f) In any action by purchasers or sellers under section 4 which is brought or maintained as a class action, the court, before it approves a settlement of such action, shall, in the interests of justice, determine what portion of the settlement shall be distributed to the persons on whose behalf the action was brought or maintained and what portion shall be distributed to their attorneys, and in making such determination the court shall act as a fiduciary for those persons on whose behalf the action was brought or maintained.

    ‘(g) In any action under section 4--

      ‘(1) by, or on behalf of, any purchaser in the chain of manufacture, production, or distribution of goods or services alleging any overcharge for such goods or services, or

      ‘(2) by, or on behalf of, any seller in the chain of manufacture, production, or distribution of goods or services alleging any underpayment for such goods or services,

    the court may in its discretion award a reasonable attorney’s fee to the prevailing defendant upon a finding that such purchaser or seller or his attorney acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’.

    (2) The Clayton Act is amended by inserting before the period in section 4 the following: ‘, except that this section shall not authorize suits by a foreign sovereign government, a department or agency thereof’.

    (3) Section 1407(h) of title 28, United States Code, is amended by striking ‘section 4C of’.

SEC. 4. AMENDMENTS TO THE PACKERS AND STOCKYARDS ACT, 1921.

    (a) DEFINITIONS- Section 2 of the Packers and Stockyards Act, 1921 (7 U.S.C. 182) is amended by adding at the end the following:

    ‘(12) The term ‘undue or unreasonable preference or advantage’--

      ‘(A) except as provided in subparagraph (B), includes using any practice or device to purchase or acquire, directly or indirectly, livestock from a producer of livestock on terms that are not offered to producers of smaller volumes of similar livestock but excludes a purchase or acquisition that occurs less than 2 weeks before slaughter and in a public market based on a competitive bidding process; and

      ‘(B) does not include the payment of--

        ‘(i) a price premium based on standards for product grade and quality, or for a production method, that enhance the value of the meat if such premium is offered in a manner that does not discriminate against producers of smaller volumes of similar livestock who meet such standards; or

        ‘(ii) different prices to reflect differences in the cost of handling livestock.

    ‘(13) The term ‘public market based on a competitive bidding process’ means a market in which--

      ‘(A) potential buyers and sellers have access;

      ‘(B) multiple blind bids can be made; and

      ‘(C) there is contemporaneous transparency.’.

    (b) COMMERCE- Section 202(e) of the Packers and Stockyards Act, 1921 (7 U.S.C. 192(e)) is amended by inserting ‘(which may include trade or commerce of sellers, trade or commerce of wholesale purchasers, or trade or commerce of both)’ after ‘commerce’.

SEC. 5. ESTABLISHMENT OF COMMISSION.

    (a) ESTABLISHMENT- There is established a commission to be known as the Agriculture Concentration and Market Power Review Commission (hereafter in this section referred to as the ‘Commission’).

    (b) PURPOSES- The purpose of the Commission is to--

      (1) study the nature and consequences of concentration and vertical integration in America’s agricultural economy; and

      (2) make recommendations on how to change underlying antitrust laws and other Federal laws and regulations to keep a fair and competitive agriculture marketplace for family farmers, other small and medium sized agriculture producers, generally, and the communities of which they are a part.

    (c) MEMBERSHIP OF COMMISSION-

      (1) COMPOSITION- The Commission shall be composed of 12 members as follows:

        (A) Three persons, one of whom shall be a person currently engaged in farming or ranching, shall be appointed by the President pro tempore of the Senate upon the recommendation of the Majority Leader of the Senate, after consultation with the Chairman of the Committee on Agriculture, Nutrition, and Forestry.

        (B) Three persons, one of whom shall be a person currently engaged in farming or ranching, shall be appointed by the President pro tempore of the Senate upon the recommendation of the Minority Leader of the Senate, after consultation with the ranking minority member of the Committee on Agriculture, Nutrition, and Forestry.

        (C) Three persons, one of whom shall be a person currently engaged in farming or ranching, shall be appointed by the Speaker of the House of Representatives, after consultation with the Chairman of the Committee on Agriculture.

        (D) Three persons, one of whom shall be a person currently engaged in farming or ranching, shall be appointed by the Minority Leader of the House of Representatives, after consultation with the ranking minority member of the Committee on Agriculture.

      (2) QUALIFICATIONS OF MEMBERS-

        (A) APPOINTMENTS- Persons who are appointed under paragraph (1) shall be persons who--

          (i) have experience in farming or ranching, expertise in agricultural economics and antitrust, or have other pertinent qualifications or experience relating to agriculture and agriculture industries; and

          (ii) are not officers or employees of the United States.

        (B) OTHER CONSIDERATION- In appointing Commission members, every effort shall be made to ensure that the members--

          (i) are representative of a broad cross sector of agriculture and antitrust perspectives within the United States; and

          (ii) provide fresh insights to analyzing the causes and impacts of concentration in agriculture industries and sectors.

    (d) PERIOD OF APPOINTMENT; VACANCIES-

      (1) IN GENERAL- Members shall be appointed not later than 60 days after the date of enactment of this Act and the appointment shall be for the life of the Commission.

      (2) VACANCIES- Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner as the original appointment.

    (e) INITIAL MEETING- Not later than 30 days after the date on which all members of the Commission have been appointed, the Commission shall hold its first meeting.

    (f) MEETINGS- The Commission shall meet at the call of the Chairperson.

    (g) CHAIRPERSON AND VICE CHAIRPERSON- The members of the Commission shall elect a chairperson and vice chairperson from among the members of the Commission.

    (h) QUORUM- A majority of the members of the Commission shall constitute a quorum for the transaction of business.

    (i) VOTING- Each member of the Commission shall be entitled to 1 vote, which shall be equal to the vote of every other member of the Commission.

    (j) DUTIES OF THE COMMISSION- The Commission shall be responsible for examining the nature, the causes, and consequences concentration in America’s agricultural economy in the broadest possible terms.

    (k) ISSUES TO BE ADDRESSED- The study shall include an examination of the following matters:

      (1) The nature and extent of concentration in the agricultural sector, including food production, transportation, processing, distribution and marketing, and farm inputs such as machinery, fertilizer, and seeds.

      (2) Current trends in concentration of the agricultural sector and what this sector is likely to look like in the near and longer term future.

      (3) The effect of this concentration on farmer income.

      (4) The impacts of this concentration upon rural communities, rural economic development, and the natural environment.

      (5) The impacts of this concentration upon food shoppers, including the reasons that Depression-level farm prices have not resulted in corresponding drops in supermarket prices.

      (6) The productivity of family-based farm units, compared with corporate based agriculture, and whether farming is approaching a scale that is larger than necessary from the standpoint of productivity.

      (7) The effect of current laws and administrative practices in supporting and encouraging this concentration.

      (8) Whether the existing antitrust laws provide adequate safeguards against, and remedies for, the impacts of concentration upon family-based agriculture, the communities they comprise, and the food shoppers of this Nation.

      (9) Accurate and reliable data on the national and international markets shares of multinational

agribusinesses, and the portion of their sales attributable to exports.

      (10) Barriers that inhibit entry of new competitors into markets for the processing of agricultural commodities, such as the meat packing industry.

      (11) The extent to which developments, such as formula pricing, marketing agreements, and forward contracting tend to give processors, agribusinesses, and other buyers of agricultural commodities additional market power over producers and suppliers in local markets.

      (12) Such related matters as the Commission determines to be important.

    (l) FINAL REPORT- (1) Not later than 12 months after the date of the initial meeting of the Commission, the Commission shall submit to the President and Congress a final report which contains--

      (A) the findings and conclusions of the Commission described in subsection (b); and

      (B) recommendations for addressing the problems identified as part of the Commission’s analysis.

    (2) Any member of the Commission may submit additional findings and recommendations as part of the final report.

    (m) POWERS OF COMMISSION-

      (1) HEARINGS- The Commission may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Commission may find advisable to fulfill the requirements of this section. The Commission shall hold at least 1 or more hearings in Washington, D.C., and 4 in different agriculture regions of the United States.

      (2) INFORMATION FROM FEDERAL AGENCIES- The Commission may secure directly from any Federal department or agency such information as the Commission considers necessary to carry out the provisions of this section. Upon request of the Chairperson of the Commission, the head of such department or agency shall furnish such information to the Commission.

      (3) POSTAL SERVICES- The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the Federal Government.

    (n) COMMISSION PERSONNEL MATTERS-

      (1) COMPENSATION OF MEMBERS- Each member of the Commission shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which such member is engaged in the performance of the duties of the Commission.

      (2) TRAVEL EXPENSES- The members of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Commission.

      (3) STAFF-

        (A) IN GENERAL- The Chairperson of the Commission may, without regard to the civil service laws and regulations, appoint and terminate an executive director and such other additional personnel as may be necessary to enable the Commission to perform its duties. The employment of an executive director shall be subject to confirmation by the Commission.

        (B) COMPENSATION- The Chairperson of the Commission may fix the compensation of the executive director and other personnel without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates, except that the rate of pay for the executive director and other personnel may not exceed the rate payable for level V of the Executive Schedule under section 5316 of such title.

      (4) DETAIL OF GOVERNMENT EMPLOYEES- Any Federal Government employee shall be detailed to the Commission without reimbursement, and such detail shall be without interruption or loss of civil service status or privilege.

      (5) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICES- The Chairperson of the Commission may procure temporary and intermittent services under section 3109(b) of title 5, United States Code, at rates for individuals which do not exceed the daily equivalent of the annual rate of basic pay prescribed for level V of the Executive Schedule under section 5316 of such title.

    (o) SUPPORT SERVICES- The Administrator of the General Services Administration shall provide to the Commission on a reimbursable basis such administrative support services as the Commission may request.

    (p) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated $2,000,000 to the Commission as required by this title to carry out this section.

SEC. 6. OFFICE OF SPECIAL COUNSEL FOR AGRICULTURE.

    The Attorney General shall establish in the Department of Justice an Office of Special Counsel for Agriculture. The individual appointed by the Attorney General to head such Office shall handle agricultural antitrust issues and related matters, as determined by the Attorney General.

SEC. 7. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

    (a) EFFECTIVE DATE- Except as provided in subsection (b), this Act and the amendments made by this Act shall take effect on the date of the enactment of this Act.

    (b) APPLICATION OF AMENDMENTS- The amendments made by this Act shall not apply with respect to conduct occurring before the date of the enactment of this Act.