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Full Text of this Amendment
SA 3717. Mr. GRASSLEY (for himself and Mr. Kohl) submitted an amendment intended to be proposed to amendment SA 3500 proposed by Mr. Harkin (for himself, Mr. Chambliss, Mr. Baucus, and Mr. Grassley) to the bill H.R. 2419, to provide for the continuation of agricultural programs through fiscal year 2012, and for other purposes; which was ordered to lie on the table; as follows:
On page 1214, strike line 6 and all that follows through page 1220, line 11, and insert the following:
SEC. 10201. SPECIAL COUNSEL FOR AGRICULTURAL COMPETITION.
(a) Definitions.--In this section:
(1) AGRICULTURAL COMMODITY.--The term ``agricultural commodity''--
(A) has the meaning given that term in section 102 of the Agricultural Trade Act of 1978 (7 U.S.C. 5602); and
(B) does not include biofuels.
(2) AGRICULTURAL COOPERATIVE.--The term ``agricultural cooperative'' means an association of persons that meets the requirements of the Capper-Volstead Act (7 U.S.C. 291 et seq.).
(3) AGRICULTURAL INDUSTRY.--The term ``agricultural industry''--
(A) means any dealer, processor, commission merchant, or broker involved in the buying or selling of agricultural commodities; and
(B) does not include sale or marketing at the retail level.
(4) ANTITRUST LAWS.--The term ``antitrust laws'' has the meaning given that term in the first section of the Clayton Act (15 U.S.C. 12).
(5) ASSISTANT ATTORNEY GENERAL.--The term ``Assistant Attorney General'' means the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice.
(6) BIOFUEL.--The term ``biofuel'' has the meaning given that term in section 9001 of the Farm Security and Rural Investment Act of 2002, as amended by section 9001 of this Act.
(7) BROKER.--The term ``broker'' means any person (excluding an agricultural cooperative) engaged in the business of negotiating sales and purchases of any agricultural commodity in commerce for or on behalf of the vendor or the purchaser.
(8) CHAIRMAN.--The term ``Chairman'' means the Chairman of the Federal Trade Commission.
(9) COMMISSION MERCHANT.--The term ``commission merchant'' means any person (excluding an agricultural cooperative) engaged in the business of receiving in commerce any agricultural commodity for sale, on commission, or for or on behalf of another.
(10) DEALER.--The term ``dealer'' means any person (excluding an agricultural cooperative) engaged in the business of buying, selling, or marketing agricultural commodities in commerce, except that no person shall be considered a dealer with respect to sales or marketing of any agricultural commodity produced by that person.
(11) PROCESSOR.--The term ``processor'' means any person (excluding an agricultural cooperative) engaged in the business of handling, preparing, or manufacturing (including slaughtering) an agricultural commodity, or the products of such agricultural commodity, for sale or marketing in commerce for human consumption (excluding sale or marketing at the retail level).
(12) SPECIAL COUNSEL.--The term ``Special Counsel'' means the Special Counsel for Agricultural Competition of the Department of Agriculture established under section 11 of the Packers and Stockyards Act, 1921, as added by this Act.
(13) TASK FORCE.--The term ``Task Force'' means the Agriculture Competition Task Force established under subsection (b).
(b) Agriculture Competition Task Force.--
(1) ESTABLISHMENT.--There is established, under the authority of the Attorney General, the Agriculture Competition Task Force, to examine problems in agricultural competition.
(2) MEMBERSHIP.--The Task Force shall consist of--
(A) the Assistant Attorney General, who shall serve as chairperson of the Task Force;
(B) the Special Counsel;
(C) a representative from the Federal Trade Commission;
(D) a representative from the Department of Agriculture, Office of Packers and Stockyards;
(E) 1 representative selected jointly by the attorneys general of States desiring to participate in the Task Force;
(F) 1 representative selected jointly by the heads of the departments of agriculture (or similar such agency) of States desiring to participate in the Task Force;
(G) 8 individuals who represent the interests of small family farmers, ranchers, independent producers, packers, processors, and other components of the agricultural industry--
(i) 2 of whom shall be selected by the Majority Leader of the Senate;
(ii) 2 of whom shall be selected by the Minority Leader of the Senate;
(iii) 2 of whom shall be selected by the Speaker of the House of Representatives; and
(iv) 2 of whom shall be selected by the Minority Leader of the House of Representatives; and
(H) 4 academics or other independent experts working in the field of agriculture, agricultural law, antitrust law, or economics--
(i) 1 of whom shall be selected by the Majority Leader of the Senate;
(ii) 1 of whom shall be selected by the Minority Leader of the Senate;
(iii) 1 of whom shall be selected by the Speaker of the House of Representatives; and
(iv) 1 of whom shall be selected by the Minority Leader of the House of Representatives.
(3) DUTIES.--The Task Force shall--
(A) study problems in competition in the agricultural industry;
(B) establish ways to coordinate Federal and State activities to address unfair and deceptive practices and concentration in the agricultural industry;
(C) work with representatives from agriculture and rural communities to identify abusive practices in the agricultural industry;
(D) submit to Congress such reports as the Task Force determines appropriate on the state of family farmers and ranchers, and the impact of agricultural concentration and unfair business practices on rural communities in the United States; and
(E) make such recommendations to Congress as the Task Force determines appropriate on agricultural competition issues, which shall include any additional or dissenting views of the members of the Task Force.
(4) WORKING GROUP.--
(A) IN GENERAL.--The Task Force shall establish a working group on buyer power to study the effects of concentration, monopsony, and oligopsony in agriculture, make recommendations to the Assistant Attorney General and the Chairman, and assist the Assistant Attorney General and the Chairman in drafting agricultural guidelines under subsection (d)(1).
(B) MEMBERS.--The working group shall include any member of the Task Force selected under paragraph (2)(H).
(5) MEETINGS.--
(A) FIRST MEETING.--The Task Force shall hold its initial meeting not later than the later of--
(i) 90 days after the date of enactment of this Act; and
(ii) 30 days after the date of enactment of an Act making appropriations to carry out this subsection.
(B) MINIMUM NUMBER.--The Task Force shall meet not less than once each year, at the call of the chairperson.
(6) COMPENSATION.--
(A) IN GENERAL.--The members of the Task Force shall serve without compensation.
(B) TRAVEL EXPENSES.--Members of the Task Force shall receive travel expenses, including per diem in lieu of subsistence, in accordance with subchapter I of chapter 57 of title 5, United States Code.
(7) STAFF OF TASK FORCE; EXPERTS AND CONSULTANTS.--
(A) STAFF.--
(i) APPOINTMENT.--The chairperson of the Task Force may, without regard to the provisions of chapter 51 of title 5, United States Code (relating to appointments in the competitive service), appoint and terminate an executive director and such other staff as are necessary to enable the Task Force to perform its duties. The appointment of an executive director shall be subject to approval by the Task Force.
(ii) COMPENSATION.--The chairperson of the Task Force may fix the compensation of the executive director and other staff 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 staff may not exceed the rate of basic pay payable for level V of the Executive Schedule under section 5315 of title 5,
United States Code, as in effect from time to time.
(B) EXPERTS AND CONSULTANTS.--The Task Force may procure temporary and intermittent services of experts and consultants in accordance with section 3109(b) of title 5, United States Code.
(8) POWERS OF THE TASK FORCE.--
(A) HEARINGS AND MEETINGS.--The Task Force, or a member of the Task Force if authorized by the Task Force, may hold such hearings, sit and act at such time and places, take such testimony, receive such evidence, and administer such oaths or affirmations as the Task Force considers to be appropriate.
(B) OFFICIAL DATA.--
(i) IN GENERAL.--The Task Force may obtain directly from any executive agency (as defined in section 105 of title 5, United States Code) or court information necessary to enable it to carry out its duties under this subsection. On the request of the chairperson of the Task Force, and consistent with any other law, the head of an executive agency or of a Federal court shall provide such information to the Task Force.
(ii) CONFIDENTIAL INFORMATION.--The Task Force shall adopt procedures that ensure that confidential information is adequately protected.
(C) FACILITIES AND SUPPORT SERVICES.--The Administrator of General Services shall provide to the Task Force on a reimbursable basis such facilities and support services as the Task Force may request. On request of the Task Force, the head of an executive agency may make any of the facilities or services of such agency available to the Task Force, on a reimbursable or nonreimbursable basis, to assist the Task Force in carrying out its duties under this subsection.
(D) EXPENDITURES AND CONTRACTS.--The Task Force or, on authorization of the Task Force, a member of the Task Force may make expenditures and enter into contracts for the procurement of such supplies, services, and property as the Task Force or such member considers to be appropriate for the purpose of carrying out the duties of the Task Force. Such expenditures and contracts may be made only to such extent or in such amounts as are provided in advance in appropriation Acts.
(E) MAILS.--The Task Force may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.
(F) GIFTS, BEQUESTS, AND DEVISES.--The Task Force may accept, use, and dispose of gifts, bequests, or devises of services or property, both real and personal, for the purpose of aiding or facilitating the work of the Task Force. Gifts, bequests, or devises of money and proceeds from sales of other property received as gifts, bequests, or devises shall be deposited in the Treasury and shall be available for disbursement upon order of the Task Force.
(9) AUTHORIZATION OF APPROPRIATIONS.--There are authorized to be appropriated to carry out this subsection $1,000,000 for each of fiscal years 2008, 2009, and 2010.
(c) Authorization for Additional Staff and Funding.--There are authorized to be appropriated such sums as are necessary to hire additional employees (including agricultural law and economics experts) for the Transportation, Energy, and Agriculture Section of the Antitrust Division of the Department of Justice, to enhance the review of agricultural transactions and monitor, investigate, and prosecute unfair and deceptive practices in the agricultural industry.
(d) Ensuring Full and Free Competition in Agriculture.--
(1) AGRICULTURAL GUIDELINES.--
(A) FINDINGS.--Congress finds the following:
(i) The effective enforcement of the antitrust laws in agriculture requires that the antitrust enforcement agencies have guidelines with respect to mergers and other anticompetitive conduct that are focused on the special circumstances of agricultural commodity markets.
(ii) There has been a substantial increase in concentration in the markets in which agricultural commodities are sold, with the result that buyers of agricultural commodities often possess regional dominance in the form of oligopsony or monopsony relative to sellers of such commodities. A substantial part of this increase in market concentration is the direct result of mergers and acquisitions that the antitrust enforcement agencies did not challenge, in part because of the lack of guidelines
focused on identifying particular structural characteristics in the agricultural industry and the adverse competitive effects that such acquisitions and mergers would create.
(iii) The cost of transportation, impact on quality, and delay in sales of agricultural commodities if they are to be transported to more distant buyers may result in narrow geographic markets with respect to buyer power.
(iv) Buyers have no economic incentive to bid up the price of agricultural commodities in the absence of effective competition. Further, the nature of buying may make it feasible for larger numbers of buyers to engage in tacit or overt collusion to restrain price competition.
(v) Buyers with oligopsonistic or monopsonistic power have incentives to engage in unfair, discriminatory, and exclusionary acts that cause producers of agricultural commodities to receive less than a competitive price for their goods, transfer economic risks to sellers without reasonable compensation, and exclude sellers from access to the market.
(vi) Markets for agricultural commodities often involve contexts in which many producers have relatively limited information and bargaining power with respect to the sale of their commodities. These conditions invite buyers with significant oligopsonistic or monopsonistic power to exercise that power in ways that involve discrimination and undue differentiation among sellers.
(B) ISSUANCE OF GUIDELINES.--After consideration of the findings under subparagraph (A), the Assistant Attorney General and the Chairman, in consultation with the Special Counsel, shall issue agricultural guidelines that--
(i) facilitate a fair, open, accessible, transparent, and efficient market system for agricultural products;
(ii) recognize that not decreasing competition in the purchase of agricultural products by highly concentrated firms from a sector in perfect competition is entirely consistent with the objective of the antitrust laws to protect consumers and enhance consumer benefits from competition; and
(iii) require the Assistant Attorney General or the Chairman, as the case may be, to challenge any merger or acquisition in the agricultural industry, if the effect of that merger or acquisition may be to substantially lessen competition or tend to create a monopoly.
(C) CONTENTS.--The agricultural guidelines issued under subparagraph (B) shall consist of merger guidelines relating to existing and potential competition and vertical integration that--
(i) establish appropriate methodologies for determining the geographic and product markets for mergers affecting agricultural commodity markets;
(ii) establish thresholds of increased concentration that raise a concern that the merger will have an adverse effect on competition in the affected agricultural commodities markets;
(iii) identify potential adverse competitive effects of mergers in agricultural commodities markets in a nonexclusive manner; and
(iv) identify the factors that would permit an enforcement agency to determine when a merger in the agricultural commodities market might avoid liability because it is not likely to have an adverse effect on competition.
(2) AGRICULTURE COMPETITION TASK FORCE WORKING GROUP ON BUYING POWER.--In issuing agricultural guidelines under this subsection, the Chairman and the Assistant Attorney General shall consult with the working group on buyer power of the Task Force established under subsection (b)(4).
(3) COMPLETION.--Not later than 2 years after the date of enactment of this Act, the Chairman and the Assistant Attorney General shall--
(A) issue agricultural guidelines under this subsection;
(B) submit to Congress the agricultural guidelines issued under this subsection; and
(C) submit to Congress a report explaining the basis for the guidelines, including why it incorporated or did not incorporate each recommendation of the working group on buyer power of the Task Force established under subsection (b)(4).
(4) REPORT.--Not later than 30 months after the date of enactment of this Act, the Chairman and the Assistant Attorney General shall jointly submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives regarding the issuing of agricultural guidelines under this subsection.
(e) Special Counsel for Agricultural Competition.--
(1) IN GENERAL.--The Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.) is amended--
(A) by striking the title I heading and all that follows through ``This Act'' and inserting the following:
``TITLE I--GENERAL PROVISIONS
``Subtitle A--Definitions
``SEC. 1. SHORT TITLE.
``This Act''; and
(B) by inserting after section 2 (7 U.S.C. 183) the following:
``Subtitle B--Special Counsel for Agricultural Competition
``SEC. 11. SPECIAL COUNSEL FOR AGRICULTURAL COMPETITION.
``(a) Establishment.--
``(1) IN GENERAL.--There is established within the Department of Agriculture an office to be known as the `Office of Special Counsel for Agricultural Competition' (referred to in this section as the `Office').
``(2) DUTIES.--The Office shall--
``(A) have responsibility for all duties and functions of the Packers and Stockyards programs of the Department of Agriculture;
``(B) investigate and prosecute violations of this Act and the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.);
``(C) analyze mergers within the food and agricultural sectors, in consultation with the Chief Economist of the Department of Agriculture, the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, and the Chairman of the Federal Trade Commission, as required under section 10201(f) of the Food and Energy Security Act of 2007;
``(D) serve as a liaison between, and act in consultation with, the Department of Agriculture, the Department of Justice, and the Federal Trade Commission with respect to competition and trade practices in the food and agricultural sector; and
``(E) maintain sufficient employees (including antitrust and litigation attorneys, economists, investigators, and other professionals with the appropriate expertise) to appropriately carry out the responsibilities of the Office.
``(b) Special Counsel for Agricultural Competition.--
``(1) IN GENERAL.--The Office shall be headed by the Special Counsel for Agricultural Competition (referred to in this section as the `Special Counsel'), who shall be appointed by the President, by and with the advice and consent of the Senate.
``(2) INDEPENDENCE OF SPECIAL AUTHORITY.--
``(A) IN GENERAL.--The Special Counsel shall report to and be under the general supervision of the Secretary.
``(B) DIRECTION, CONTROL, AND SUPPORT.--The Special Counsel shall be free from the direction and control of any person in the Department of Agriculture other than the Secretary.
``(C) PROHIBITION ON DELEGATION.--The Secretary may not delegate any duty described in subsection (a)(2) to any other officer or employee of the Department other than the Special Counsel.
``(D) REPORTING REQUIREMENT.--
``(i) IN GENERAL.--Twice each year, the Special Counsel shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report that shall include, for the relevant reporting period, a description of--
``(I) the number of complaints that the Special Counsel has received and closed;
``(II)(aa) the number of investigations and civil and administrative actions that the Special Counsel has initiated, carried out, and completed, including the number of notices given to regulated entities for violations of this Act or the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.);
``(bb) the number and types of decisions agreed to; and
``(cc) the number of stipulation agreements; and
``(III) the number of investigations and civil and administrative actions that the Secretary objected to or prohibited from being carried out, and the stated purpose of the Secretary for each objection or prohibition.
``(ii) REQUIREMENT.--The basis for each complaint, investigation, or civil or administrative action described in a report under clause (i) shall--
``(I) be organized by species; and
``(II) indicate if the complaint, investigation, or civil or administration action was for anti-competitive, unfair, or deceptive practices under this Act or was a violation of the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.).
``(E) REMOVAL.--
``(i) IN GENERAL.--The Special Counsel may be removed from office by the President.
``(ii) COMMUNICATION.--The President shall communicate the reasons for any such removal to both Houses of Congress.
``(3) PROSECUTORIAL AUTHORITY.--Subject to paragraph (4), the Special Counsel may commence, defend, or intervene in, and supervise the litigation of, any civil or administrative action authorized under this Act or the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.).
``(4) PROCEDURE FOR EXERCISE OF AUTHORITY TO LITIGATE OR APPEAL.--
``(A) IN GENERAL.--Prior to commencing, defending, or intervening in any civil action under this Act or the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.), the Special Counsel shall give written notification to, and attempt to consult with, the Attorney General with respect to the proposed action.
``(B) FAILURE TO RESPOND.--If, not later than 45 days after the date of provision of notification under subparagraph (A), the Attorney General has failed to commence, defend, or intervene in the proposed action, the Special Counsel may commence, defend, or intervene in, and supervise the litigation of, the action and any appeal of the action in the name of the Special Counsel.
``(C) AUTHORITY OF ATTORNEY GENERAL TO INTERVENE.--Nothing in this paragraph precludes the Attorney General from intervening on behalf of the United States in any civil action under this Act or the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.), or in any appeal of such action, as may be otherwise provided by law.
``(c) Relationship to Other Provisions.--Nothing in this section modifies or otherwise effects subsections (a) and (b) of section 406.
``(d) Authorization.--There are authorized to be appropriated such sums as are necessary to carry out subsection (a)(2)(E).''.
(2) CONFORMING AMENDMENT.--Section 5315 of title 5, United States Code, is amended by adding at the end the following:
``Special Counsel for Agricultural Competition.''.
(f) Agribusiness Merger Review and Enforcement by the Department of Agriculture.--
(1) NOTICE.--The Assistant Attorney General or the Commissioner, as appropriate, shall notify the Secretary of any filing under section 7A of the Clayton Act (15 U.S.C. 18a) involving a merger or acquisition in the agricultural industry, and shall give the Secretary the opportunity to participate in the review proceedings.
(2) REVIEW.--
(A) IN GENERAL.--After receiving notice of a merger or acquisition under paragraph (1), the Secretary may submit to the Assistant Attorney General or the Commissioner, as appropriate, and publish the comments of the Secretary regarding that merger or acquisition, including a determination regarding whether the merger or acquisition may present significant competition and buyer power concerns, such that further review by the Assistant Attorney General or the Commissioner, as appropriate,
is warranted.
(B) SECOND REQUESTS.--For any merger or acquisition described in paragraph (1), if the Assistant Attorney General or the Chairman, as the case may be, requires the submission of additional information or documentary material under section 7A(e)(1)(A) of the Clayton Act (15 U.S.C. 18a(e)(1)(A))--
(i) copies of any materials provided in response to such a request shall be made available to the Secretary; and
(ii) the Secretary--
(I) shall submit to the Assistant Attorney General or the Chairman such additional comments as the Secretary determines appropriate; and
(II) shall publish a summary of any comments submitted under subclause (I).
(3) REPORT.--
(A) IN GENERAL.--The Secretary shall submit an annual report to Congress regarding the review of mergers and acquisitions described in paragraph (1).
(B) CONTENTS.--Each report submitted under subparagraph (A) shall provide a description of each merger or acquisition described in paragraph (1) that was reviewed by the Secretary during the year before the date that report is submitted, including--
(i) the name and total resources of each entity involved in that merger or acquisition;
(ii) a statement of the views of the Secretary regarding the competitive effects of that merger or acquisition on agricultural markets, including rural communities and small, independent producers; and
(iii) a statement indicating whether the Assistant Attorney General or the Chairman, as the case may be, instituted a proceeding or action under the antitrust laws, and if so, the status of that proceeding or action.
(g) Authorization for Additional Staff and Funding for the Grain Inspection, Packers, and Stockyards Administration.--There are authorized to be appropriated such sums as are necessary to enhance the capability of the Grain Inspection, Packers, and Stockyards Administration to monitor, investigate, and pursue the competitive implications of structural changes in the meat packing and poultry industries by hiring litigating attorneys to allow the Grain Inspection, Packers, and Stockyards
Administration to more comprehensively and effectively pursue its enforcement activities.
(As printed in the Congressional Record for the Senate on Nov 15, 2007.)
On page 1214, strike line 6 and all that follows through page 1220, line 11, and insert the following:
SEC. 10201. SPECIAL COUNSEL FOR AGRICULTURAL COMPETITION.
(a) Definitions.--In this section:
(1) AGRICULTURAL COMMODITY.--The term ``agricultural commodity''--
(A) has the meaning given that term in section 102 of the Agricultural Trade Act of 1978 (7 U.S.C. 5602); and
(B) does not include biofuels.
(2) AGRICULTURAL COOPERATIVE.--The term ``agricultural cooperative'' means an association of persons that meets the requirements of the Capper-Volstead Act (7 U.S.C. 291 et seq.).
(3) AGRICULTURAL INDUSTRY.--The term ``agricultural industry''--
(A) means any dealer, processor, commission merchant, or broker involved in the buying or selling of agricultural commodities; and
(B) does not include sale or marketing at the retail level.
(4) ANTITRUST LAWS.--The term ``antitrust laws'' has the meaning given that term in the first section of the Clayton Act (15 U.S.C. 12).
(5) ASSISTANT ATTORNEY GENERAL.--The term ``Assistant Attorney General'' means the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice.
(6) BIOFUEL.--The term ``biofuel'' has the meaning given that term in section 9001 of the Farm Security and Rural Investment Act of 2002, as amended by section 9001 of this Act.
(7) BROKER.--The term ``broker'' means any person (excluding an agricultural cooperative) engaged in the business of negotiating sales and purchases of any agricultural commodity in commerce for or on behalf of the vendor or the purchaser.
(8) CHAIRMAN.--The term ``Chairman'' means the Chairman of the Federal Trade Commission.
(9) COMMISSION MERCHANT.--The term ``commission merchant'' means any person (excluding an agricultural cooperative) engaged in the business of receiving in commerce any agricultural commodity for sale, on commission, or for or on behalf of another.
(10) DEALER.--The term ``dealer'' means any person (excluding an agricultural cooperative) engaged in the business of buying, selling, or marketing agricultural commodities in commerce, except that no person shall be considered a dealer with respect to sales or marketing of any agricultural commodity produced by that person.
(11) PROCESSOR.--The term ``processor'' means any person (excluding an agricultural cooperative) engaged in the business of handling, preparing, or manufacturing (including slaughtering) an agricultural commodity, or the products of such agricultural commodity, for sale or marketing in commerce for human consumption (excluding sale or marketing at the retail level).
(12) SPECIAL COUNSEL.--The term ``Special Counsel'' means the Special Counsel for Agricultural Competition of the Department of Agriculture established under section 11 of the Packers and Stockyards Act, 1921, as added by this Act.
(13) TASK FORCE.--The term ``Task Force'' means the Agriculture Competition Task Force established under subsection (b).
(b) Agriculture Competition Task Force.--
(1) ESTABLISHMENT.--There is established, under the authority of the Attorney General, the Agriculture Competition Task Force, to examine problems in agricultural competition.
(2) MEMBERSHIP.--The Task Force shall consist of--
(A) the Assistant Attorney General, who shall serve as chairperson of the Task Force;
(B) the Special Counsel;
(C) a representative from the Federal Trade Commission;
(D) a representative from the Department of Agriculture, Office of Packers and Stockyards;
(E) 1 representative selected jointly by the attorneys general of States desiring to participate in the Task Force;
(F) 1 representative selected jointly by the heads of the departments of agriculture (or similar such agency) of States desiring to participate in the Task Force;
(G) 8 individuals who represent the interests of small family farmers, ranchers, independent producers, packers, processors, and other components of the agricultural industry--
(i) 2 of whom shall be selected by the Majority Leader of the Senate;
(ii) 2 of whom shall be selected by the Minority Leader of the Senate;
(iii) 2 of whom shall be selected by the Speaker of the House of Representatives; and
(iv) 2 of whom shall be selected by the Minority Leader of the House of Representatives; and
(H) 4 academics or other independent experts working in the field of agriculture, agricultural law, antitrust law, or economics--
(i) 1 of whom shall be selected by the Majority Leader of the Senate;
(ii) 1 of whom shall be selected by the Minority Leader of the Senate;
(iii) 1 of whom shall be selected by the Speaker of the House of Representatives; and
(iv) 1 of whom shall be selected by the Minority Leader of the House of Representatives.
(3) DUTIES.--The Task Force shall--
(A) study problems in competition in the agricultural industry;
(B) establish ways to coordinate Federal and State activities to address unfair and deceptive practices and concentration in the agricultural industry;
(C) work with representatives from agriculture and rural communities to identify abusive practices in the agricultural industry;
(D) submit to Congress such reports as the Task Force determines appropriate on the state of family farmers and ranchers, and the impact of agricultural concentration and unfair business practices on rural communities in the United States; and
(E) make such recommendations to Congress as the Task Force determines appropriate on agricultural competition issues, which shall include any additional or dissenting views of the members of the Task Force.
(4) WORKING GROUP.--
(A) IN GENERAL.--The Task Force shall establish a working group on buyer power to study the effects of concentration, monopsony, and oligopsony in agriculture, make recommendations to the Assistant Attorney General and the Chairman, and assist the Assistant Attorney General and the Chairman in drafting agricultural guidelines under subsection (d)(1).
(B) MEMBERS.--The working group shall include any member of the Task Force selected under paragraph (2)(H).
(5) MEETINGS.--
(A) FIRST MEETING.--The Task Force shall hold its initial meeting not later than the later of--
(i) 90 days after the date of enactment of this Act; and
(ii) 30 days after the date of enactment of an Act making appropriations to carry out this subsection.
(B) MINIMUM NUMBER.--The Task Force shall meet not less than once each year, at the call of the chairperson.
(6) COMPENSATION.--
(A) IN GENERAL.--The members of the Task Force shall serve without compensation.
(B) TRAVEL EXPENSES.--Members of the Task Force shall receive travel expenses, including per diem in lieu of subsistence, in accordance with subchapter I of chapter 57 of title 5, United States Code.
(7) STAFF OF TASK FORCE; EXPERTS AND CONSULTANTS.--
(A) STAFF.--
(i) APPOINTMENT.--The chairperson of the Task Force may, without regard to the provisions of chapter 51 of title 5, United States Code (relating to appointments in the competitive service), appoint and terminate an executive director and such other staff as are necessary to enable the Task Force to perform its duties. The appointment of an executive director shall be subject to approval by the Task Force.
(ii) COMPENSATION.--The chairperson of the Task Force may fix the compensation of the executive director and other staff 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 staff may not exceed the rate of basic pay payable for level V of the Executive Schedule under section 5315 of title 5,
United States Code, as in effect from time to time.
(B) EXPERTS AND CONSULTANTS.--The Task Force may procure temporary and intermittent services of experts and consultants in accordance with section 3109(b) of title 5, United States Code.
(8) POWERS OF THE TASK FORCE.--
(A) HEARINGS AND MEETINGS.--The Task Force, or a member of the Task Force if authorized by the Task Force, may hold such hearings, sit and act at such time and places, take such testimony, receive such evidence, and administer such oaths or affirmations as the Task Force considers to be appropriate.
(B) OFFICIAL DATA.--
(i) IN GENERAL.--The Task Force may obtain directly from any executive agency (as defined in section 105 of title 5, United States Code) or court information necessary to enable it to carry out its duties under this subsection. On the request of the chairperson of the Task Force, and consistent with any other law, the head of an executive agency or of a Federal court shall provide such information to the Task Force.
(ii) CONFIDENTIAL INFORMATION.--The Task Force shall adopt procedures that ensure that confidential information is adequately protected.
(C) FACILITIES AND SUPPORT SERVICES.--The Administrator of General Services shall provide to the Task Force on a reimbursable basis such facilities and support services as the Task Force may request. On request of the Task Force, the head of an executive agency may make any of the facilities or services of such agency available to the Task Force, on a reimbursable or nonreimbursable basis, to assist the Task Force in carrying out its duties under this subsection.
(D) EXPENDITURES AND CONTRACTS.--The Task Force or, on authorization of the Task Force, a member of the Task Force may make expenditures and enter into contracts for the procurement of such supplies, services, and property as the Task Force or such member considers to be appropriate for the purpose of carrying out the duties of the Task Force. Such expenditures and contracts may be made only to such extent or in such amounts as are provided in advance in appropriation Acts.
(E) MAILS.--The Task Force may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.
(F) GIFTS, BEQUESTS, AND DEVISES.--The Task Force may accept, use, and dispose of gifts, bequests, or devises of services or property, both real and personal, for the purpose of aiding or facilitating the work of the Task Force. Gifts, bequests, or devises of money and proceeds from sales of other property received as gifts, bequests, or devises shall be deposited in the Treasury and shall be available for disbursement upon order of the Task Force.
(9) AUTHORIZATION OF APPROPRIATIONS.--There are authorized to be appropriated to carry out this subsection $1,000,000 for each of fiscal years 2008, 2009, and 2010.
(c) Authorization for Additional Staff and Funding.--There are authorized to be appropriated such sums as are necessary to hire additional employees (including agricultural law and economics experts) for the Transportation, Energy, and Agriculture Section of the Antitrust Division of the Department of Justice, to enhance the review of agricultural transactions and monitor, investigate, and prosecute unfair and deceptive practices in the agricultural industry.
(d) Ensuring Full and Free Competition in Agriculture.--
(1) AGRICULTURAL GUIDELINES.--
(A) FINDINGS.--Congress finds the following:
(i) The effective enforcement of the antitrust laws in agriculture requires that the antitrust enforcement agencies have guidelines with respect to mergers and other anticompetitive conduct that are focused on the special circumstances of agricultural commodity markets.
(ii) There has been a substantial increase in concentration in the markets in which agricultural commodities are sold, with the result that buyers of agricultural commodities often possess regional dominance in the form of oligopsony or monopsony relative to sellers of such commodities. A substantial part of this increase in market concentration is the direct result of mergers and acquisitions that the antitrust enforcement agencies did not challenge, in part because of the lack of guidelines
focused on identifying particular structural characteristics in the agricultural industry and the adverse competitive effects that such acquisitions and mergers would create.
(iii) The cost of transportation, impact on quality, and delay in sales of agricultural commodities if they are to be transported to more distant buyers may result in narrow geographic markets with respect to buyer power.
(iv) Buyers have no economic incentive to bid up the price of agricultural commodities in the absence of effective competition. Further, the nature of buying may make it feasible for larger numbers of buyers to engage in tacit or overt collusion to restrain price competition.
(v) Buyers with oligopsonistic or monopsonistic power have incentives to engage in unfair, discriminatory, and exclusionary acts that cause producers of agricultural commodities to receive less than a competitive price for their goods, transfer economic risks to sellers without reasonable compensation, and exclude sellers from access to the market.
(vi) Markets for agricultural commodities often involve contexts in which many producers have relatively limited information and bargaining power with respect to the sale of their commodities. These conditions invite buyers with significant oligopsonistic or monopsonistic power to exercise that power in ways that involve discrimination and undue differentiation among sellers.
(B) ISSUANCE OF GUIDELINES.--After consideration of the findings under subparagraph (A), the Assistant Attorney General and the Chairman, in consultation with the Special Counsel, shall issue agricultural guidelines that--
(i) facilitate a fair, open, accessible, transparent, and efficient market system for agricultural products;
(ii) recognize that not decreasing competition in the purchase of agricultural products by highly concentrated firms from a sector in perfect competition is entirely consistent with the objective of the antitrust laws to protect consumers and enhance consumer benefits from competition; and
(iii) require the Assistant Attorney General or the Chairman, as the case may be, to challenge any merger or acquisition in the agricultural industry, if the effect of that merger or acquisition may be to substantially lessen competition or tend to create a monopoly.
(C) CONTENTS.--The agricultural guidelines issued under subparagraph (B) shall consist of merger guidelines relating to existing and potential competition and vertical integration that--
(i) establish appropriate methodologies for determining the geographic and product markets for mergers affecting agricultural commodity markets;
(ii) establish thresholds of increased concentration that raise a concern that the merger will have an adverse effect on competition in the affected agricultural commodities markets;
(iii) identify potential adverse competitive effects of mergers in agricultural commodities markets in a nonexclusive manner; and
(iv) identify the factors that would permit an enforcement agency to determine when a merger in the agricultural commodities market might avoid liability because it is not likely to have an adverse effect on competition.
(2) AGRICULTURE COMPETITION TASK FORCE WORKING GROUP ON BUYING POWER.--In issuing agricultural guidelines under this subsection, the Chairman and the Assistant Attorney General shall consult with the working group on buyer power of the Task Force established under subsection (b)(4).
(3) COMPLETION.--Not later than 2 years after the date of enactment of this Act, the Chairman and the Assistant Attorney General shall--
(A) issue agricultural guidelines under this subsection;
(B) submit to Congress the agricultural guidelines issued under this subsection; and
(C) submit to Congress a report explaining the basis for the guidelines, including why it incorporated or did not incorporate each recommendation of the working group on buyer power of the Task Force established under subsection (b)(4).
(4) REPORT.--Not later than 30 months after the date of enactment of this Act, the Chairman and the Assistant Attorney General shall jointly submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives regarding the issuing of agricultural guidelines under this subsection.
(e) Special Counsel for Agricultural Competition.--
(1) IN GENERAL.--The Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.) is amended--
(A) by striking the title I heading and all that follows through ``This Act'' and inserting the following:
``TITLE I--GENERAL PROVISIONS
``Subtitle A--Definitions
``SEC. 1. SHORT TITLE.
``This Act''; and
(B) by inserting after section 2 (7 U.S.C. 183) the following:
``Subtitle B--Special Counsel for Agricultural Competition
``SEC. 11. SPECIAL COUNSEL FOR AGRICULTURAL COMPETITION.
``(a) Establishment.--
``(1) IN GENERAL.--There is established within the Department of Agriculture an office to be known as the `Office of Special Counsel for Agricultural Competition' (referred to in this section as the `Office').
``(2) DUTIES.--The Office shall--
``(A) have responsibility for all duties and functions of the Packers and Stockyards programs of the Department of Agriculture;
``(B) investigate and prosecute violations of this Act and the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.);
``(C) analyze mergers within the food and agricultural sectors, in consultation with the Chief Economist of the Department of Agriculture, the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, and the Chairman of the Federal Trade Commission, as required under section 10201(f) of the Food and Energy Security Act of 2007;
``(D) serve as a liaison between, and act in consultation with, the Department of Agriculture, the Department of Justice, and the Federal Trade Commission with respect to competition and trade practices in the food and agricultural sector; and
``(E) maintain sufficient employees (including antitrust and litigation attorneys, economists, investigators, and other professionals with the appropriate expertise) to appropriately carry out the responsibilities of the Office.
``(b) Special Counsel for Agricultural Competition.--
``(1) IN GENERAL.--The Office shall be headed by the Special Counsel for Agricultural Competition (referred to in this section as the `Special Counsel'), who shall be appointed by the President, by and with the advice and consent of the Senate.
``(2) INDEPENDENCE OF SPECIAL AUTHORITY.--
``(A) IN GENERAL.--The Special Counsel shall report to and be under the general supervision of the Secretary.
``(B) DIRECTION, CONTROL, AND SUPPORT.--The Special Counsel shall be free from the direction and control of any person in the Department of Agriculture other than the Secretary.
``(C) PROHIBITION ON DELEGATION.--The Secretary may not delegate any duty described in subsection (a)(2) to any other officer or employee of the Department other than the Special Counsel.
``(D) REPORTING REQUIREMENT.--
``(i) IN GENERAL.--Twice each year, the Special Counsel shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate a report that shall include, for the relevant reporting period, a description of--
``(I) the number of complaints that the Special Counsel has received and closed;
``(II)(aa) the number of investigations and civil and administrative actions that the Special Counsel has initiated, carried out, and completed, including the number of notices given to regulated entities for violations of this Act or the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.);
``(bb) the number and types of decisions agreed to; and
``(cc) the number of stipulation agreements; and
``(III) the number of investigations and civil and administrative actions that the Secretary objected to or prohibited from being carried out, and the stated purpose of the Secretary for each objection or prohibition.
``(ii) REQUIREMENT.--The basis for each complaint, investigation, or civil or administrative action described in a report under clause (i) shall--
``(I) be organized by species; and
``(II) indicate if the complaint, investigation, or civil or administration action was for anti-competitive, unfair, or deceptive practices under this Act or was a violation of the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.).
``(E) REMOVAL.--
``(i) IN GENERAL.--The Special Counsel may be removed from office by the President.
``(ii) COMMUNICATION.--The President shall communicate the reasons for any such removal to both Houses of Congress.
``(3) PROSECUTORIAL AUTHORITY.--Subject to paragraph (4), the Special Counsel may commence, defend, or intervene in, and supervise the litigation of, any civil or administrative action authorized under this Act or the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.).
``(4) PROCEDURE FOR EXERCISE OF AUTHORITY TO LITIGATE OR APPEAL.--
``(A) IN GENERAL.--Prior to commencing, defending, or intervening in any civil action under this Act or the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.), the Special Counsel shall give written notification to, and attempt to consult with, the Attorney General with respect to the proposed action.
``(B) FAILURE TO RESPOND.--If, not later than 45 days after the date of provision of notification under subparagraph (A), the Attorney General has failed to commence, defend, or intervene in the proposed action, the Special Counsel may commence, defend, or intervene in, and supervise the litigation of, the action and any appeal of the action in the name of the Special Counsel.
``(C) AUTHORITY OF ATTORNEY GENERAL TO INTERVENE.--Nothing in this paragraph precludes the Attorney General from intervening on behalf of the United States in any civil action under this Act or the Agricultural Fair Practices Act of 1967 (7 U.S.C. 2301 et seq.), or in any appeal of such action, as may be otherwise provided by law.
``(c) Relationship to Other Provisions.--Nothing in this section modifies or otherwise effects subsections (a) and (b) of section 406.
``(d) Authorization.--There are authorized to be appropriated such sums as are necessary to carry out subsection (a)(2)(E).''.
(2) CONFORMING AMENDMENT.--Section 5315 of title 5, United States Code, is amended by adding at the end the following:
``Special Counsel for Agricultural Competition.''.
(f) Agribusiness Merger Review and Enforcement by the Department of Agriculture.--
(1) NOTICE.--The Assistant Attorney General or the Commissioner, as appropriate, shall notify the Secretary of any filing under section 7A of the Clayton Act (15 U.S.C. 18a) involving a merger or acquisition in the agricultural industry, and shall give the Secretary the opportunity to participate in the review proceedings.
(2) REVIEW.--
(A) IN GENERAL.--After receiving notice of a merger or acquisition under paragraph (1), the Secretary may submit to the Assistant Attorney General or the Commissioner, as appropriate, and publish the comments of the Secretary regarding that merger or acquisition, including a determination regarding whether the merger or acquisition may present significant competition and buyer power concerns, such that further review by the Assistant Attorney General or the Commissioner, as appropriate,
is warranted.
(B) SECOND REQUESTS.--For any merger or acquisition described in paragraph (1), if the Assistant Attorney General or the Chairman, as the case may be, requires the submission of additional information or documentary material under section 7A(e)(1)(A) of the Clayton Act (15 U.S.C. 18a(e)(1)(A))--
(i) copies of any materials provided in response to such a request shall be made available to the Secretary; and
(ii) the Secretary--
(I) shall submit to the Assistant Attorney General or the Chairman such additional comments as the Secretary determines appropriate; and
(II) shall publish a summary of any comments submitted under subclause (I).
(3) REPORT.--
(A) IN GENERAL.--The Secretary shall submit an annual report to Congress regarding the review of mergers and acquisitions described in paragraph (1).
(B) CONTENTS.--Each report submitted under subparagraph (A) shall provide a description of each merger or acquisition described in paragraph (1) that was reviewed by the Secretary during the year before the date that report is submitted, including--
(i) the name and total resources of each entity involved in that merger or acquisition;
(ii) a statement of the views of the Secretary regarding the competitive effects of that merger or acquisition on agricultural markets, including rural communities and small, independent producers; and
(iii) a statement indicating whether the Assistant Attorney General or the Chairman, as the case may be, instituted a proceeding or action under the antitrust laws, and if so, the status of that proceeding or action.
(g) Authorization for Additional Staff and Funding for the Grain Inspection, Packers, and Stockyards Administration.--There are authorized to be appropriated such sums as are necessary to enhance the capability of the Grain Inspection, Packers, and Stockyards Administration to monitor, investigate, and pursue the competitive implications of structural changes in the meat packing and poultry industries by hiring litigating attorneys to allow the Grain Inspection, Packers, and Stockyards
Administration to more comprehensively and effectively pursue its enforcement activities.
(As printed in the Congressional Record for the Senate on Nov 15, 2007.)
